-PAL Ceballos v. Williams et al, No. 2:2007cv01023 - Document 41 (D. Nev. 2011)
Court Description: ORDER Denying 37 Motion for Order to Show Cause and the Petition shall be DISMISSED with prejudice as to all remaining claims; Certificate of appealability is DENIED; GRANTING 39 Motion to receive free copies only to the extent that the clerk sh all provide a copy of the docket sheet with this order; GRANTING 40 Motion/Application for Leave to Proceed in forma pauperis prospectively only. Clerk of Court shall enter final judgment against petitioner and in favor of respondents, dismissing the petition with prejudice as untimely. Signed by Judge Gloria M. Navarro on 4/14/2011. (CC: Catherine Cortez Masto and Copies have been distributed pursuant to the NEF - SLR)
Download PDF
<![CDATA[
-PAL Ceballos v. Williams et al Doc. 41 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 PABLO CEBALLOS, 8 Petitioner, 2:07-cv-01023-GMN-PAL 9 vs. ORDER 10 11 BRIAN WILLIAMS, et al., 12 Respondents. 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte 15 inquiry into whether the remaining grounds in the petition – Grounds 1, 2, 3 and 5 – are 16 barred by procedural default and/or on the merits as to Ground 5. The matter also is before 17 the Court on petitioner’s response to the show cause order (#34) on these issues, which he 18 has submitted as a motion (#37) to show cause; his motion (#39) to receive free copies; and 19 his application (#40) to proceed in forma pauperis. Background 20 21 Petitioner Pablo Ceballos challenges his 2003 Nevada state conviction, pursuant to 22 a jury verdict, of one count of burglary and one count of uttering a forged instrument as well 23 as his adjudication by the state district court as a habitual criminal. Prior to filing the present 24 federal habeas petition in 2007, petitioner challenged the conviction and/or habitual criminal 25 adjudication on direct appeal and in a state post-conviction petition that was pursued through 26 a state post-conviction appeal. 27 In the federal petition, petitioner presented five grounds. Grounds 1 through 4 in the 28 federal petition were not exhausted in the first state post-conviction proceedings. It appears Dockets.Justia.com 1 that corresponding claims were raised initially in the state post-conviction petition in the state 2 district court. However, it is undisputed that the claims were not presented to the Supreme 3 Court of Nevada on the appeal from the denial of the first state post-conviction petition. This 4 Court granted petitioner’s motion for a stay of the federal proceedings in 2008, and he 5 returned to state court to seek to exhaust the claims.1 6 Petitioner thereafter filed a second state post-conviction petition asserting, inter alia, 7 claims corresponding to federal Grounds 1 through 3.2 The Supreme Court of Nevada held 8 that these claims were procedurally barred under Nevada state law because the second 9 petition was both untimely and successive. The state supreme court held, inter alia, that 10 petitioner’s failure to exhaust state remedies for purposes of federal habeas relief did not 11 present good cause for filing “a late and successive petition raising the same claims 12 abandoned in the first post-conviction proceedings.” The state high court further held that an 13 allegation of alleged ineffective assistance of post-conviction counsel based upon counsel’s 14 failure to pursue the claims on the first state post-conviction appeal did not present cause.3 15 The state court record materials further reflect the following with regard to the claims 16 in federal Ground 5. In this ground, petitioner presents an Apprendi4 claim based upon the 17 failure to submit the habitual criminal adjudication to the jury. When petitioner presented a 18 corresponding substantive claim in his first state post-conviction petition, the Supreme Court 19 of Nevada held that the claim was procedurally barred because the claim could have been 20 raised on direct appeal but was not.5 The state high court further held in the same order that 21 petitioner’s appellate counsel had not been ineffective for failing to raise the substantive claim 22 1 23 See #16, at 3-4; ## 17-19. 2 24 The rem aining state law ground presented in the second state petition failed to exhaust Ground 4, which has been voluntarily dism issed by petitioner. See #34. 25 3 See Septem ber 29, 2009, Order of Affirm ance, at 2-3 (filed with #22-1, at electronic docketing pages 27 4 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 28 5 See April 26, 2007, Order of Affirm ance (filed with #15), at 3 n .6. 26 37-40). -2- 1 on direct appeal because the substantive claim did not have a reasonable probability of 2 success on appeal. The court reached this conclusion because of its holding in a prior case 3 that the habitual criminal adjudication was not required to be submitted to the jury under 4 Apprendi and its progeny. Id., at 2-3. Governing Law 5 6 Under the procedural default doctrine, federal review of a habeas claim may be barred 7 if the state courts rejected the claim on an independent and adequate state law ground due 8 to a procedural default by the petitioner. Review of a defaulted claim will be barred even if 9 the state court also rejected the claim on the merits in the same decision. Federal habeas 10 review will be barred unless the petitioner can demonstrate either: (a) cause for the 11 procedural default and actual prejudice from the alleged violation of federal law; or (b) that 12 a fundamental miscarriage of justice will result in the absence of review. See,e.g., Bennet v. 13 Mueller, 322 F.3d 573, 580 (9th Cir. 2003). 14 To demonstrate cause for a procedural default, the petitioner must establish that some 15 external and objective factor impeded his efforts to comply with the state’s procedural rule. 16 E.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); 17 Hivala v. Wood, 195 F.3d 1098, 1105 (9th Cir. 1999). To satisfy the prejudice requirement, 18 he must show that the alleged error resulted in actual harm. E.g., Vickers v. Stewart, 144 19 F.3d 613, 617 (9th Cir. 1998). 20 U.S. at 494, 106 S.Ct. at 2649. Both cause and prejudice must be established. Murray, 477 21 A petitioner who cannot show cause and prejudice still may obtain review of his 22 defaulted claims if he can demonstrate that the failure to consider the claims would result in 23 a fundamental miscarriage of justice. In noncapital cases, however, this exception has been 24 recognized only for petitioners who can demonstrate actual innocence. E.g., Poland v. 25 Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997). In order to satisfy this actual innocence 26 gateway, a petitioner must come forward with new reliable evidence that was not presented 27 at the trial that, together with the evidence adduced at trial, demonstrates that it is more likely 28 than not that no reasonable juror would have found the petitioner guilty beyond a reasonable -3- 1 doubt. See,e.g., Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see 2 also Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003), cert. denied, 124 S.Ct. 2039 3 (2004). In this regard, “actual innocence” means actual factual innocence, not mere legal 4 insufficiency. See,e.g., Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-19, 120 5 L.Ed.2d 269 (1992). Discussion 6 Procedural Default of Grounds 1, 2 and 3 7 8 Grounds 1, 2 and 3 were not presented to the state supreme court on the appeal from 9 the denial of the first state post-conviction petition. These claims were exhausted in the 10 second state petition. The state supreme court affirmed the dismissal of the second petition 11 on the basis that the second petition was both untimely and successive under Nevada state 12 law. 13 Petitioner in essence seeks to establish cause and prejudice overcoming the 14 procedural default of these claims based upon alleged ineffective assistance of state post- 15 conviction counsel. He maintains that state post-conviction counsel failed to himself “set” 16 these claims for an evidentiary hearing and failed to pursue the claims thereafter on the first 17 state post-conviction appeal.6 Alleged ineffective assistance of state post-conviction counsel 18 does not provide a basis for cause to overcome a procedural default, because a petitioner 19 has no Sixth Amendment right to state post-conviction counsel. See,e.g., Cook v. Schriro, 20 538 F.3d 1000, 1027-28 (9th Cir. 2008). 21 Petitioner further urges that a “miscarriage of justice” will result in the absence of 22 review of a claim that he was denied effective assistance of counsel when trial counsel 23 allowed a favorable plea bargain “slip away” in advance of his trial without consulting him.7 24 It is established law that the miscarriage of justice exception to the procedural default doctrine 25 26 6 27 7 28 Cf. April 26, 2007, Order of Affirm ance (filed with #15)(claim s presented on post-conviction appeal). Such a claim potentially corresponds to claim s in Grounds 1 and 3, but the Court expresses no definitive opinion as to whether the factual assertions in the show cause response actually present the sam e factual basis as the claim s in Grounds 1 and 3. Com pare #37 , at 5-6, with #16, at 3. -4- 1 is limited to claims of actual innocence. See,e.g., Johnson v. Knowles, 541 F.3d 933 (9th Cir. 2 2008); Poland, 117 F.3d at 1106. A petitioner who asserts only procedural violations without 3 establishing actual innocence under the narrow and demanding Schlup gateway for such a 4 claim fails to meet the standard for the miscarriage of justice exception. Johnson, 541 F.3d 5 at 937. Petitioner’s argument – in which he implicitly concedes guilt at the very least as to 6 lesser associated charges and does not affirmatively challenge guilt as to any charge – falls 7 considerably short of even beginning to shoulder his burden of demonstrating a fundamental 8 miscarriage of justice for purposes of the procedural default doctrine.8 9 Petitioner further refers to the fact that the Court found that he had presented good 10 cause for the failure to exhaust Grounds 1 through 3 when it granted his motion for a stay and 11 abeyance. The Court specifically stated as follows, however: The Court expresses no opinion as to whether the circumstances presented satisfy the cause and prejudice standard with respect to any claim of procedural default. The Court’s holding herein should not be read as an express or implied holding on this issue or any other issue. The Court holds only, out of an abundance of caution, that the criteria for a stay under Rhines [v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005),] have been satisfied, and its findings and holding are expressly limited to that specific context. 12 13 14 15 16 17 #19, at 2, lines 1-6. Nothing in the prior stay order resolves the procedural default issues now before the 18 19 20 Court. Grounds 1, 2 and 3 accordingly are procedurally defaulted. 21 22 23 8 The show cause order set forth the standard for dem onstrating a fundam ental m iscarriage of justice, #34, at 3-4; and the order further provided, inter alia: 24 . . . . If petitioner responds but fails to dem onstrate, with com petent supporting evidence, that the grounds in the petition are not subject to dism issal, the claim s in the petition will be dism issed on the basis of procedural default and/or on the m erits as applicable. All assertions of fact m ust be supported by com petent evidence. Any assertions of fact not m ade pursuant to an affidavit, declaration under penalty of perjury, or other com petent and adm issible evidence will not be considered. 25 26 27 28 #34, at 5. -5- 1 Procedural Default of Ground 5 2 As summarized previously, in federal Ground 5, petitioner presents an Apprendi claim 3 based upon the failure to submit the habitual criminal adjudication to the jury. When petitioner 4 presented a corresponding substantive claim in his first state post-conviction petition, the 5 Supreme Court of Nevada held that the claim was procedurally barred because the claim 6 could have been raised on direct appeal but was not.9 The state high court further held in the 7 same order that petitioner’s appellate counsel had not been ineffective for failing to raise the 8 substantive claim on direct appeal because the substantive claim did not have a reasonable 9 probability of success on appeal. The court reached this conclusion because of its holding 10 in a prior case that the habitual criminal adjudication was not required to be submitted to the 11 jury under Apprendi and its progeny.10 12 A habeas petitioner may establish cause and prejudice based upon alleged ineffective 13 assistance of appellate counsel in failing to raise a claim on direct appeal in the original 14 criminal proceedings. See,e.g., Cockett v. Ray, 333 F.3d 938, 943-44 (9th Cir. 2003). 15 Petitioner clearly cannot establish ineffective assistance of appellate counsel based upon 16 counsel’s failure to raise the Apprendi issue on direct appeal because the failure to raise a 17 meritless argument does not constitute ineffective assistance. See,e.g., Jones v. Smith, 231 18 F.3d 1227, 1239 n. 8 (9th Cir.2000)(no prejudice when appellate counsel fails to raise an 19 issue on direct appeal that is not grounds for reversal); Miller v. Keeney, 882 F.2d 1428, 1434 20 (9th Cir.1989)(appellate counsel remains above objective standard of competence and does 21 not cause client prejudice when counsel declines to raise a weak issue on appeal); Boag v. 22 Raines, 769 F.2d 1341, 1344 (9th Cir.1985)(“Failure to raise a meritless argument does not 23 constitute ineffective assistance.”). Both the Ninth Circuit and the Supreme Court of Nevada 24 have held that Nevada’s habitual criminal sentencing statute does not violate Apprendi in not 25 submitting the habitual criminal adjudication for a jury determination. Tilcock v. Budge, 538 26 27 9 28 10 See April 26, 2007, Order of Affirm ance (filed with #15), at 3 n.6. Id., at 2-3. -6- 1 F.3d 1138, 1143-45 (9th Cir. 2008); O’Neill v. State, 123 Nev. 9, 153 P.3d 38 (2007). 2 Petitioner accordingly cannot demonstrate cause and prejudice overcoming the default of 3 Ground 5. 4 5 Ground 5 accordingly is procedurally defaulted. Lack of Merit of Ground 5 6 Petitioner further has not responded to the directive that he show cause why Ground 7 5 should not be dismissed on the merits. The Court accordingly concludes in the alternative, 8 on de novo review, that Ground 5 also is without merit. Tilcock, supra; O’Neill, supra. 9 Remaining Matters 10 In the motion to receive free copies and pauper application, petitioner at bottom is 11 seeking to obtain a copy of the docket sheet without charge. Although petitioner paid the 12 initial filing fee, the pauper application establishes that he now is without funds. The Court 13 will grant the pauper application prospectively with respect to the current request and any 14 further proceedings herein. The Court will direct the Clerk to provide petitioner with a copy 15 of the docket sheet without charge along with this order, pursuant to 28 U.S.C. § 2250. 16 IT THEREFORE IS ORDERED that petitioner’s motion (#37) to show cause is DENIED 17 and the petition shall be DISMISSED with prejudice as to all remaining claims, on the basis 18 that Grounds 1, 2, 3 and 5 are procedurally defaulted and, in the alternative as to Ground 5, 19 on the basis that Ground 5 is without merit. 20 IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Jurists of 21 reason would not find debatable or wrong the Court’s rejection of the remaining claims 22 presented on the basis of procedural default as to Grounds 1, 2, 3 and 5 and in the alternative 23 on the merits as to Ground 5. Petitioner may not rely upon alleged ineffective assistance of 24 state post-conviction counsel to excuse the procedural default of Grounds 1, 2 and 3; and his 25 reliance upon the miscarriage of justice exception is misplaced because he does not seek to 26 establish actual innocence. See text, supra, at 4-5. Petitioner cannot establish ineffective 27 assistance of appellate counsel to excuse the procedural default of Ground 5, because the 28 Apprendi claim presented therein is meritless under both Ninth Circuit and Nevada Supreme -7- 1 Court precedent. See text, supra, at 6-7. Ground 5 in any event is without merit on de novo 2 review for the same reason. See text, supra, at 7. 3 4 IT FURTHER IS ORDERED that petitioner’s application (#40) to proceed in forma pauperis is GRANTED prospectively only. 5 IT FURTHER IS ORDERED that petitioner’s motion (#39) to receive free copies is 6 GRANTED to the extent and only to the extent that the Court directs the Clerk to provide 7 petitioner a copy of the docket sheet without charge along with this order. 8 IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 9 2254 Cases, the Clerk additionally shall serve a copy of this order, the judgment, and the 10 petition (#13) upon respondents by effecting informal electronic service of same upon 11 Catherine Cortez Masto as per the Clerk’s current practice. No response is required from 12 respondents, other than to respond to any orders of a reviewing court. 13 14 15 The Clerk of Court shall enter final judgment accordingly against petitioner and in favor of respondents, dismissing the petition with prejudice as untimely. DATED this 14th day of April, 2011. 16 17 18 19 _________________________________ Gloria M. Navarro United States District Judge 20 21 22 23 24 25 26 27 28 -8-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
