Barron-Aguilar v. Najera

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TITO BARRON-AGUILAR, Case No. 3:17-cv-00548-MMD-CLB

7 Petitioner, ORDER v. 8 KYLE OLSEN, et al., 9 Respondents. 10 11 I. SUMMARY 12 This habeas matter is before the Court on Petitioner Tito Barron-Aguilar’s motion 13 to strike procedural defense (ECF No. 70) and motion to extend time (ECF No. 73). For 14 the reasons discussed below, Barron-Aguilar’s motion to strike procedural defense is 15 denied and his motion to extend time is granted. 16 II. BACKGROUND 17 Barron-Aguilar challenges a 2014 conviction of four counts of unlawful sale of 18 controlled substance, three counts of trafficking in a controlled substance, and one count 19 of conspiracy to violate the Uniform Controlled Substances Act, and the sentence 20 imposed by the Second Judicial District Court for Washoe County in this habeas action. 21 (ECF No. 21-3.) The Nevada Supreme Court affirmed the conviction on direct appeal. 22 (ECF No. 27-5.) Barron-Aguilar sought post-conviction relief in a pro se state petition for 23 writ of habeas corpus (ECF No. 27-8), which the state court denied. (ECF No. 27-15.) 24 The Nevada Supreme Court affirmed the denial of relief. (ECF No. 27-24.) 25 In September 2017, Barron-Aguilar initiated this federal habeas proceeding. (ECF 26 No. 1.) Respondents moved to dismiss certain claims in Barron-Aguilar’s counseled first 27 amended petition as unexhausted. (ECF No. 19.) Barron-Aguilar requested a stay and 28 abeyance to exhaust his state remedies and the Court stayed the action pending 1 exhaustion of his claims in Nevada courts. (ECF Nos. 28, 32.) In June 2018, Barron- 2 Aguilar filed a second state petition for writ of habeas corpus (ECF No. 35-12 (“Second 3 State Petition”)) asserting claims identical to Grounds B, C, D, and E of the first amended 4 petition. The Second State Petition was denied as untimely and successive. (ECF No. 35- 5 19.) The Nevada Supreme Court later affirmed the denial of relief. (ECF No. 35-30.) 6 This Court granted Barron-Aguilar’s motion to reopen, and he filed a second 7 amended petition. (ECF Nos. 37, 38.) Respondents moved to dismiss that petition and 8 the Court denied the motion to dismiss deferring its decision on whether Barron-Aguilar 9 can demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), as to 10 Grounds D and E until after the parties have answered and replied. (ECF No. 57.) 11 Respondents subsequently filed their answer, and they argue that Ground A should be 12 dismissed as unexhausted. (ECF No. 69 at 20-21.) In the alternative, Respondents 13 address Ground A on the merits and argue that the claim fails. (Id. at 21-23.) 14 Barron-Aguilar now moves the Court to deem Respondents’ argument that Ground 15 A is unexhausted waived. (ECF No. 70 at 3.) He asserts that Respondents argue Ground 16 A is unexhausted for the first time—four years after Ground A was first raised and despite 17 Respondents’ filing of two previous motions to dismiss. (Id. at 3.) Barron-Aguilar further 18 asserts that Respondents’ exhaustion argument is made in violation of the Court’s 19 scheduling order, which instructs Respondents to raise procedural defenses “in a single 20 consolidated motion to dismiss.” (Id. at 3-4.) Although Respondents acknowledge that 21 they failed to raise the defense in a motion to dismiss, they nevertheless argue that the 22 exhaustion requirement must be expressly waived under 28 U.S.C. § 2254(b)(3). (ECF 23 No. 71 at 3-4.) Respondents further argue that Barron-Aguilar will not be prejudiced by 24 addressing Respondents’ exhaustion defense. (Id. at 5.) 25 III. DISCUSSION 26 A. Motion to Strike Procedural Defense 27 In its scheduling order, this Court provided the following instructions regarding 28 procedural defenses: 1 . . . any procedural defenses raised by respondents to the counseled amended petition must be raised together in a single consolidated motion 2 to dismiss. In other words, the Court does not wish to address any procedural defenses raised herein either in seriatum fashion in multiple 3 successive motions to dismiss or embedded in the answer. Procedural defenses omitted from such motion to dismiss will be subject to potential 4 waiver. Respondents will not file a response in this case that consolidates their procedural defenses, if any, with their response on the merits, except 5 pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted claims clearly lacking merit. 6 7 (ECF No. 10 at 2 (emphasis in original).) 8 The intent of the scheduling order was that any exhaustion defense be presented 9 in a single, consolidated motion to dismiss, together with any and all other procedural 10 defenses. There is nothing about an exhaustion defense such as the one raised in the 11 answer that could not have been ascertained at the time of the prior motion to dismiss. 12 Under 28 U.S.C. § 2254(b)(3), however, “[a] State shall not be deemed to have waived 13 the exhaustion requirement . . . unless the State, through counsel, expressly waives the 14 requirement.” Respondents have not done so here. A waiver premised on the 15 Respondents failing to raise the defense “knowing it was subject to waiver” is nothing 16 more than an implied waiver. (See ECF No. 72 at 3.) Accordingly, Barron-Aguilar’s motion 17 to strike is denied. 18 Moreover, as construed by the Ninth Circuit, a district court does not have 19 unfettered discretion under § 2254(b)(2) to either address the exhaustion defense or 20 instead simply rule on the merits. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 21 2005). Instead, the district court can dismiss an unexhausted claim on the merits “only 22 when it is perfectly clear that the applicant does not raise even a colorable federal claim.” 23 Id. If the claim is not subject to this standard of near frivolity, the district court may not 24 consider the merits of the claim if the petitioner has failed to exhaust state remedies, and 25 the court must instead follow the Rose choice procedures under Rose v. Lundy, 455 U.S. 26 509 (1982).1 The Court, therefore, will address the exhaustion defense prior to disposition 27 1Under Rose, a petition presenting both exhausted and unexhausted claims must 28 be dismissed without prejudice unless the petitioner dismisses the unexhausted claims 1 || of the merits on the remaining claims upon the filing of Barron-Aguilar’s reply. As such, 2 || the Court now has to delay adjudication of a nearly fully-argued case and instead provide 3 || further proceedings. 4 B. Motion to Extend 5 Barron-Aguilar seeks an extension of time to file his reply in support of his second 6 || amended petition for writ of habeas corpus until the Court rules on his motion to strike. 7 || (ECF No. 73.) The Court finds that the request is made in good faith and not solely for the 8 || purpose of delay, and therefore, good cause exists to grant Barron-Aguilar’s motion. 9 || Barron-Aguilar will have until October 4, 2022, to file his reply. 10 || IV. CONCLUSION 11 It is therefore ordered that Petitioner Tito Barron-Aguilar’s motion to strike 12 || procedural defense (ECF No. 70) is denied. 13 It is further ordered that Petitioner’s motion to extend (ECF No. 73) is granted. 14 || Petitioner has until October 4, 2022, to file his reply. 15 DATED THIS 4"" Day of August 2022. 16 17 oo

19 MIRANDA 30 CHIEF UNITED STATES DISTRICT JUDGE

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