2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JOSHUA BACHARACH, Case No. 3:22-cv-00122-ART-CSD 5 Petitioner, 6 v. ORDER DENYING MOTION TO DISMISS 7 WILLIAM REUBART, et al.,
8 Respondents.
9 10 On March 21, 2023, counseled Petitioner Joshua Bacharach filed his 11 second-amended § 2254 petition. (ECF No. 26 (“Petition”).) This matter comes 12 before the Court on Respondents’ motion to dismiss. (ECF No. 29 (“Motion”).) 13 Bacharach opposed the Motion, and Respondents replied. (ECF Nos. 38, 46.) For 14 the reasons stated below, the Court denies the Motion. 15 I. BACKGROUND 16 The Nevada Court of Appeals described the crime, as revealed by the 17 evidence at Bacharach’s trial, as follows:
18 Bacharach shot out of his vehicle’s window when an officer initiated a traffic stop and Bacharach then drove his vehicle away from the 19 officer until it crashed. Bacharach then exited his vehicle, fired shots at the officer, and then absconded on foot. Bacharach then placed 20 his bullet-proof vest and firearm under a vehicle and hid in a resident’s backyard until a police dog bit him, permitting officers to 21 arrest him. 22 (ECF No. 31-3 at 2–3.) A jury found Bacharach guilty of attempted murder with 23 the use of a deadly weapon, four counts of discharging a firearm from or within 24 a structure or vehicle, four counts of assault with a deadly weapon, failing to stop 25 on the signal of a police officer, resisting public officer with the use of a firearm, 26 possession of a firearm with an altered or obliterated serial number, and three 27 counts of possession of a firearm by an ex-felon. (ECF No. 30-40.) Bacharach was 28 sentenced to an aggregate term of 747 to 1,884 months (62 to 157 years) in 1 prison. (Id. at 4.) Bacharach’s judgment of conviction was entered on January 8, 2 2016. (Id.) Bacharach appealed, and the Nevada Court of Appeals affirmed his 3 judgment of conviction on October 19, 2016. (ECF No. 31-3.) Remittitur issued 4 on November 15, 2016. (ECF No. 31-4.) 5 Bacharach filed his pro se state post-conviction habeas petition on 6 November 8, 2017, and his counseled supplemental petition on February 24, 7 2020. (ECF Nos. 31-6, 31-19.) The state court denied Bacharach post-conviction 8 relief on May 5, 2021. (ECF No. 31-23.) Bacharach appealed, and the Nevada 9 Court of Appeals affirmed on February 3, 2022. (ECF No. 31-42.) Remittitur 10 issued on February 28, 2022. (ECF No. 31-43.) 11 In his Petition, Bacharach presents the following grounds for relief:
12 1. The trial court erred by not granting a mistrial after the State’s witness introduced testimony that she spoke with the gang 13 unit. 2a. His trial counsel failed to object to the trial court’s threat. 14 2b. His trial counsel failed to object to improper expert testimony. 2c. His trial counsel failed to object to the State’s improper 15 argument redefining reasonable doubt. 2d. His trial counsel failed to impeach witnesses who provided 16 conflicting statements at trial. 17 (ECF No. 26.) 18 III. DISCUSSION 19 Respondents argue that ground 1 is not cognizable and ground 2d is 20 unexhausted, procedurally defaulted, and lacks a developed factual basis. (ECF 21 No. 29.) 22 A. Ground 1 is cognizable 23 In ground 1, Bacharach argues that the trial court erred by not granting a 24 mistrial after a witness introduced testimony that she spoke with the gang unit. 25 (ECF No. 26 at 5.) Respondents argue that ground 1 is not cognizable because it 26 involves a matter of discretion by the trial court. (ECF No. 29 at 4.) 27 AEDPA “places limitations on a federal court’s power to grant a state 28 prisoner’s federal habeas petition.” Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 1 2014) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). When 2 conducting habeas review, a federal court is limited to deciding whether a 3 conviction violates the Constitution, laws, or treaties of the United States. 28 4 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Unless an issue 5 of federal constitutional or statutory law is implicated by the facts presented, the 6 claim is not cognizable in federal habeas. McGuire, 502 U.S. at 68. 7 While ground 1 challenges the trial court’s discretionary ruling on whether 8 to grant a mistrial, the trial court’s ruling in this regard also implicated 9 Bacharach’s federal due process rights. See McGuire, 502 U.S. at 67–68. As such, 10 because Bacharach has sufficiently plead a federal due process violation, ground 11 1 is cognizable. 12 B. Ground 2d is exhausted, not defaulted, and factually developed 13 In ground 2d, Bacharach argues that his trial counsel failed to impeach 14 witnesses who provided conflicting statements at trial. (ECF No. 26 at 14.) 15 Specifically, Bacharach argues that his trial counsel failed to impeach the three 16 neighborhood witnesses who identified him as the shooter because they “could 17 barely see the shooter at the time of the shootings” and told police that the shooter 18 was wearing a different colored shirt than the one Bacharach was wearing when 19 he was taken into custody. (Id. at 15.) Respondents contend that ground 2d is 20 unexhausted, is procedurally defaulted, and lacks a developed factual basis. (ECF 21 No. 29 at 7–9.) Bacharach contends that ground 2d is exhausted—and thus not 22 procedurally defaulted—because he raised it in his pro se state post-conviction 23 habeas petition and his post-conviction counsel raised it in his opening brief to 24 the Nevada appellate courts. (ECF No. 38 at 4.) 25 A state prisoner first must exhaust state court remedies on a habeas claim 26 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). “A 27 petitioner has exhausted his federal claims when he has fully and fairly presented 28 them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 1 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 2 2254(c) requires only that state prisoners give state courts a fair opportunity to 3 act on their claims.”)). A petitioner must present the substance of his claim to the 4 state courts, and the claim presented to the state courts must be the substantial 5 equivalent of the claim presented to the federal court. Picard v. Connor, 404 U.S. 6 270, 278 (1971). The state courts have been afforded a sufficient opportunity to 7 hear an issue when the petitioner has presented the state court with the issue’s 8 factual and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 9 1999); see also Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and 10 fair presentation additionally requires a petitioner to present the substance of his 11 claim to the state courts, including a reference to a federal constitutional 12 guarantee and a statement of facts that entitle the petitioner to relief.”). A 13 petitioner may reformulate his claims so long as the substance of his argument 14 remains the same. Picard, 404 U.S. at 277–78. 15 In ground 3 of his pro se state post-conviction habeas petition, Bacharach 16 argued the following:
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JOSHUA BACHARACH, Case No. 3:22-cv-00122-ART-CSD 5 Petitioner, 6 v. ORDER DENYING MOTION TO DISMISS 7 WILLIAM REUBART, et al.,
8 Respondents.
9 10 On March 21, 2023, counseled Petitioner Joshua Bacharach filed his 11 second-amended § 2254 petition. (ECF No. 26 (“Petition”).) This matter comes 12 before the Court on Respondents’ motion to dismiss. (ECF No. 29 (“Motion”).) 13 Bacharach opposed the Motion, and Respondents replied. (ECF Nos. 38, 46.) For 14 the reasons stated below, the Court denies the Motion. 15 I. BACKGROUND 16 The Nevada Court of Appeals described the crime, as revealed by the 17 evidence at Bacharach’s trial, as follows:
18 Bacharach shot out of his vehicle’s window when an officer initiated a traffic stop and Bacharach then drove his vehicle away from the 19 officer until it crashed. Bacharach then exited his vehicle, fired shots at the officer, and then absconded on foot. Bacharach then placed 20 his bullet-proof vest and firearm under a vehicle and hid in a resident’s backyard until a police dog bit him, permitting officers to 21 arrest him. 22 (ECF No. 31-3 at 2–3.) A jury found Bacharach guilty of attempted murder with 23 the use of a deadly weapon, four counts of discharging a firearm from or within 24 a structure or vehicle, four counts of assault with a deadly weapon, failing to stop 25 on the signal of a police officer, resisting public officer with the use of a firearm, 26 possession of a firearm with an altered or obliterated serial number, and three 27 counts of possession of a firearm by an ex-felon. (ECF No. 30-40.) Bacharach was 28 sentenced to an aggregate term of 747 to 1,884 months (62 to 157 years) in 1 prison. (Id. at 4.) Bacharach’s judgment of conviction was entered on January 8, 2 2016. (Id.) Bacharach appealed, and the Nevada Court of Appeals affirmed his 3 judgment of conviction on October 19, 2016. (ECF No. 31-3.) Remittitur issued 4 on November 15, 2016. (ECF No. 31-4.) 5 Bacharach filed his pro se state post-conviction habeas petition on 6 November 8, 2017, and his counseled supplemental petition on February 24, 7 2020. (ECF Nos. 31-6, 31-19.) The state court denied Bacharach post-conviction 8 relief on May 5, 2021. (ECF No. 31-23.) Bacharach appealed, and the Nevada 9 Court of Appeals affirmed on February 3, 2022. (ECF No. 31-42.) Remittitur 10 issued on February 28, 2022. (ECF No. 31-43.) 11 In his Petition, Bacharach presents the following grounds for relief:
12 1. The trial court erred by not granting a mistrial after the State’s witness introduced testimony that she spoke with the gang 13 unit. 2a. His trial counsel failed to object to the trial court’s threat. 14 2b. His trial counsel failed to object to improper expert testimony. 2c. His trial counsel failed to object to the State’s improper 15 argument redefining reasonable doubt. 2d. His trial counsel failed to impeach witnesses who provided 16 conflicting statements at trial. 17 (ECF No. 26.) 18 III. DISCUSSION 19 Respondents argue that ground 1 is not cognizable and ground 2d is 20 unexhausted, procedurally defaulted, and lacks a developed factual basis. (ECF 21 No. 29.) 22 A. Ground 1 is cognizable 23 In ground 1, Bacharach argues that the trial court erred by not granting a 24 mistrial after a witness introduced testimony that she spoke with the gang unit. 25 (ECF No. 26 at 5.) Respondents argue that ground 1 is not cognizable because it 26 involves a matter of discretion by the trial court. (ECF No. 29 at 4.) 27 AEDPA “places limitations on a federal court’s power to grant a state 28 prisoner’s federal habeas petition.” Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 1 2014) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). When 2 conducting habeas review, a federal court is limited to deciding whether a 3 conviction violates the Constitution, laws, or treaties of the United States. 28 4 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Unless an issue 5 of federal constitutional or statutory law is implicated by the facts presented, the 6 claim is not cognizable in federal habeas. McGuire, 502 U.S. at 68. 7 While ground 1 challenges the trial court’s discretionary ruling on whether 8 to grant a mistrial, the trial court’s ruling in this regard also implicated 9 Bacharach’s federal due process rights. See McGuire, 502 U.S. at 67–68. As such, 10 because Bacharach has sufficiently plead a federal due process violation, ground 11 1 is cognizable. 12 B. Ground 2d is exhausted, not defaulted, and factually developed 13 In ground 2d, Bacharach argues that his trial counsel failed to impeach 14 witnesses who provided conflicting statements at trial. (ECF No. 26 at 14.) 15 Specifically, Bacharach argues that his trial counsel failed to impeach the three 16 neighborhood witnesses who identified him as the shooter because they “could 17 barely see the shooter at the time of the shootings” and told police that the shooter 18 was wearing a different colored shirt than the one Bacharach was wearing when 19 he was taken into custody. (Id. at 15.) Respondents contend that ground 2d is 20 unexhausted, is procedurally defaulted, and lacks a developed factual basis. (ECF 21 No. 29 at 7–9.) Bacharach contends that ground 2d is exhausted—and thus not 22 procedurally defaulted—because he raised it in his pro se state post-conviction 23 habeas petition and his post-conviction counsel raised it in his opening brief to 24 the Nevada appellate courts. (ECF No. 38 at 4.) 25 A state prisoner first must exhaust state court remedies on a habeas claim 26 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). “A 27 petitioner has exhausted his federal claims when he has fully and fairly presented 28 them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 1 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 2 2254(c) requires only that state prisoners give state courts a fair opportunity to 3 act on their claims.”)). A petitioner must present the substance of his claim to the 4 state courts, and the claim presented to the state courts must be the substantial 5 equivalent of the claim presented to the federal court. Picard v. Connor, 404 U.S. 6 270, 278 (1971). The state courts have been afforded a sufficient opportunity to 7 hear an issue when the petitioner has presented the state court with the issue’s 8 factual and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 9 1999); see also Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and 10 fair presentation additionally requires a petitioner to present the substance of his 11 claim to the state courts, including a reference to a federal constitutional 12 guarantee and a statement of facts that entitle the petitioner to relief.”). A 13 petitioner may reformulate his claims so long as the substance of his argument 14 remains the same. Picard, 404 U.S. at 277–78. 15 In ground 3 of his pro se state post-conviction habeas petition, Bacharach 16 argued the following:
17 [Defense counsel] fail[ed] to suppress or impeach witness[es] that had conflicting statements at the trial. All 3 witness[es] were asked 18 if they had seen the shooter or person who shot the gun. All under oath said that they could not see the shooter[’]s face [because]it was 19 dark and that they were to[o] far but when asked by the prosecutor to point out the shooter they pointed at the defendant. All 3 witness 20 statements should have been thrown out and if they were the jury would have found the defendant innocent because there would not 21 have been any positive identification. 22 (ECF No. 31-6 at 10.) And in his counseled opening brief to the Nevada appellate 23 courts, Bacharach included the following issue:
24 In his pro per petition, Mr. Bacharach contended that his rights were violated under the Fourth, Fifth, Sixth, Fourteenth, and Eighth 25 Amendments to the United States Constitution because Trial Counsel was ineffective for failing to impeach witnesses with 26 available evidence of conflicting statements. Therefore, Mr. Bacharach was prejudiced, and the conviction must be reversed. 27 (ECF No. 31-34 at 45–46.) 28 1 Based on this record, Bacharach presented the substance of ground 2d of 2 his federal Petition to the state district court and state appellate courts. See 3 Picard, 404 U.S. at 278. Indeed, Respondents argument in this regard appears to 4 amount to mere semantics. Respondents state that “Bacharach now claims trial 5 counsel was ineffective for not asking a specific question of a given witness,” 6 explaining that failing to ask a question differs from failing to impeach. (ECF No. 7 46 at 4.) However, the factual and legal basis of the claim has remained the same: 8 Bacharach’s trial counsel acted deficiently regarding the cross-examination of the 9 three neighborhood witnesses who identified him as the shooter which resulted 10 in prejudice because further cross-examination would have shown that he was 11 an innocent suspect who was wrongly identified. Accordingly, because 12 Bacharach’s federal claim does not depart from the state claim, ground 2d is 13 exhausted. And because the Nevada Court of Appeals addressed the merits of 14 this claim, it is not procedurally defaulted.1 Finally, the factual basis for ground
15 1 The Nevada Court of Appeals denied this claim as follows: 16 Bacharach argued his trial counsel was ineffective for failing to 17 impeach witnesses’ testimonies with their inconsistent statements. Bacharach appeared to assert that counsel should have questioned 18 witnesses in a different manner concerning their identifications of 19 him as the perpetrator of the offenses. Bacharach did not identify a particular witness that should have been questioned concerning 20 inconsistent statements. Thus, Bacharach did not support this claim with specific factual allegations. Moreover, the record demonstrates 21 that counsel questioned multiple witnesses concerning their versions of events and challenged their abilities to perceive the events or 22 identify Bacharach as the perpetrator of the offenses. Accordingly, 23 Bacharach did not demonstrate that counsel’s performance fell below an objective standard of reasonableness. Bacharach also did not 24 demonstrate a reasonable probability of a different outcome had counsel further questioned witnesses concerning their identification 25 testimonies or prior statements. Therefore, we conclude the district 26 court did not err by denying this claim without first conducting an evidentiary hearing. 27 (ECF No. 31-42 at 6.) 28 || 2d is sufficiently developed from the trial transcript. Although further 2 || development of an ineffective-assistance-of-trial-counsel claim during a state 3 || post-conviction evidentiary hearing is preferred, it is not necessary under these 4 || circumstances. 5 || V. CONCLUSION 6 It is therefore ordered that Respondents’ Motion (ECF No. 29) is denied. 7 It is further ordered that Respondents have 60 days from the date of this 8 || order to file their answer to Bacharach’s Petition. Bacharach will have 60 days 9 || following receipt of the answer to file his reply. 10 11 12 DATED THIS 7th day of December 2023. 13 14 een Pee Wowtad
16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28