Camacho v. Garrett

• Court: District Court, D. Nevada
• Decided: March 11, 2024
• Docket: 3:23-cv-00001
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CIRO CAMACHO, Case No. 3:23-cv-00001-MMD-CSD

7 Petitioner, ORDER v. 8

9 TIM GARRETT, et al.,

10 Respondents.

11 12 Petitioner Ciro Camacho, a Nevada prisoner, has filed a counseled First-Amended 13 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 12 (“First- 14 Amended Petition”).) Currently before the Court is Respondents’ motion to dismiss the 15 First-Amended Petition. (ECF No. 16 (“Motion”).) Camacho opposed the Motion, and 16 Respondents replied. (ECF Nos. 21, 24.) In Respondents’ Motion, they argue, in part, 17 that ground 1(b)(3) is unexhausted or, alternatively, is technically exhausted but 18 procedurally defaulted. (ECF No. 16.) In their reply, Respondents explain that they 19 inadvertently labeled ground 1(b)(2) as ground 1(b)(3) in their motion to dismiss. (ECF 20 No. 24 at 5 n.1.) Given this issue, this Court ordered Camacho to file a surreply. (ECF 21 No. 25.) Camacho timely complied. (ECF No. 26.) As further discussed below, the Court 22 denies the Motion. 23 I. PROCEDURAL HISTORY 24 On August 30, 2017, Camacho was indicated on 5 counts of sexual assault of a 25 child under the age of 14 years, 2 counts of using a minor in the production of 26 pornography, and 4 counts of sexual assault of a child under the age of 14 years. (ECF 27 No. 17-2.) Camacho entered a plea agreement, agreeing to plead guilty to 1 count of 1 production of pornography in return for the state dismissing the remaining charges. (ECF 2 No. 17-22.) Camacho was sentenced to an aggregate term of 55 years to life. (Id.) 3 Camacho appealed, and the Nevada Court of Appeals affirmed. (ECF No. 17-39.) 4 Camacho petitioned the state court for post-conviction relief. (ECF No. 17-46.) The 5 state court denied Camacho’s petition. (ECF No. 18-12.) Camacho appealed, and the 6 Nevada Supreme Court affirmed. (ECF No. 18-27.) 7 Camacho commenced this federal habeas action on or about January 3, 2023. 8 (ECF No. 1.) This Court granted Camacho’s motion for the appointment of counsel and 9 appointed the Federal Public Defender to represent Camacho. (ECF Nos. 3, 9.) Camacho 10 raises the following grounds for relief in his First-Amended Petition:

11 1(a). His trial counsel failed to move to suppress illegally obtained evidence. 12 1(b). His trial counsel failed to move to dismiss the indictment based on (1) the state’s evidence being illegally obtained, (2) false testimony 13 at the grand jury, (3) improper notice of the grand jury proceedings, and (4) the grand jury not being sworn in. 14 1(c). His trial counsel failed to object to the admission of exhibits at sentencing. 15 2. The cumulative prejudicial effect of grounds 1(a) and 1(b). 16 (ECF No. 12.) 17 II. LEGAL STANDARDS & ANALYSIS 18 Respondents argue that: (1) ground 1(b)(2) and 1(c) are unexhausted or, 19 alternatively, are technically exhausted but procedurally defaulted; and (2) grounds 1(a), 20 1(b)(1), 1(b)(2), 1(b)(3), and 2 are barred by Tollett v. Henderson. (ECF No. 16.) The 21 Court addresses these arguments in turn. 22 A. Exhaustion and Procedural Default 23 1. Exhaustion legal standard 24 A state prisoner must exhaust state court remedies on a habeas claim before 25 presenting that claim to the federal courts. See 28 U.S.C. 26 § 2254(b)(1)(A). This exhaustion requirement ensures that the state courts, as a matter 27 of comity, will have the first opportunity to address and correct alleged violations of federal 1 petitioner has exhausted his federal claims when he has fully and fairly presented them 2 to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To present a 3 claim, a petitioner must present the substance of his claim fully and fairly to the state 4 courts, and the claim presented to the state courts must be the substantial equivalent of 5 the claim presented to federal court. See Picard v. Connor, 404 U.S. 270, 278 (1971). The 6 state courts have been afforded a sufficient opportunity to hear an issue when a petitioner 7 has presented the state court with the issue’s factual and legal basis. See Weaver v. 8 Thompson, 197 F.3d 359, 364 (9th Cir. 1999). A petitioner may reformulate his claims so 9 long as the substance of his argument remains the same. Picard, 404 U.S. at 277-78. 10 2. Procedural default legal standard 11 Federal courts are barred from considering a state prisoner’s habeas claim if the 12 state courts denied the claim based on an independent and adequate state procedural 13 rule. See Edwards v. Carpenter, 529 U.S. 446, 454-55 (2000). “The Ninth Circuit has 14 elaborated that a state rule must be clear, consistently applied, and well-established at 15 the time of the petitioner’s purported default.” Collier v. Bayer, 408 F.3d 1279, 1284 (9th 16 Cir. 2005) (internal quotation marks omitted). When a prisoner “procedurally defaults” a 17 federal claim, judicial review is barred unless he can show either: (1) “cause for the default 18 and actual prejudice as a result of the alleged violation of federal law,” or (2) “that failure 19 to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 20 U.S. at 750. To demonstrate cause, a petitioner must show that some external and 21 objective factor impeded his efforts to comply with the state’s procedural rule. See Maples 22 v. Thomas, 565 U.S. 266, 280-81 (2012). To show prejudice, a petitioner bears the burden 23 of showing not merely that the error created a possibility of prejudice, but that the error 24 worked to his actual and substantial disadvantage, infecting the entire proceeding with 25 constitutional error. See Murray v. Carrier, 477 U.S. 478, 494 (1986). 26 3. Ground 1(b)(2) 27 Respondents argue that ground 1(b)(2) is unexhausted. (ECF No. 24 at 5.) 1 decided it on the merits. (ECF No. 26 at 3.) As a reminder, in ground 1(b)(2), Camacho 2 alleges that his trial counsel failed to move to dismiss the indictment based on false 3 testimony at the grand jury proceeding. (ECF No. 12 at 22.) 4 In his opening brief to the Nevada Court of Appeals appealing the denial of his 5 state post-conviction petition, Camacho argued that his “trial counsel failed to move to 6 dismiss the indictment,” explaining that “[t]he alleged basis for dismissal was the failure 7 to serve notice of the grand jury, swear in the grand jury, or that the grand jury indictment 8 was based on illegally obtained evidence.” (ECF No. 13-10 at 28.) These three bases 9 correspond to grounds 1(b)(3), 1(b)(4), and 1(b)(1), respectively, of the First-Amended 10 Petition. Notably, ground 1(b)(2) of the First-Amended Petition was not included as one 11 of these bases. Camacho alleges that ground 1(b)(2) was also presented to the Nevada 12 Court of Appeals, arguing that he stated the following within his discussion about his trial 13 counsel’s failure to move to dismiss the indictment:

14 Camacho’s other contents are duplicative of his due process claims, which are discussed in more detail below. As a result, whether counsel was 15 effective is intertwined with the merits of those claims. Incorporating the arguments below, prejudice is shown in that a motion to dismiss based on 16 those arguments probably would have been granted. 17 (ECF No. 13-10 at 29 (emphasis added).) Regarding “the arguments below,” Camacho 18 argued that the state court erred in finding that he failed to demonstrate cause and 19 prejudice to overcome procedural bars. (Id. at 31.) Included within his cause and prejudice 20 argument, Camacho alleged the following due process claim: “the grand jury relied on 21 ‘perjured’ testimony by the officer who examined Camacho’s phone.” (Id. at 35.) Camacho 22 then asserted that “[h]ad this issue been raised on direct appeal, or by trial counsel (as 23 discussed above), it would have had a reasonable probability of success.” (Id. (emphasis 24 added).) 25 Unlike grounds 1(b)(1), 1(b)(3), and 1(b)(4), Camacho did not specifically include 26 ground 1(b)(2) within his ineffective assistance of trial counsel claim in his opening brief 27 to the Nevada Court of Appeals. However, he incorporated ground 1(b)(2) into his 1 Nevada Court of Appeals, and he provided the factual support for ground 1(b)(2) later in 2 his opening brief in his discussion about cause and prejudice. Accordingly, this Court 3 finds that Camacho fully and fairly presented ground 1(b)(2) to the Nevada Court of 4 Appeals, so it is exhausted. 5 4. Ground 1(c) 6 Camacho admits that ground 1(c) is unexhausted, but he submits that it is 7 technically exhausted and procedurally defaulted and that he can overcome the default 8 under Martinez v. Ryan, 566 U.S. 1 (2012). (ECF No. 21 at 6.) 9 A claim may be considered procedurally defaulted if “it is clear that the state court 10 would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th 11 Cir. 2002). Camacho would face several procedural bars if he were to return to state court. 12 See, e.g., NRS §§ 34.726, 34.810. Nevada has cause and prejudice and fundamental 13 miscarriage of justice exceptions to its procedural bars, which are substantially the same 14 as the federal standards. If a petitioner has a potentially viable cause-and-prejudice or 15 actual-innocence argument under the substantially similar federal and state standards, 16 then that petitioner cannot establish that “it is clear that the state court would hold the 17 claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, this Court has 18 generally declined to find a claim subject to anticipatory procedural default unless the 19 petitioner represents that he would be unable to establish cause and prejudice in a return 20 to state court. In such a case, the claim would generally be subject to immediate dismissal 21 as procedurally defaulted because the petitioner would have conceded that he has no 22 grounds for exception to the procedural default in federal court. 23 A different situation is presented, however, where the Nevada state courts do not 24 recognize a potential basis to overcome the procedural default arising from the violation 25 of a state procedural rule that is recognized under federal law. In Martinez v. Ryan, the 26 Supreme Court held that the absence or inadequate assistance of counsel in an initial- 27 review collateral proceeding may be relied upon to establish cause excusing the 1 (2012). The Nevada Supreme Court does not recognize Martinez as cause to overcome 2 a state procedural bar under Nevada state law. See Brown v. McDaniel, 331 P.3d 867, 3 875 (Nev. 2014). Thus, a Nevada habeas petitioner who relies upon Martinez—and only 4 Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim can 5 successfully argue that the state courts would hold the claim procedurally barred but that 6 he nonetheless has a potentially viable cause-and-prejudice argument under federal law 7 that would not be recognized by the state courts when applying the state procedural bars. 8 Here, Camacho advances only Martinez as a basis for excusing the anticipatory 9 default of ground 1(c). (See ECF No. 21.) Accordingly, this Court considers ground 1(c) 10 technically exhausted and procedurally defaulted. Because the cause and prejudice 11 questions of overcoming the procedural default of ground 1(c) are necessarily intertwined 12 with the merits of ground 1(c), this Court will defer a determination of whether Camacho 13 can overcome the procedural default of ground 1(c) until the time of merits determination. 14 B. Tollett v. Henderson 15 Respondents argue that grounds 1(a), 1(b)(1), 1(b)(2), 1(b)(3), and 2 are barred 16 by Tollett v. Henderson. (ECF No. 16 at 8.) In Tollett v. Henderson, the United States 17 Supreme Court stated: “When a criminal defendant has solemnly admitted in open court 18 that he is in fact guilty of the offense with which he is charged, he may not thereafter raise 19 independent claims relating to the deprivation of constitutional rights that occurred prior 20 to the entry of the plea.” 411 U.S. 258, 267 (1973). However, in examining the holding in 21 Tollett, the Court of Appeals for the Ninth Circuit held that “claims of pre-plea ineffective 22 assistance of counsel are cognizable on federal habeas review when the action, or 23 inaction, of counsel prevents petitioner from making an informed choice whether to 24 plead.” Mahrt v. Beard, 849 F. 3d 1164, 1170 (9th Cir. 2017). Because grounds 1(a), 25 1(b)(1), 1(b)(2), 1(b)(3), and 2 are all ineffective assistance of counsel claims, Tollett does 26 not preclude them. 27 /// 1 || Ill ©CONCLUSION 2 It is therefore ordered that Respondents’ Motion (ECF No. 16) is denied as follows: 3 || (1) ground 1(b)(2) is exhausted, (2) ground 1(c) is technically exhausted and procedurally 4 || defaulted, and (3) grounds 1(a), 1(b)(1), 1(b)(2), 1(b)(3), and 2 are not barred by Tollett. 5 || This Court defers consideration of whether Camacho can demonstrate cause and 6 || prejudice under Martinez to overcome the procedural default of ground 1(c) until after the 7 || filing of an answer and reply in this action. 8 It is further ordered that Respondents must file an answer to the First-Amended 9 || Petition within 60 days of the date of entry of this order. Camacho will then have 30 days 10 || from service of the answer within which to file a reply. 11 DATED THIS 11" Day of March 2024.

13 MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28