Bowles v. Baca et al

Filing 20

ORDER -- Respondents' motion to dismiss (ECF No. 13 ) is granted in part and denied in part as specified herein. By 6/15/2019 Petitioner must file either motion to dismiss unexhausted claims, a motion to dismiss entire petition to return to state court, or a motion for other appropriate relief including stay and abeyance. Signed by Judge Miranda M. Du on 5/16/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRAVIS BOWLES,

Case No. 3:18-cv-00272-MMD-WGC
Petitioner,

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ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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I.

INTRODUCTION

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This pro se habeas petition filed under 28 U.S.C. § 2254 comes before the Court

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on Respondents’ motion to dismiss. (ECF No. 13.) Petitioner challenges his state court

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judgment of conviction, following a jury trial, of six counts of lewdness with a child under

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the age of fourteen. (Exhibit (“Ex.”) 59.) 1 Respondents argue the petition is partially

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unexhausted, procedurally defaulted, and non-cognizable. (ECF No. 13.) Petitioner has

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not opposed, and the time for doing so has expired.

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II.

DISCUSSION

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A.

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

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

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

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completely—to the highest state court level of review available. See e.g., Peterson v.

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Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069,

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1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal

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constitutional guarantee and must also state the facts that entitle the petitioner to relief

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1The

Exhaustion

Court refers to the exhibits filed at ECF Nos. 14–18.

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on the federal constitutional claim. See e.g., Shumway v. Payne, 223 F.3d 983, 987 (9th

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Cir. 2000). That is, fair presentation requires that the petitioner present the state courts

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with both the operative facts and the federal legal theory upon which the claim is based.

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See e.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion

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requirement ensures that the state courts, as a matter of federal-state comity, will have

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

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guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Respondents argue that Ground 7, in part, Ground 8, and Ground 9 of the petition

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are unexhausted. (ECF No. 13 at 5-7.) The Court will address each ground in turn.
1. Ground 7

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In Ground 7, Petitioner alleges ineffective assistance of counsel. (ECF No. 4 at

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15.) Ground 7(1) 2 asserts that Public Defender Nickel, who had a conflict of interest,

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improperly represented Petitioner for three months before moving to withdraw. Ground

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7(2) asserts that Nickel was ineffective for failing to challenge two continuances of the

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preliminary hearing without Petitioner’s consent, and that this also violated his speedy

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trial rights. Ground 7(3) asserts that Nickel was ineffective for failing to challenge the

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Affidavit of Probable Cause and the five criminal complaints that were submitted, added,

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changed or replaced without procedural due process. Ground 7(4) asserts that Nickel

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failed at the preliminary hearing to object to the prosecutor’s leading questions of its own

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complaining witness. Finally, Ground 7(5) asserts that Nickel was ineffective for failing to

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cross examine the State’s witness as to prior consistent statements and for failing to

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demand discovery.

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2Respondents

refer to the sub-parts of Ground 7 as 7(a) through 7(e). However,
Petitioner has provided his own numbering, (1) through (5), so the Court references
Ground 7’s subparts using Petitioner’s designations in the petition.
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Save for Ground 7(1), which is exhausted, the remainder of Ground 7 has never

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been presented to, nor actually decided by, the state’s highest courts. (See Exs. 75, 81,

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83, 161, 167, 169.) Grounds 7(2) through 7(5) are therefore unexhausted.
2. Ground 8

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In Ground 8, Petitioner asserts that appellate counsel was ineffective for failing to

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raise numerous instances of prosecutorial misconduct and vindictiveness, but he does

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not elaborate on what those instances were. The remainder of Ground 8 complains of the

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state court’s handling of this claim during postconviction proceedings. (ECF No. 4 at 17.)

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As will be discussed infra, the latter part of Ground 8 is not a cognizable claim. The

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remainder of Ground 8 is unexhausted, as it has not ever been presented to or actually

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decided by the state’s highest courts. (See Exs. 75, 81, 83, 161, 167, 169.)
3. Ground 9

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In Ground 9, Petitioner asserts that appellate counsel was ineffective for not

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arguing that the district court failed to confirm it had jurisdiction over the petitioner, violated

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his due process rights, and allowed leading questions of the two minor complaining

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witnesses during the preliminary hearing. (ECF No. 4 at 19.) None of these claims has

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been presented to, or actually decided by, the state’s highest courts. (See Exs. 75, 81,

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83, 161, 167, 169.) Ground 9 is therefore unexhausted.

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B.

PROCEDURAL DEFAULT

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Respondents argue that Ground 4 is procedurally defaulted. (ECF No. 13 at 8.)

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Ground 4 asserts counsel was ineffective for failing to argue that the criminal statute under

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which Petitioner was convicted was unconstitutional as applied. (ECF No. 4 at 9.)

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Respondents, apparently interpreting Ground 4 as asserting only the underlying

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substantive claim, argue that Ground 4 is procedurally defaulted because the Nevada

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Court of Appeals found the substantive claim procedurally barred.

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A federal court cannot review a claim “if the Nevada Supreme Court denied relief

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on the basis of ‘independent and adequate state procedural grounds.’” Koerner v. Grigas,

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328 F.3d 1039, 1046 (9th Cir. 2003) (citation omitted). In Coleman v. Thompson, the

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Supreme Court held that a state prisoner who fails to comply with the state’s procedural

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requirements in presenting his claims is barred from obtaining a writ of habeas corpus in

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federal court by the adequate and independent state ground doctrine. See 501 U.S. 722,

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731-32 (1991). A state procedural bar is “adequate” if it is “clear, consistently applied, and

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well-established at the time of the petitioner's purported default.” Calderon v. United

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States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). A state procedural bar

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is “independent” if the state court “explicitly invokes the procedural rule as a separate

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basis for its decision.” Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state

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court’s decision is not “independent” if the application of the state’s default rule depends

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on the consideration of federal law. See Park v. California, 202 F.3d 1146, 1152 (9th Cir.

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2000).

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Respondents are correct that the Nevada Court of Appeals found the substantive

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as-applied claim procedurally barred pursuant to Nev. Rev. Stat. § 34.810(1)(b), as it

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could have been, but was not, raised on direct appeal. (Ex. 169 at 5.) The Ninth Circuit

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has held that application of this bar is an independent and adequate state ground for

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procedural default. See Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). Thus, the

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substantive aspect of Ground 4—to the extent it is asserted—is procedurally defaulted.

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Where such a procedural default constitutes an adequate and independent state

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ground for denial of habeas corpus, the default may be excused only if “a constitutional

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violation has probably resulted in the conviction of one who is actually innocent,” or if the

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prisoner demonstrates cause for the default and prejudice resulting from it. See Murray

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v. Carrier, 477 U.S. 478, 496 (1986).

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To demonstrate cause for a procedural default, the petitioner must “show that

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some objective factor external to the defense impeded” his efforts to comply with the state

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procedural rule. See Murray, 477 U.S. at 488. For cause to exist, the external impediment

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must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499

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U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden

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of showing not merely that the errors [complained of] constituted a possibility of prejudice,

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but that they worked to his actual and substantial disadvantage, infecting his entire

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[proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603

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(9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

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Petitioner has failed to argue, much less establish, cause and prejudice to excuse

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the procedural default of the substantive aspect of Ground 4. The motion to dismiss

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Ground 4 to the extent it asserts the substantive as-applied claim will therefore be

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granted. The procedural default does not, at this juncture at least, extend to all of Ground

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4. As noted, Ground 4 is primarily an ineffective assistance of counsel claim. That claim

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has never been presented to the state’s highest courts and is therefore unexhausted.

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Accordingly, Ground 4 is procedurally defaulted to the extent it asserts a substantive as-

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applied constitutional claim and unexhausted to the extent it asserts an ineffective

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assistance of counsel claim.

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C.

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In the latter part of Ground 5, which Respondents designate as 5B, Petitioner

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asserts that the state district court violated his Fifth Amendment due process rights by not

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conducting an evidentiary hearing on his claim that counsel was ineffective for failing to

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challenge the language of the charging documents and jury instructions. (ECF No. 4 at

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11.) In part of Ground 6, which Respondents designate as 6B, Petitioner asserts that the

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district court failed to conduct an evidentiary hearing on his postconviction claim that

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counsel was ineffective for failing to file a motion to suppress. (ECF No. 4 at 13.)

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Respondents correctly argue that these claims are not cognizable on federal habeas

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review. See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[E]rrors in the state

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post-conviction review process [are] not addressable through habeas corpus

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proceedings.”). The motion to dismiss Grounds 5 and 6 in part, to the extent they assert

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the above claims based on state postconviction proceedings, will therefore be granted.

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COGNIZABLE CLAIMS

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Ground 8 also asserts, in part, a similar claim based on the trial court’s handling of

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the postconviction petition. To this extent, Ground 8 is not cognizable, and will also be

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dismissed.

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III.

OPTIONS ON A MIXED PETITION

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A federal court may not entertain a habeas petition unless the petitioner has

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exhausted all available and adequate state court remedies for all claims in the petition.

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See 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. Because Petitioner’s

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petition is mixed, he has three options:
1. File a motion to dismiss seeking partial dismissal of only the unexhausted

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claims;
2. File a motion to dismiss the entire petition without prejudice in order to return to

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state court to exhaust the unexhausted claims; and/or

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3. File a motion for other appropriate relief, such as a motion for a stay and

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abeyance asking this Court to hold his exhausted claims in abeyance while he returns to

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state court to exhaust the unexhausted claims.

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IV.

It is therefore ordered that Respondents’ motion to dismiss (ECF No. 13) is granted

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CONCLUSION

in part and denied in part as follows:

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1.

Grounds 4, in part, 7(2), 7(3), 7(4), 7(5), 8 and 9 are unexhausted;

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2.

Ground 4 is dismissed with prejudice, in part, to the extent it asserts a

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substantive constitutional as-applied claim as procedurally defaulted; and
3.

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Grounds 5, 6 and 8 are dismissed with prejudice to the extent they assert

claims based on errors in the state postconviction process.

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It is further ordered that, within 30 days of the date of entry of this order, Petitioner

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must file either: (1) a motion to dismiss the unexhausted claims without prejudice; (2) a

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motion to dismiss the entire petition without prejudice so that he may return to state court

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to exhaust his unexhausted claims; or (3) a motion for other appropriate relief, including

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a motion to stay and abey his exhausted claims while he returns to state court to exhaust

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his unexhausted claims. Failure to timely comply with this order will result in the dismissal

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of this mixed petition without prejudice, and without further advance notice.

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DATED THIS 16th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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