2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 JERALD REY COSTA, JR., Case No. 3:16-cv-00705-HDM-CLB 6 Petitioner, 7 v. ORDER
8 ISIDRO BACA, et al., 9 Respondents. 10 11 12 This is a federal habeas proceeding under 28 U.S.C. § 2254 brought by Jerald 13 Rey Costa, Jr., a Nevada prisoner. Respondents have filed a motion to dismiss Costa’s 14 habeas petition arguing that Ground 1 is not cognizable as a stand-alone claim and that 15 Grounds 2(1-3) and 3 are not cognizable because they allege constitutional violations 16 that occurred prior to Costa’s guilty plea. ECF No. 22. For reasons that follow, the 17 motion to dismiss is granted, in part, and denied, in part. 18 I. PROCEDURAL BACKGROUND 19 In December 2010, Costa was charged with murder with use of a firearm based 20 on allegation that he shot Anthony Pulice with a handgun in a bar in Sparks, Nevada. 21 After Costa entered a guilty plea to first-degree murder, the Second Judicial District for 22 Nevada (Washoe County) entered a judgment of conviction in August 2011, sentencing 23 him to life with the possibility of parole after 20 years. Costa appealed. In May 2012, the 24 Nevada Supreme Court affirmed the judgment. 25 In January 2014, Costa filed a counseled supplemental state petition for writ of 26 habeas corpus, seeking post-conviction relief. After holding an evidentiary hearing, the 27 1 state district court held denied the petition. Costa appealed. In November 2016, the 2 Nevada Supreme Court affirmed the denial of Costa’s petition. 3 In late 2016, Costa submitted his original federal habeas petition. This Court 4 stayed this matter while Costa’s state proceedings were ongoing. During the stay, Costa 5 filed a pro per state habeas petition, a motion to vacate his judgment of conviction, a 6 motion for a new sentencing hearing and a motion to re-consider sentence, all of which 7 were denied. 8 In May 2022, this court reopened this case and, soon thereafter, Costa filed the 9 amended petition that is the subject of respondents’ motion to dismiss. 10 II. DISCUSSION 11 A. Ground 1 12 In Ground 1, Costa alleges that he is “actually innocent” of first-degree murder 13 because his alcoholic blackout and mental impairments prevented him from forming the 14 requisite intent for first-degree murder and because Pulice died from pneumonia, not 15 from being shot. Respondents argue that the ground should be dismissed because 16 claims of actual innocence are not cognizable as a stand-alone claim on federal habeas 17 review. 18 The Supreme Court has “not resolved whether a prisoner may be entitled to 19 habeas relief based on a freestanding claim of actual innocence.” McQuiggin v. Perkins, 20 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404-405 (1993)). 21 Thus, it is questionable whether Ground 1 is cognizable on habeas review as 22 presented. However, it is not necessary for the court to resolve that question because 23 Ground 1 fails as an actual innocence claim. 24 To be credible, an actual innocence claim “requires petitioner to support his 25 allegations of constitutional error with new reliable evidence—whether it be exculpatory 26 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that 27 was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner must 1 show that, in light of all available evidence, it is more likely than not that no reasonable 2 juror would convict him of the relevant crime. See House v. Bell, 547 U.S. 518, 536-37 3 (2006). 4 In this case, there was no trial because Costa entered a guilty plea. Indeed, 5 Costa’s claim of actual innocence is fully inconsistent with his plea of guilty, which is 6 entitled to a strong presumption of truth. See Muth v. Fondren, 676 F.3d 815, 821-22 7 (9th Cir. 2012) (finding that petitioner was not entitled to application of the § 2255 8 escape hatch where his claim of actual innocence was contradicted by his guilty plea); 9 see also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he representations of the 10 defendant [at a plea hearing] ... constitute a formidable barrier in any subsequent 11 collateral proceedings. Solemn declarations in open court carry a strong presumption of 12 verity.”); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made 13 by a defendant during a guilty plea hearing carry a strong presumption of veracity in 14 subsequent proceedings attacking the plea.”). The Supreme Court has recognized the 15 possibility of actual innocence in the guilty plea context, but in only in a case where 16 there was a retroactive intervening change in the law. Bousley v. United States, 523 17 U.S. 614, 623-24 (1998). In one case, the Ninth Circuit assumed that a claim of actual 18 innocence was available to a petitioner who plead guilty but declined to resolve the 19 issue because the petitioner failed to meet the Schlup standard. See Smith v. Baldwin, 20 510 F.3d 1127, 1140 n.9 (9th Cir. 2007). 21 In any case, Costas has not presented, or even identified, new reliable evidence 22 demonstrating that he is actually innocent of first-degree murder. Any evidence that 23 might support his broad claims regarding lack of intent and proximate cause was 24 presumably available at the time he entered his guilty plea. Costa makes no claim to the 25 contrary. If that is the case, he may have a cognizable claim based on ineffective 26 assistance of counsel, but not based on actual innocence. Accordingly, Ground 1 is 27 dismissed. 1 B. Grounds 2(1-3) and 3 2 In Grounds 2(1-3) and Ground 3, Costa alleges that he was deprived of effective 3 assistance of counsel in violation of his rights under the Sixth and Fourteenth 4 Amendments. Respondents argue that these grounds should be dismissed because 5 they are premised on alleged deprivations of Costa’s constitutional rights that occurred 6 prior to the entry of his guilty plea. In Tollett v. Henderson, the United States Supreme 7 Court held that “when a criminal defendant has solemnly admitted in open court that he 8 is in fact guilty of the offense with which he is charged, he may not thereafter raise 9 independent claims relating to the deprivation of constitutional rights that occurred prior 10 to the entry of the guilty plea.” 411 U.S. 258, 267 (1973). A petitioner may only attack 11 the voluntary and intelligent nature of the guilty plea. Id. An exception to this general 12 rule is “that a habeas petitioner may ‘attack the voluntary and intelligent character of the 13 guilty plea’ based on pre-plea ineffective assistance of counsel ‘by showing that the 14 advice he received from counsel was not within the’ ‘range of competence demanded of 15 attorneys in criminal cases.’” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017) (citing 16 Tollett, 411 U.S. at 267–69). The court in Mahrt clarified that this exception to the Tollett 17 bar is not limited to incompetent advice from counsel and extends to instances in which 18 “the action, or inaction, of counsel prevent[ed] petitioner from making an informed 19 choice whether to plead.” Id.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 JERALD REY COSTA, JR., Case No. 3:16-cv-00705-HDM-CLB 6 Petitioner, 7 v. ORDER
8 ISIDRO BACA, et al., 9 Respondents. 10 11 12 This is a federal habeas proceeding under 28 U.S.C. § 2254 brought by Jerald 13 Rey Costa, Jr., a Nevada prisoner. Respondents have filed a motion to dismiss Costa’s 14 habeas petition arguing that Ground 1 is not cognizable as a stand-alone claim and that 15 Grounds 2(1-3) and 3 are not cognizable because they allege constitutional violations 16 that occurred prior to Costa’s guilty plea. ECF No. 22. For reasons that follow, the 17 motion to dismiss is granted, in part, and denied, in part. 18 I. PROCEDURAL BACKGROUND 19 In December 2010, Costa was charged with murder with use of a firearm based 20 on allegation that he shot Anthony Pulice with a handgun in a bar in Sparks, Nevada. 21 After Costa entered a guilty plea to first-degree murder, the Second Judicial District for 22 Nevada (Washoe County) entered a judgment of conviction in August 2011, sentencing 23 him to life with the possibility of parole after 20 years. Costa appealed. In May 2012, the 24 Nevada Supreme Court affirmed the judgment. 25 In January 2014, Costa filed a counseled supplemental state petition for writ of 26 habeas corpus, seeking post-conviction relief. After holding an evidentiary hearing, the 27 1 state district court held denied the petition. Costa appealed. In November 2016, the 2 Nevada Supreme Court affirmed the denial of Costa’s petition. 3 In late 2016, Costa submitted his original federal habeas petition. This Court 4 stayed this matter while Costa’s state proceedings were ongoing. During the stay, Costa 5 filed a pro per state habeas petition, a motion to vacate his judgment of conviction, a 6 motion for a new sentencing hearing and a motion to re-consider sentence, all of which 7 were denied. 8 In May 2022, this court reopened this case and, soon thereafter, Costa filed the 9 amended petition that is the subject of respondents’ motion to dismiss. 10 II. DISCUSSION 11 A. Ground 1 12 In Ground 1, Costa alleges that he is “actually innocent” of first-degree murder 13 because his alcoholic blackout and mental impairments prevented him from forming the 14 requisite intent for first-degree murder and because Pulice died from pneumonia, not 15 from being shot. Respondents argue that the ground should be dismissed because 16 claims of actual innocence are not cognizable as a stand-alone claim on federal habeas 17 review. 18 The Supreme Court has “not resolved whether a prisoner may be entitled to 19 habeas relief based on a freestanding claim of actual innocence.” McQuiggin v. Perkins, 20 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404-405 (1993)). 21 Thus, it is questionable whether Ground 1 is cognizable on habeas review as 22 presented. However, it is not necessary for the court to resolve that question because 23 Ground 1 fails as an actual innocence claim. 24 To be credible, an actual innocence claim “requires petitioner to support his 25 allegations of constitutional error with new reliable evidence—whether it be exculpatory 26 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that 27 was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner must 1 show that, in light of all available evidence, it is more likely than not that no reasonable 2 juror would convict him of the relevant crime. See House v. Bell, 547 U.S. 518, 536-37 3 (2006). 4 In this case, there was no trial because Costa entered a guilty plea. Indeed, 5 Costa’s claim of actual innocence is fully inconsistent with his plea of guilty, which is 6 entitled to a strong presumption of truth. See Muth v. Fondren, 676 F.3d 815, 821-22 7 (9th Cir. 2012) (finding that petitioner was not entitled to application of the § 2255 8 escape hatch where his claim of actual innocence was contradicted by his guilty plea); 9 see also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he representations of the 10 defendant [at a plea hearing] ... constitute a formidable barrier in any subsequent 11 collateral proceedings. Solemn declarations in open court carry a strong presumption of 12 verity.”); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made 13 by a defendant during a guilty plea hearing carry a strong presumption of veracity in 14 subsequent proceedings attacking the plea.”). The Supreme Court has recognized the 15 possibility of actual innocence in the guilty plea context, but in only in a case where 16 there was a retroactive intervening change in the law. Bousley v. United States, 523 17 U.S. 614, 623-24 (1998). In one case, the Ninth Circuit assumed that a claim of actual 18 innocence was available to a petitioner who plead guilty but declined to resolve the 19 issue because the petitioner failed to meet the Schlup standard. See Smith v. Baldwin, 20 510 F.3d 1127, 1140 n.9 (9th Cir. 2007). 21 In any case, Costas has not presented, or even identified, new reliable evidence 22 demonstrating that he is actually innocent of first-degree murder. Any evidence that 23 might support his broad claims regarding lack of intent and proximate cause was 24 presumably available at the time he entered his guilty plea. Costa makes no claim to the 25 contrary. If that is the case, he may have a cognizable claim based on ineffective 26 assistance of counsel, but not based on actual innocence. Accordingly, Ground 1 is 27 dismissed. 1 B. Grounds 2(1-3) and 3 2 In Grounds 2(1-3) and Ground 3, Costa alleges that he was deprived of effective 3 assistance of counsel in violation of his rights under the Sixth and Fourteenth 4 Amendments. Respondents argue that these grounds should be dismissed because 5 they are premised on alleged deprivations of Costa’s constitutional rights that occurred 6 prior to the entry of his guilty plea. In Tollett v. Henderson, the United States Supreme 7 Court held that “when a criminal defendant has solemnly admitted in open court that he 8 is in fact guilty of the offense with which he is charged, he may not thereafter raise 9 independent claims relating to the deprivation of constitutional rights that occurred prior 10 to the entry of the guilty plea.” 411 U.S. 258, 267 (1973). A petitioner may only attack 11 the voluntary and intelligent nature of the guilty plea. Id. An exception to this general 12 rule is “that a habeas petitioner may ‘attack the voluntary and intelligent character of the 13 guilty plea’ based on pre-plea ineffective assistance of counsel ‘by showing that the 14 advice he received from counsel was not within the’ ‘range of competence demanded of 15 attorneys in criminal cases.’” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017) (citing 16 Tollett, 411 U.S. at 267–69). The court in Mahrt clarified that this exception to the Tollett 17 bar is not limited to incompetent advice from counsel and extends to instances in which 18 “the action, or inaction, of counsel prevent[ed] petitioner from making an informed 19 choice whether to plead.” Id. 20 In Grounds 2(1-3) and 3, Costa claims that his trial counsel, Jennifer Lunt, 21 performed below the constitutional standard for two reasons.1 First, he alleges that Lunt 22 failed to investigate whether he lacked the requisite intent to commit first-degree murder 23 because, at the time of the shooting, he was experiencing an alcoholic blackout and had 24 25
26 1 While respondents divide Grounds 2(1-3) and 3 into four separate claims (ECF No. 22 at 2), Ground 2(3) and Ground 3 merely supplement the allegations made in Ground 2(1) and Ground 27 2(2). 1 || not been taking his medication for other mental health conditions. Second, he alleges 2 || Lunt failed to investigate whether Pulice had pulled a knife on him before he shot Pulice. 3 If Lunt failed to investigate viable defenses, as Costa claims, such failure could 4 || have adversely impacted the advice Lunt gave Costa and Costa’s decision to enter a 5 || guilty plea. In other words, it could have prevented Costa “from making an informed 6 || choice whether to plead.” Mahrt, 849 F.3d at 1170. Consequently, the court concludes 7 || that the two grounds for relief alleged in Grounds 2(1-3) and 3 are not barred under 8 || Tollett. See id., see also Hill v. Lockhart, 474 U.S. 52, 59 ((1985) (recognizing that 9 || counsel's failure to investigate can prejudice defendant by impacting counsel’s 10 || recommendation as to a guilty plea). 11 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 22) 12 || is GRANTED, in part, and DENIED, in part. Ground 1 of the amended petition for a writ 13 || of habeas corpus (ECF No. 14) is dismissed. 14 IT IS FURTHER ORDERED that respondents have 60 days from the date this 15 || order is entered to file an answer responding to the remaining claims in the amended 16 || petition. With their answer, respondents shall supplement the record with a copy of the 17 || transcript of the preliminary hearing conducted on July 8, 2010, in Case No. SJC 10- 18 || 1108 (Sparks Justice Court).? 19 IT IS FURTHER ORDERED that petitioner's motion for extension of time (ECF 20 || No. 24) is GRANTED nunc pro tunc to November 9, 2022. 21 DATED this 28thday of March __, 2023. bua” 2 ft ftbhe> 53 UNITED STATES DISTRICT JUDGE
24 — TOO, ? Prior to Pulice’s death, the Sparks Justice Court held a preliminary hearing on a charge of attempted 25 || murder. When the State subsequently brought a murder charge, the Sparks Justice Court held another preliminary hearing at which it took judicial notice of the prior hearing and heard testimony limited to the 26 || cause of Pulice’s death. See ECF No. 19-7 at 5-6. The current record contains a transcript of the second hearing (ECF No. 19-7), but not the first. Accordingly, the court directs respondents to provide a 27 |! transcript of the first hearing if it is available. 28