Guitron v. Baker

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MIGUEL JOSE GUITRON, Case No. 3:18-cv-00235-MMD-CBC 7 Petitioner, ORDER 8 v.

9 RENEE BAKER, et al., 10 Respondents. 11 12 I. INTRODUCTION 13 This action is a petition for writ of habeas corpus by Miguel Jose Guitron, an 14 individual incarcerated at Nevada’s Lovelock Correctional Center. Petitioner is 15 represented by appointed counsel. Respondents have filed a motion to dismiss. For the 16 following reasons, the Court will deny the motion to dismiss and set a schedule for 17 Respondents to file an answer. 18 II. BACKGROUND 19 In its opinion on Petitioner’s direct appeal, the Nevada Court of Appeals described 20 the factual background of the case as follows:

21 Guitron met the victim’s mother, Anita, in Las Vegas in 1997 or 1998. The couple dated for some time, after which Anita moved to Michigan. 22 When she left Las Vegas, Anita was approximately two to three months pregnant with the victim, who she asserts is Guitron’s child. However, Anita 23 did not tell Guitron she was pregnant and she had no contact with Guitron for some years after leaving Las Vegas. When the victim was five years old, 24 Anita applied for child support from Guitron, which the court awarded following a positive paternity test. 25 In October 2010, Guitron called Anita while she was living in Ohio 26 with the victim and her two other children fathered by another man. The victim, who was then 11 years old, overheard the conversation, realized it 27 was her father on the phone, and asked to speak with him. The victim testified that during this first telephone conversation, Guitron told her he was 28 1 speaking with her father for the first time.

2 Following this phone call, Anita moved back to Las Vegas in late 2010 and resumed her relationship with Guitron. The victim, who was in 3 elementary school and enrolled in an lndividualized Education Plan because she was a slow learner, was thrilled to finally meet her father. 4 Guitron began living with the family shortly after the move. During this time, the victim discussed sex with Anita and had at least some knowledge and 5 understanding of sex.

6 When the victim was 12 years old, Anita realized the victim was pregnant. Initially, the victim told Anita a neighbor boy was the father. The 7 next day, Anita took the victim to a pregnancy center where medical personnel confirmed she was eight months pregnant. Based on the victim’s 8 statements during the examination, the medical staff called the police and alleged Guitron had sexually assaulted the victim. The victim then admitted 9 to both Anita and the police that Guitron was the baby's father. She explained she initially lied because Guitron told her to say the neighbor boy 10 was the father. DNA testing by the Las Vegas Metropolitan Police Department conclusively proved Guitron was the father of the victim's baby. 11 Additionally, Guitron sent letters to the victim during the pendency of the case, openly admitting he was the baby's father. 12 At trial, based on his statement during an interview to detectives prior 13 to his arrest, Guitron asserted he and the victim only engaged in sex on one occasion. Further, he alleged the victim initiated that single sexual 14 encounter, which occurred while Guitron was intoxicated and partially unconscious. Guitron argued the victim was sexually curious and wanted to 15 have sex with him, and she was capable of understanding the consequences of her actions despite her age. He also asserted the State 16 did not meet its burden of proof on the incest charge because the State did not present DNA evidence proving he was the victim's father. The State 17 countered with evidence Guitron had groomed the victim and engaged in sexual conduct with her on multiple occasions, even when the victim 18 resisted his advances. The State also presented witness testimony that Guitron was the victim's father. 19 The jury convicted Guitron of incest, four counts of sexual assault 20 with a minor under the age of 14, and two counts of lewdness with a child under the age of 14. 21 22 (ECF No. 25-35 at 3-5 (Opinion, Exh. 76 at 2-4).) Petitioner was sentenced as 23 follows:

24 Count 1, incest, life in prison with the possibility of parole after two years;

25 Count 2, sexual assault with a child under the age of 14, life in prison with the possibility of parole after 35 years, consecutive to the sentence on 26 Count 1;

27 Count 4, sexual assault with a child under the age of 14, life in prison with the possibility of parole after 35 years, concurrent with the sentence on 28 Count 2; 1 Count 6, sexual assault with a child under the age of 14, life in prison with the possibility of parole after 35 years, concurrent with the sentence on 2 Count 4;

3 Count 8, sexual assault with a child under the age of 14, life in prison with the possibility of parole after 35 years, concurrent with the sentence on 4 Count 6;

5 Count 10, lewdness with a child under the age of 14, life in prison with the possibility of parole after 10 years, consecutive to the sentence on Count 8; 6 and

7 Count 11, lewdness with a child under the age of 14, life in prison with the possibility of parole after 10 years, concurrent with the sentence on Count 8 10. 9 (ECF No. 25-2 at 3 (Judgment of Conviction, Exh. 43 at 2).) The judgment of conviction 10 was filed on October 8, 2013. (See id.) 11 Petitioner appealed, and the Nevada Court of Appeals affirmed the judgment of 12 conviction on May 21, 2015. (See ECF No. 25-35 (Opinion, Exh. 76).) The remittitur was 13 issued on June 15, 2015. (See ECF No. 25-36 (Remittitur, Exh. 77).) 14 Petitioner filed a petition for writ of habeas corpus, pro se, in the state district court 15 on June 9, 2016. (See ECF No. 26-6 (Petition for Writ of Habeas Corpus, Exh. 87); ECF 16 No. 26-5 (Memorandum of Points and Authorities, Exh. 86).) Subsequently, with counsel, 17 Petitioner supplemented his petition. (See ECF No. 26-23 (Supplemental Petition, Exh. 18 104).) The state district court denied the petition on January 25, 2017. (See ECF No. 26- 19 27 (Findings of Fact, Conclusions of Law and Order, Exh. 108).) Petitioner appealed, and 20 the Nevada Supreme Court affirmed on January 10, 2018. (See ECF No. 26-43 (Order of 21 Affirmance, Exh. 124).) The Supreme Court’s remittitur was issued on February 5, 2018. 22 (See ECF No. 26-44 (Remittitur, Exh. 125).) 23 This Court received Petitioner’s original pro se habeas petition, initiating this 24 action, on May 22, 2018 (ECF No. 7). The Court appointed counsel to represent Petitioner 25 (ECF No. 6), and, with counsel, Petitioner filed an amended habeas petition on February 26 20, 2019 (ECF No. 19). Petitioner’s amended petition includes the following claims: 27 /// 28 /// 1 Ground 1: “There was insufficient evidence produced at trial to establish beyond a reasonable doubt that Mr. Guitron was guilty of sexual assault 2 with a minor under 14 years of age.” (Amended Petition (ECF No. 19), p. 9.) 3 Ground 2: “The court violated Mr. Guitron’s constitutionally guaranteed right 4 to due process when it denied his motion to admit evidence relating to the alleged victim’s sexual knowledge.” (Id. at 13.) 5 Ground 3: “The trial court violated the equal protection clauses of the United 6 States and Nevada Constitutions by denying challenges to discriminatory practices prohibited by Batson v. Kentucky.” (Id. at 19.) 7 8 On May 14, 2019, Respondents filed a motion to dismiss (ECF No. 23), arguing 9 that all of Petitioner’s claims are barred by the statute of limitations. Petitioner filed an 10 opposition to the motion on July 12, 2019 (ECF No. 27), and Respondents filed a reply 11 on August 8, 2019 (ECF No. 30). 12 III. DISCUSSION 13 The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, 14 established a one-year statute of limitations for federal habeas petitions filed by prisoners 15 challenging state convictions; the statue provides:

16 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State 17 court. The limitation period shall run from the latest of --

18 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 19 seeking such review;

20 (B) the date on which the impediment to filing an application created by State action in violation of the 21 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 22 (C) the date on which the constitutional right asserted 23 was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 24 retroactively applicable to cases on collateral review; or

25 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 26 exercise of due diligence. 27 28 U.S.C. 2244(d)(1). 28 /// 1 The AEDPA statute of limitations is tolled during the time that a properly filed 2 application for state post-conviction or other collateral review is pending in state court. 3 See 28 U.S.C. § 2244(d)(2). The AEDPA statute of limitations is also subject to equitable 4 tolling; a habeas petitioner is entitled to equitable tolling if the petitioner shows “‘(1) that 5 he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 6 stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) 7 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Ramirez v. Yates, 571 F.3d 8 993, 997 (9th Cir. 2009). 9 In this case, the parties are in agreement about when the limitations period for 10 Petitioner’s federal habeas petition would have expired absent any equitable tolling. 11 Petitioner’s conviction became final, and the limitations period began to run, on August 12 19, 2015, 90 days after the Nevada Court of Appeals ruled on his direct appeal. (See ECF 13 No. 23 at 3 (Motion to Dismiss); ECF No. 27 at 3 (Opposition to Motion to Dismiss).) The 14 limitations period then ran for 295 days, from August 19, 2015, to June 9, 2016, when 15 Petitioner initiated his state habeas action. (See ECF No. 23 at 3; ECF No. 27 at 3.) The 16 limitations period was then statutorily tolled, under 28 U.S.C. § 2244(d)(2), from June 9, 17 2016, to February 5, 2018, when the Nevada Supreme Court issued its remittitur after 18 ruling on the appeal in Petitioner’s state habeas action. (See ECF No. 23 at 3; ECF No. 19 27 at 3.) Without equitable tolling, the limitations period would have expired 70 days later, 20 on April 16, 2018. (See ECF No. 23 at 3; ECF No. 27 at 4.) 21 Petitioner, however, shows that equitable tolling is warranted, because of delay— 22 not caused by Petitioner or his counsel—in Petitioner receiving notice that his state 23 habeas action had been completed. 24 Petitioner has submitted, in support of his argument, evidence, in the form of letters 25 from his counsel in 2017, indicating that his counsel was attempting to keep him informed 26 about the status of his state habeas action, and stated he would continue to do so, but 27 that it appeared that not all of counsel’s mail was reaching Petitioner. (See ECF No. 27- 28 2 at 2 (Letter from counsel to Petitioner informing Petitioner that it appeared he was not 1 receiving all mail sent to him); ECF No. 27-2 at 3-4 (Letter from counsel to Petitioner 2 stating that counsel would notify Petitioner when the appeal in his state habeas action 3 was completed and would provide guidance on how to initiate a federal habeas action).) 4 Petitioner has also submitted evidence showing that his counsel wrote to him on 5 March 2, 2018, to inform him that the Nevada Supreme Court had ruled on the appeal in 6 his state habeas action, but that letter did not reach Petitioner, and Petitioner did not learn 7 of the ruling until at least May 8, 2018, after his counsel wrote to him with this information 8 for a second time. (See ECF No. 27-1 at 9) (counsel’s first letter— not received by 9 Petitioner—informing Petitioner of ruling); ECF No. 27-1 at 7-8 (counsel’s second letter 10 informing Petitioner of ruling); ECF No. 1-4 (affidavit of Stanley Rimer, an inmate who 11 assisted Petitioner with his habeas litigation, stating that Petitioner did not receive notice 12 of ruling until sometime between May 8 and 11, 2018).) 13 After Petitioner received notice of the Nevada Supreme Court’s ruling, he promptly 14 initiated this federal habeas action. Petitioner’s original pro se petition reflects that 15 Petitioner signed it and sent it for filing on May 18, 2018. (See ECF No. 7 (Petition for Writ 16 of Habeas Corpus). This Court received that petition, and opened this case, on May 22, 17 2018. 18 Petitioner makes a compelling showing that, under the circumstances in this case, 19 equitable tolling is warranted for the period from March 2 to May 8, 2018, while his counsel 20 was attempting to inform Petitioner of the ruling on the appeal in his state habeas action. 21 See Holland, 560 U.S. at 649 (regarding standard for equitable tolling); Ramirez, 571 F.3d 22 at 997 (same). Petitioner has demonstrated that he acted diligently in initiating this action, 23 but that there were extraordinary circumstances that prevented him from initiating the 24 action in a timely manner. 25 Petitioner sent his petition for filing on May 18, 2018; that would have been 33 days 26 late without equitable tolling. However, with equitable tolling from March 2 to May 8, 2018, 27 a period of 67 days, Petitioner timely filed his original pro se habeas petition (ECF No. 7). 28 /// 1 Petitioner's amended habeas petition was not filed until February 20, 2019 (ECF 2 || No. 19), long after the expiration of the limitations period. The timeliness of the claims in 3 || the amended petition, therefore, turns on the question whether those claims relate back 4 || to the filing of Petitioner’s timely original petition. In Mayle v. Felix, 545 U.S. 644 (2005), 5 || the Supreme Court held that “[s]o long as the original and amended petitions state claims 6 || that are tied to a common core of operative facts, relation back will be in order,” but “[a]n 7 || amended habeas petition . . . does not relate back (and thereby escape AEDPA’s one- 8 || year time limit) when it asserts a new ground for relief supported by facts that differ in 9 || both time and type from those the original pleading set forth.” /d. at 650, 664. 10 || Respondents do not contest, and the Court finds, that all the claims in Petitioner’s 11 || amended petition relate back to his original petition. (See ECF No. 27 at 10-12 (arguing 12 || the claims relate back); ECF No. 30 (not addressing issue).) 13 Therefore, the Court determines that the claims in Petitioner's amended habeas 14 || petition are not barred by the statute of limitations. 15 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 23) is denied. 16 It is further ordered that Respondents will have 90 days from the date of this order 17 || to file an answer. In all other respects, the schedule for further proceedings set forth in 18 || the order entered August 6, 2018 (ECF No. 10) will remain in effect. 19 20 DATED THIS 25'" day of October 2019. 21 — 22 A AS IRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE 24 25 26 27 28