Martin v. Baca et al

Filing 42

ORDER granting in part and denying in part ECF No. 16 Motion to Dismiss (see order for details); granting ECF No. 28 Motion to Withdraw ECF No. 27 Exhibit; giving Petitioner 30 days to notify the Court re the unexhau sted grounds. If Petitioner elects to abandon unexhausted grounds, Respondents to file an answer within 30 days of Petitioner's declaration. Petitioner to reply within 30 days thereafter. Signed by Judge Robert C. Jones on 8/23/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD W. MARTIN,

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Case No. 3:15-cv-00036-RCJ-WGC
Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the court on

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respondents’ motion to dismiss several grounds in petitioner Richard W. Martin’s pro se

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petition (ECF No. 16). Martin initially moved for an extension of time to oppose the

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motion, which the court granted on January 25, 2016 (ECF No. 34). On February 5,

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2016, Martin filed a notice of appeal of the denial of his motion for appointment of

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counsel, which the Ninth Circuit dismissed for lack of jurisdiction (ECF Nos. 35, 37). On

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May 20, 2016, petitioner filed a notice of change of address (ECF No. 39). However,

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Martin has never filed an opposition to the motion to dismiss or responded to the motion

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in any way. Respondents filed their notice of petitioner’s failure to respond to the

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motion to dismiss on August 1, 2016 (ECF No. 41).

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I.

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On January 31, 2006, a jury convicted Martin of second-degree kidnapping and

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Procedural History and Background

attempted murder for forcing his wife into his vehicle, driving on the highway at high

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speed, threatening to crash the vehicle, and then in fact crashing the vehicle on an exit
ramp (exhibits 37 and 42 to respondents’ motion to dismiss, ECF No. 16).1

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The state district court sentenced Martin to 36 to 120 months on count I and to
72 to 184 months on count II, concurrent to count I. Exh. 43. Both counts were to run
consecutive to his sentence for a separate conviction of possession of a controlled
substance with the intent to sell. Id. Judgment of conviction was filed on March 29,
2006. Exh. 42.

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The Nevada Supreme Court affirmed the convictions on November 13, 2006, and
remittitur issued on December 8, 2006. Exhs. 68, 69.

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Martin filed a state postconviction habeas corpus petition on January 12, 2007. Exh.
71. The state district court appointed counsel and granted a motion to allow an accident
reconstruction expert report in support of the amended state petition. Exhs. 80, 138,
167. The court also conducted a hearing on Martin’s competency, exh. 212, and two
evidentiary hearings. Exhs. 110, 214-216. The state district court ultimately denied the
petition on December 30, 2013. Exh. 229. The order was amended the following day.
Exh. 230. On September 17, 2014, the Nevada Supreme Court affirmed the denial of
the petition, and remittitur issued on October 16, 2014. Exhs. 247, 249.

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Martin dispatched this federal habeas petition for mailing on or about January 15,
2015 (ECF No. 9). 2 Respondents have now filed a motion to dismiss several grounds
as noncognizable, unexhausted, or procedurally barred (ECF No. 16). As discussed,
Martin has failed to oppose the motion to dismiss. The court notes that, pursuant to
Local Rule 7-2(d), petitioner’s failure to oppose constitutes consent to the granting of
the motion.

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The exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 16, and
are found at ECF Nos. 18-26.
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It appears that Martin was discharged from Nevada Department of Corrections’ custody in May 2016
(see, e.g., ECF No. 39). In order for federal courts to have jurisdiction over a 28 U.S.C. § 2254 habeas
petition, petitioner must be in custody at the time of the filing of the petition. Spencer v. Kemna, 523 U.S.
1, 7 (1998); Maleng v. Cook, 490 U.S. 488, 490 (1989). However, once the petition is filed in federal
court, it does not matter if the petitioner is later released from custody for the purposes of the “in custody”
requirement. Carafas v. LaVallee, 391 U.S. 234, 237-238 (1968).

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II.

Legal Standards & Analysis

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act
(AEDPA), provides that this court may grant habeas relief if the relevant state court
decision was either: (1) contrary to clearly established federal law, as determined by
the Supreme Court; or (2) involved an unreasonable application of clearly established
federal law as determined by the Supreme Court.
A. Exhaustion
A federal court will not grant a state prisoner’s petition for habeas relief until the
prisoner has exhausted his available state remedies for all claims raised.

Rose v.

Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state
courts a fair opportunity to act on each of his claims before he presents those claims in
a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also
Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
petitioner has given the highest available state court the opportunity to consider the
claim through direct appeal or state collateral review proceedings. See Casey v. Moore,
386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.
1981).
Ground 1
Martin argues in ground 1 that the trial court denied his proper person motion
seeking the withdrawal of appointed counsel and appointment of replacement trial
counsel in violation of his Sixth Amendment right to counsel and his Fourteenth
Amendment right to a fair trial (ECF No. 9, pp. 3-4). Contrary to respondents’ assertion,
Martin raised this claim in his direct appeal.

Exh. 63, pp. 12-13.

Ground 1 is

exhausted.
Ground 2
Martin contends in ground 2 that his trial counsel rendered ineffective assistance in
violation of his Sixth Amendment rights by (1) refusing to engage in meaningful
consultations with petitioner and allow petitioner to assist in his own defense; (2)
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refusing to allow Martin to present his defense of choice; (3) refusing to conduct
reasonable investigations consistent with plausible lines of defense; (4) failing to
present expert witnesses at trial to impeach the state’s experts; (5) refusing Martin’s
request that counsel provide him with copies of the discovery; (6) failing to prepare
Martin for his testimony at trial; (7) failing to file a motion to suppress Martin’s
statements to police made without “effective” Miranda admonishments and while he was
hospitalized with severe head trauma; and (8) failing to present mitigating evidence at
sentencing (ECF No. 9, pp. 6-15). Martin acknowledges that he did not present federal
ground 2 to the Nevada Supreme Court. Id. at 16; see exhs. 53, 63, 243. Ground 2 is,
therefore, unexhausted.
Ground 3
In ground 3, Martin asserts that prosecutors withheld material, exculpatory video
evidence, depriving him of his Fourteenth Amendment right to a fair trial (ECF No. 9, pp.
17-18). This claim was not presented to the Nevada Supreme Court and is, therefore,
unexhausted. See exhs. 53, 63, 243.
Ground 4
In ground 4, Martin argues that his trial counsel was ineffective for failing to assert
Martin’s incompetence during the prior-bad-act hearing or at trial (ECF No. 9, pp. 2048).

Federal ground 4 was not presented to the Nevada Supreme Court and is,

therefore, unexhausted. See exhs. 53, 63, 243.
Ground 5
In ground 5, Martin contends that the trial court erred when it allowed prior-bad-act
evidence at trial even though Martin could not remember the incidents and failed to sua
sponte have Martin’s competency evaluated in violation of Martin’s Fourteenth
Amendment right to a fair trial (ECF No. 9, pp. 50-59). The court has carefully reviewed
Martin’s state-court filings and agrees with respondents that Martin did not present

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these claims to the Nevada Supreme Court.

See exhs. 53, 63, 243. Accordingly,

ground 5 is unexhausted.
B. Procedural Default
“Procedural default” refers to the situation where a petitioner in fact presented a
claim to the state courts but the state courts disposed of the claim on procedural
grounds, instead of on the merits. A federal court will not review a claim for habeas
corpus relief if the decision of the state court regarding that claim rested on a state law
ground that is independent of the federal question and adequate to support the
judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
The Coleman Court explained the effect of a procedural default:

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In all cases in which a state prisoner has defaulted his federal claims in
state court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The
procedural default doctrine ensures that the state’s interest in correcting its own
mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d
1039, 1046 (9th Cir. 2003).
To demonstrate cause for a procedural default, the petitioner must be able to “show
that some objective factor external to the defense impeded” his efforts to comply with
the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to
exist, the external impediment must have prevented the petitioner from raising the
claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991).
To demonstrate a fundamental miscarriage of justice, a petitioner must show the
constitutional error complained of probably resulted in the conviction of an actually
innocent person. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). “‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United

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States, 523 U.S. 614, 623 (1998). This is a narrow exception, and it is reserved for
extraordinary cases only. Sawyer v. Whitley, 505 U.S. 333, 340 (1992). Bare
allegations unsupplemented by evidence do not tend to establish actual innocence
sufficient to overcome a procedural default. Thomas v. Goldsmith, 979 F.2d 746, 750
(9th Cir. 1992).
Ground 6
Martin claims that the trial court erred in finding that he was competent to assist
counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights (ECF No. 9,
pp. 62-65). Martin raised this claim on direct appeal. Exh. 63. He raised it again in his
appeal of the denial of his state postconviction petition. Exh. 243. In affirming the
denial of the state petition, the Nevada Supreme Court noted that such a claim would be
subject to the mandatory procedural bar of NRS 34.810(1)(b) because it was a claim
that could have been raised on direct appeal. Exh. 247, p. 3. However, the state
supreme court also noted that Martin had already unsuccessfully challenged the
competency determination decision on direct appeal. Id. at 4. As the Nevada Supreme
Court considered federal ground 6 on the merits, it is exhausted and not procedurally
defaulted.
C. Claims Cognizable in Federal Habeas Corpus
A state prisoner is entitled to federal habeas relief only if he is being held in custody
in violation of the constitution, laws or treaties of the United States.

28 U.S.C. §

2254(a). Unless an issue of federal constitutional or statutory law is implicated by the
facts presented, the claim is not cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). A petitioner may not transform a state-law issue into
a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d
1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation or application of state
law do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir.
2004).

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Ground 12
Martin asserts that he is entitled to a new trial under state law because the jury
verdict was based on conflicting evidence (ECF No. 9, p. 72). As respondents point out,
this is a state-law claim, and therefore, shall be dismissed as noncognizable in federal
habeas corpus.
Ground 13
This is a claim that the cumulative effect of the errors set forth in this federal petition
violated Martin’s Fourteenth Amendment right to a fair trial (ECF No. 9, pp. 73-74). With
respect to the ineffective assistance of counsel claims, a separate cumulative error
claim for ineffective assistance of counsel is either noncognizable or duplicative of the
underlying ineffective assistance claims. In Strickland v. Washington, the Supreme
Court held that a petitioner claiming ineffective assistance of counsel has the burden of
demonstrating that (1) the attorney made errors so serious that he or she was not
functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
deficient performance prejudiced the defense. 466 U.S. 668, 687 (1984). To establish
ineffectiveness, the defendant must show that counsel’s representation fell below an
objective standard of reasonableness. Williams v. Taylor, 529 U.S. 362, 390-91 (2000).
To establish prejudice, the defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. Thus, the nature of the Strickland standard itself assesses the
cumulative effect of an attorney’s serious errors.
Accordingly, the portion of ground 13 that claims cumulative error of the ineffective
assistance of counsel claims is dismissed.
III.

Petitioner’s Options Regarding Unexhausted Claims
A federal court may not entertain a habeas petition unless the petitioner has

exhausted available and adequate state court remedies with respect to all claims in the
petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both

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exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the
court finds that (a) grounds 2, 3, 4, and 5 are unexhausted; and (b) ground 12 and the
portion of ground 13 claiming cumulative error of ineffective assistance of counsel
claims are dismissed for failure to state a claim cognizable in federal habeas corpus.
Because the court finds that the petition is a “mixed petition,” containing both exhausted
and unexhausted claims, petitioner has these options:

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1.
He may submit a sworn declaration voluntarily abandoning
the unexhausted claims in his federal habeas petition, and proceed only
on the exhausted claim;
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He may return to state court to exhaust his unexhausted
claims, in which case his federal habeas petition will be denied without
prejudice; or
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He may file a motion asking this court to stay and abey his
exhausted federal habeas claims while he returns to state court to exhaust
his unexhausted claims.
With respect to the third option, a district court has discretion to stay a petition
that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005).
The Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for
the petitioner’s failure to exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts
of the State”).
Rhines, 544 U.S. at 277.

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Accordingly, if petitioner files a motion for stay and abeyance, he would be

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required to show good cause for his failure to exhaust his unexhausted claims in state

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court, and to present argument regarding the question whether or not his unexhausted

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claims are plainly meritless.

respond, and petitioner to reply.

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Respondent would then be granted an opportunity to

Petitioner’s failure to choose any of the three options listed above, or seek other
appropriate relief from this court, will result in his federal habeas petition being
dismissed. Petitioner is advised to familiarize himself with the limitations periods for
filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations
periods may have a direct and substantial effect on whatever choice he makes
regarding his petition.
IV.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 16)

is GRANTED in part and DENIED in part as follows:
Ground 1 is exhausted;
Grounds 2, 3, 4, and 5 are unexhausted;
Ground 12 is dismissed as noncognizable in federal habeas corpus;
The portion of Ground 13 claiming cumulative error with respect to ineffective
assistance of counsel claims is dismissed as noncognizable in federal habeas corpus;
Ground 6 is not procedurally defaulted.
IT IS FURTHER ORDERED that respondents’ motion to withdraw exhibit 27
(ECF No. 28) is GRANTED.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either:
(1) inform this court in a sworn declaration that he wishes to formally and forever
abandon the unexhausted grounds for relief in his federal habeas petition and proceed
on the exhausted grounds; OR (2) inform this court in a sworn declaration that he
wishes to dismiss this petition without prejudice in order to return to state court to
exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking
this court to hold his exhausted claims in abeyance while he returns to state court to
exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and

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abeyance, or seek other appropriate relief, respondents may respond to such motion as
provided in Local Rule 7-2.
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted
grounds, respondents shall have thirty (30) days from the date petitioner serves his
declaration of abandonment in which to file an answer to petitioner’s remaining grounds
for relief. The answer shall contain all substantive and procedural arguments as to all
surviving grounds of the petition, and shall comply with Rule 5 of the Rules Governing
Proceedings in the United States District Courts under 28 U.S.C. §2254.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following
service of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within
the time permitted, this case may be dismissed.

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August 23, 2016
DATED: 5 August 2016.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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