Guevara-Pontifes v. Baker

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 BRANDON GUEVARA-PONTIFES, Case No. 3:20-cv-00652-ART-CSD

6 Petitioner, ORDER v. 7 RENEE BAKER, et al., 8 Respondents. 9 10 I. SUMMARY 11 Petitioner Brandon Guevara-Pontifes filed a First Amended Petition for writ 12 of habeas corpus under 28 U.S.C. § 2254 (ECF No. 18) (“petition”). Respondents 13 moved to dismiss the petition, contending, among other things, that Grounds 2(A) 14 and 2(C) are unexhausted. (ECF No 25 at 6–8.) Guevara-Pontifes, in turn, has 15 filed a motion to stay the case while he returns to state court to exhaust Grounds 16 2(A) and 2(C). (ECF No. 44.) He also seeks a stay so he can present to the state 17 courts additional evidence (ECF No. 19) that post-conviction counsel failed to 18 present to the state courts when the claims in Grounds 2(B), 2(D), and 2(E), were 19 exhausted in state postconviction proceedings. (Id.) Respondents oppose a stay 20 on the grounds that ineffective assistance of post-conviction counsel does not 21 support good cause for a stay, a stay is futile because the unexhausted claims 22 are procedurally barred under Nevada law, and stay is futile as to the exhausted 23 claims because this Court will be unable to consider the new evidence in 24 assessing the exhausted claims upon return to this Court following a stay. (ECF 25 No. 50.) As discussed below, the Court will grant the motion for stay. 26 II. BACKGROUND 27 In 2016, a jury found Guevara-Pontifes guilty of first-degree kidnapping, 28 battery with intent to commit sexual assault, and sexual assault, in the Second 1 Judicial District Court for Washoe County, Nevada. (ECF No. 30-4.) The state 2 district court sentenced Guevara-Pontifes to an aggregate sentence of 18 years to 3 life imprisonment. (ECF No. 30-18.) Guevara-Pontifes appealed, and the Nevada 4 Court of Appeals affirmed the judgment on May 4, 2017. (ECF No. 31-10.) In 5 September 2020, the Nevada Supreme Court affirmed the denial of Guevara- 6 Pontifes’s initial post-conviction petition. (ECF No. 33-18.) 7 III. APPLICABLE LEGAL PRINCIPLES 8 A. Exhaustion and Procedural Default 9 Federal courts may not grant a writ of habeas corpus brought by a person 10 in custody pursuant to a state court judgment unless “the applicant has 11 exhausted the remedies available in the courts of the State.” 28 U.S.C. § 12 2254(b)(1)(A). The exhaustion requirement is “grounded in principles of comity” 13 as it gives the States “the first opportunity to address and correct alleged 14 violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 15 731 (1991). To exhaust a claim, a petitioner must fairly present the claim to the 16 highest available state court and must give that court the opportunity to address 17 and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (relying on Picard 18 v. Connor, 404 U.S. 270, 275 (1971)). 19 “Submitting a new claim to the state’s highest court in a procedural context 20 in which its merits will not be considered absent special circumstances does not 21 constitute fair presentation.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) 22 (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Thus, “[a]n unexhausted 23 claim will be procedurally defaulted, if state procedural rules would now bar the 24 petitioner from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 25 1317 (9th Cir. 2014). In Coleman, the Supreme Court held that a state prisoner 26 who fails to comply with state-law procedural requirements in presenting his 27 claims in state court is barred by the adequate and independent state ground 28 doctrine from obtaining a writ of habeas corpus in federal court. Coleman, 501 1 U.S. at 731–32. 2 Where a procedural default constitutes an adequate and independent state 3 ground for denial of habeas corpus, the default may be excused only if “a 4 constitutional violation has probably resulted in the conviction of one who is 5 actually innocent,” or if the prisoner demonstrates cause for the default and 6 prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). To 7 demonstrate cause, the petitioner must establish that “some objective factor 8 external to the defense impeded counsel’s efforts to comply with the State’s 9 procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); Hiivala v. Wood, 10 195 F.3d. 1098, 1105 (9th Cir. 1999). “[T]o establish prejudice, [a petitioner] must 11 show not merely a substantial federal claim, such that ‘the errors . . . at trial 12 created a possibility of prejudice,’ but rather that the constitutional violation 13 ‘worked to his actual and substantial disadvantage.’” Shinn v. Ramirez, 142 S. Ct. 14 1718, 1734–35 (2022) (citing Carrier, 477 U.S. at 494 and quoting United States 15 v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). 16 In Martinez v. Ryan, the Supreme Court ruled that ineffective assistance of 17 post-conviction counsel may serve as cause with respect to a claim of ineffective 18 assistance of trial counsel for purpose of overcoming the procedural default of a 19 claim. The Court in Martinez stated: 20 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a 21 procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial- 22 review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 23 24 566 U.S. 1, 17 (2012); see also Trevino v. Thaler, 569 U.S. 413, 423 (2013). 25 B. Stay and Abeyance 26 A district court is authorized to stay an unexhausted petition in “limited 27 circumstances,” to allow a petitioner to present unexhausted claims to the state 28 court without losing the right to federal habeas review due to the relevant one- 1 year statute of limitations. Rhines v. Weber, 544 U.S. 269, 273–77 (2005); Mena 2 v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district courts have 3 authority to stay and hold in abeyance both mixed petitions and “fully 4 unexhausted petitions under the circumstances set forth in Rhines”). 5 Under the Rhines test, “a district court must stay a mixed petition only if: 6 (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state 7 court; (2) the unexhausted claims are potentially meritorious; and (3) there is no 8 indication that the petitioner intentionally engaged in dilatory litigation tactics.” 9 Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. 10 at 278). The Ninth Circuit has acknowledged that the Rhines “good cause” 11 standard does not require “extraordinary circumstances.” Id. at 1024 (citing 12 Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005)). However, courts “must 13 interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of 14 the Supreme Court’s instruction in Rhines that the district court should only stay 15 mixed petitions in ‘limited circumstances.’” Id. (citing Jackson, 425 F.3d at 661). 16 Courts must also “be mindful that AEDPA aims to encourage the finality of 17 sentences and to encourage petitioners to exhaust their claims in state court 18 before filing in federal court.” Id. (citing Rhines, 544 U.S. at 276–77). 19 “This Court has declined to prescribe the strictest possible standard for 20 issuance of a stay.” E.g., Riner v. Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 21 2006). “[G]ood cause under Rhines, at least in this Circuit, should not be so strict 22 a standard as to require a showing of some extreme and unusual event beyond 23 the control of the defendant.” Id. The Ninth Circuit has held that the ineffective 24 assistance of post-conviction counsel can constitute good cause to obtain a stay 25 for purposes of exhausting a claim in state court. Blake v. Baker, 745 F.3d 977, 26 982–83 (9th Cir. 2014). However, “[g]ood cause requires more than just a ‘bald 27 assertion[;]’” rather, it “turns on whether the petitioner can set forth a reasonable 28 excuse, supported by sufficient evidence, to justify [the failure to exhaust].” Id. 1 “[G]ood cause under Rhines, when based on [ineffective assistance of counsel], 2 cannot be any more demanding than a showing of cause under Martinez to 3 excuse state procedural default.” Dixon v. Baker, 847 F.3d 714, 721, (9th Cir. 4 2017) (finding lack of postconviction counsel sufficient good cause for a stay). 5 The Ninth Circuit has recently ruled that a district court is required to 6 consider whether post-conviction counsel’s alleged ineffectiveness provided a 7 reasonable excuse, supported by sufficient evidence, to justify petitioner’s failure 8 to exhaust claims. Bolin v. Baker, 994 F.3d 1154 (9th Cir. 2021). 9 IV. DISCUSSION 10 Ground 2 of the petition alleges claims of ineffective assistance of trial 11 counsel. (ECF No. 18 at 17–33.) Guevara-Pontifes admits that he failed to exhaust 12 Ground 2(A) (failure to object to erroneous jury instructions on kidnapping) and 13 Ground 2(C) (failure to object to the victim’s translation of her text and telephone 14 conversations with Guevara-Pontifes). (Id.) 15 The Court finds Guevara-Pontifes has established good cause for his failure 16 to exhaust Ground 2(A). Ground 2(A) alleges trial counsel was ineffective in failing 17 to object to a jury instruction on kidnapping and request an instruction on the 18 requirements for kidnapping incident to sexual assault. (ECF No. 18 at 18–19.) 19 Guevara-Pontifes alleges there is good cause for a stay because his post- 20 conviction counsel was ineffective in failing to raise that claim. (ECF No. 44 at 4– 21 6.) Respondents do not oppose that contention. (ECF No. 50.) Guevara-Pontifes’s 22 showing of good cause is not “a bare allegation” of state post-conviction ineffective 23 assistance; rather, it is a reasonable excuse for failing to exhaust the claim and 24 the existing state court record demonstrates that postconviction counsel did not 25 raise the claim. Blake, 745 F.3d at 983. 26 Guevara-Pontifes has also established that Ground 2(A) is not plainly 27 meritless. Dixon, 847 F.3d at 722 (Petitioner must show at least one of his 28 unexhausted claims is not “plainly meritless.”). “In determining whether a claim 1 is ‘plainly meritless,’ principles of comity and federalism demand that the federal 2 court refrain from ruling on the merits of the claim unless ‘it is perfectly clear 3 that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 406 4 F.3d 614, 624 (9th Cir. 2005)). In the absence of any contention to the contrary 5 by Respondents, the Court cannot say whether or not “it is perfectly clear that 6 [Guevara-Pontifes] has no hope of prevailing” on the merits of Ground 2(A). 7 Moreover, it appears that the resolution of the claim requires a fact-based 8 determination based on the record of the trial evidence. 9 There is also no indication Guevara-Pontifes has “intentionally engaged in 10 dilatory litigation tactics.” Wooten, 540 F.3d at 1023 (citing Rhines, 544 U.S. at 11 278); see also Rosales v. Byrne, No. 16-cv-00003, 2019 WL 1177967, at *3 (D. 12 Nev. Mar. 11, 2019) (“While it perhaps is not inconceivable that a noncapital 13 habeas petitioner might engage in intentionally dilatory tactics, the relevance of 14 this factor, as a practical matter, largely is restricted to capital cases.”). 15 Respondents concede that a petitioner may rely upon the ineffective 16 assistance of post-conviction counsel as good cause for a stay. (ECF No. 50 at 3). 17 Respondents contend the recent Supreme Court opinions in Ramirez and Shoop 18 v. Twyford,142 S. Ct. 2037, 2045–46 (2022), “undermine without overruling the 19 principle in Blake that ineffective assistance of post-conviction counsel can serve 20 as cause to support a Rhines stay.” (Id. at n.1). 21 In Ramirez, the Supreme Court held that in adjudicating a Martinez claim 22 for purposes of overcoming the procedural default of a habeas claim, “a federal 23 habeas court may not conduct an evidentiary hearing or otherwise consider 24 evidence beyond the state-court record based on ineffective assistance of state 25 post-conviction counsel” unless the petitioner satisfies the stringent 26 requirements of 28 U.S.C. § 2254(e)(2). 142 S. Ct. 1718, 1734 (2022). “[B]ecause 27 there is no constitutional right to counsel in state post-conviction proceedings . . 28 . a prisoner ordinarily must ‘bea[r] responsibility’ for all attorney errors during 1 those proceedings . . .” Id. (quoting Williams v. Taylor, 529 U.S. 420, 432 (2000)) 2 (internal citations omitted). “Among those errors,” the Court explained, “a state 3 prisoner is responsible for counsel’s negligent failure to develop the state post- 4 conviction record.” Id. In such cases, a federal court may order an evidentiary 5 hearing or otherwise expand the state-court record only if the prisoner can satisfy 6 the requirements of § 2254(e)(2). Id. (emphasis added.) 7 In Shoop, the Supreme Court held that a federal transportation order was 8 not “necessary or appropriate in aid of” the District Court’s jurisdiction under the 9 All Writs Act where the petitioner failed to show that the evidence that he hoped 10 to find would be useful or admissible in the federal habeas case. 142 S. Ct. at 11 2042–43, 2045 (“[A] writ seeking new evidence would not be ‘necessary or 12 appropriate in aid of’ a federal habeas court’s jurisdiction, as all orders issued 13 under the All Writs Act must be, if it enables a prisoner to fish for unusual 14 evidence, in the hope that it might undermine his conviction in some way.”). 15 Based on Ramirez and Shoop, Respondents may be correct in their 16 assertion that Guevara-Pontifes is unable to rely upon postconviction counsel’s 17 ineffective assistance in failing to develop the state court record for purposes of 18 establishing good cause for a stay to return to state court to present additional 19 documents to support his exhausted claims in Grounds 2(B), 2(D), and 2(E).1 20 (ECF No. 44 at 2.) The Court, however, need not reach a determination whether 21 Guevara-Pontifes may or may not, return to state court to present new evidence 22 in support of his claims or whether this Court will entertain such new evidence 23 upon return to this Court following the stay. Neither Ramirez nor Shoop concern 24 the good cause requirements for a Rhines stay nor do they foreclose a petitioner 25 1 In the petition, Guevara-Pontifes asserts that he exhausted Ground 2(B) (failure 26 to object to the State expert’s testimony), Ground 2(D) (failure to object to the 27 motion to suppress Guevara-Pontifes’s statement to police), and Ground 2(E) (failure to object to prosecutorial misconduct) in his state post-conviction 28 proceedings. (ECF No. 18 at 17–33.) 1 from demonstrating good cause for a stay based on post-conviction counsel’s 2 failure to raise an unexhausted claim in state court. As discussed, Guevara- 3 Pontifes has met the good cause standard for a stay for purposes of returning to 4 state court to pursue at least one of his unexhausted claims. Therefore, the Court 5 does not consider whether Guevara-Pontifes meets the Rhines standard for a stay 6 as to the other claims that he wishes to pursue in state court during a stay. See 7 Archanian v. Gittere, No. 19-cv-00177, 2019 WL 6499113, at *2 (D. Nev. Dec. 3, 8 2019). (“If a [Rhines] stay is warranted with respect to any single claim, the court 9 need not conduct a claim-by-claim analysis regarding the remaining claims.”). 10 Respondents contend that a stay for purposes of returning to state court is 11 an exercise in futility and a waste of state judicial resources as several procedural 12 bars will prohibit review of the merits of the unexhausted claims. (ECF No. 50 at 13 4, n.2); see also Nev. Rev. Stat. §§ 34.726(1), 34.810(1)(b)(2). As such, 14 Respondents contend a stay will not provide the state courts with a fair 15 opportunity to consider the merits of the unexhausted claims. (Id.). 16 Guevara-Pontifes admits that his only basis for cause to overcome a 17 procedural default of his unexhausted claims is his reliance upon ineffective 18 assistance of trial and post-conviction counsel under Martinez. Although Martinez 19 presents a path to overcome a procedural default in federal courts, the Nevada 20 Supreme Court has expressly declined to follow the Martinez exception to excuse 21 state procedural bars. See Brown v. McDaniel, 130 Nev. 565, 569–76 (2014). 22 Thus, Grounds 2(A) and 2(C) are concededly technically exhausted and 23 procedurally defaulted and it would appear futile to return to state court to 24 exhaust them. Aside from Martinez, Nevada's cause-and-prejudice standards are 25 substantially similar to federal standards such that nearly any argument a 26 petitioner might present in federal court to overcome a procedural default can be 27 presented to the state courts in the first instance. Guevara-Pontifes,however, 28 asserts that if the stay is granted, he can argue to the Nevada Supreme Court, 1 || that in light of the Supreme Court’s decision in Ramirez, it should overrule Brown 2 || and permit the use of the principles set forth in Martinez for purposes of 3 || overcoming state procedural bars. (ECF No. 52 at 4-5.) 4 Although the Court agrees that Guevara-Pontifes’s return to state court is 5 || unlikely to result in a determination of the merits of his claims due to the state 6 || procedural bars, Guevara-Pontifes has met the requirements for a stay as to at 7 || least one of his unexhausted claims in accordance with Rhines, Blake, and Bolin. 8 || Accordingly, the motion for stay will be granted. 9 IT IS THEREFORE ORDERED that Guevara-Pontifes’s Motion for a Stay 10 || and Abeyance (ECF No. 44) is GRANTED. 11 IT IS FURTHER ORDERED that this action is stayed pending exhaustion 12 || of the unexhausted grounds in the First Amended Petition. 13 IT IS FURTHER ORDERED that the grant of a stay is conditioned upon 14 || Guevara-Pontifes litigating his state post-conviction petition or other appropriate 15 || proceeding in state court and returning to federal court with a motion to reopen 16 || this action within 45 days of issuance of the remittitur by the Supreme Court of 17 || Nevada at the conclusion of the state court proceedings. 18 IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (ECF No. 19 || 25) is DENIED WITHOUT PREJUDICE to the reassertion of any and all defenses 20 || then applicable following the stay. 21 IT IS FURTHER ORDERED that the Clerk of Court shall administratively 22 || close this action, until such time as the Court grants a motion to reopen the 23 || matter. 24 DATED THIS 234 day of September 2022. 25 A> +s plod de 26 $8 ANNE R. TRAUM 27 UNITED STATES DISTRICT JUDGE 28