Escobar v. Scillia et al, No. 2:2010cv01973 - Document 32 (D. Nev. 2013)

Court Description: ORDER Granting in Part 23 Motion to Dismiss. Ground 1 is DISMISSED with prejudice because it is procedurally defaulted. Grounds 2, 3, 4, 5, 6, and 10 are unexhausted. Motion due within 30 days. Declaration due within 10 days after motion. Signed by Judge Kent J. Dawson on 2/19/2013. (Copies have been distributed pursuant to the NEF - SLR)
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Escobar v. Scillia et al Doc. 32 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 CARLOS A. ESCOBAR, 10 Petitioner, 11 vs. 12 ANTHONY SCILLIA, et al., 13 Case No. 2:10-cv-01973-KJD-NJK Respondents. ORDER 14 15 Before the court are the amended petition for writ of habeas corpus (#11), respondents’ 16 motion to dismiss (#23), petitioner’s opposition (#26), and respondents’ reply (#29). The court 17 grants respondents’ motion in part, finding that petitioner has not exhausted all of his grounds for 18 relief and that one ground is procedurally defaulted. 19 Originally, the state brought two criminal cases against petitioner. In Case No. C143183, 20 petitioner was charged with discharging a firearm at or into a vehicle, attempted murder of Wilfredo 21 Sanchez with the use of a deadly weapon, and murder of Daniel Arreguin with the use of a deadly 22 weapon; these events occurred on September 28, 1995. In Case No. C147772, petitioner and co- 23 defendant Jose Flores were charged with murder of Francisco Cabral with the use of a deadly 24 weapon; this event occurred on October 17, 1995. The two cases then were consolidated. At trial, 25 the jury found petitioner guilty of all charges originally brought in Case No. C143183, and the jury 26 found petitioner not guilty of the charge originally brought in Case No. C147772. Ex. 159 (#15). 27 Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 176 (#16). Petitioner then filed 28 in state district court a post-conviction habeas corpus petition. Ex. 182 (#16). Appointed counsel 1 filed a supplement to the petition. Ex. 207 (#17). The state district court denied the petition. Ex. 2 211 (#17). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 236 (#17). Petitioner 3 then commenced this action. 4 Respondents first argue that petitioner has not exhausted his available state-court remedies 5 for all his grounds. Before a federal court may consider a petition for a writ of habeas corpus, the 6 petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a 7 ground for relief, a petitioner must fairly present that ground to the state’s highest court, describing 8 the operative facts and legal theory, and give that court the opportunity to address and resolve the 9 ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 10 11 U.S. 4, 6 (1982). “[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state 12 remedies only if he characterized the claims he raised in state proceedings specifically as federal 13 claims. In short, the petitioner must have either referenced specific provisions of the federal 14 constitution or statutes or cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 15 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that 16 applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 17 (9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal error is 18 insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, 19 such as due process, equal protection, and the right to a fair trial, are insufficient to establish 20 exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). 21 22 23 Petitioner admits that he has not presented the issues contained in grounds 3, 4, 5, and 6 to the state courts. Ground 1 is a claim that the jury instruction on willfulness, deliberation, and premeditation, 24 which are elements of first-degree murder, blurred the distinctions among the three elements, in 25 violation of the Due Process Clause of the Fourteenth Amendment. The trial court gave the 26 instruction approved by Kazalyn v. State, 825 P.2d 878 (Nev. 1992). Then, in Byford v. State, 994 27 P.2d 700 (Nev. 2000), the Nevada Supreme Court determined that the Kazalyn instruction blurred 28 the distinctions among the three elements, and the Nevada Supreme Court outlined a new -2- 1 instruction to give to the jury. In Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), the court of 2 appeals held that the Kazalyn instruction was unconstitutional because it allowed a jury to find a 3 person guilty of first-degree murder without finding all the elements. Finally, in Nika v. State, 198 4 P.3d 839 (Nev. 2008), the Nevada Supreme Court determined that Byford was a change in the law 5 regarding the elements of first-degree murder, and that the change applies to convictions which were 6 not yet final at the time of the Byford decision.1 7 Byford applies to petitioner because his direct appeal was pending at the time of the Byford 8 decision. However, petitioner did not raise the issue of the Kazalyn instruction on direct appeal. 9 Petitioner did raise the issue in his post-conviction state habeas corpus petition. Ultimately, the 10 Nevada Supreme Court held that the issue was barred pursuant to Nev. Rev. Stat. § 34.810.2 Ex. 11 236, at 1-2 (#17). 12 The court is not persuaded by respondents’ argument that petitioner has presented new facts 13 to this court. The essential fact of ground 1 is that the state district court gave an incorrect 14 instruction to the jury. In the amended petition (#11), petitioner argues how the prosecutor used that 15 incorrect instruction in the closing argument. Petitioner also argues that the testimonies of 16 witnesses did not establish deliberation if the correct instruction had been given. Petitioner did not 17 present all of these facts to the state court. However, none of these additional facts fundamentally 18 alter the claim in ground 1, which is that the trial court gave an incorrect jury instruction. See 19 Vasquez v. Hillery, 474 U.S. 254, 260 (1986).3 Ground 1 is exhausted. 20 21 22 23 24 25 26 27 28 1 In Babb v. Lozowsky, ___ F.3d ___, 2013 WL 136033 (9th Cir. Jan. 11, 2013), the court of appeals held, among other matters, that Nika effectively overruled Polk. Petitions for rehearing are pending. 2 The court will discuss this procedural bar further in the context of the procedural default of ground 1. 3 A tension exists in the law regarding the presentation of new facts in federal habeas corpus petitions. Vasquez held that new factual allegations do not make a ground unexhausted if those new facts do not fundamentally alter the claim considered by the state courts. Recently, the Supreme Court held that when a federal court reviews a claim, the merits of which have been decided by a state court, then pursuant to 28 U.S.C. § 2254(d) the review is restricted to the record that was before the state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). In other words, if Vasquez is still good law, then it is possible for a ground alleging new facts to survive a challenge to its exhaustion, but the court would be unable to consider those new facts if 28 U.S.C. § 2254(d) is -3- 1 Ground 2 concerns the consolidation of the two criminal cases. Petitioner moved to sever 2 the charges back to the original two cases, based upon the limitation on admission of evidence of 3 prior bad acts. See Nev. Rev. Stat. § 48.045. He argued that the events of September 28, 1995, 4 were not proven by clear and convincing evidence, and thus they could not be admitted into 5 evidence in a trial about the events of October 17, 1995. Petitioner then argued that because of that 6 inadmissibility, the events on both dates could not be joined into one trial. Ex. 95, at 5-6 (#14). 7 The trial court denied the motion. Ex. 115, 116 (#14). Petitioner did not raise the denial of the 8 motion as an issue on direct appeal. In ground 2, petitioner claims that appellate counsel provided 9 ineffective assistance because the issue was not raised on direct appeal. 10 Petitioner’s method of presenting this claim to the Nevada Supreme Court does not suffice 11 to exhaust ground 2. In ground 5 of his proper-person state habeas corpus petition, petitioner 12 claimed that the trial court erred in denying the motion to sever. Ex. 182 (#16). In ground 5 of his 13 represented supplemental petition, petitioner presented the issue that he had raised in his motion to 14 sever: Consolidation of the cases resulted in the admission of improper prior-bad-act evidence. Ex. 15 207, at 42-44 (#17). The state district court determined that petitioner had waived the claim because 16 he could have raised it on direct appeal. Ex. 211, at 3 (#17). Petitioner then raised the issue in the 17 appeal from the denial of his state habeas corpus petition. Ex. 229, at 28-29 (#17). Respondents 18 countered that petitioner had waived the issue because he should have raised it on direct appeal. Ex. 19 230, at 19 (#17). In his reply brief, petitioner argued: 20 21 22 23 The State contends that this issue should have been raised on direct appeal. The State argues that the issue should be considered waived based upon the failure to Mr. Escobar to raise the matter on appeal (State’s Answering Brief pp. 19) . . . . However, the State fails to recognize Mr. Escobar specifically argued that he received ineffective assistance of appellate counsel in failing to raise these issues on direct appeal (Appellant’s Opening Brief pp. 19-21). Specifically, Mr. Escobar cited state and federal case law for the proposition that Mr. Escobar had a right to effective assistance of counsel on direct appeal. . . . Therefore, the 24 25 26 27 28 applicable. The court of appeals has recognized this tension, but has deferred answering the question. Stokley v. Ryan, 659 F.3d 802, 808 (9th Cir. 2011). This court will treat Vasquez and Pinholster as separate questions. In grounds 1 and 7, discussed below, the court rules that new factual allegations do not make the ground unexhausted. This ruling is consistent with Vasquez. The court also concludes below that ground 1 is procedurally defaulted. Whether the court can consider the new factual allegations in its review of ground 7 on its merits is a question that the court will answer when the court turns to the merits. -4- 1 2 State’s contention that this issue should have been raised on direct appeal is correct. However, Mr. Escobar received ineffective assistance of counsel for failure to raise this issue on direct appeal. 3 Ex. 235, at 14-15 (#17). The Nevada Supreme Court held that petitioner had waived the issue of the 4 joinder of the counts and the admission of prior-bad-act evidence because petitioner could have 5 raised the issue on direct appeal. Ex. 236, at 3 (#17). Additionally, the Nevada Supreme Court did 6 not agree with petitioner that he had raised a claim of ineffective assistance of counsel: 7 8 In his reply brief, Escobar asserts that he intended to frame this issue as one that appellate counsel was ineffective for failing to raise. Escobar did not frame it this way and the claim is waived. . . . Even so, it had little chance of success on appeal as he was acquitted on the charges related to the second incident. . . . 9 10 Ex. 236, at 3 n.3 (#17) (citations omitted). Petitioner’s statement of exhaustion cites to pages 20-21 11 of his opening brief on post-conviction appeal. Amended petition, at 26-27 (#11). The court 12 disagrees. Those pages contain a statement of the standard for ineffective assistance of counsel, but 13 petitioner did not link that standard to the claim about the denial of the severance motion and the 14 admission of prior-bad-act evidence. Petitioner did not give fair notice in his opening brief to the 15 Nevada Supreme Court that he was raising a claim that appellate counsel should have raised the 16 issue of the denial of the severance motion on direct appeal. As for petitioner’s presentation of the 17 ineffective-assistance claim in his reply brief, the court agrees with respondents that a reply brief is 18 not a document in which to raise a new claim for relief. Federal courts have the same rule. See 19 Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). “Submitting a new claim to the 20 state’s highest court in a procedural context in which its merits will not be considered absent special 21 circumstances does not constitute fair presentation.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 22 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Consequently, ground 2 is not 23 exhausted. 24 In ground 7, petitioner alleges that his rights guaranteed by the Confrontation Clause of the 25 Sixth Amendment were violated. The prosecution witness Georgianna Arellano gave trial 26 testimony that was inconsistent with her prior written statement. Petitioner tried to admit the 27 written statement into evidence during his cross-examination of Arellano, and the court denied the 28 request. Petitioner raised this issue on direct appeal. Ex. 171, at 24-27 (#16). The Nevada Supreme -5- 1 Court affirmed the district court’s ruling. Ex. 176, at 2-4 (#16). Respondents argue that petitioner 2 presents to this court facts that he did not present to the Nevada Supreme Court. The court agrees 3 with petitioner that the additional facts do not fundamentally alter the claim. See Hillery, 474 U.S. 4 at 260. Ground 7 is exhausted. 5 On the other hand, in ground 10 petitioner alleges new facts that do fundamentally alter the 6 claim. Petitioner claims that trial counsel failed to conduct a proper investigation of the case. In his 7 supplemental state habeas corpus petition, petitioner alleged two matters that counsel should have 8 investigated. First, the prosecution introduced into evidence the preliminary-hearing testimony of 9 Rocky Perez by arguing successfully that Perez was unavailable to testify. Petitioner claimed that 10 counsel should have contacted Christina Sandoval, the mother of Perez’s child, and Rosa Perez, the 11 mother of Rocky Perez, to establish that Rocky Perez actually was available to testify. Second, 12 petitioner claimed that counsel should have interviewed Vicki Joe Sanchez, because petitioner 13 believed that Sanchez would have testified that Wilfredo Sanchez, whom petitioner was convicted 14 of attempting to murder on September 28, 1995, was running with a gun. Ex. 207, at 42 (#17). 15 Ground 10 also is a claim that counsel failed to investigate, but petitioner has changed the 16 reasons why. First, petitioner now alleges that Rosa Perez was standing nearby when the events 17 occurred. The reason for interviewing her has changed from showing that her son, Rocky Perez, 18 was available to testify, to being able to provide eyewitness testimony herself. Second, petitioner 19 now alleges that Christina Sandoval could have discredited Carlos Cruz, a cooperating witness, 20 because she helped Cruz file a bogus theft report about the gun used in the killing and because Cruz 21 had identified Sandoval falsely as petitioner’s girlfriend. The reason for interviewing her has 22 changed from showing that Rocky Perez was available to testify, to discrediting another witness. 23 Third, petitioner alleges that counsel should have interviewed Vicki Joe Sanchez, but he gives no 24 reason why. When petitioner claims that counsel failed to investigate the case, the facts that counsel 25 should have investigated are the essential parts of the claims. By alleging different facts that 26 counsel should have investigated, even if they involved the same witnesses, petitioner has 27 fundamentally altered the claim that he presented to the state courts. Ground 10 is unexhausted. 28 -6- 1 Petitioner argues that he should be excused from the exhaustion requirement because he was 2 denied an evidentiary hearing for his state habeas corpus petition, thus making the post-conviction 3 process ineffective in protecting his rights. However, petitioner by his own admission has not 4 presented four grounds for relief to the state courts, ground 10 is so different factually from what he 5 presented to the state courts that it is effectively a new ground, and ground 2 has a different legal 6 theory than what petitioner presented to the state courts. This court cannot state unequivocally that 7 the state courts would again deny petitioner an evidentiary hearing, assuming that petitioner can 8 pass through the procedural bars that he likely would face. 9 Petitioner also argues that the court should not hold that the unexhausted grounds are 10 procedurally defaulted because the state courts would apply procedural bars if he returned to the 11 state courts. If petitioner returns to state court, he likely will face procedural bars such as Nev. Rev. 12 Stat. § 34.726(1), which is a one-year statute of limitations, and Nev. Rev. Stat. § 34.810, which 13 limits successive petitions. Both provisions allow a petitioner to demonstrate cause and prejudice to 14 excuse the procedural bars. This court will not speculate whether the state courts will determine 15 that a petition is procedurally barred, and thus the court will not rule now whether the unexhausted 16 grounds are, in effect, procedurally defaulted. It is up to petitioner to decide whether he wants to 17 return to state court. 18 The amended petition (#11) is mixed, containing both claims exhausted in state court and 19 claims not exhausted in state court, and it is subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 20 521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983). 21 Respondents argue that ground 1 is procedurally defaulted. A federal court will not review a 22 claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state- 23 law ground that is independent of the federal question and adequate to support the judgment. 24 Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 25 26 27 28 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). -7- 1 To demonstrate cause for a procedural default, the petitioner must “show that some objective 2 factor external to the defense impeded” his efforts to comply with the state procedural rule. Carrier, 3 477 U.S. at 488. 4 To show prejudice, “[t]he habeas petitioner must show ‘not merely that the errors at . . . trial 5 created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, 6 infecting his entire trial with error of constitutional dimensions.’” Carrier, 477 U.S. at 494 (quoting 7 United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). 8 Petitioner raised the issue in ground 1, the Kazalyn instruction, in his state habeas corpus 9 petition. The Nevada Supreme Court noted that it was an issue that he could have raised on direct 10 appeal and thus was barred unless he could demonstrate good cause and actual prejudice. Ex. 236, 11 at 1 (#17) (citing Nev. Rev. Stat. § 34.810). The Nevada Supreme Court then held that petitioner 12 had shown good cause because his appeal was pending at the time the Nevada Supreme Court 13 decided Byford and changed the instruction on willfulness, deliberation, and premeditation. Id. at 1- 14 2. On prejudice, the Nevada Supreme Court held: 15 16 17 18 19 However, Escobar fails to show prejudice. At least three witnesses testified that the party where the shooting occurred was peaceful until Escobar confronted the victim, asked him if he belonged to a rival gang, and challenged him to fight. The forensic evidence also strongly supports the proposition that Escobar acted willfully and with deliberation: Escobar shot the surviving victim some half-dozen times, walked to the van from which the victim had emerged, and shot into the vehicle, killing one of the occupants who was crouched down inside. . . . Moreover, the jury was instructed on, and heard sufficient evidence to support, Escobar’s guilt under NRS 200.450(3) (death resulting from challenge to fight punished as first-degree murder). Accordingly, Escobar failed to demonstrate that the Kazalyn instruction prejudiced him and the district court therefore did not err in denying this claim. 20 21 Ex. 236, at 2 (#17) (citation and footnote omitted). 22 Petitioner argues that the above-quoted holding is not independent of federal law, because it 23 discussed the merits of the case in determining that petitioner had not shown prejudice to excuse the 24 operation of § 34.810. The court disagrees. Generally, the procedural bar of § 34.810 is 25 independent of federal law. Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). However, the 26 court still must inquire into the specific facts of each case to determine whether the use of the 27 procedural bar in that case was independent of federal law. Cooper v. Neven, 641 F.3d 322, 332 28 (9th Cir. 2011). Nevada, like federal courts, uses the definition of prejudice found in Frady for its -8- 1 procedural bars. See Hogan v. Warden, 860 P.2d 710, 716 (Nev. 1993). Frady was convicted of 2 murder in the District of Columbia. After his trial and appeal, he claimed in a motion pursuant to 3 28 U.S.C. § 2255 that subsequent court decisions disapproved of jury instructions given at his trial, 4 because those instructions allowed the jury to presume malice, which is an element of murder. 456 5 U.S. at 157-58. This claim was procedurally defaulted because Frady could have raised it on direct 6 appeal or in one of his earlier collateral attacks. Id. at 158-59. The Supreme Court held that Frady 7 would need to demonstrate cause and actual prejudice to overcome the default. Id. at 167-68. The 8 Court then determined that Frady could not demonstrate actual prejudice, because the Court’s 9 review of the record showed strong evidence of malice. Id. at 171-74. In other words, the analysis 10 of prejudice to excuse a procedurally defaulted claim regarding a jury instruction involves a review 11 of the merits. However, when that review of the merits is solely for the purpose of applying a 12 procedural bar, the review does not mean that the procedural bar is not independent of federal law. 13 Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996). The Nevada Supreme Court did nothing 14 different from what the Supreme Court did in Frady. Consequently, the state procedural bar is 15 independent of federal law. 16 Petitioner also argues that the procedural bar of § 34.810 is not adequate in cases involving 17 the Kazalyn instruction, because the Nevada Supreme Court has reached the merits of such claims 18 even though they were procedurally barred. Petitioner first cites to four unpublished orders of the 19 Nevada Supreme Court for the proposition that a petitioner would have one year from the decision 20 in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), to file a state habeas corpus petition that 21 challenged the use of the Kazalyn instruction. That argument is inapposite, because nobody is 22 claiming that ground 1 is procedurally barred due to being untimely pursuant to Nev. Rev. Stat. 23 § 34.726(1). Next, petitioner cites to three unpublished orders of the Nevada Supreme Court that, 24 he argues, reached the merits of challenges to the Kazalyn instruction even though they should have 25 been procedurally barred. The court disagrees. Winfrey v. State, 2011 WL 222250 (Nev. Jan 13, 26 2011), contains nothing approaching a decision on the merits; the Nevada Supreme Court held that 27 the claim about the Kazalyn instruction was procedurally barred. Nellums v. State, 2011 WL 28 486606 (Nev. Feb. 9, 2011) is inapposite because the Nevada Supreme Court ruled that it had -9- 1 applied Byford on the direct appeal, and thus the same claim on post-conviction was barred by the 2 law of the case. Witter v. State, 2010 WL 4673531 (Nev. Nov. 17, 2010), is closest to petitioner’s 3 case, because the Nevada Supreme Court reviewed the evidence in its determination that Witter had 4 not demonstrated prejudice. However, this is nothing different than what the Nevada Supreme 5 Court did in petitioner’s case, and what the Supreme Court of the United States did in Frady, in 6 those determinations that prejudice was not demonstrated. Witter is not proof that the Nevada 7 Supreme Court is discarding procedural bars to review claims about the Kazalyn instruction on their 8 merits. 9 Petitioner’s argument that he can demonstrate cause and actual prejudice to excuse the 10 procedural default is, in its entirety, “An intervening change in the law is considered sufficient as a 11 matter of state and federal law to demonstrate cause and prejudice to excuse any procedural 12 default.” Opposition, at 23 (#26). Petitioner’s argument might be true for the purposes of showing 13 good cause. However, as Frady itself demonstrates, petitioner still needed to show that he suffered 14 actual prejudice from the change in the law. Petitioner makes no such demonstration. 15 Consequently, ground 1 is procedurally defaulted, and the court will dismiss it. 16 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (#23) is GRANTED in 17 part. Ground 1 is DISMISSED with prejudice because it is procedurally defaulted. Grounds 2, 3, 18 4, 5, 6, and 10 are unexhausted. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -10- 1 IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of entry 2 of this order to file a motion for dismissal without prejudice of the entire petition, for partial 3 dismissal of grounds 2, 3, 4, 5, 6, and 10, or for other appropriate relief. Within ten (10) days of 4 filing such motion, petitioner must file a signed declaration under penalty of perjury pursuant to 28 5 U.S.C. § 1746 that he has conferred with his counsel in this matter regarding his options, that he has 6 read the motion, and that he has authorized that the relief sought therein be requested. Failure to 7 comply with this order will result in the dismissal of this action. 8 DATED: February 19, 2013 9 10 _________________________________ KENT J. DAWSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11-