Bolanos v. Baker et al

Filing 65

ORDER - It is therefore ordered that Respondents' motion to dismiss (ECF No. 58 ) is denied.It is further ordered that Respondents' motion for leave to file exhibits under seal (ECF No. 59 ) is granted. The exhibits wi ll remain under seal.It is further ordered that Respondents have 60 days from the date of this order (1/8/2024) to file an answer to the Petition.Bolanos will then have 45 days from the date of service of Respondents' answer to file a reply. Signed by Chief Judge Miranda M. Du on 11/9/2023. (Copies have been distributed pursuant to the NEF - DLS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ARTURO C. BOLANOS,

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Petitioner,

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Case No. 3:16-cv-00640-MMD-CSD
ORDER

v.
RENEE BAKER, et al.,

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Respondents.

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I.

SUMMARY

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In his 28 U.S.C. § 2254 habeas corpus petition Arturo C. Bolanos challenges his

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Washoe County, Nevada conviction by a jury of murder with use of a deadly weapon,

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three counts of attempted murder with use of a deadly weapon, and two counts of battery

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with a deadly weapon. (ECF No. 28.) Respondents have moved to dismiss three grounds

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in the petition as unexhausted, arguing that Bolanos presented these claims in the state

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courts solely as matters of state law. (ECF No. 58.1) Because the Court concludes that

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Bolanos fairly raised these claims as federal constitutional issues, and they are therefore

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exhausted, the motion to dismiss is denied.

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II.

BACKGROUND

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A.

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Bolanos’ convictions arose from a clash allegedly between rival gang members

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upon leaving a Reno bar in the early hours of one morning in October 2011. (See ECF

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Nos. 28, 58.) Bolanos was found guilty of firing several rounds with an AR-15 rifle at a

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truck with four people in it, killing one and injuring the other three. The state district court

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sentenced him to an aggregated sentence of life in prison with the possibility of parole

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State-Court Proceedings

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opposed, and Respondents replied. (ECF Nos. 61, 64.)

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after 541 months. (ECF No. 50-8.) Judgment of conviction was entered on May 2, 2014.

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(ECF No. 50-9.) The Nevada Supreme Court affirmed Bolanos’ convictions in November

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2015, and affirmed the denial of his state postconviction habeas petition in September

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2021. (ECF No. 53-11; ECF No. 56-29.)

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B.

Federal Habeas Proceedings

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About November 2016, Bolanos dispatched his pro se federal habeas petition for

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filing. (ECF No. 2.) He contemporaneously filed a motion to stay the case pending the

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final resolution of his state postconviction proceedings; the Court granted the motion.

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(ECF Nos. 4, 7.) When the Court granted Bolanos’ motion to reopen the case it also

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granted his motion for counsel. (ECF No. 13.) Through the Federal Public Defender,

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Bolanos filed a second-amended petition. (ECF No. 28.) He alleges 13 grounds for relief.

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(ECF No. 28 at 10-43.)

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III.

MOTION TO DISMISS

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Respondents seeks dismissal of grounds 1, 5 and 6 as unexhausted, asserting

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that they were not presented as federal constitutional claims to the state courts. (ECF No.

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58 at 5-6.) The Court disagrees.

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A federal court will not grant a state prisoner’s petition for habeas relief until the

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prisoner has exhausted his available state remedies for all claims raised. See Rose v.

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Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A habeas petitioner must “present the

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state courts with the same claim he urges upon the federal court.” Picard v. Connor, 404

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U.S. 270, 276 (1971). The federal constitutional implications of a claim, not just issues of

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state law, must have been raised in the state court to achieve exhaustion. See Ybarra v.

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Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). A claim

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is not exhausted unless the petitioner has presented to the state court the same operative

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facts and legal theory upon which his federal habeas claim is based. See Bland v.

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California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion

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requirement is not met when the petitioner presents to the federal court facts or evidence

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which place the claim in a significantly different posture than it was in the state courts, or
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where different facts are presented at the federal level to support the same theory. See

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Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d

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1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984).

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Moreover, a state prisoner is entitled to federal habeas relief only if she is being

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held in custody in violation of the constitution, laws, or treaties of the United States. See

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28 U.S.C. § 2254(a). Alleged errors in the interpretation or application of state law do not

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warrant habeas relief. See Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004); see

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also Murdoch v. Castro, 365 F.3d 699, 703 n.1 (9th Cir. 2004) (citing Jammal v. Van de

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Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (“We are not a State Supreme Court of errors .

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. . On federal habeas we may only consider whether the petitioner’s conviction violated

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constitutional norms.”)); see also Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990)

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(“noting that [the federal court] ha[s] no authority to review a state’s application of its own

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laws”).
A. Ground 1

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Bolanos argues that the trial court permitted the State to introduce evidence of his

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gang affiliation in violation of his Fifth, Sixth, and Fourteenth Amendment due process

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and fair trial rights. (ECF No. 28 at 10-13.) In his direct appeal, Bolanos had urged that

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the trial court violated his Fifth, Sixth, and Fourteenth Amendment due process and fair

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trial rights when it allowed testimony that Bolanos had at one time belonged to a Norteno

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gang and that the victims were members of the Surenos gang, which generally were rivals

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with the Nortenos. (ECF No. 53-1 at 40-49.) The Nevada Supreme Court disposed of this

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claim on state-law grounds. (Exh. 138, ECF No. 53-11 at 5.) However, Bolanos had

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argued to that court that the introduction of evidence of his past gang affiliation denied

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him “a fair opportunity to defend against the offense that is charged.” The Court concludes

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that Bolanos sufficiently apprised the Nevada Supreme Court of the federal nature of this

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claim on direct appeal. Federal ground 1, therefore, is exhausted.

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D. Grounds 5 and 6

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In ground 5, Bolanos contends that his Fifth, Sixth, and Fourteenth Amendment

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due process and fair trial rights were violated when the trial court allowed cell phone

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photos showing him in possession of a weapon and David Hudson’s testimony that the

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weapon in the photo may have been consistent with the murder weapon. (ECF No. 28 at

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24-27.) Bolanos argues in ground 6 that the trial court violated his Fifth, Sixth, and

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Fourteenth Amendment rights to due process and a fair trial when the court refused to

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give a jury instruction advising caution in considering the credibility of Hudson’s testimony.

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(Id. at 27-30.) Bolanos raised both of these claims verbatim on direct appeal. (ECF No.

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53-1 at 67-77; see also ECF No. 53-11 at 6-7.) The Court finds that Bolanos apprised the

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Nevada Supreme Court of the federal constitutional nature of these claims. Federal

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grounds 5 and 6 are exhausted.
As the three challenged grounds were properly exhausted in state court, the Court

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denies Respondents’ motion to dismiss.

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IV.

MOTION TO SEAL

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Respondents have also filed a motion for leave to file two exhibits under seal. (ECF

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No. 59.) While there is a presumption favoring public access to judicial filings and

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documents, a party seeking to seal a judicial record may overcome the presumption by

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demonstrating “compelling reasons” that outweigh the public policies favoring disclosure.

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See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978); Kamakana v. City

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and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations omitted). In

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general, “compelling reasons” exist where the records may be used for improper

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purposes. Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598).

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Here, Respondents ask to file Bolanos’ presentence investigation report (“PSI”)

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under seal because it is confidential under state law and contains sensitive, private

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information. They also ask that the Recommendation and Order for Payment of Interim

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Attorney Fees remain under seal because it was filed under seal in state court and has

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never been made available as part of the public record. The Court has reviewed the PSI
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and the order and concludes that Respondents have demonstrated compelling reasons

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to file them under seal. Accordingly, the Court grants the motion, and the two exhibits will

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remain under seal.

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V.

CONCLUSION

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It is therefore ordered that Respondents’ motion to dismiss (ECF No. 58) is denied.

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It is further ordered that Respondents’ motion for leave to file exhibits under seal

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(ECF No. 59) is granted. The exhibits will remain under seal.

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It is further ordered that Respondents have 60 days from the date of this order to

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file an answer to the Petition. The answer must contain all substantive and procedural

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arguments for all surviving grounds of the petition and comply with Rule 5 of the Rules

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Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254.

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Bolanos will then have 45 days from the date of service of Respondents’ answer to file a

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reply.

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DATED THIS 9th Day of November 2023.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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