Mario Camacho v. Terry Royal, et al.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 MARIO CAMACHO, Case No. 3:20-cv-00488-ART-CSD

5 Petitioner, ORDER

6 v.

7 TERRY ROYAL, et al.,

8 Respondents.

9 10 Mario Camacho filed a counseled Third-Amended Petition for a Writ of 11 Habeas Corpus under 28 U.S.C. § 2254. ECF No. 82. This matter is before the 12 Court on Respondents’ Motions to Dismiss Grounds 5(A)–5(H) of the petition as 13 procedurally defaulted and to strike new evidence. ECF No. 86. Camacho filed 14 an Opposition to the motion, and Respondents filed a Reply in support of the 15 motion. ECF Nos. 87; 88. For the reasons stated below, the Court grants in part 16 and denies in part the Motion to Dismiss. 17 I. BACKGROUND 18 In 2017, a Nevada jury convicted Camacho of first-degree murder with the 19 use of a deadly weapon, attempted murder with the use of a deadly weapon, two 20 counts of first-degree kidnapping with use of a deadly weapon resulting in 21 substantial bodily harm, conspiracy to commit kidnapping with use of a deadly 22 weapon, and robbery with the use of a deadly weapon. ECF No. 14-26. The 23 Nevada Supreme Court affirmed Camacho’s convictions and briefly summarized 24 the facts underlying the offenses: 25 Appellant Mario John Camacho and his co-defendant, Eric Deon Robinson, engaged in a series of criminal activities to recover 26 money from a transaction involving drugs and a firearm. On the day of the crime, Robinson assisted Camacho in kidnapping three 27 individuals to interrogate them about the money. Camacho shot and victim. Camacho and Robinson were later arrested, and were 1 subsequently tried together. 2 Camacho v. State, 135 Nev. 621 (2019). Camacho filed a counseled state 3 postconviction relief petition, relief was denied, and Camacho did not appeal the 4 denial of the petition. ECF Nos. 15-1; 16-1; 16-2; 16-4. Camacho initiated this 5 habeas action by filing a pro se Petition for a Writ of Habeas Corpus under 28 6 U.S.C. § 2254. ECF No. 8. Counsel was appointed and counsel filed First and 7 Second-Amended Petitions. ECF Nos. 7; 11; 35. 8 Respondents filed a Motion to Dismiss the claims of ineffective assistance 9 of trial counsel alleged in Grounds 5(A)–5(H) of the Second-Amended Petition as 10 unexhausted and/or procedurally defaulted. ECF No. 54 at 3–4. Before filing an 11 opposition to the Motion to Dismiss, Camacho moved for a stay while he 12 exhausted the claims in Grounds 5(A)–5(H), but the motion was denied. ECF No. 13 62. Camacho then filed an Opposition to the Motion to Dismiss arguing he could 14 overcome the procedural defaults and urging the court to defer resolving the 15 Motion to Dismiss Grounds 5(A)–5(H) until it received further briefing on the 16 merits of his claims. ECF No. 63 at 12. Before Respondents submitted their Reply 17 in support of the Motion to Dismiss, this Court denied the motion and deferred 18 resolution whether Grounds 5(A)–5(H) are procedurally defaulted until the 19 parties submitted an Answer and Reply. ECF No. 66 at 6–7. 20 After Respondents filed their Answer to the Second-Amended Petition, 21 Camacho moved for reconsideration of the order denying a stay. ECF No. 72. 22 This Court granted the Motion for Reconsideration and stayed this action 23 pending the conclusion of Camacho’s state habeas action. ECF Nos. 74; 75; 76. 24 The Nevada Court of Appeals (NCA) upheld the state district court’s 25 determination that the claims raised in Grounds 5(A)–5(H) of Camacho’s second 26 state postconviction petition were procedurally barred finding the petition was 27 untimely, successive, and constituted an abuse of the writ. See Camacho v. State, 1 NCA also held Camacho failed to establish good cause and prejudice to overcome 2 the procedural default. Id. 3 In May of 2025, Camacho’s Motion to Reopen this action was granted. ECF 4 Nos. 78; 80; 81. Camacho thereafter filed a counseled Third-Amended Petition. 5 ECF No. 82. Respondents filed a Motion to Dismiss Grounds 5(A)–5(H) of the 6 Third-Amended Petition, Camacho filed an Opposition to the motion, and 7 Respondents submitted a Reply in support of their motion. ECF Nos. 86; 87; 88. 8 II. DISCUSSION 9 A. Procedural Default 10 Grounds 5(A)–5(H) of the Third-Amended Petition allege trial counsel was 11 ineffective. ECF No. 82 at 25–44. Respondents move to dismiss Grounds 5(A)– 12 5(H) as procedurally defaulted. ECF No. 86 at 5–6. Camacho argues the default 13 can be excused under Martinez v. Ryan, 566 U.S. 1 (2012). ECF No. 87 at 2. 14 1. Standards for Evaluating Exhaustion and Procedural Default 15 A federal habeas court may not grant a state prisoner’s petition for habeas 16 relief until the prisoner has exhausted available state remedies for all claims 17 raised. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). To 18 satisfy the exhaustion requirement, “state prisoners must give the state courts 19 one full opportunity to resolve any constitutional issues by invoking one 20 complete round” of either direct appeal or collateral proceedings to the highest 21 state court level of review available. O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 22 (1999); Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003). Use of a 23 procedurally incorrect method does not suffice to exhaust the 24 claim. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (“[W]here [a] claim has 25 been presented for the first and only time in a procedural context in which its 26 merits will not be considered unless there are special and important reasons 27 therefor . . . [it will not] constitute fair presentation.”). 1 “A federal habeas claim is technically exhausted but procedurally 2 defaulted if the state court declined to address the claim based on independent 3 and adequate state procedural grounds.” Rodney v. Garrett, 116 F.4th 947, 954 4 (9th Cir. 2024) (citing Coleman v. Thompson, 501 U.S. 722, 729–32 (1991)). See 5 also Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (“An unexhausted 6 claim will be procedurally defaulted, if state procedural rules would now bar the 7 petitioner from bringing the claim in state court.”). The Ninth Circuit has held 8 the Nevada courts’ application of the Nevada statutory rules regarding timeliness 9 and successive petitions are independent and adequate state law grounds for 10 procedural default. See Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th Cir. 11 1999); Moran v. McDaniel, 80 F.3d 1261, 1268–70 (9th Cir. 1996). 12 2. Standards for Overcoming Procedural Default 13 Procedurally defaulted claims are not barred from federal review “if the 14 petitioner can demonstrate either (1) ‘cause for the default and actual prejudice 15 as a result of the alleged violation of federal law,’ or (2) ‘that failure to consider 16 the claims will result in a fundamental miscarriage of justice.’” Jones v. Ryan, 17 691 F.3d 1093, 1101 (9th Cir. 2012) (quoting Coleman, 501 U.S. at 750). “To 18 establish ‘cause,’ a petitioner must establish that some objective factor external 19 to the defense impeded his efforts to comply with the state’s procedural rules.” 20 Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v. Carrier, 21 477 U.S. 478, 488–89 (1986)). “To establish prejudice, a petitioner must show 22 that the alleged error ‘worked to his actual and substantial disadvantage, 23 infecting his entire trial with error of constitutional dimensions.’” Id. (citing 24 United States v. Frady, 456 U.S. 152, 170–71 (1982); Thomas v. Lewis, 945 F.2d 25 1119, 1123 (9th Cir. 1991)). To overcome procedural default under the 26 “fundamental miscarriage of justice” exception, a petitioner must make a 27 credible showing of “actual innocence” by “persuad[ing] the district court that, 1 him guilty beyond a reasonable doubt.” See Schlup v. Delo, 513 U.S. 298, 329 2 (1995). “To be credible, such a claim requires petitioner to support his allegations 3 of constitutional error with new reliable evidence—whether it be exculpatory 4 scientific evidence, trustworthy eyewitness accounts, or critical physical 5 evidence—that was not presented at trial.” Id. at 324. 6 Under, Martinez, a petitioner can overcome procedural default of a claim 7 of ineffective assistance of trial counsel by demonstrating: (1) the claim of 8 “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” 9 consisted of there being “no counsel” or only “ineffective” counsel during the state 10 collateral review proceeding; (3) the state collateral review proceeding was the 11 “initial” review proceeding for the “ineffective-assistance-of-trial-counsel claim”; 12 and (4) state law requires an “ineffective assistance of trial counsel [claim] . . . 13 be raised in an initial-review collateral proceeding.” See Trevino v. Thaler, 569 14 U.S. 413 (2013) (quoting Martinez, 566 U.S. 1)). Nevada law requires prisoners 15 to raise ineffective assistance of counsel claims for the first time in a state 16 petition seeking postconviction review, which is the initial collateral review 17 proceeding for purposes of the Martinez rule. See Rodney v. Filson, 916 F.3d 18 1254, 1259–60 (9th Cir. 2019). 19 3. Grounds 5(A) through 5(D) 20 Camacho concedes he raised the claims in Grounds 5(A)–5(D) in his initial 21 state post-conviction petition. ECF No. 87 at 3 (citing 15-1 at 21–29). He also 22 concedes he did not appeal after the state district court denied that petition. Id. 23 Camacho contends he can establish cause to overcome the default of those 24 claims because his postconviction counsel was ineffective in failing to appeal or 25 properly advise Camacho to appeal. ECF No. 87 at 2–4, 6–9 (citing Martinez). 26 Respondents contend Camacho cannot utilize Martinez to overcome the default. 27 ECF No. 88 at 4–5. 1 “[A] procedural default will not bar a federal habeas court from hearing a 2 substantial claim of ineffective assistance at trial if, in the initial-review collateral 3 proceeding, there was no counsel or counsel in that proceeding was ineffective.” 4 Trevino, 569 U.S. at 429 (quoting Martinez, 566 U.S. at 17) (emphasis added). 5 The Martinez exception “does not concern attorney errors in other kinds of 6 proceedings, including appeals from initial-review collateral proceedings, second 7 or successive collateral proceedings, and petitions for discretionary review in a 8 State's appellate courts,” and “[d]oes not extend to attorney errors in any 9 proceeding beyond the first occasion the State allows a prisoner to raise a claim 10 of ineffective assistance at trial, even though that initial-review collateral 11 proceeding may be deficient for other reasons.” Martinez, 566 U.S. at 16 12 (internal citations omitted). See, e.g., West v. Carpenter, 790 F.3d 693, 698 (6th 13 Cir. 2015) (holding Martinez–Trevino exception did not apply to defaulted claim 14 raised at the post-conviction initial-review proceeding but not preserved on 15 appeal); Villa v. Hutchings, No. 2:21-CV-02030-ART-VCF, 2024 WL 4267819, at 16 *5 (D. Nev. Sept. 23, 2024) (rejecting claim that cause for default could be 17 established by postconviction counsel's ineffectiveness in failing to assert the 18 claim on appeal because “Martinez unambiguously excludes ineffective 19 assistance of counsel on post-conviction appeal as cause to excuse a procedural 20 default.”). 21 The Court concludes Camacho cannot, under Martinez, use postconviction 22 counsel’s failure to exhaust the claims on appeal as cause to overcome the 23 default of his claims in Grounds 5(A)–5(D). And, because Camacho has not 24 attempted to establish he can overcome the defaults on any basis other than 25 Martinez, the Court dismisses Grounds 5(A)–5(D) as procedurally defaulted. 26 4. Grounds 5(E) through 5(H) 27 Camacho asserts state postconviction counsel was ineffective for failing to 1 petition. ECF No. 87 at 5 (citing 15-1 at 2). Camacho raised the claims in 2 Grounds 5(E)–5(H) in his second state postconviction petition, however, the state 3 court ruled the petition procedurally barred without good cause and prejudice to 4 excuse the procedural bars. See Camacho v. State, 566 P.3d 1117, 2025 WL 5 1077259, at *1 (Nev. App. 2025); ECF No. 85–32. 6 Camacho claims he has demonstrated cause and prejudice to overcome 7 the default of those claims under Martinez, and acknowledges that a Martinez 8 prejudice analysis is interwoven with the merits of an underlying claim, and 9 therefore, the Court may find it prudent to refrain from resolving the procedural 10 default issues until it receives further merits briefing in the State’s Answer and 11 Camacho’s Reply. ECF No. 87 at 5, 9–12. Respondents argue Camacho has not, 12 and cannot, establish cause and prejudice to overcome the default under 13 Martinez, but agree with Camacho that these questions are intertwined with the 14 merits of the claims and respectfully requests the Court defer its Martinez 15 analysis until the parties fully brief the claims. ECF No. 88 at 4–7. 16 The Court concludes that, because the analysis of prejudice under 17 Martinez is necessarily intertwined with the merits of the claims, the Court defers 18 consideration whether Camacho can overcome the procedural default of his 19 claims of ineffective assistance of counsel in Grounds 5(E)–5(H), until the parties 20 have submitted the remainder of their briefs on the merits of the claims in the 21 Third-Amended Petition. See ECF No. 22. 22 B. Motion to Strike New Evidence 23 Respondents move to strike evidence1 that Camacho relies upon for 24 Grounds 5(E)–5(H), arguing the evidence was not developed as part of the state 25 court record. ECF No. 86 at 6–7. They contend that, even though Camacho 26 presented the new evidence to the state courts in his second state post- 27 1 conviction habeas proceeding, the Nevada Court of Appeals found the petition 2 procedurally barred and therefore this Court may not consider that new evidence 3 in adjudicating the claims. Id. Camacho contends this argument is premature 4 because this Court may entertain the new evidence if it conducts de novo review. 5 ECF No. 87 at 2, 12. 6 Generally, the merits of claims raised in a federal habeas corpus petition 7 are decided on the record that was before the state court when it adjudicated a 8 claim. See Cullen v. Pinholster, 563 U.S. 170, 180–81 (2011). AEDPA restricts a 9 federal habeas court's authorization to hold an evidentiary hearing where an 10 applicant failed to develop a factual basis for a claim in state court proceedings:

11 (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary 12 hearing on the claim unless the applicant shows that—

13 (A) the claim relies on—

14 (i) a new rule of constitutional law, made retroactive to cases on collateral review by 15 the Supreme Court, that was previously unavailable; or 16 (ii) a factual predicate that could not have 17 been previously discovered through the exercise of due diligence; and 18 (B) the facts underlying the claim would be sufficient to 19 establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would 20 have found the applicant guilty of the underlying offense. 21 22 28 U.S.C. § 2254(e)(2)(A)–(B). The Supreme Court has held that although 23 § 2254(e)(2) refers only to evidentiary hearings, its provisions apply to a federal 24 habeas court's consideration of evidence. See McLaughlin v. Oliver, 95 F.4th 25 1239, 1248–49 (9th Cir. 2024) (acknowledging the Supreme Court reaffirmed 26 that § 2254(e)(2)’s restrictions not only apply to evidentiary hearings, but also 27 apply “when a prisoner seeks relief based on new evidence without an evidentiary 1 hearing”) (citing Shinn v. Ramirez, 596 U.S. 366, 389 (2022) and quoting Holland 2 v. Jackson, 542 U.S. 649, 653 (2004)). 3 For purposes of determining whether a petitioner must first meet the 4 prerequisites of § 2254(e)(2), the term “fail” means “the prisoner must be ‘at fault’ 5 for the undeveloped record in state court.” Williams v. Taylor, 529 U.S. 420, 432, 6 434 (2000) (“[A] failure to develop the factual basis of a claim is not established 7 unless there is lack of diligence, or some greater fault, attributable to the 8 prisoner or the prisoner's counsel.”). See also Shinn, 596 U.S. at 383 (affirming 9 the prerequisites in § 2254(e)(2) apply only “when a prisoner ‘has failed to develop 10 the factual basis of a claim’”). 11 “Diligence for purposes of [§ 2254(e)(2)’s] opening clause depends upon 12 whether the prisoner made a reasonable attempt, in light of the information 13 available at the time, to investigate and pursue claims in state court; it does not 14 depend . . . upon whether those efforts could have been successful.” Williams, 15 529 U.S. at 435 (emphasis added). “Diligence will require in the usual case that 16 the prisoner, at a minimum, seek an evidentiary hearing in state court in the 17 manner prescribed by state law.” Id. at 437. See also Baja v. Ducharme, 187 F.3d 18 1075, 1079 (9th Cir. 1999) (denying evidentiary hearing because petitioner did 19 not comply with state law that required petitioner to come forward with affidavits 20 or other evidence to the extent his claim relied on evidence outside the record). 21 In Shinn, the Supreme Court held that when evaluating the merits of an 22 ineffective-assistance-of-counsel claim whose default was excused under 23 Martinez, a federal habeas court generally may not “order an evidentiary hearing 24 or otherwise expand the state-court record” unless the petitioner can satisfy one 25 of 28 U.S.C. § 2254(e)(2)'s narrow exceptions. Shinn, 596 U.S. at 371, 384. 26 Relying on Shinn, the Ninth Circuit held in McLaughlin that federal habeas courts 27 may also only consider evidence submitted in accordance with state procedural 1 50. In McLaughlin, the Circuit held that, notwithstanding McLaughlin’s attempt 2 to develop the state court record in a successive state postconviction proceeding 3 that was procedurally barred, the negligence of McLaughlin's first post- 4 conviction counsel in failing to develop the record in state court is attributable 5 to McLaughlin, and was a “fail[ure]” within the meaning of § 2254(e)(2) and the 6 restrictions of that section therefore apply. Id. And, furthermore, the Circuit held 7 that because, as in Shinn, McLaughlin conceded he could not meet the strict 8 requirements of § 2254(e)(2), that section barred consideration of McLaughlin's 9 new evidence. Id. The Circuit made it explicit that it could not consider 10 McLaughlin’s new evidence or the augmented version of his trial-ineffective- 11 assistance claim based on that evidence. Id. (explaining, because the “successive 12 petition, with its new evidence, ‘was procedurally barred,’” the evidence was not 13 presented “in compliance with state procedural rules” (quoting Shinn, 596 U.S. 14 at 375–76)). 15 Camacho has not argued that he need not meet the requirements of 28 16 U.S.C. § 2254(e)(2) or that he can satisfy them; he merely argues that the Motion 17 to Strike is premature and this Court should utilize the new evidence if it 18 conducts de novo review. ECF No. 87 at 12–13. According to Shinn and 19 McLaughlin, under these circumstances, the Court must conduct the Martinez 20 and merits analysis based on the same record that was before the state appellate 21 courts. Accordingly, the Motion to Strike is granted to the extent the Court may 22 not utilize the new evidence (ECF Nos. 14-2, 14-7 to 14-10, 14-14, 14-15, 36-1 23 and 36-2) in its analysis under Martinez and on the merits of the procedurally 24 defaulted Grounds 5(E)–5(H). The Motion to Strike is denied to the extent the 25 Court may engage de novo review of claims considered by the state courts. 26 III. CONCLUSION 27 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 86) 1 || procedurally defaulted. The Court defers ruling whether Petitioner can establish 2 || cause and prejudice to overcome the procedural default of Grounds 5(E)-5(H). 3 It is further ordered that the Motion to Strike new evidence (ECF No. 86) 4 || is granted in part and denied in part. The Court will not utilize the new evidence 5 || (ECF Nos. 14-2, 14-7 to 14-10, 14-14, 14-15, 36-1 and 36-2) in its 6 || determinations of the procedurally defaulted Grounds 5(E)—5(H). The Court will, 7 || however, if appropriate, consider the new evidence to the extent the Court 8 || engages in de novo review of claims that were considered by the state courts. 9 It is further ordered that Respondents file their Answer to the remaining 10 || grounds in the First-Amended Petition within 60 days of the date of this Order. 11 || Petitioner will then have 45 days to file his Reply. 12 DATED THIS 12th day of June, 2026. Ae osand 1 14 ANNE R. TRAUM 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28