Ojeda v. Royal

• Court: District Court, D. Nevada
• Decided: January 17, 2025
• Docket: 3:25-cv-00019
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 FRANCISCO MERINO OJEDA, Case No. 3:25-cv-00019-ART-CLB

6 Petitioner, ORDER v. 7

8 TERRY ROYAL, et al.,

9 Respondents.

10 11 Petitioner Francisco Merino Ojeda (“Ojeda”), a Nevada prisoner, 12 commenced this action by filing a complete Application for Leave to Proceed In 13 Forma Pauperis (“IFP” (ECF No. 1)), Petition for Writ of Habeas Corpus under 28 14 U.S.C. § 2254 (“Petition” (ECF No. 1-1)), and a Motion for Appointment of Counsel 15 (ECF No. 1-2). This matter is before the Court for initial review under the Rules 16 Governing Section 2254 Cases.1 17 IFP Application 18 The Court has considered Ojeda’s IFP Application and concludes that he is 19 unable to pay the $5.00 filing fee. The IFP Application will therefore be granted. 20 Screening of Habeas Petition 21 Under Habeas Rule 4, “[a] district court may summarily dismiss a federal 22 habeas corpus petition sua sponte if “it plainly appears from the petition and any 23 attached exhibits that the petitioner is not entitled to relief . . ..” 24 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). The rule allows courts 25 to screen and dismiss petitions that are patently frivolous, vague, conclusory, 26 palpably incredible, false, or plagued by procedural defects. See Boyd v. 27 1 All references to a “Habeas Rule” or the “Habeas Rules” in this Order identify 28 the Rules Governing Section 2254 Cases in the United States District Courts. 1 Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). 2 Ojeda’s petition challenges the constitutionality of his December 14, 2018, 3 state judgment of conviction by guilty plea for first-degree murder for which he 4 was sentenced to life imprisonment without the possibility of parole by the 5 Second Judicial District Court for Washoe County, Nevada, in Case No. CR 15- 6 0829. ECF No. 1-1 at 1–2, 46–47. Ojeda’s state-court judgment was affirmed on 7 direct appeal. Id. at 22. His state postconviction habeas petition was denied. Id. 8 at 57. Ojeda’s appeal of the denial of his state habeas petition was dismissed as 9 untimely. Id. at 28. 10 A. Timeliness 11 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 12 one-year limitation period for state prisoners to file a federal habeas petition 13 under 28 U.S.C. § 2254. The one-year limitation period, i.e., 365 days, begins to 14 run from the latest of four possible triggering dates, with the most common being 15 the date the petitioner’s judgment of conviction became final. 28 U.S.C. § 16 2244(d)(1)(A). For a Nevada prisoner pursuing a direct appeal, a conviction 17 becomes final when the 90-day period for filing a petition for certiorari in the 18 Supreme Court of the United States expires after the Nevada appellate court has 19 entered judgment or the Supreme Court of Nevada has denied discretionary 20 review. See Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir. 2008); Shannon v. 21 Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); U.S. Sup. Ct. R. 13. 22 The Nevada Court of Appeals affirmed Ojeda’s judgment on November 27, 23 2019. ECF No. 1-1 at 22. Ojeda’s conviction was therefore final on the last day 24 he could have filed a petition for writ of certiorari with the Supreme Court of the 25 United States, which was February 25, 2020. See U.S. Sup. Ct. R. 13. The one- 26 year limitations period for the filing of Ojeda’s federal habeas petition commenced 27 the next day, on February 26, 2020, and ran for 301 days until Ojeda filed his 28 timely state postconviction habeas petition on December 22, 2020. ECF No. 1-1 1 at 46. Under 28 U.S.C. § 2244(d)(2), the federal one-year limitation period was 2 statutorily tolled during the pendency of Ojeda’s timely filed state habeas petition. 3 On July 9, 2024, the state district court denied the state habeas petition. ECF 4 No. 1-1 at 57. The deadline for Ojeda to appeal the denial of his state habeas 5 petition was 30 days later, on August 8, 2024. Id. at 28. Ojeda did not file an 6 appeal by that deadline. Therefore, the limitations period for Ojeda to file a federal 7 habeas petition restarted on August 9, 2024. With 64 days remaining in his 8 federal limitations period under AEDPA, the deadline to file his federal habeas 9 petition expired on October 11, 2024. 10 Ojeda did not file a federal habeas petition by the deadline; instead, on 11 November 8, 2024, Ojeda filed a tardy notice of appeal from the denial of the state 12 habeas petition and the Nevada Supreme Court dismissed that untimely appeal 13 for lack of jurisdiction. ECF No. 1-1 at 28. Because the application for state post- 14 conviction relief violated the state statute of limitations, it was not “properly filed” 15 for purposes of 28 U.S.C. § 2244(d)(2); therefore, the time during which Ojeda 16 sought the untimely appeal of the denial of his state habeas petition did not toll 17 the limitation period for his filing a federal habeas petition. See Pace v. 18 DiGuglielmo, 544 U.S. 408, 417 (2005). Because Ojeda’s federal habeas petition 19 was not filed by the October 11, 2024, deadline, and was instead filed on January 20 10, 2025, the federal petition may be dismissed as untimely. Ojeda acknowledges 21 his federal petition is untimely and contends he is entitled to equitable tolling of 22 the statute of limitations. ECF No. 1-1 at 3–8. 23 B. Equitable Tolling 24 A petitioner who fails to timely file a federal habeas petition is “entitled to 25 equitable tolling” only if he shows “(1) that he has been pursuing his rights 26 diligently, and (2) that some extraordinary circumstance stood in his way” and 27 prevented timely filing. See Holland v. Fla., 560 U.S. 631, 649 (2010) (citing Pace, 28 544 U.S. at 418 (emphasis deleted)). Equitable tolling is “unavailable in most 1 cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and “the threshold 2 necessary to trigger equitable tolling [under AEDPA] is very high, lest the 3 exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 4 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). 5 The petitioner ultimately has the burden of proof on this “extraordinary 6 exclusion.” Miranda, 292 F.3d at 1065. Here, Ojeda must demonstrate a causal 7 relationship between the extraordinary circumstance and the lateness of his 8 filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. 9 Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007). 10 Ojeda claims he is entitled to equitable tolling for two reasons. ECF No. 1- 11 1 at 3–8. First, he claims he justifiably relied on his state postconviction counsel’s 12 promise to file a timely notice of appeal from the denial of the state habeas 13 petition, and his postconviction counsel abandoned him by failing to file the 14 promised notice of appeal and failing to respond to his inquiries, including his 15 inquiry about the deadline to file a federal habeas petition. Id. at 3–8, 31–36. 16 Second, he claims he was prevented from timely filing his federal petition due to 17 the recent Nevada prison swap that he claims impeded access to his property, 18 paper, pens, law library, and copying services. Id. at 3–8, 31–45. 19 The Supreme Court has held that a petitioner “cannot be charged with the 20 acts or omissions of an attorney who has abandoned him,” and cannot be “faulted 21 for failing to act on his own behalf when he lacks reason to believe his attorneys 22 of record, in fact, are not representing him.” Maples v. Thomas, 565 U.S. 266, 23 283 (2012). See also Gibbs v. Legrand, 767 F.3d 879, 885 n.5 (9th Cir. 2014) 24 (noting Maples “[i]nvolved cause for procedural default rather than entitlement to 25 equitable tolling, but the Supreme Court saw ‘no reason’ why the distinction 26 between attorney negligence and attorney abandonment should not hold in both 27 contexts.”) (citing Maples, 565 U.S. at 282 n.7). The Ninth Circuit has 28 acknowledged that equitable tolling can be “based on a range of attorney 1 misconduct not limited to abandonment.” Milam v. Harrington, 953 F.3d 1128, 2 1134 (9th Cir. 2020). See, e.g., Gibbs, 767 F.3d 879 (finding attorney’s failure to 3 inform the petitioner that the state supreme court had denied his appeal 4 constituted abandonment and created extraordinary circumstances warranting 5 equitable tolling of federal limitation period). 6 The exhibits Ojeda filed to support equitable tolling demonstrate his 7 postconviction counsel wrote a letter to Ojeda confirming counsel would file a 8 timely notice of appeal from the denial of the state habeas petition and represent 9 Ojeda during those proceedings if counsel did not hear from Ojeda by July 24, 10 2024. ECF No. 1-1 at 31. Ojeda also submits copies of letters he ostensibly sent 11 to postconviction counsel dated July 29, 2024 (confirming his desire that 12 postconviction counsel file the appeal), October 9, 2024 (notifying counsel that 13 he was moved to a different prison and asking about the status of his case, 14 presumably due to the “prison swap”) and October 21, 2024 (expressing concern 15 that counsel had not communicated with him, whether the notice of appeal was 16 filed, and the time remaining for his federal petition). Id. at 33–35. He moreover 17 includes an October 21, 2024, letter to the state district court requesting a copy 18 of the minutes from his case so he could confirm whether his counsel had filed a 19 notice of appeal. Id. at 36. By that point, the October 11, 2024, deadline to file 20 the federal habeas petition had expired. 21 Ojeda also submits an undated exhibit, which appears to be an email or 22 text message from postconviction counsel to Ojeda’s daughter, in which 23 postconviction counsel states that counsel did not file a notice of appeal. ECF No. 24 1-1 at 32. The communication states that postconviction counsel, having spoken 25 with Ojeda’s niece, who was to convey information to Ojeda, was waiting to hear 26 from Ojeda, but did not hear from him, and that counsel believed there was an 27 indication Ojeda wished to proceed with a jailhouse lawyer. Id. In that 28 correspondence, postconviction counsel states she spoke with several family 1 members and believed there may have been a miscommunication. Id. The 2 undated communication from postconviction counsel further directed Ojeda’s 3 daughter that, if a timely state appeal was not filed, Ojeda should immediately 4 file a federal petition for writ of habeas corpus. Id. No exhibit attached to the 5 petition confirms whether or when postconviction counsel communicated directly 6 to Ojeda that no appeal was filed or that he should immediately file a federal 7 petition. And nothing in the exhibits indicates whether or when postconviction 8 counsel withdrew as Ojeda’s counsel. 9 The Court finds the claim of equitable tolling would benefit from further 10 briefing and will direct the Clerk of Court to file the petition, and direct service of 11 the petition, and a response. 12 C. Procedural Default 13 In addition to concerns about the timeliness of Ojeda’s petition, initial 14 review of the petition reveals that, due to Ojeda’s failure to file a timely appeal 15 from the denial of his state habeas petition, his federal petition for writ of habeas 16 corpus, which appears to raise the same claims raised in the state habeas 17 petition, consists of claims that are unexhausted by procedural default. 18 Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner seeking habeas corpus 19 relief in federal court must first exhaust available state court remedies before 20 presenting his claims in the federal court. See Coleman v. Thompson, 501 U.S. 21 722, 731 (1991). To satisfy the exhaustion requirement, a petitioner must fully 22 and fairly present his claims to the state courts. See Woods v. Sinclair, 764 F.3d 23 1109, 1129 (9th Cir. 2014). A claim must be raised through one complete round 24 of either direct appeal or collateral proceedings to the highest state court level of 25 review available. See O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999); 26 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). 27 Where the state courts deny a prisoner’s habeas claim on independent and 28 adequate state law grounds, that claim is “procedurally defaulted” for purposes 1 of federal habeas review. See Edwards v. Carpenter, 529 U.S. 446, 454–55 (2000). 2 Additionally, a federal court may consider a claim procedurally defaulted where 3 “it is clear that the state court would hold the claim procedurally barred.” See 4 Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). When a claim is 5 procedurally defaulted, federal review is barred unless the petitioner “can 6 demonstrate cause for the default and actual prejudice as a result of the alleged 7 violation of federal law.” See Coleman, 501 U.S. at 750. The Supreme Court has 8 held that cause may exist to overcome the procedural default of a habeas 9 petitioner’s claims where state post-conviction counsel abandoned him, resulting 10 in the failure to timely appeal the denial of his state post-conviction petition. See 11 Maples, 565 U.S. at 289. 12 Ojeda claims that his postconviction attorney abandoned him by failing to 13 communicate or file the promised notice of appeal. As with Ojeda’s claim to 14 equitable tolling, Ojeda’s claim that he can overcome the procedural default 15 under Maples, would benefit from further briefing. 16 Motion for Appointment of Counsel 17 There is no constitutional right to appointed counsel in a federal habeas 18 corpus proceeding. See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing 19 Lawrence v. Fla., 549 U.S. 327, 336–37 (2007)). However, an indigent petitioner 20 may request appointed counsel to pursue relief and whenever a Court determines 21 the interests of justice so require, representation may be provided for any 22 financially eligible person who is seeking relief under 28 U.S.C. § 2254. See 18 23 U.S.C. § 3006A(a)(2)(B). The interests of justice may require the appointment of 24 counsel if the complexities of the case are such that denial of counsel would 25 amount to a denial of due process, e.g., where the petitioner is so uneducated 26 that he or she is incapable of fairly presenting his or her claims. See LaMere v. 27 Risley, 827 F.2d 622, 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 28 61 (9th Cir. 1980). 1 The Court finds the appointment of counsel in this case is in the interests 2 of justice. A review of Ojeda’s IFP Application supports the conclusion that he 3 cannot afford to hire private counsel. Ojeda is serving a sentence of life without 4 the possibility of parole. Review of the documents Ojeda filed to commence this 5 action indicate he may suffer borderline intellectual-functioning, and difficulty 6 comprehending the English language, and the petition raises relatively complex 7 issues, including whether the petition should be dismissed as untimely, whether 8 Ojeda is entitled to equitable tolling, and whether Ojeda can overcome the 9 procedural default of his claims. As such, it is unclear whether Ojeda will be able 10 to adequately articulate his claims in proper person with the resources available 11 to him. Therefore, Ojeda’s Motion for Appointment of Counsel is granted. 12 IT IS THEREFORE ORDERED that: 13 1. Petitioner Francisco Merino Ojeda’s Application for Leave to Proceed In 14 Forma Pauperis (ECF No. 1) is granted. 15 2. The Clerk of Court is directed to file the Petition for Writ of Habeas 16 Corpus under 28 U.S.C. § 2254 (ECF No. 1-1). 17 3. The Federal Public Defender is provisionally appointed as counsel and 18 will have 30 days to undertake direct representation of Ojeda or to 19 indicate the office’s inability to represent Ojeda in these proceedings. If 20 the Federal Public Defender is unable to represent Ojeda, the Court will 21 appoint alternate counsel. Appointed counsel will represent Ojeda in all 22 federal proceedings related to this matter, including any appeals or 23 certiorari proceedings, unless allowed to withdraw. A deadline for the 24 filing of an amended petition or seeking other relief will be set after 25 counsel has entered an appearance. The Court anticipates a deadline of 26 approximately 90 days from entry of the formal order of appointment. 27 4. Any deadline established and/or any extension thereof will not signify 28 any implied finding of a basis for tolling during the time period 1 established. Ojeda at all times remains responsible for calculating the 2 running of the federal limitation period and timely presenting claims. 3 That is, by setting a deadline to amend the petition and/or by granting 4 any extension thereof, the Court makes no finding or representation 5 that the petition, any amendments thereto, and/or any claims 6 contained therein are not subject to dismissal as untimely. See Sossa v. 7 Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). 8 5. The Clerk of Court is directed to add Nevada Attorney General Aaron D. 9 Ford as counsel for Respondents and to provide Respondents an 10 electronic copy of all items previously filed in this case by regenerating 11 the Notice of Electronic Filing to the office of the Attorney General only. 12 Respondents’ counsel must enter a notice of appearance within 21 days 13 of entry of this order, but no further response will be required from 14 Respondents until further order of the Court. 15 6. The Clerk of Court is further directed to send a copy of this order to 16 Ojeda, the Nevada Attorney General, the Federal Public Defender, and 17 the CJA Coordinator for this division. 18 19 DATED THIS 17th day of January 2025. 20 a1 A> we Nod 22 23 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 24 25 26 27 28