Camacho v. Johnson

• Court: District Court, D. Nevada
• Decided: August 31, 2022
• Docket: 3:20-cv-00488
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 MARIO CAMACHO, Case No. 3:20-cv-00488-RCJ-CSD 5 Petitioner, 6 ORDER v. 7 WILLIAM REUBART, et al., 8 Respondents. 9

10 11 12 I. Summary 13 In this habeas corpus action, the respondents have filed a motion to dismiss, 14 arguing that certain of Petitioner Mario Camacho’s claims for habeas corpus relief are 15 unexhausted in state court and/or procedurally defaulted. Camacho, in turn, has filed a 16 motion to stay the case while he returns to state court to exhaust any unexhausted 17 claims. Determining that Camacho’s claims are all exhausted—exhausted in fact or 18 technically exhausted—and that his return to state court would be futile because the 19 claims he wishes to present in state court are undisputedly procedurally barred under 20 current Nevada law, the Court will deny the motion to stay and will set a schedule for 21 Camacho to file a response to the motion to dismiss. 22 II. Background 23 On May 31, 2017, following a jury trial, Camacho was convicted in Nevada’s 24 Eighth Judicial District Court (Clark County) of conspiracy to commit kidnapping, first- 25 degree kidnapping with the use of a deadly weapon, robbery with the use of a deadly 26 weapon, two counts of first-degree kidnapping with use of a deadly weapon resulting in 27 substantial bodily harm, first-degree murder with the use of a deadly weapon, and 1 26 (ECF No. 14-26). He was sentenced to multiple consecutive prison terms, including 2 three consecutive terms of life in prison without the possibility of parole. See id. 3 In its order on Camacho’s direct appeal, the Nevada Supreme Court briefly 4 described the crimes as follows:

5 Appellant Mario John Camacho and his co-defendant, Eric Deon Robinson, engaged in a series of criminal activities to recover money from 6 a transaction involving drugs and a firearm. On the day of the crime, Robinson assisted Camacho in kidnapping three individuals to interrogate 7 them about the money. Camacho shot and killed one of the victims and shot and severely injured a second victim. 8 9 Order of Affirmance, Exh. 32 (ECF No. 14-32). The Nevada Supreme Court affirmed 10 Camacho’s conviction on March 18, 2019. Id. 11 On March 18, 2020, Camacho filed a counseled petition for writ of habeas corpus 12 in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 13 34 (ECF Nos. 15-1, 16-1, 16-2). The state district court denied Camacho’s petition on 14 August 13, 2020. See Findings of Fact, Conclusions of Law and Order, Exh. 36 (ECF 15 No. 16-4). Camacho did not appeal from the denial of his state habeas petition. 16 On August 26, 2020, this Court received a pro se federal habeas corpus petition 17 from Camacho, initiating this action. See Petition for Writ of Habeas Corpus (ECF No. 18 8). The Court appointed counsel for Camacho (see ECF Nos. 7, 11), and, with counsel, 19 Camacho filed a first amended habeas petition on December 17, 2020 (ECF No. 13) 20 and a second amended habeas petition on January 11, 2022 (ECF No. 35). Camacho’s 21 second amended petition, which is now his operative petition, sets forth the following 22 claims for habeas corpus relief:

23 Ground 1: The trial court violated Camacho’s federal constitutional rights, by allowing the State to use peremptory challenges in violation of Batson 24 v. Kentucky, 476 U.S. 79 (1986).

25 Ground 2: The trial court violated Camacho’s federal constitutional rights, by failing to sever his trial from the trial of his co-defendant, Eric Robinson. 26 Ground 3: The trial court violated Camacho’s federal constitutional rights, 27 by prohibiting him from presenting evidence supporting his defense of Ground 4: The judgment of conviction violated Mario’s federal 1 constitutional rights because the evidence adduced at trial was insufficient to support the enhancement for “substantial bodily harm” with respect to 2 the kidnapping of Frankie Wiest.

3 Ground 5: Camacho’s federal constitutional rights were denied because he received ineffective assistance of counsel. 4 A. Camacho’s trial counsel were ineffective for failing to file 5 a motion to sever prior to trial and for failing to join Camacho’s co-defendant’s motion to sever. 6 B. Camacho’s trial counsel were ineffective for failing to 7 argue the correct hearsay exception for admitting evidence of duress. 8 C. Camacho’s trial counsel were ineffective for failing to 9 move for a mistrial after Camacho’s co-defendant’s closing arguments. 10 D. Camacho’s trial counsel were ineffective for failing to call 11 multiple witnesses to testify at the sentencing hearing.

12 E. Camacho’s trial counsel were ineffective for failing to present testimony of William “Billy” Wakefield. 13 F. Camacho’s trial counsel were ineffective for failing to 14 subpoena Christen Albano to testify at trial.

15 G. Camacho’s trial counsel were ineffective for failing to subpoena Jorge “George” Ochoa to testify at trial. 16 H. Camacho’s trial counsel were ineffective for failing to 17 present testimony of Nicholas “Nic” Camacho. 18 Second Amended Petition (ECF No. 35). 19 Respondents filed a motion to dismiss on June 17, 2022 (ECF No. 54). In the 20 motion to dismiss, Respondents argue that the claims of ineffective assistance of 21 counsel in Grounds 5A through 5H are unexhausted and/or procedurally defaulted. See 22 Motion to Dismiss (ECF No. 54), pp. 3–4. 23 On July 28, 2022, Camacho filed his motion for a stay (ECF No. 58), requesting 24 that this case be stayed while he returns to state court to exhaust the claims of 25 ineffective assistance of counsel in Grounds 5A through 5H. In the alternative, if the 26 motion for stay is denied, Camacho requests that the Court grant him 30 days from the 27 denial of the motion for stay to respond to the motion to dismiss. See Motion for Stay 1 (ECF No. 59). Camacho filed a reply in support of his motion on August 15, 2022 (ECF 2 No. 60). 3 III. Discussion 4 A federal court may not grant relief on a habeas corpus claim not exhausted in 5 state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of 6 federal-state comity, and is designed to give state courts the initial opportunity to correct 7 constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust 8 a claim, a petitioner must fairly present the claim to the highest available state court and 9 must give that court the opportunity to address and resolve it. See Duncan v. Henry, 10 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 11 (1992). 12 The Supreme Court has recognized that under certain circumstances it may be 13 appropriate for a federal court to anticipate a state-law procedural bar of an 14 unexhausted claim, and to treat such a claim as subject to the procedural default 15 doctrine. “An unexhausted claim will be procedurally defaulted, if state procedural rules 16 would now bar the petitioner from bringing the claim in state court.” Dickens v. Ryan, 17 740 F.3d 1302, 1317 (9th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 731 18 (1991)). 19 Turning then to the procedural default doctrine, in Coleman v. Thompson, 501 20 U.S. 722 (1991), the Supreme Court held that a state prisoner who fails to comply with 21 state-law procedural requirements in presenting his claims in state court is barred by the 22 adequate and independent state ground doctrine from obtaining a writ of habeas corpus 23 in federal court. Coleman, 501 U.S. at 731–32 (“Just as in those cases in which a state 24 prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the 25 State’s procedural requirements for presenting his federal claims has deprived the state 26 courts of an opportunity to address those claims in the first instance.”). Where such a 27 procedural default constitutes an adequate and independent state ground for denial of 1 probably resulted in the conviction of one who is actually innocent,” or if the prisoner 2 demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 3 477 U.S. 478, 496 (1986). 4 To demonstrate cause for a procedural default, the petitioner must “show that 5 some objective factor external to the defense impeded” his efforts to comply with the 6 state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external 7 impediment must have prevented the petitioner from raising the claim. See McCleskey 8 v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner 9 bears “the burden of showing not merely that the errors [complained of] constituted a 10 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 11 infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 12 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 13 (1982)). 14 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective 15 assistance of post-conviction counsel may serve as cause with respect to a claim of 16 ineffective assistance of trial counsel. The Martinez Court stated: “Where, under state 17 law, claims of ineffective assistance of trial counsel must be raised in an initial-review 18 collateral proceeding, a procedural default will not bar a federal habeas court from 19 hearing a substantial claim of ineffective assistance at trial if, in the initial review 20 collateral proceeding, there was no counsel or counsel in that proceeding was 21 ineffective.” Martinez, 566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 423 22 (2013) (regarding the showing necessary to overcome a procedural default under 23 Martinez). However, in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the Supreme Court 24 recently held that in adjudicating a Martinez claim, “a federal habeas court may not 25 conduct an evidentiary hearing or otherwise consider evidence beyond the state-court 26 record based on ineffective assistance of state postconviction counsel” unless the 27 petitioner satisfies the stringent requirements of 28 U.S.C. § 2254(e)(2). Ramirez, 142 1 there has been “a failure to develop the factual basis of a claim,” something that “is not 2 established unless there is a lack of diligence, or some greater fault, attributable to the 3 prisoner or the prisoner's counsel.” Ramirez, 142 S.Ct. at 1735. The Court explained, 4 though, that a prisoner bears the risk for all attorney errors unless counsel provides 5 constitutionally ineffective assistance, and since there is no constitutional right to 6 counsel in state post-conviction proceedings, “a prisoner ordinarily must ‘bea[r] 7 responsibility’ for all attorney errors during those proceedings.” Id. (quoting Williams v. 8 Taylor, 529 U.S. 420, 432 (2000)). “Among those errors,” the Court explained, “a state 9 prisoner is responsible for counsel’s negligent failure to develop the state postconviction 10 record.” Id. So, the Supreme Court held, in such a case, a federal court may order an 11 evidentiary hearing or otherwise expand the state-court record only if the prisoner can 12 satisfy the requirements of § 2254(e)(2). Id. Under § 2254(e)(2), if the petitioner has 13 “failed to develop the factual basis of a claim in State court proceedings,” a district court 14 cannot hold an evidentiary hearing on the claim unless (1) the claim relies on either a 15 new rule of constitutional law made retroactive by the Supreme Court to cases on 16 collateral review or a factual predicate that could not have been previously discovered 17 through due diligence and (2) the facts underlying the claim would establish by clear 18 and convincing evidence that but for constitutional error, no reasonable factfinder would 19 have found the applicant guilty. 28 U.S.C. § 2254(e)(2). 20 Now turning to the legal standard governing a motion for an exhaustion stay, a 21 district court is authorized to stay a habeas action in “limited circumstances” while a 22 petitioner presents unexhausted claims to the state court. Rhines v. Weber, 544 U.S. 23 269, 273–75 (2005). Under Rhines, “a district court must stay a mixed petition only if: 24 (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state court; 25 (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that 26 the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 27 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 1 The Ninth Circuit Court of Appeals has acknowledged that the Rhines “good 2 cause” standard does not require “extraordinary circumstances.” Wooten, 540 F.3d at 3 1024 (citing Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005)). Ineffective 4 assistance of postconviction counsel or a lack of postconviction counsel can constitute 5 good cause under Rhines. See Blake v. Baker, 745 F.3d 977, 982–83 (9th Cir. 2014); 6 Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017). But courts “must interpret whether a 7 petitioner has ‘good cause’ for a failure to exhaust in light of the Supreme Court's 8 instruction in Rhines that the district court should only stay mixed petitions in ‘limited 9 circumstances.’” Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts 10 must also be “mindful that AEDPA aims to encourage the finality of sentences and to 11 encourage petitioners to exhaust their claims in state court before filing in federal court.” 12 Id. (citing Rhines, 544 U.S. at 276–77). 13 So, turning to the parties’ arguments regarding Camacho’s motion for a stay, 14 Camacho argues that he can meet the requirements for a Rhines stay: that the claims in 15 Grounds 5A through 5H are potentially meritorious; that there is good cause for his 16 failure to exhaust those claims previously, because of ineffective assistance of his post- 17 conviction counsel and because of his reliance on Martinez before Ramirez was 18 decided; and that he has not engaged in dilatory litigation tactics. Motion for Stay (ECF 19 No. 58). In response, Respondents contend that a stay is inappropriate because a new 20 state habeas petition asserting the claims in Grounds 5A through 5H would be 21 procedurally barred as untimely and successive. See Opposition to Motion for Stay 22 (ECF No. 59); see also NRS §§ 34.726, 34.810. According to Respondents, Camacho’s 23 return to state court to file an untimely and successive state habeas petition would be 24 futile. See Opposition to Motion for Stay (ECF No. 59). In other words—in more 25 fundamental terms—Respondents contend that the claims in Grounds 5A through 5H 26 are not unexhausted, but, rather, are technically exhausted but subject to application of 27 the procedural default doctrine. See id. 1 In his second amended habeas petition—filed on January 11, 2022, before the 2 Supreme Court’s decision in Ramirez—Camacho asserted that his claims in Grounds 3 5A through 5H are technically exhausted and procedurally defaulted:

4 Statement of Exhaustion: Sub-claims A-D are procedurally defaulted but technically exhausted because post-conviction counsel 5 failed to exhaust them. Subclaims E-H are procedurally defaulted but technically exhausted because postconviction counsel failed to raise them. 6 7 Second Amended Petition (ECF No. 35), p. 25. It was only after the Supreme Court’s 8 Ramirez decision that Camacho changed his position, and now argues that he should 9 be granted a stay so that he can return to state court to present those claims in a 10 successive and untimely state habeas petition. 11 In his reply, Camacho states that, if this case is stayed and he returns to state 12 court and files a second state habeas petition, he “can argue that the Nevada Supreme 13 Court could reconsider its decision in Brown v. McDaniel, 331 P.3d 867, 870–75 (Nev. 14 2014),” in which “the Nevada Supreme Court declined to follow [Martinez] and allow 15 ineffective assistance of post-conviction counsel to act as good cause in non-capital 16 cases.” Reply to Respondents’ Opposition to Motion for Stay (ECF No. 60), p. 4. 17 Camacho makes no argument that he can overcome the procedural bars of the claims 18 in Grounds 5A through 5H in state court under current Nevada law. 19 The Court will deny Camacho’s motion for stay. The point of a Rhines stay is to 20 allow a federal habeas petitioner an opportunity to present unexhausted claims in state 21 court. But here, the claims in Grounds 5A through 5H are not unexhausted. It is 22 undisputed that those claims are procedurally barred in state court, and Camacho 23 makes no argument that he can overcome the procedural bars under current Nevada 24 law. Therefore, the Court finds that the claims in Grounds 5A through 5H are technically 25 exhausted but subject to application of the procedural default doctrine. Under these 26 circumstances, granting Camacho’s request for a Rhines stay would be contrary to the 27 Supreme Court’s instructions that exhaustion stays should be granted in only limited 1 || finality of sentences and encouraging petitioners to exhaust their claims in state court 2 || before filing in federal court. 3 IT IS THEREFORE ORDERED that Petitioner's Motion for Stay (ECF No. 58) is 4 || DENIED. 5 IT IS FURTHER ORDERED that Petitioner will have 30 days from the date of this 6 || order to file a response to Respondents’ Motion to Dismiss (ECF No. 54). In all other 7 || respects, the schedule for further proceedings set forth in the order entered January 8, 8 || 2021 (ECF No. 22) will remain in effect. 9 10 DATED THIS 31st day of August, 2022. 11 ; ) 12 . OO _ 13 UNITED STATES/OISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28