Rodriguez v. Henley

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JEFFREY RODRIGUEZ, Case No. 3:24-cv-00182-MMD-CLB

7 Petitioner, ORDER v. 8

9 JOHN HENLEY, et al.,

10 Respondents.

11 12 Petitioner Jeffrey Rodriguez, a Nevada prisoner, has filed a pro se Petition for a 13 Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 7 (“Petition”).) Before the Court 14 is Respondents’ motion to dismiss the Petition. (ECF No. 28 (“Motion”).) Rodriguez 15 opposed the Motion, and Respondents replied. (ECF Nos. 33, 40.) For the reasons 16 discussed below, the Court grants the Motion in part. 17 I. BACKGROUND 18 A jury found Rodriguez guilty of (1) the murder of his wife with the use of a deadly 19 weapon, (2) three counts of assault with a deadly weapon for shooting at bystanders who 20 had stopped to help, and (3) being a felon in possession of a firearm. (ECF No. 22-12.) 21 Rodriguez was sentenced to (1) life with the possibility of parole after 20 years for the 22 murder conviction with a consecutive sentence of 72 to 180 months for the deadly weapon 23 enhancement, (2) consecutive terms of 24 to 60 months for each of the assault 24 convictions, and (3) a concurrent term of 12 to 60 months for the felon in possession of a 25 firearm conviction. (Id.) Rodriguez appealed, and the Nevada Supreme Court affirmed on 26 December 18, 2015. (ECF No. 22-37.) 27 1 Rodriguez filed a state habeas petition on February 2, 2017. (ECF No. 22-43.) The 2 state court denied the petition on March 20, 2023. (ECF No. 24-13.) Rodriguez appealed, 3 and the Nevada Court of Appeals affirmed on March 25, 2024. (ECF No. 24-35.) 4 Remittitur issued on April 29, 2024. (ECF No. 24-37.) 5 Rodriguez commenced this instant action on or about April 23, 2024. (ECF No. 1.) 6 The Court conducted an initial review of the Petition and ordered that it be served on 7 Respondents. (ECF No. 6.) Rodriguez raises the following grounds in his Petition:

8 1. His trial counsel failed to provide continuous representation at all stages of the trial process. 9 2. His trial counsel failed to investigate and prepare for trial. 3. His trial counsel failed to call, secure, or subpoena any witnesses for 10 trial, including (a) Edgar Rodriguez, (b) defending against the prosecutor’s testimony, and (c) Martha Mahaffey, PhD. 11 4. His trial counsel failed to impeach prosecution witnesses. 5. His trial counsel failed to object to fabricated evidence presented by 12 the prosecution. 6. His trial counsel misstated key facts in his closing argument. 13 7. His trial counsel’s advice deprived him of his right to testify due to (a) his waiver of his right to testify not being knowingly made and (b) his 14 decision was impaired by the levels of Depakote in his system. 8. His trial counsel failed to lodge a sufficient objection to the admission 15 of highly prejudicial character evidence. 9. His appellate counsel was ineffective. 16 10. The prosecution committed misconduct. 11. There was judicial misconduct, including (a) not granting a 17 continuance of the trial, (b) allowing prejudicial character evidence that he was a sex offender to be admitted at trial, (c) being subjective 18 towards the jury panel during voir dire, and (d) showing favoritism towards the prosecution. 19 12. He was incompetent during his trial. 13. There was insufficient evidence to support his first-degree murder 20 conviction; instead, there was only sufficient evidence to prove voluntary manslaughter. 21 14. The cumulative errors of grounds 1 through 13 warrant the granting of relief.1 22 (ECF No. 7.) 23

24 1Respondents read the Petition as also including grounds 15 and 16. (See ECF No. 28 at 4.) However, these grounds, in which Respondents argue that Rodriguez is 25 alleging that the state court erred in its post-conviction decision and that his post- conviction counsel provided ineffective assistance of counsel, appear to be general 26 arguments rather than stated grounds for relief. Rodriguez confirmed this in his reply brief. 27 (ECF No. 33 at 19.) 2 1 II. LEGAL STANDARDS & ANALYSIS 2 Respondents argue that (1) only grounds 3c and 7a are exhausted, (2) the Court 3 should not consider any new evidence, (3) grounds 11, 13, and 14 are not cognizable, 4 and (4) the due process claims are conclusory. (ECF No. 28.) The Court will address 5 these arguments in turn. 6 A. Exhaustion 7 Respondents argue that only grounds 3c and 7a are exhausted, so the remaining 8 grounds should be dismissed as unexhausted. (ECF No. 28 at 5-12.) 9 A state prisoner must exhaust state court remedies on habeas claims before 10 presenting those claims to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This exhaustion 11 requirement ensures that the state courts, as a matter of comity, will have the first 12 opportunity to address and correct alleged violations of federal constitutional 13 guarantees. See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has 14 exhausted his federal claims when he has fully and fairly presented them to the state 15 courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). 16 1. Grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8 17 Rodriguez acknowledges that grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8 are 18 unexhausted, but he asserts that these grounds are technically exhausted and 19 procedurally defaulted and that he can overcome the procedural defaults under Martinez 20 v. Ryan2. (ECF No. 33 at 4.) 21 A claim may be considered procedurally defaulted if “it is clear that the state court 22 would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th 23 Cir. 2002). Rodriguez would face several procedural bars if he were to return to state 24 court. See, e.g., NRS §§ 34.726, 34.810. Nevada has cause and prejudice and 25 fundamental miscarriage of justice exceptions to its procedural bars, which are 26

27 2566 U.S. 1 (2012). 3 1 substantially the same as the federal standards. If a petitioner has a potentially viable 2 cause-and-prejudice or actual-innocence argument under the substantially similar federal 3 and state standards, then that petitioner cannot establish that “it is clear that the state 4 court would hold the claim procedurally barred.” See Sandgathe, 314 F.3d at 376. For 5 that reason, the courts in this district have generally declined to find a claim subject to 6 anticipatory procedural default unless the petitioner represents that he would be unable 7 to establish cause and prejudice in a return to state court. In such a case, the claim would 8 generally be subject to immediate dismissal as procedurally defaulted, as the petitioner 9 would have conceded that he has no grounds for exception to the procedural default in 10 federal court. 11 A different situation is presented, however, where the Nevada state courts do not 12 recognize a potential basis to overcome the procedural default arising from the violation 13 of a state procedural rule that is recognized under federal law. In Martinez v. Ryan, the 14 Supreme Court held that the absence or inadequate assistance of counsel in an initial- 15 review collateral proceeding may be relied upon to establish cause excusing the 16 procedural default of a claim of ineffective assistance of trial counsel. See 566 U.S. 1, 9 17 (2012). The Nevada Supreme Court does not recognize Martinez as cause to overcome 18 a state procedural bar under Nevada state law. See Brown v. McDaniel, 331 P.3d 867, 19 875 (Nev. 2014). Thus, a Nevada habeas petitioner who relies upon Martinez—and only 20 Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim can 21 successfully argue that the state courts would hold the claim procedurally barred but that 22 he, nonetheless, has a potentially viable cause-and-prejudice argument under federal law 23 that would not be recognized by the state courts when applying the state procedural bars. 24 Here, Rodriguez advances only Martinez as a basis for excusing the anticipatory 25 default of grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8. As such, the Court finds these grounds 26 to be technically exhausted and procedurally defaulted. However, Respondents rebut that 27 4 1 Martinez cannot be used as cause to overcome the procedural default of these grounds 2 because Rodriguez raised them before the state district court (and his postconviction 3 counsel adopted them), but his counsel then failed to raise them on appeal before the 4 Nevada appellate courts. (ECF No. 40 at 13.) Respondents are correct. 5 Rodriguez raised grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8 before the state district 6 court. (See ECF Nos. 22-43 (Rodriguez’s pro se petition).) And although Rodriguez’s 7 counsel then filed a counseled supplemental petition and a counseled second 8 supplemental petition, those supplements did not take the place of Rodriguez’s pro se 9 petition; rather, they merely supplemented it. (See ECF No. 23-15 (Rodriguez’s 10 counseled supplemental petition provides that “[n]o additional grounds will be presented” 11 beyond those in the pro se petition); ECF No. 23-22 (Rodriguez’s counseled second 12 supplemental petition “incorporates” Rodriguez’s pro se petition).) However, in his 13 opening brief on appeal to the Nevada appellate courts, Rodriguez’s appellate post- 14 conviction counsel, who had also been his initial post-conviction counsel, only raised 15 grounds 3c and 7a, dropping the other grounds.3 (ECF No. 24-28 at 7.) Accordingly, the 16 only argument Rodriguez can make is that his post-conviction appellate counsel was 17 ineffective for failing to raise grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8 on appeal. However, 18 Martinez applies only to ineffective assistance in initial review collateral proceedings and 19 cannot supply cause where the alleged ineffective assistance was on appeal of a state 20 habeas petition. See Martinez, 566 U.S. at 16 (“The holding in this case does not concern 21 attorney errors in other kinds of proceedings, including appeals from initial review 22 collateral proceedings.”); see also Ha Van Nguyen v. Curry, 736 F.3d 1287, 1295 (9th 23 Cir. 2013). Martinez therefore cannot supply cause for the procedural defaults of grounds 24 1, 2, 3a, 3b, 4, 5, 6, 7b, and 8. These grounds are dismissed as procedurally defaulted. 25 /// 26 3The Court acknowledges that Rodriguez was “ignor[ed] and exclude[d]” during 27 the post-conviction appellate process by his counsel. (ECF No. 33 at 7.) 5 1 2. Ground 11b 2 In ground 11b, Rodriguez alleges that the trial court “allowed highly prejudicial 3 character evidence to be admitted for trial,” namely that he was a sex offender. (ECF No. 4 7 at 63.) Rodriguez raised this claim on direct appeal: “The trial court abused its discretion 5 and violated appellant’s Fifth, Sixth, and Fourteenth Amendment rights to a fair trial and 6 to due process of law when it allowed into evidence the victim’s hearsay statement . . . 7 that the appellant is a ‘sex offender.’” (ECF No. 22-33 at 14.) The Nevada Supreme Court 8 considered the merits of this argument in its order of affirmance. (ECF No. 22-37 at 2-3.) 9 Accordingly, contrary to Respondents’ contention, the Court finds ground 11b is 10 exhausted. 11 3. Ground 12 12 Rodriguez has chosen to voluntarily dismiss ground 12. (ECF No. 33 at 17.) 13 4. Grounds 9, 10, 11a, 11c, 11d, 13, and 14 14 Regarding the remaining grounds—grounds 9, 10, 11a, 11c, 11d, 13, and 144— 15 Rodriguez appears to concede that they are unexhausted, but he appears to assert that 16 these grounds are technically exhausted and procedurally defaulted and that he can 17 overcome the procedural defaults. (See generally ECF No. 33.) Because grounds 9, 10, 18 11a, 11c, 11d, 13, and 14 would be procedurally barred if Rodriguez were to return to 19 state court, the Court considers them to be procedurally defaulted. See Sandgathe, 314 20 F.3d at 376. Rodriguez makes the following arguments regarding overcoming those 21 procedural defaults: (1) ground 9 “is technically exhausted, was not fully adjudicated on 22 merits in light of the evidence presented, and should be due deference of default pending 23

24 4While Rodriguez raised a cumulative error claim on direct appeal (see ECF No. 22-37 at 3-4), he has not raised an all-encompassing cumulative error claim. Although 25 not sought by Rodriguez, the Court notes that it would be futile to consider separating ground 14 into a cumulative error claim regarding Rodriguez’s direct appeal claims and a 26 cumulative error claim regarding his post-conviction appeal claims given that only one of 27 Rodriguez’s direct appeal claims has been included in his instant Petition. 6 1 a full merits review of the facts and evidence,” (2) ground 10 “is technically exhausted, 2 was not adjudicated on the merits in light of the evidence, and should be excused from 3 any procedural default due to outrageous prosecutorial misconduct, the severe cause 4 and prejudice [he] will suffer, and to avoid miscarriage of justice,” (3) grounds 11a, 11c, 5 and 11d are “technically exhausted, w[ere] not fully adjudicated on the merits in light of 6 the facts and evidence, and should be due deference of any default pending a full merits 7 review,” (4) ground 13 “is technically exhausted, was not adjudicated on the merits in light 8 of the evidence, and is due deference to avoid a miscarriage of justice,” and (5) ground 9 14 “is technically exhausted, and is entitled to de novo review as to all grounds to be 10 considered on the merits by this honorable court.” (ECF No. 33 at 11-18.) 11 When a prisoner procedurally defaults a federal claim, judicial review is barred 12 unless he can show either: (1) “cause for the default and actual prejudice as a result of 13 the alleged violation of federal law,” or (2) “that failure to consider the claims will result in 14 a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate cause, 15 a petitioner must show that some external and objective factor impeded his efforts to 16 comply with the state’s procedural rule. See Maples v. Thomas, 565 U.S. 266, 280-81 17 (2012). Ignorance or inadvertence does not constitute cause. See Murray v. Carrier, 477 18 U.S. 478, 486-87 (1986). To show prejudice, a petitioner bears the burden of showing not 19 merely that the error created a possibility of prejudice but that the error worked to his 20 actual and substantial disadvantage, infecting the entire proceeding with constitutional 21 error. See id. at 494; see also Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019). 22 Rodriguez appears to allege that he can overcome the procedural defaults of 23 grounds 9, 10, 11a, 11c, 11d, 13, and 14 because (1) a miscarriage of justice would occur 24 if the Court does not consider them given that he is innocent of first-degree murder and 25 should have been found guilty of only voluntary manslaughter, (2) his appellate counsel 26 27 7 1 was ineffective, and (3) there was prosecutorial misconduct. The Court address each 2 argument in turn. 3 First, “actual innocence, if proved, serves as a gateway through which a petitioner 4 may pass whether the impediment is a procedural bar [or] expiration of the statute of 5 limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In this regard, “actual 6 innocence” means actual factual innocence, not mere legal insufficiency. See Sawyer v. 7 Whitley, 505 U.S. 333, 339 (1992). The Supreme Court has emphasized that “tenable 8 actual innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold 9 requirement unless he persuades the district court that, in light of the new evidence, no 10 juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’” 11 McQuiggin, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). 12 Rodriguez’s actual innocence claim is based upon his argument that he acted on 13 irresistible impulse in killing his wife rather than with the intent required to commit first- 14 degree murder. (See ECF No. 7 at 68-69.) Rodriguez supports this argument with facts 15 that he believes should have been presented at the trial regarding the events that took 16 place leading up to the homicide, which, according to him, show that he merely “acted 17 with reactive violence without the aforethought for murder.” (Id.) Importantly, these facts 18 are apparently ones to which Rodriguez would have testified to, meaning they are not 19 new. Moreover, Rodriguez fails to show that his “new” evidence casts doubt on his 20 conviction by undercutting the reliability of the proof of guilt. The pertinent issue here is 21 whether, under Nevada law, Rodriguez acted with an irresistible impulse of passion or 22 whether he acted with premeditation and deliberation in killing his wife. Rodriguez’s “new” 23 facts, even if found to be credible, fail to show that he acted with an irresistible impulse of 24 passion given, in Rodriguez’s own words, that his wife “confessed to a (four) month affair 25 on the morning of July 8th, 2012,” which was a whole “(26) hours before the incident.” 26 (ECF No. 7 at 68.) Indeed, the Nevada Supreme Court, the final arbiter of Nevada law, 27 8 1 determined that Rodriguez’s version of the facts did not show voluntary manslaughter 2 under Nevada law because (1) they “did not demonstrate that he shot the victim based 3 on an ‘irresistible impulse of passion,’” and (2) there was “an interval of time between the 4 provocation and the killing.” (ECF No. 24-35 at 5 (citing Allen v. State, 98 Nev. 354, 356, 5 647 P.2d 389, 390-91 (1982) and NRS § 200.060).) As such, Rodriguez cannot overcome 6 the procedural defaults of grounds 9, 10, 11a, 11c, 11d, 13, and 14 based on a 7 miscarriage of justice argument. 8 Second, the ineffective assistance of appellate counsel in failing to raise a claim 9 on direct appeal in the state criminal proceedings may potentially establish cause. See 10 Cockett v. Ray, 333 F.3d 938, 943-44 (9th Cir. 2003). However, “to assert such an excuse 11 in a federal habeas petition, a state prisoner must first exhaust in state court the claim 12 that his appellate counsel was constitutionally inadequate.” Arrendondo v. Neven, 763 13 F.3d 1122, 1140 (9th Cir. 2014). Here, ground 9—in which Rodriguez’s claim that his 14 appellate counsel was ineffective—is unexhausted, meaning it cannot be used as cause 15 to excuse the procedural default of the grounds which could have been raised on direct 16 appeal, including grounds 10, 11a, 11c, 11d, and 13. 17 Third, Rodriguez fails to show that prosecutorial misconduct establishes cause 18 given that he fails to explain how the prosecutor’s actions during the trial impeded his 19 efforts to comply with the state’s procedural rules. 20 In sum, given Rodriguez’s failure to show a miscarriage of justice or cause and 21 prejudice to overcome the procedural defaults of grounds 9, 10, 11a, 11c, 11d, 13, and 22 14, they are dismissed. 23 B. New Evidence 24 Respondents argue that the Court should not consider any new evidence because 25 Rodriguez failed to develop such in the state courts. (ECF No. 28 at 12.) Specifically, 26 Respondents contend that Rodriguez makes specific factual allegations concerning his 27 9 1 trial counsel’s ineffectiveness in ground 3c, which is based on her evaluation report. (Id.) 2 However, according to Respondents, Rodriguez failed to include this report—among 3 other documents—in his appeal to the Nevada appellate courts. (Id. (citing ECF No. 7 at 4 112-14).) 5 The Court acknowledges that “review under § 2254(d)(1) is limited to the record 6 that was before the state court that adjudicated the claim on the merits.” Cullen v. 7 Pinholster, 563 U.S. 170, 181 (2011). However, given, inter alia, that Rodriguez may be 8 entitled to de novo review of ground 3c, an issue that it will not assess until the time of 9 merits review, the Court finds that it is premature to determine whether it should decline 10 to consider new evidence. The Court rejects this argument without prejudice to 11 Respondents raising it in connection with their merits briefing. 12 C. Cognizable Claims 13 Respondents argue that grounds 11a, 11b, 11c, 11d, 13, and 14 are not 14 cognizable. (ECF No. 28 at 14.) The Court has already dismissed grounds 11a, 11a, 11c, 15 11d, 13 and 14 as procedurally defaulted, so it need not discuss whether these grounds 16 are cognizable. Turning to ground 11b, Respondents argue that it “relates to matters of 17 state law that are not cognizable in a federal petition.” (ECF No. 28 at 14.) As a reminder, 18 in ground 11b, Rodriguez alleges judicial misconduct for the admission of highly 19 prejudicial character evidence. (ECF No. 7 at 63.) Respondents contend that “[w]hile 20 Rodriguez argues this denial was a violation of his constitutional rights, . . . [he] attempts 21 to disguise his state law claim under a ‘fair trial’ label.’” (ECF No. 28 at 15.) The Court is 22 not persuaded. “[C]laims deal[ing] with admission of evidence” are “issue[s] of state law,” 23 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009), and “federal habeas corpus 24 relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764 (1990). However, 25 here, there is still the question of “whether the state proceedings satisfied due process.” 26 See Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); see also Johnson v. 27 10 1 Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (explaining that for the admission of evidence to 2 provide a basis for habeas relief, the evidence must have “rendered the trial 3 fundamentally unfair in violation of due process”). Ground 11b is cognizable. 4 D. Conclusory Claims 5 Respondents argue that “[i]n almost every ground raised in Rodriguez’s [P]etition 6 he alleges a violation of his due process rights.” (ECF No. 28 at 19.) Respondents contend 7 that these arguments are conclusory and should be dismissed. (Id.) 8 Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District 9 Courts (“Habeas Rule(s)”) requires a federal habeas petition to specify all grounds for 10 relief and “state the facts supporting each ground.” Notice pleading is not sufficient to 11 satisfy the specific pleading requirements for federal habeas petitions. See Mayle v. Felix, 12 545 U.S. 644, 655-56 (2005) (noting that Rule 8(a) of the Federal Rules of Civil Procedure 13 requires only “fair notice” while Habeas Rule 2(c) “is more demanding”; mere legal 14 conclusions without facts are not sufficient— “it is the relationship of the facts to the claim 15 asserted that is important”). Mere conclusions of violations of federal rights without 16 specifics do not state a basis for habeas corpus relief. See id. at 649; see also Jones v. 17 Gomez, 66 F.3d 199, 205 (9th Cir. 1995). A claim for relief is facially plausible when the 18 pleading alleges facts that allow the court to draw a reasonable inference that the 19 petitioner is entitled to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although 20 pro se pleadings must be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 21 (2007), conclusory allegations unsupported by specific facts are subject to summary 22 dismissal. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). 23 Construing Rodriguez’s Petition liberally, the Court finds that he alleges sufficient 24 facts and argument to support his remaining claims. 25 /// 26 /// 27 11 1 || Ill ©CONCLUSION 2 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 28) is granted 3 || in part and denied in part as follows: (1) grounds 1, 2, 3a, 3b, 4, 5, 6, 7b, 8, 9, 10, 11a, || 11c, 11d, 13, and 14 are dismissed as procedurally defaulted, and (2) ground 12 is 5 || voluntarily dismissed. 6 It is further ordered that Respondents file their answer to grounds 3c, 7a, and 11b 7 || within 60 days of the date of this Order. Rodriguez will then have 30 days to file his reply. 8 DATED THIS 31% Day of July 2025.

10 So 11 UNITED. STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 12 28