Mendoza v. Baca et al

Filing 17

ORDER denying 12 Motion for District Judge to Reconsider Order. Signed by Judge Howard D. McKibben on 10/22/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL ANDRADE-MENDOZA,

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Petitioner,

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vs.

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3:15-cv-00280-HDM-WGC

ISIDRO BACA, et al.,

ORDER
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Respondents.
_______________________________/

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On July 16, 2015, the court ordered that it had examined the habeas corpus petition of the

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petitioner, Daniel Andrade-Mendoza, pursuant to Rule 4 of the Rules Governing Section 2254 Cases

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in the United States District Courts, and found it to be defective, in that Andrade-Mendoza has not

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exhausted, in state court, any claim cognizable in this federal habeas corpus action. See Order

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entered July 16, 2015 (ECF No. 5). The court granted Andrade-Mendoza an opportunity to show

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cause why this action should not be dismissed. See id.

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On August 12, 2015, Andrade-Mendoza filed a response to the order to show cause
(ECF No. 9), and a motion for appointment of counsel (ECF No. 8).
On September 23, 2015, the court ruled that Andrade-Mendoza did not show cause why this

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case should not be dismissed. See Order entered September 23, 2015 (ECF No. 10). The court

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denied the motion for appointment of counsel, dismissed this action without prejudice, and denied

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Andrade-Mendoza a certificate of appealability. See id.; see also Judgment (ECF No. 11).

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Andrade-Mendoza’s response to the order to show cause failed to show that he has exhausted

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in state court any claim that might be cognizable in this federal habeas corpus action. No such claim

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was exhausted on his direct appeal, and his first state habeas action remains pending in the state

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district court.

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Andrade-Mendoza complained that his appellate counsel was ineffective in not raising any

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federal constitutional claims on his direct appeal, but, as the court stated in its September 23 order,

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any claim of ineffective assistance of appellate counsel must be exhausted in Andrade-Mendoza’s

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state habeas action, which remains pending, before he may assert such a claim in a federal habeas

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corpus action.

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Andrade-Mendoza requested that this federal action be stayed. In some cases a federal

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district court may permit the filing of a federal habeas petition even though it contains no claims

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exhausted in state court. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); Bonner v. Carey, 425

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F.3d 1145, 1149 n.20 (9th Cir.2005). In Pace, the Supreme Court stated that a petitioner might file

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“a ‘protective’ petition in federal court and [ask] the federal court to stay and abey the federal habeas

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proceeding until state remedies are exhausted.” Pace, 544 U.S. at 416. “A petitioner’s reasonable

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confusion about whether a state filing would be timely will ordinarily constitute “good cause” for

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him to file in federal court.” Id. In the September 23 order, the court found that there is no showing

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of any reason for confusion regarding the timeliness of Andrade-Mendoza’s pending state habeas

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action. The court stated that Andrade-Mendoza’s federal habeas petition simply appears to be

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premature, and there is no showing of good cause for a stay of this action. See Order entered

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September 23, 2015 (ECF No. 10).

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On October 1, 2015, Andrade-Mendoza filed a “Motion to Reconsider, Rule 8(e), Rule 11(e),

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or, in Alternative, Motion to Make Additional Findings, Rule 52(b)” (ECF No. 12). Respondents

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filed an opposition to the motion for reconsideration on October 6, 2015 (#13). Andrade-Mendoza

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filed a reply on October 15, 2015 (ECF No. 14).

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On October 21, 2015, Andrade-Mendoza filed a notice of appeal (ECF No. 15).

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The court construes Andrade-Mendoza’s October 1, 2015, motion as a motion for

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reconsideration, made pursuant to Federal Rules of Civil Procedure 59(e) and 60(b), and denies it.

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Andrade-Mendoza’s claims remain wholly unexhausted. He does not show there to be an “absence

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of available State corrective process,” or “circumstances ... that render such process ineffective to

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protect” his rights. See 28 U.S.C. § 2254 (b)(1)(B). Andrade-Mendoza had a direct appeal, in which

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he did not exhaust any claim cognizable in this federal habeas corpus action, and he is currently

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litigating a state habeas corpus action. Andrade-Mendoza has shown no cause for reconsideration of

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the September 23, 2015, order, and judgment.

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IT IS THEREFORE ORDERED that petitioner’s “Motion to Reconsider, Rule 8(e), Rule

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11(e), or, in Alternative, Motion to Make Additional Findings, Rule 52(b)” (ECF No. 12) is

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DENIED.

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Dated this 22nd day of October, 2015.

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UNITED STATES DISTRICT JUDGE
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