Lemus v. Garrett

• Court: District Court, D. Nevada
• Decided: September 19, 2025
• Docket: 3:21-cv-00425
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 MARIO ANTONIO LEMUS, Case No. 3:21-cv-00425-MMD-CLB

7 Petitioner, ORDER v. 8 TIMOTHY GARRETT, et al., 9 Respondents. 10 I. SUMMARY 11 Petitioner Mario Antonio Lemus, a Nevada state prisoner, filed an Amended 12 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 42.) This habeas 13 matter is before the Court on Respondents’ motion to dismiss (ECF No. 45 (“Motion”).) 14 For the reasons discussed below, Respondents’ Motion is granted, in part, and denied, 15 in part. 16 II. BACKGROUND 17 Lemus challenges a 2018 conviction and sentence imposed by the Second Judicial 18 District Court for Washoe County. Following a jury trial, the state court entered a judgment 19 of conviction for three counts of sexual assault against a child under 14 and one count of 20 lewdness with a child under the age of 14. (ECF No. 25-3.) The state district court 21 sentenced Lemus to an aggregate term of 105 years to life. (Id.) The Nevada Supreme 22 Court affirmed the judgment of conviction. (ECF No. 25-52.) 23 Lemus did not file a state habeas petition seeking post-conviction relief. He 24 initiated this federal habeas action. (ECF No. 1-1.) The Court dismissed his federal 25 habeas petition without prejudice for failure to follow the Court’s order instructing him to 26 pay the filing fee. (ECF Nos. 4, 7.) Following his motion for relief from judgment, the Court 27 28 1 vacated the judgment. (ECF No. 10.) Following appointment of counsel, Lemus filed his 2 amended petition raising five grounds for relief. (ECF Nos. 31, 42.) Respondents move 3 to dismiss Grounds 2 and 3 as duplicative, Ground 4 as noncognizable, Grounds 5(a) 4 and 5(b) as untimely, Grounds 1, 4, 5(a), and 5(b) as unexhausted, and Grounds 5(a) 5 and 5(b) as procedurally barred. (ECF No. 45.) 6 III. DISCUSSION 7 A. Duplicative 8 In Ground 2, Lemus alleges that the reasonable doubt jury instruction at trial 9 violated his Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 42 at 14.) In Ground 10 3, he alleges that he was precluded from presenting his theories of defense through jury 11 instructions and argument in violation of his Fifth, Sixth, and Fourteenth Amendment 12 rights. (Id. at 19.) He asserts that his objections to the reasonable doubt definition were 13 supported by corollary proposed jury instructions that articulated Lemus’s theory of the 14 case, which the state district court denied. (Id. at 19-20.) 15 Respondents argue that Ground 2 should be dismissed as duplicative because the 16 argument that the reasonable doubt instruction is unconstitutional is encompassed within 17 Ground 3. (ECF No. 45 at 7.) Lemus argues that Ground 2 only involves the 18 constitutionality of the reasonable doubt instruction while Ground 3 contains allegations 19 of state district court errors and its implications on his trial. (ECF No. 50 at 11.) Although 20 Ground 2 and 3 are closely related, the Court does not find that the claims and their 21 supporting arguments are duplicative. Accordingly, the Court denies Respondents’ 22 Motion to dismiss Ground 2 as duplicative. 23 B. Cognizability 24 In Ground 4, Lemus alleges that he was prejudiced by the cumulative errors raised 25 on direct appeal. (ECF No. 42 at 26.) Respondents assert that Ground 4 should be 26 dismissed because cumulative errors claims are not cognizable on federal habeas review, 27 citing decisions from other circuits. (Id. at 13-14.) They acknowledge that the Ninth Circuit 28 Court of Appeals has recognized cumulative error habeas claims but assert that “in the 1 absence of Supreme Court precedent,” this claim is not clearly established by federal law. 2 (Id. at 14.) The Court, however, is bound by the Ninth Circuit’s interpretation, and 3 therefore finds Ground 4 is cognizable. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 4 2007) (“The Supreme Court has clearly established that the combined effect of multiple 5 trial-court errors violates due process where it renders the resulting criminal trial 6 fundamentally unfair.”) (cleaned up) (quoting Chambers v. Mississippi, 410 U.S. 284, 298 7 (1973)); see also Michaels v. Davis, 51 F.4th 904, 935 (9th Cir. 2022) (analyzing 8 cumulative-error claim on habeas review); Noguera v. Davis, 5 F.4th 1020, 1051 (9th Cir. 9 2021) (same). The Court denies Respondents’ Motion to dismiss Ground 4 as 10 noncognizable. 11 C. Relation Back 12 A new claim in an amended petition that is filed after the expiration of the 13 Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will 14 be timely only if the new claim relates back to a claim in a timely-filed pleading. Fed. R. 15 Civ. P. 15(c). An untimely amendment properly “relates back to the date of the original 16 pleading” as long as it arises out of the same “conduct, transaction, or occurrence.” Id. 17 “Relation back depends on the existence of a common core of operative facts uniting the 18 original and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). 19 New claims in an amended habeas petition do not arise out of “the same conduct, 20 transaction or occurrence” as prior claims merely because they challenge the same trial, 21 conviction, or sentence. Id. at 661; Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 22 2008). Rather, to properly relate back, a new claim must arise from the same collection 23 of facts alleged in the earlier petition. See Mayle, 545 U.S. at 661; Schneider v. McDaniel, 24 674 F.3d 1144, 1151 (9th Cir. 2012) (holding that one shared fact in two divergent legal 25 theories was “not sufficient to conclude that they arise out of a common core of operative 26 facts.”). An amended habeas petition “does not relate back (and thereby escape AEDPA’s 27 one-year time limit) when it asserts a new ground for relief supported by facts that differ 28 in both time and type” from those alleged in the timely petition. Mayle, 545 U.S. at 650. 1 The Court is “obligated to ‘liberally construe[ ] documents filed pro se,’” like Lemus’s 2 original petition. Ross v. Williams, 950 F.3d 1160, 1173 n.19 (9th Cir. 2020) (en banc). 3 In Ground 5(a), Lemus alleges trial counsel rendered ineffective assistance for 4 failure to investigate and call witnesses in support of the motion to dismiss charges and 5 disqualify the prosecution. (ECF No. 42 at 27-29.) Lemus asserts that Ground 5(a) arises 6 out of the conduct, transaction, or occurrence set forth in Ground 2 of his pro se petition, 7 regarding the prosecution’s misconduct in issuing misleading subpoenas, as well as 8 Ground 1 of his pro se petition, regarding his motion to dismiss or disqualify counsel. 9 (ECF No. 50 at 6.) He contends that the facts underlying Ground 5(a) do not differ in time 10 and type as those included in his pro se petition and that they are tied to a common core 11 of operative facts. (Id. at 7.) The Court finds that Ground 5(a) of the first amended petition, 12 while presenting a different legal theory, is tied to the same core of operative facts as 13 alleged in Lemus’s timely-filed pro se petition. See, e.g., Nguyen v. Curry, 736 F.3d 1287, 14 1296–97 (9th Cir. 2013) (ineffective assistance claim based on failure to raise double 15 jeopardy related back to timely-raised substantive double jeopardy claim), abrogation on 16 other grounds recognized by Ross v. Williams, 950 F.3d at 1168. Accordingly, 17 Respondents’ Motion is denied as to Ground 5(a). 18 In Ground 5(b), Lemus alleges trial counsel rendered ineffective assistance for 19 failure to cross-examine the State’s critical expert witness, Dr. Kristin McLeod. (ECF No. 20 42 at 19-31.) Lemus asserts that although Dr. McLeod is not specifically named in his pro 21 se petition, his allegations relate to insufficient evidence and reasonable doubt in Grounds 22 3 and 4 of his pro se petition. (ECF No. 50 at 8-9.) He further asserts that he cites to the 23 transcript of this specific day of trial wherein counsel failed to cross-examine Dr. McLeod 24 in his pro se petition. (Id.) 25 Even liberally construing the pro se petition, the Court finds that Ground 5(b) does 26 not relate back because the claim does not arise from the same core operative facts as 27 any claim identified in the pro se petition. The facts underlying the claims asserted in his 28 pro se petition are different in type from the core facts underlying his theory of ineffective 1 assistance of counsel based on a failure to cross-examine a critical expert witness. See 2 Mayle, 545 U.S. at 650. Even though Lemus refers to the transcript of the day of trial 3 where Dr. McLeod testified in his pro se petition, he does not assert any factual allegations 4 relating to his claim in Ground 5(b). Ross made clear that, for relation back, facts found 5 in documents attached to, and incorporated into, an original petition must support a claim 6 asserted in that petition. See 950 F.3d at 1167 (“If a petitioner attempts to set out habeas 7 claims by identifying specific grounds for relief in an original petition and attaching a court 8 decision that provides greater detail about the facts supporting those claims, that petition 9 can support an amended petition’s relation back.”) (emphasis added); see also id. at 1168 10 (“If an exhibit to the original petition includes facts unrelated to the grounds for relief 11 asserted in that petition, those facts were not ‘attempted to be set out’ in that petition and 12 cannot form a basis for relation back.”). Accordingly, Ground 5(b) does not relate back 13 and is dismissed as untimely. 14 D. Exhaustion 15 A state prisoner first must exhaust state court remedies on a habeas claim before 16 presenting that claim to the federal courts. See 28 U.S.C. § 2254(b)(1)(A). This 17 exhaustion requirement ensures that the state courts, as a matter of comity, will have the 18 first opportunity to address and correct alleged violations of federal constitutional 19 guarantees. See Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has 20 exhausted his federal claims when he has fully and fairly presented them to the state 21 courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. 22 Boerckel, 526 U.S. 838, 844–45 (1999)). To satisfy the exhaustion requirement, a claim 23 must have been raised through one complete round of either direct appeal or collateral 24 proceedings to the highest state court level of review available. See O’Sullivan, 526 U.S. 25 at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A 26 properly exhausted claim “‘must include reference to a specific federal constitutional 27 guarantee, as well as a statement of the facts that entitle the petitioner to relief.’” Woods, 28 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); see also 1 Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both 2 the operative facts and federal legal theory upon which a claim is based). 3 1. Ground 1 4 In Ground 1, Lemus alleges that the State engaged in coercive and unethical 5 tactics by misusing and misrepresenting subpoenas in violation of his due process right 6 to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (ECF No. 7 42 at 8.) Respondents argue that Lemus presented this claim on direct appeal as a state- 8 law claim and his references to Chapman v. California, 386 U.S. 18 (1967) and Arizona 9 v. Fulminate, 499 U.S. 279 (1991) did not exhaust his claims as federal violations. (ECF 10 No. 55 at 5.) Lemus raised the claim on direct appeal that the district court erred in 11 denying his motion to disqualify prosecution counsel based on the language used in 12 subpoenas to witnesses to testify at trial. (ECF No. 25-31 at 36-40.) In his brief on appeal, 13 Lemus cites federal authority when discussing the harmless error doctrine, but such 14 citations do not federalize the underlying substantive claim. The Court finds that Lemus 15 did not present this claim as a federal constitutional claim in his direct appeal. Accordingly, 16 Ground 1 is unexhausted. 17 2. Ground 4 18 Respondents argue that Lemus’ cumulative error claim is unexhausted because, 19 while Lemus raised a cumulative error claim on direct appeal, material portions of the 20 cumulative error claims are unexhausted, and the state appellate court did not review the 21 same claims cumulatively. (ECF No. 55 at 6.) The Court finds that to the extent his 22 underlying claims have been exhausted, so too has his cumulative error claim. 23 E. Technical Exhaustion and Anticipatory Default 24 Federal courts are barred from considering a state prisoner’s habeas claim if the 25 state courts denied his claim based on an independent and adequate state procedural 26 rule. See Edwards v. Carpenter, 529 U.S. 446, 454-55 (2000). “The Ninth Circuit has 27 elaborated that a state rule must be clear, consistently applied, and well-established at 28 the time of the petitioner's purported default.” Collier v. Bayer, 408 F.3d 1279, 1284 (9th 1 Cir. 2005) (internal quotation marks omitted). “If a state procedural rule is not well- 2 established before a petitioner supposedly breaks the rule, then the rule cannot prevent 3 federal review of the petitioner's federal claims.” Id. 4 Respondents argue that Grounds 5(a) and 5(b) are procedurally barred. Lemus 5 asserts that he can demonstrate cause and prejudice to overcome the procedural default 6 of Grounds 5(a) and 5(b). The Court will address only Ground 5(a) as the Court already 7 determined Ground 5(b) is untimely. See Cooper v. Neven, 641 F.3d 322, 327–28 (9th 8 Cir. 2011) (stating that when a particular issue is dispositive, a district court “need not 9 consider alternative reasons for dismissing the petition.”). 10 Lemus acknowledges that Ground 5(a) was not presented to the state courts but 11 argues the claim is technically exhausted. A claim is technically exhausted if it is 12 procedurally defaulted. The record must reflect that “it is clear that the state court would 13 hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 14 2002) (internal quotation marks omitted). The state procedural bars that would be 15 implicated here are the one-year time bar and the bar against second or successive 16 petitions. See NRS. §§ 34.726, 34.810. These procedural bars allow for an excuse upon 17 a showing of cause and prejudice or upon a showing of actual innocence. The standards 18 state courts apply are substantially the same as the standards federal courts apply. See 19 Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004); Mitchell v. State, 149 P.3d 20 33, 36 (Nev. 2006). 21 In most cases, this Court has rejected petitioners who claimed technical 22 exhaustion by procedural default while also claiming that they could establish cause and 23 prejudice or actual innocence to excuse that default. On one hand, if a petitioner had an 24 argument for cause and prejudice or actual innocence under the substantially similar state 25 and federal standards, then the petitioner could not establish that “it is clear that the state 26 court would hold the claim procedurally barred,” and the ground would not be technically 27 exhausted. Sandgathe, 314 F.3d at 376. On the other hand, if a petitioner had no 28 arguments for cause and prejudice or actual innocence, then the ground would be 1 technically exhausted but also subject to dismissal as procedurally defaulted. 2 The Nevada Supreme Court has declined to recognize cause under Martinez v. 3 Ryan, 566 U.S. 1 (2012), as cause to overcome a state-law procedural bar. See Brown 4 v. McDaniel, 331 P.3d 867 (Nev. 2014). So, a Nevada habeas petitioner who can rely on 5 Martinez—and only Martinez—as a basis for overcoming a state procedural bar on an 6 unexhausted claim can argue that the state courts would hold the claim procedurally 7 barred, but that he nonetheless has a potentially viable argument for cause and prejudice 8 under federal law. 9 Although Lemus cites Martinez, he does not set forth an argument under Martinez, 10 ostensibly because he did not initiate a state postconviction habeas proceeding. Lemus 11 asserts that “the only avenue available for … Ground 5(b) to be heard is in this Court,” 12 because he cannot meet the test for actual innocence and because he does not assert a 13 Brady/Napue claim,1 he cannot avoid dismissal of Ground 5(b) in state court. (ECF No. 14 50 at 17.) 15 The general cause and prejudice standard in Nevada state court, however, is not 16 limited only to an argument based on the merits of Brady or actual innocence. Again, to 17 establish technical exhaustion, Lemus must establish that the state courts would not 18 consider the cause and prejudice argument that he seeks to pursue in federal court. 19 Lemus has not established that critical point here. His arguments seek to overcome the 20 procedural default ultimately under the same long established general cause and 21 prejudice standards that apply in both federal court and Nevada state court. 22 Absent a showing that he is relying on an argument to overcome a procedural 23 default that the Nevada state court will not consider, such as a Martinez-based argument, 24 Lemus does not establish technical exhaustion by procedural default in this context. 25 Lemus has not made such a showing here. Accordingly, Ground 5(a) is not technically 26 exhausted by procedural default, and therefore remains unexhausted. 27 28 1 F. Lemus’ Options Regarding Unexhausted Claims 2 A federal court may not entertain a habeas petition unless the petitioner has 3 exhausted available and adequate state court remedies with respect to all claims in the 4 petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both 5 exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the 6 Court concludes that Grounds 1 and 5(a) are unexhausted. Because the Court finds that 7 the petition contains unexhausted claims, Lemus has these options: 8 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only 9 on the exhausted claims;

10 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without 11 prejudice; or

12 3. He may file a motion asking this court to stay and abey his exhausted federal habeas claims while he returns to state court to exhaust his 13 unexhausted claims. 14 If Lemus wishes to ask for a stay, he must file a motion for stay and abeyance in 15 which he demonstrates good cause for his failure to exhaust his unexhausted claims in 16 state court and presents argument regarding the question of whether or not his 17 unexhausted claims are plainly meritless. Respondents would then be granted an 18 opportunity to respond, and Lemus to reply. Or Lemus may file a declaration voluntarily 19 abandoning his unexhausted claims, as described above. Lemus’s failure to choose any 20 of the three options listed above, or seek other appropriate relief from this court, will result 21 in his federal habeas petition being dismissed. Lemus is advised to familiarize himself 22 with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 23 2244(d), as those limitations periods may have a direct and substantial effect on whatever 24 choice he makes regarding his petition. 25 IV. CONCLUSION 26 It is therefore ordered that Respondents’ Motion (ECF No. 45) is granted, in part, 27 and denied in part. It is granted as follows: (1) Grounds 1 and 5(a) are unexhausted; and 28 (2) Ground 5(b) is dismissed as untimely. It is denied as to Grounds 2, 3 and 4. 1 It is further ordered that Lemus has 30 days to either: (1) inform this court in a 2 || sworn declaration that he wishes to formally and forever abandon the unexhausted 3 || grounds for relief in his federal habeas petition and proceed on the exhausted grounds; 4 || OR (2) inform this court in a sworn declaration that he wishes to dismiss this petition 5 || without prejudice in order to return to state court to exhaust his unexhausted grounds; 6 || OR (8) file a motion for a stay and abeyance, asking this court to hold his exhausted 7 || grounds in abeyance while he returns to state court to exhaust his unexhausted grounds. 8 || If Lemus chooses to file a motion for a stay and abeyance, or seek other appropriate 9 || relief, respondents may respond to such motion as provided in Local Rule 7-2. 10 Failure to timely comply with this order will result in the dismissal of Lemus’s mixed 11 || petition without further advanced notice. 12 DATED this □□□ Day of September 2025.

14 ee MIRANDA M. DU 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10