Cardenas v. Sandie et al

Filing 14

ORDER that ECF No. 11 Motion to Dismiss is granted in part and denied in part. Petitioner to file a Motion as indicated in the order by 1/10/2018. See order for further details and instructions. Signed by Judge Miranda M. Du on 12/11/2017. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

***

10

JOEL CARDENAS,

11

Petitioner,

ORDER

v.

12
13

Case No. 3:15-cv-00476-MMD-VPC

ACTING WARDEN, et al.,
Respondents.

14
15
16

This represented habeas matter under 28 U.S.C. § 2254 comes before the Court

17

on respondents’ unopposed motion to dismiss (ECF No. 11). Respondents contend that

18

twenty-three grounds or subparts of grounds are unexhausted and that Ground 3(g) is

19

procedurally defaulted.

20

I.

BACKGROUND

21

Petitioner Joel Cardenas challenges his Nevada state conviction, pursuant to a

22

jury verdict, of sexual assault. He is sentenced on this conviction to life with the

23

possibility of parole after a minimum of ten years has been served, along with a special

24

sentence of lifetime supervision and a requirement that he register as a sexual offender.

25

Petitioner challenged his conviction on direct appeal and in a timely state post-

26

conviction petition. He was represented by counsel on direct appeal, and counsel also

27

was appointed during state post-conviction review both for the state district court

28

proceedings and on the post-conviction appeal.

1

II.

DISCUSSION

2

A.

Failure to Oppose Motion

3

Under Local Rule LR 7-2(d), “[t]he failure of an opposing party to file points and

4

authorities in response to any motion [with exceptions not applicable here] shall

5

constitute a consent to the granting of the motion." When an opposing party receives

6

notice and is given sufficient time to respond to a motion to dismiss, a district court does

7

not abuse its discretion in granting the motion based on failure to comply with a local

8

rule. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.1995). Before dismissing a case for

9

failing to follow local rules, the district court must weigh the following factors: (1) the

10

public's interest in expeditious resolution of litigation; (2) the court's need to manage its

11

docket; (3) the risk of prejudice; (4) the public policy favoring disposition of cases on

12

their merits and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

13

F.2d 1421, 1423 (9th Cir.1986).

14

In the present case, petitioner was given appropriate notice of respondents’

15

motion to dismiss; and he has had ample time to respond to the motion to dismiss,

16

which has been pending for over a year. The Court has weighed the above factors. It

17

finds that the public’s interest in expeditious resolution of litigation, particularly litigation

18

involving the validity of state criminal judgments, as well as the Court’s need to manage

19

its docket, outweigh the risk of prejudice and the remaining factors. The motion to

20

dismiss therefore will be granted in the first instance due to petitioner’s failure to

21

respond to the motion under the local rule, with the exception discussed infra based

22

upon the Court’s independent review of the motion.

23

B.

Exhaustion

24

Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state

25

court remedies on a claim before presenting that claim to the federal courts. To satisfy

26

this exhaustion requirement, the claim must have been fairly presented to the state

27

courts completely through to the highest state court level of review available. E.g.,

28

Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada,

2

1

329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the

2

specific federal constitutional guarantee upon which he relies and must also state the

3

facts that entitle him to relief on that federal claim. E.g., Shumway v. Payne, 223 F.3d

4

983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present

5

the state courts with both the operative facts and the federal legal theory upon which the

6

claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The

7

exhaustion requirement insures that the state courts, as a matter of federal-state comity,

8

will have the first opportunity to pass upon and correct alleged violations of federal

9

constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

10

Under Rose v. Lundy, 455 U.S. 509 (1982), and following cases, a mixed petition

11

presenting unexhausted claims must be dismissed unless the petitioner dismisses the

12

unexhausted claims and/or seeks other appropriate relief, such as a stay to return to the

13

state courts to exhaust the claims.

14

Following an independent review of petitioner’s state court briefing and the

15

orders of affirmance on the direct appeal and state post-conviction appeal,1 the Court is

16

persuaded that federal Grounds 1, 2(a) through 2(e), 2(g) through 2(l), 3(a), 3(b), 3(d),

17

3(e), 3(f), 3(h) through 3(k), 4 and 5 were neither fairly presented to nor actually

18

considered on the merits by the Supreme Court of Nevada. These claims therefore are

19

unexhausted.

20
21

The Court is not persuaded, however, that Ground 3(c), which pertains to
polygraph examinations of petitioner and the victim, is unexhausted.

22

On the post-conviction appeal, petitioner contended that he was denied effective

23

assistance of counsel when trial counsel stipulated to the admission of polygraph test

24

results and interviews of petitioner and the victim. He alleged, inter alia, that: (1) “Trial

25

Counsel allowed his client to undergo a polygraph examination thereby waiving his

26

Miranda Rights and then stipulated that the entire interview and the results be admitted

27
28

1See

ECF Nos. 12-6, 12-7, 12-14 and 13.

3

1

into evidence;” (2) “[t]here was absolutely no reason for Trial Counsel to allow his client

2

to undergo a polygraph examination in this case and to stipulate that both interviews

3

and test results be admitted into evidence;” (3) “[t]he jury should have never heard that

4

Appellant had failed a polygraph examination and or what the Appellant said during the

5

interview that accompanied the polygraph examination;” and (5) “there was a

6

reasonable probability of a different outcome but for Trial Counsel’s decision to stipulate

7

to allow the polygraph interviews and test results of Appellant and the alleged victim to

8

be admitted into evidence at trial.” (ECF No. 12-14 at 22-23.)2

9

In federal Ground 3(c), petitioner alleges that he was denied effective assistance

10

of trial counsel because counsel “failed to object to the introduction of polygraph results

11

and post examination statements.” (ECF No. 4 at 9.) This articulation of the same basic

12

claim neither fundamentally alters the exhausted claim nor places it in a different and

13

significantly stronger evidentiary posture than when it was presented to the state

14

supreme court. See generally Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en

15

banc) (allegedly new factual allegations do not render a claim unexhausted if the

16

allegations do not fundamentally alter the legal claim considered by the state courts or

17

place the case in a significantly different and stronger evidentiary posture than when the

18

state courts considered the claim). The difference between “stipulating to admission”

19

and “failing to object to admission” is not substantial. In both the state and federal

20

claims, petitioner essentially alleges that trial counsel was ineffective for allowing the

21

evidence to be presented to the jury without a defense objection. Ground 3(c) therefore

22

is exhausted.3

23
24
25
26
27
28

2All

page citations are to the page number in the electronic header generated by
CM/ECF rather than to any internal page numbering in the original document.
3Grounds 3(b), 3(d) and 3(f) also concern the polygraph examinations, either in
full or at least in part. These claims, however, fundamentally alter the legal claim
presented to the state supreme court and/or place the claim in a significantly different
and stronger evidentiary posture than when the state supreme court considered the
claim.
In Ground 3(b), petitioner alleges that counsel “coerced petitioner into taking [the]
polygraph examination while he was under heavy psychiatric medication, stating
(fn. cont...)

4

1

C.

Procedural Default

2

Respondents contend that Ground 3(g) is procedurally defaulted because the

3

state supreme court declined to consider the claim in the first instance on the state post-

4

conviction appeal because petitioner did not raise the claim in the state district court.

5

(See ECF No. 13 at 2.)

6

Under the procedural default doctrine, federal review of a habeas claim may be

7

barred if the state courts rejected the claim on an independent and adequate state law

8

procedural ground. Review of a defaulted claim will be barred even if the state court

9

also rejected the claim on the merits in the same decision. Federal habeas review will

10

be barred on claims rejected on an independent and adequate state law ground unless

11

the petitioner can demonstrate either: (a) cause for the procedural default and actual

12

prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage

13

of justice will result in the absence of review. See, e.g., Bennet v. Mueller, 322 F.3d

14

573, 580 (9th Cir. 2003).

15
16
17
18
19
20
21
22
23
24
25
26
27
28

(…fn. cont.)

petitioner would possibly be released afterwards.” (ECF No. 4, at 9.) Nothing in the
claim presented to the state high court alleged that counsel coerced petitioner, that
petitioner was under heavy psychiatric medication, or that counsel induced petitioner to
take the examination because it could lead to his release. All such allegations
fundamentally alter the claim and/or would seek to materially strengthen and change the
factual basis for the claim.
In Ground 3(d), petitioner alleges that counsel “failed to move for suppression of
[the] polygraph results and post examination statements [after] . . . Petitioner informed
counsel that he did not sign any stipulation agreement, was under heavy psychotic
medication at the time and his Miranda rights were not read to him before post
examination.” (ECF No. 4 at 9.) These allegations were not presented to the state
supreme court and would fundamentally alter and/or materially strengthen the claim.
With regard to Miranda warnings in particular, the claim in the state supreme court
alleged that counsel thereby allowed petitioner to waive his Miranda rights, not that the
Miranda warnings were not given in the first instance.
In Ground 3(f), petitioner alleges that counsel failed to object to prosecutorial
misconduct, including, inter alia, “the introduction of [the] polygraph exam results and
post examination statements without a signed stipulation agreement by petitioner [and
despite] the violation of state law [in] NRS 171.1228 by requesting [the] victim to take
the polygraph examination.” (ECF No. 4 at 10.) Nothing in the state court claim alleged
prosecutorial misconduct in presenting the evidence, that petitioner did not sign an
allegedly required stipulation to take the examination, or that state law was violated with
respect to the victim’s polygraph examination. These allegations would fundamentally
alter and/or materially strengthen the claim presented to the state supreme court.
Grounds 3(b), 3(d) and 3(f) therefore are unexhausted.

5

1

To demonstrate cause, the petitioner must establish that some external and

2

objective factor impeded his efforts to comply with the state’s procedural rule. E.g.,

3

Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate prejudice, he must show

4

that the alleged error resulted in actual harm. E.g., Vickers v. Stewart, 144 F.3d 613,

5

617 (9th Cir. 1998). Both cause and prejudice must be established. Murray, 477 U.S. at

6

494.

7

Petitioner, who has not opposed respondents’ motion, has not presented legal

8

and/or factual argument seeking to establish that the rule in question is not a state

9

procedural bar in the first instance, that the rule does not constitute an independent and

10

adequate state procedural ground, that he can demonstrate cause and prejudice to

11

overcome the procedural default,4 and/or that he can demonstrate a fundamental

12

miscarriage of justice based upon a sufficient showing of actual innocence. The

13

petitioner has an initial burden to place the independence and adequacy of the state

14

procedural ground at issue once the defense is raised by the respondents, Bennet, 322

15

F.3d at 584-86; and he otherwise has the burden of establishing cause and prejudice

16

and/or actual innocence. Accordingly, on the showing and arguments made, the Court

17

holds that Ground 3(g) is procedurally defaulted.

18

III.

CONCLUSION

19

It is therefore ordered that respondents’ motion to dismiss (ECF No. 11) is

20

granted in part and denied in part, such that: (a) the Court holds that Ground 3(c) is

21

exhausted;5 (b) the Court holds that Grounds 1, 2(a), 2(b), 2(c), 2(d), 2(e), 2(g), 2(h),

22

2(i), 2(j), 2(k), 2(l), 3(a), 3(b), 3(d), 3(e), 3(f), 3(h), 3(j), 3(k), 4 and 5 are unexhausted;

23

and (c) Ground 3(g) is dismissed with prejudice as procedurally defaulted.

24

///

25
26
27
28

4Petitioner

was represented by appointed counsel in the district court in the state
post-conviction proceedings. He accordingly cannot demonstrate cause on a per se
basis under Martinez v. Ryan, 566 U.S. 1 (2012), based upon not having counsel.
5Respondents have not challenged the exhaustion of Ground 2(f) and Ground
3(i).

6

1

It is further ordered that petitioner will have thirty (30) days from entry of this

2

order within which to dispatch to the Clerk for filing either: (1) a motion to dismiss

3

seeking partial dismissal only of the unexhausted claims listed in the preceding

4

paragraph; (2) a motion to dismiss the entire petition; and/or (3) a motion for other

5

appropriate relief, such as a motion for a stay and abeyance asking the Court to hold his

6

petition in abeyance while he returns to state court to exhaust the unexhausted claims.

7

If petitioner files a motion for partial dismissal only of the unexhausted claims, he must

8

repeat the list of the unexhausted claims set forth in the preceding paragraph verbatim

9

in his motion to dismiss in order to clearly identify the claims as to which he seeks

10

dismissal.

11

The entire petition will be dismissed without further advance notice for lack of

12

complete exhaustion if petitioner does not timely file an appropriate motion in response

13

to this order. Thus, if petitioner does nothing, the entire petition will be dismissed without

14

further advance notice.

15

DATED THIS 11th day of December 2017.

16
17
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28

7