Ramirez v. Baker et al, No. 3:2013cv00025 - Document 28 (D. Nev. 2015)
Court Description: ORDER granting in part 24 Motion to Dismiss (see order for details). Petitioner to have 30 days to either: (1) inform the Court that he wishes to abandon the unexhausted grounds; (2) inform the Court that he wants to dismiss this petition t o return to state court to exhaust his unexhausted claims; or (3) file a motion for a stay, asking this court to hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted claims. If Petitioner elects to abandon his unexhausted grounds, Respondents to have 30 days from Petitioner's declaration of abandonment to answer; Petitioner to reply within 30 days thereafter. Additional exhibits to be filed with separate index. Hard copies of any exhibits shall be forwarded, for this case, to staff attorneys in Reno. Petitioner's unopposed 25 Motion to Extend Time is granted nunc pro tunc. Signed by Judge Miranda M. Du on 7/7/2015. (Copies have been distributed pursuant to the NEF - KR)
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Ramirez v. Baker et al Doc. 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ARMANDO RAMIREZ, 10 Petitioner, ORDER v. 11 12 Case No. 3:13-cv-00025-MMD-VPC BAKER, et al., Respondents. 13 14 15 This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before 16 the Court is respondents’ motion to partially dismiss the amended petition. (Dkt. no. 17 24.) Petitioner has opposed the motion (dkt. no. 26), and respondents replied (dkt. no. 18 27). 19 I. PROCEDURAL HISTORY AND BACKGROUND 20 In February 2007, petitioner Armando Ramirez (“petitioner”) was convicted 21 pursuant to a jury trial of count 1: conspiracy to commit murder and count 2: first- 22 degree murder with the use of a deadly weapon (exhibits to amended petition, dkt. no. 23 17, Exh. 21).1 On April 10, 2007, petitioner was sentenced as follows: count 1 a 24 term of two to ten years; count 2 life with the possibility of parole plus an equal and 25 consecutive term for the use of the deadly weapon to run concurrent with count 1. 26 (Exh. 23.) The judgment of conviction was entered on May 15, 2007. (Exh. 24.) 27 28 1 All exhibits referenced in this order are exhibits to the amended petition, dkt. no. 17, and are found at dkt. nos. 18-22. Dockets.Justia.com Petitioner appealed, and the Nevada Supreme Court affirmed his convictions on 1 2 October 17, 2008. (Exh. 31.) Remittitur issued on November 12, 2008. (Exh. 30.) 3 On January 26, 2009, petitioner filed a state postconviction petition for writ of 4 habeas corpus. (Exh. 32.) The state district court appointed counsel, and counsel filed 5 a supplemental petition. (Exhs. 36, 56.) The state district court held an evidentiary 6 hearing on March 11, 2010. (Exh. 35.) The court allowed further briefing after the 7 hearing and denied the petition thereafter on April 29, 2010. (Exh. 37.) Petitioner, 8 through counsel, appealed, raising one claim for relief. (Exh. 42.) The Nevada 9 Supreme Court affirmed the district court’s denial of the petition on May 10, 2012. 10 (Exh. 44.) Remittitur issued on June 6, 2012. (Exh. 45.) 11 Petitioner dispatched his federal petition for writ of habeas corpus on January 12 13, 2013. (Dkt. no. 9.) This Court appointed counsel, and an amended petition was 13 filed on July 15, 2014. (Dkt. nos. 12, 17.) Respondents now argue that grounds 3 and 14 4 are unexhausted. (Dkt. no. 24.) 15 II. LEGAL STANDARD FOR EXHAUSTION 16 A federal court will not grant a state prisoner’s petition for habeas relief until the 17 prisoner has exhausted his available state remedies for all claims raised. Rose v. 18 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 19 courts a fair opportunity to act on each of his claims before he presents those claims in 20 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 21 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 22 petitioner has given the highest available state court the opportunity to consider the 23 claim through direct appeal or state collateral review proceedings. See Casey v. 24 Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 25 (9th Cir. 1981). 26 A habeas petitioner must “present the state courts with the same claim he urges 27 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 28 constitutional implications of a claim, not just issues of state law, must have been 2 1 raised in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 2 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state 3 court must be “alerted to the fact that the prisoner [is] asserting claims under the 4 United States Constitution” and given the opportunity to correct alleged violations of 5 the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. 6 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) 7 “provides a simple and clear instruction to potential litigants: before you bring any 8 claims to federal court, be sure that you first have taken each one to state court.” 9 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. at 10 520). “[G]eneral appeals to broad constitutional principles, such as due process, equal 11 protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala 12 v. Wood, 195 F.3d at 1106 (citations omitted). However, citation to state caselaw that 13 applies federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 14 1153, 1158 (9th Cir. 2003) (en banc). 15 A claim is not exhausted unless the petitioner has presented to the state court 16 the same operative facts and legal theory upon which his federal habeas claim is 17 based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). 18 The exhaustion requirement is not met when the petitioner presents to the federal 19 court facts or evidence which place the claim in a significantly different posture than it 20 was in the state courts, or where different facts are presented at the federal level to 21 support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); 22 Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 23 F. Supp. 455, 458 (D. Nev. 1984). 24 III. RELEVANT GROUNDS IN INSTANT PETITION 25 Petitioner sets forth four grounds for relief in his amended petition. (Dkt. no. 17 26 at 14-24.) Respondents argue that grounds 3 and 4 are unexhausted. (Dkt. no. 24 at 27 5-9.) 28 /// 3 1 A. Ground 3 2 In ground 3 of his federal petition, petitioner contends that the State violated his 3 constitutional rights to a fair trial, due process, and the right to accurate jury 4 instructions on the material elements of the charged offenses by failing to instruct the 5 jury that it was the State’s burden to prove petitioner did not act in self-defense or 6 under the heat of passion. (Dkt. no. 17 at 20-23.) Petitioner asserts that he presented 7 this claim to the Nevada Supreme Court in his direct appeal. (Dkt. no. 17 at 20; Exh. 8 27.) 9 In affirming petitioner’s convictions on direct appeal, the Nevada Supreme 10 Court stated that such self-defense instruction “should be provided ‘upon request.” 11 (Exh. 31 at 8, quoting Crawford v. State, 121 P.3d 582, 589 (Nev. 2005).) The court 12 then held that because petitioner did not request such an instruction he had no basis 13 for appeal and was not entitled to relief. (Id. at 8-9.) Petitioner now also asserts in 14 federal ground 3 that it subsequently came to light in his state postconviction 15 proceedings that his trial counsel did in fact request a self-defense instruction in 16 chambers. (Dkt. no. 17 at 20.) Petitioner states that “[t]he trial court simply neglected 17 to put this fact on the record.” (Id.) Thus, petitioner now argues that the Nevada 18 Supreme Court’s determination that his trial counsel did not request the instruction, 19 and therefore, petitioner is not entitled to relief, is clearly erroneous. (Id.) 20 Respondents argue that these additional allegations that trial counsel did 21 request a self-defense instruction in chambers render this a different claim than the 22 claim petitioner raised on direct appeal. (Dkt. no. 24 at 5-9.) Petitioner contends that 23 he raised this second portion of federal ground 3 as his sole claim in his appeal to the 24 Nevada Supreme Court of the denial of his state postconviction petition. (Dkt. no. 17 at 25 20; Exh. 42.) Petitioner is incorrect. The claim petitioner raised on appeal of his state 26 postconviction petition is that trial counsel rendered ineffective assistance when he 27 failed to preserve the objection to the denial of the requested self-defense instruction 28 /// 4 1 on the record. (Exh. 42.) Such claim is materially and factually distinct from federal 2 ground 3, and accordingly, federal ground 3 is unexhausted. 3 B. Ground 4 4 As federal ground 4, petitioner claims that his trial counsel rendered ineffective 5 assistance in violation of his Sixth and Fourteenth Amendment rights when he failed to 6 lodge the proper objections with respect to the jury instruction issues raised in grounds 7 1 through 3. (Dkt. no. 17 at 23-24.) The jury instructions at issue are: ground 1 a 8 “natural and probable consequences” theory of coconspirator liability; ground 2 an 9 aiding and abetting/use of a deadly weapon instruction; and ground 3 the self- 10 defense instruction. (Id. at 14-23.) Petitioner states that he presented his ineffective 11 assistance claims to the Nevada Supreme Court on direct appeal. (Id. at 23.) 12 Respondents point out that Nevada law generally requires claims of ineffective 13 assistance of counsel to be brought in postconviction proceedings. (Dkt. no. 24 at 7-8; 14 citing Pellegrini v. State, 34 P.3d 519 (Nev. 2001).) 15 In petitioner’s direct appeal, with respect to the jury instructions at issue in 16 federal grounds 1 and 2, petitioner referenced ineffective assistance of counsel at the 17 end of his argument as to each instruction: “Although trial counsel did not object to this 18 instruction, this issue should be considered as a matter of plain error. In the 19 alternative, trial counsel were ineffective as a matter of law for failing to object to this 20 instruction as there can be no strategic or tactical reason for the inclusion of this 21 instruction.” (Exh. 27 at 22, 23-24 (internal citations omitted).) 22 In Pellegrini v. State, the Nevada Supreme Court stated “we have generally 23 declined to address claims of ineffective assistance of counsel on direct appeal unless 24 there has already been an evidentiary hearing or where an evidentiary hearing would 25 be unnecessary.” Pellegrini v. State, 34 P.3d at 534. In his opposition to the motion to 26 dismiss, petitioner argues, without elaboration, that his “ineffective assistance of 27 counsel claim that there could be no strategic or tactical reason for failing to correct 28 incorrect jury instructions detrimental to the defense falls within that exception.” (Dkt. 5 1 no. 26 at 13.) This Court is not persuaded that the cursory, one-sentence reference to 2 ineffective assistance of counsel with respect to trial counsel’s failure to object to the 3 jury instructions on natural and probable consequences and aiding and abetting / 4 deadly weapon fairly presented these two ineffective assistance of counsel claims. 5 Notably, the single sentence does not address even in a conclusory fashion the 6 prejudice prong of Strickland.2 Moreover, in its order affirming the convictions, the 7 Nevada Supreme Court was silent regarding petitioner’s brief reference to ineffective 8 assistance of counsel. Such silence strongly suggests that any ineffective assistance 9 of counsel claims prior to any evidentiary hearing or opportunity to develop the 10 claims were not fairly presented to the Court on direct appeal. 11 Having reviewed the record and the parties’ arguments, this Court concludes 12 that the following portions of ground 4 are unexhausted: ground 4(a) ineffective 13 assistance of trial counsel for failure to object to the jury instruction that is the subject 14 of federal ground 1; and ground 4(b) ineffective assistance of trial counsel for failure 15 to object to the jury instruction that is the subject of federal ground 2. 3 The final portion 16 of federal ground 4: ground 4(c) ineffective assistance of trial counsel for failure to 17 object to the rejection of the self-defense jury instruction that is the subject of federal 18 ground 3 was presented to the Nevada Supreme Court in petitioner’s appeal of the 19 denial of his state postconviction petition. (Exh. 42.) Accordingly, federal ground 4(c) is 20 exhausted. 21 22 23 24 25 26 27 28 2 Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, 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. Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Id. 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. 3 This Court has designated the three claims in federal ground 4 as 4(a) through (c). 6 1 IV. PETITIONER’S OPTIONS REGARDING UNEXHAUSTED CLAIMS 2 A federal court may not entertain a habeas petition unless the petitioner has 3 exhausted available and adequate state court remedies with respect to all claims in 4 the petition. Rose v. Lundy, 455 U.S. at 510 t. A “mixed” petition containing both 5 exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the 6 Court finds that ground 3 is unexhausted, and the following claims in ground 4 are 7 unexhausted: ground 4(a) ineffective assistance of trial counsel for failing to object 8 to the natural and probable consequences jury instruction and ground 4(b) 9 ineffective assistance of trial counsel for failing to object to the aiding and abetting / 10 deadly weapon jury instruction (see federal ground 2). Respondents did not challenge 11 any other grounds as subject to dismissal for failure to exhaust. The petition is a 12 “mixed petition,” containing both exhausted and unexhausted claims, and therefore, 13 petitioner has these options: 14 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only on the remaining exhausted claims; 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without prejudice; or 3. 19 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. 20 With respect to the third option, a district court has discretion to stay a petition 21 that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). 22 The Rhines Court stated: 15 16 17 18 23 24 25 26 27 28 [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”). 7 1 Rhines, 544 U.S. at 277. Thus, the Court held that it likely would be an abuse of 2 discretion for a district court to deny a stay and to dismiss a mixed petition if the 3 petitioner had good cause for his failure to exhaust, his unexhausted claims are 4 potentially meritorious, and there is no indication that the petitioner engaged in 5 intentionally dilatory litigation tactics. Id. at 278. 6 V. 7 8 CONCLUSION It is therefore ordered that respondents’ motion to dismiss the amended petition (dkt. no. 24) is granted in part as follows: 9 1. Ground 3 is unexhausted. 10 2. The following portions of ground 4 are unexhausted: ground 4(a) 11 ineffective assistance of trial counsel for failing to object to the natural and probable 12 consequences jury instruction; and ground 4(b) ineffective assistance of trial 13 counsel for failing to object to the aiding and abetting / deadly weapon jury instruction. 14 15 3. Ground 4(c) ineffective assistance of trial counsel for failing to object to the rejection of the self-defense jury instruction — is exhausted. 16 It is further ordered that petitioner, through counsel, shall have thirty (30) days 17 to either: (1) inform this Court in a sworn declaration that he wishes to formally and 18 forever abandon the unexhausted grounds for relief in his federal habeas petition and 19 proceed on the exhausted ground; or (2) inform this Court in a sworn declaration that 20 he wishes to dismiss this petition without prejudice in order to return to state court to 21 exhaust his unexhausted claims; or (3) file a motion for a stay and abeyance, asking 22 this Court to hold his exhausted claim in abeyance while he returns to state court to 23 exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and 24 abeyance, or seek other appropriate relief, respondents may respond to such motion 25 as provided in Local Rule 7-2. 26 It is further ordered that if petitioner elects to abandon his unexhausted 27 grounds, respondents shall have thirty (30) days from the date petitioner serves his 28 declaration of abandonment in which to file an answer to petitioner’s remaining 8 1 grounds for relief. The answer shall contain all substantive and procedural arguments 2 as to all surviving grounds of the petition, and shall comply with Rule 5 of the Rules 3 Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. 4 It is further ordered that petitioner shall have thirty (30) days following service of 5 6 7 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. 8 It is further ordered that any additional state court record exhibits filed herein by 9 either petitioner or respondents shall be filed with a separate index of exhibits 10 identifying the exhibits by number. The CM/ECF attachments that are filed further shall 11 be identified by the number or numbers of the exhibits in the attachment. The hard 12 copy of any additional state court record exhibits shall be forwarded for this case 13 to the staff attorneys in Reno. 14 15 16 It is further ordered that petitioner’s unopposed motion to extend time to respond to the motion to dismiss (dkt. no. 25) is granted nunc pro tunc. DATED THIS 7th day of July 2015. 17 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 9
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