1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 CESAR E. ROMERO-MANZO, Case No. 3:22-cv-00475-ART-CLB
4 Petitioner, ORDER v. 5 TIMOTHY GARRETT, et al., 6 Respondents. 7 8 This counseled habeas petition comes before the Court on Respondents’ 9 motion to dismiss. (ECF No. 27.) Petitioner Cesar E. Romero-Manzo opposed the 10 motion, and Respondents replied. (ECF Nos. 32, 38.) For the reasons stated 11 below, the Court denies the motion. 12 II. BACKGROUND 13 In affirming Romero-Manzo’s judgment of conviction, the Nevada Court of 14 Appeals summarized the facts from Romero-Manzo’s trial as follows:
15 The jury heard testimony that Romero-Manzo was jealous and angry because the victim was dating Romero-Manzo’s ex-girlfriend, there 16 was “bad blood” between Romero-Manzo and the victim, and Romero-Manzo threw a rock through the window of the victim’s car. 17 When the victim drove to confront Romero-Manzo about throwing the rock, Romero-Manzo crashed his vehicle into the side of the victim’s 18 vehicle, disabling it. The victim exited his vehicle with a metal bat. Romero-Manzo exited his vehicle with a gun wrapped in a blue 19 bandana and pointed it at the victim as they walked toward each other. Romero-Manzo uttered an expletive and then shot the victim 20 once in the chest from approximately four feet away. 21 (ECF No. 24-42 at 3.) A jury found Romero-Manzo guilty of attempted murder 22 with a deadly weapon and battery with the use of a deadly weapon. (ECF No. 22- 23 9.) The state court sentenced Romero-Manzo to an aggregate term of 192 to 480 24 months in prison. (Id.) Romero-Manzo appealed, but the Nevada Supreme Court 25 dismissed the appeal as untimely. (ECF No. 22-19.) 26 Romero-Manzo petitioned for state postconviction relief. (ECF No. 22-23.) 27 The state court appointed counsel for Romero-Manzo, and counsel filed a 28 supplemental petition. (ECF No. 22-45.) The state court granted the petition, in 1 part, and denied the petition, in part. (ECF No. 24-13.) Specifically, the state 2 court concluded that Romero-Manzo “established a valid appeal-deprivation 3 claim.” (Id. at 9.) Romero-Manzo appealed his judgment of conviction under NRAP 4 4(c).1 (See ECF No. 24-42.) The Nevada Court of Appeals affirmed Romero- 5 Manzo’s judgment of conviction. (Id.) 6 Romero-Manzo initiated this federal habeas case on or about October 26, 7 2022. (ECF No. 1.) This Court instructed Romero-Manzo to file an amended 8 petition on the appropriate form and either pay the filing fee or file an in forma 9 pauperis application. (ECF No. 3.) Romero-Manzo complied. (ECF Nos. 4, 6, 8.) 10 Romero-Manzo then moved for the appointment of counsel. (ECF No. 10.) This 11 Court granted the motion and formally appointed the Federal Public Defender on 12 January 13, 2023. (ECF Nos. 11, 14.) Romero-Manzo filed his counseled second- 13 amended petition on May 16, 2023. (ECF No. 17.) Romero-Manzo presents the 14 following grounds for relief: his trial counsel failed to cross-examine Juan Orozco 15 using his prior inconsistent statements (ground 1(a)), his trial counsel failed to 16 object to Detective Shawn Congdon’s unqualified expert testimony regarding 17 whether the gun misfired (ground 1(b)), and there was insufficient evidence to 18 support his conviction of attempted murder (ground 2). (Id.) 19 III. DISCUSSION 20 Respondents argue that grounds 1(a) and 1(b) are unexhausted and 21 procedurally defaulted. (ECF No. 27 at 4.) 22 A. Legal standard 23 A state prisoner first must exhaust state court remedies on a habeas claim 24 1 NRAP 4(c) allows “[a]n untimely notice of appeal from a judgment of conviction 25 and sentence” when “[a] postconviction petition for a writ of habeas corpus . . . assert[s] a viable claim that the petitioner was unlawfully deprived of the right to 26 a timely direct appeal from a judgment of conviction and sentence” and “[t]he 27 district court . . . enters a written order containing . . . specific findings of fact and conclusions of law finding that the petitioner has established a valid appeal- 28 deprivation claim and is entitled to a direct appeal.” 1 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 2 exhaustion requirement ensures that the state courts, as a matter of comity, will 3 have the first opportunity to address and correct alleged violations of federal 4 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 5 (1991). “A petitioner has exhausted his federal claims when he has fully and fairly 6 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 7 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 8 2254(c) requires only that state prisoners give state courts a fair opportunity to 9 act on their claims.”)). To satisfy the exhaustion requirement, a claim must have 10 been raised through one complete round of either direct appeal or collateral 11 proceedings to the highest state court level of review available. O’Sullivan, 526 12 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en 13 banc). A properly exhausted claim “‘must include reference to a specific federal 14 constitutional guarantee, as well as a statement of the facts that entitle the 15 petitioner to relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 16 U.S. 152, 162–63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) 17 (fair presentation requires both the operative facts and federal legal theory upon 18 which a claim is based). 19 B. Analysis 20 Romero-Manzo admits that grounds 1(a) and 1(b) have not been exhausted, 21 but he argues that (1) they are technically exhausted and procedurally defaulted, 22 and (2) he can overcome the procedural default pursuant to Martinez v. Ryan. 23 (ECF No. 32.) 24 A claim may be considered procedurally defaulted if “it is clear that the 25 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 26 F.3d 371, 376 (9th Cir. 2002). Romero-Manzo would face several procedural bars 27 if he were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. 28 Nevada has cause and prejudice and fundamental miscarriage of justice 1 exceptions to its procedural bars, which are substantially the same as the federal 2 standards. If a petitioner has a potentially viable cause-and-prejudice or actual- 3 innocence argument under the substantially similar federal and state standards, 4 then petitioner cannot establish that “it is clear that the state court would hold 5 the claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 6 courts in this district have generally declined to find a claim subject to 7 anticipatory procedural default unless the petitioner represents that he would be 8 unable to establish cause and prejudice in a return to state court. In such a case, 9 the claim would generally be subject to immediate dismissal as procedurally 10 defaulted, as the petitioner would have conceded that he has no grounds for 11 exception to the procedural default in federal court. 12 A different situation is presented, however, where the Nevada state courts 13 do not recognize a potential basis to overcome the procedural default arising from 14 the violation of a state procedural rule that is recognized under federal law. In 15 Martinez v.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 CESAR E. ROMERO-MANZO, Case No. 3:22-cv-00475-ART-CLB
4 Petitioner, ORDER v. 5 TIMOTHY GARRETT, et al., 6 Respondents. 7 8 This counseled habeas petition comes before the Court on Respondents’ 9 motion to dismiss. (ECF No. 27.) Petitioner Cesar E. Romero-Manzo opposed the 10 motion, and Respondents replied. (ECF Nos. 32, 38.) For the reasons stated 11 below, the Court denies the motion. 12 II. BACKGROUND 13 In affirming Romero-Manzo’s judgment of conviction, the Nevada Court of 14 Appeals summarized the facts from Romero-Manzo’s trial as follows:
15 The jury heard testimony that Romero-Manzo was jealous and angry because the victim was dating Romero-Manzo’s ex-girlfriend, there 16 was “bad blood” between Romero-Manzo and the victim, and Romero-Manzo threw a rock through the window of the victim’s car. 17 When the victim drove to confront Romero-Manzo about throwing the rock, Romero-Manzo crashed his vehicle into the side of the victim’s 18 vehicle, disabling it. The victim exited his vehicle with a metal bat. Romero-Manzo exited his vehicle with a gun wrapped in a blue 19 bandana and pointed it at the victim as they walked toward each other. Romero-Manzo uttered an expletive and then shot the victim 20 once in the chest from approximately four feet away. 21 (ECF No. 24-42 at 3.) A jury found Romero-Manzo guilty of attempted murder 22 with a deadly weapon and battery with the use of a deadly weapon. (ECF No. 22- 23 9.) The state court sentenced Romero-Manzo to an aggregate term of 192 to 480 24 months in prison. (Id.) Romero-Manzo appealed, but the Nevada Supreme Court 25 dismissed the appeal as untimely. (ECF No. 22-19.) 26 Romero-Manzo petitioned for state postconviction relief. (ECF No. 22-23.) 27 The state court appointed counsel for Romero-Manzo, and counsel filed a 28 supplemental petition. (ECF No. 22-45.) The state court granted the petition, in 1 part, and denied the petition, in part. (ECF No. 24-13.) Specifically, the state 2 court concluded that Romero-Manzo “established a valid appeal-deprivation 3 claim.” (Id. at 9.) Romero-Manzo appealed his judgment of conviction under NRAP 4 4(c).1 (See ECF No. 24-42.) The Nevada Court of Appeals affirmed Romero- 5 Manzo’s judgment of conviction. (Id.) 6 Romero-Manzo initiated this federal habeas case on or about October 26, 7 2022. (ECF No. 1.) This Court instructed Romero-Manzo to file an amended 8 petition on the appropriate form and either pay the filing fee or file an in forma 9 pauperis application. (ECF No. 3.) Romero-Manzo complied. (ECF Nos. 4, 6, 8.) 10 Romero-Manzo then moved for the appointment of counsel. (ECF No. 10.) This 11 Court granted the motion and formally appointed the Federal Public Defender on 12 January 13, 2023. (ECF Nos. 11, 14.) Romero-Manzo filed his counseled second- 13 amended petition on May 16, 2023. (ECF No. 17.) Romero-Manzo presents the 14 following grounds for relief: his trial counsel failed to cross-examine Juan Orozco 15 using his prior inconsistent statements (ground 1(a)), his trial counsel failed to 16 object to Detective Shawn Congdon’s unqualified expert testimony regarding 17 whether the gun misfired (ground 1(b)), and there was insufficient evidence to 18 support his conviction of attempted murder (ground 2). (Id.) 19 III. DISCUSSION 20 Respondents argue that grounds 1(a) and 1(b) are unexhausted and 21 procedurally defaulted. (ECF No. 27 at 4.) 22 A. Legal standard 23 A state prisoner first must exhaust state court remedies on a habeas claim 24 1 NRAP 4(c) allows “[a]n untimely notice of appeal from a judgment of conviction 25 and sentence” when “[a] postconviction petition for a writ of habeas corpus . . . assert[s] a viable claim that the petitioner was unlawfully deprived of the right to 26 a timely direct appeal from a judgment of conviction and sentence” and “[t]he 27 district court . . . enters a written order containing . . . specific findings of fact and conclusions of law finding that the petitioner has established a valid appeal- 28 deprivation claim and is entitled to a direct appeal.” 1 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 2 exhaustion requirement ensures that the state courts, as a matter of comity, will 3 have the first opportunity to address and correct alleged violations of federal 4 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 5 (1991). “A petitioner has exhausted his federal claims when he has fully and fairly 6 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 7 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 8 2254(c) requires only that state prisoners give state courts a fair opportunity to 9 act on their claims.”)). To satisfy the exhaustion requirement, a claim must have 10 been raised through one complete round of either direct appeal or collateral 11 proceedings to the highest state court level of review available. O’Sullivan, 526 12 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en 13 banc). A properly exhausted claim “‘must include reference to a specific federal 14 constitutional guarantee, as well as a statement of the facts that entitle the 15 petitioner to relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 16 U.S. 152, 162–63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) 17 (fair presentation requires both the operative facts and federal legal theory upon 18 which a claim is based). 19 B. Analysis 20 Romero-Manzo admits that grounds 1(a) and 1(b) have not been exhausted, 21 but he argues that (1) they are technically exhausted and procedurally defaulted, 22 and (2) he can overcome the procedural default pursuant to Martinez v. Ryan. 23 (ECF No. 32.) 24 A claim may be considered procedurally defaulted if “it is clear that the 25 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 26 F.3d 371, 376 (9th Cir. 2002). Romero-Manzo would face several procedural bars 27 if he were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. 28 Nevada has cause and prejudice and fundamental miscarriage of justice 1 exceptions to its procedural bars, which are substantially the same as the federal 2 standards. If a petitioner has a potentially viable cause-and-prejudice or actual- 3 innocence argument under the substantially similar federal and state standards, 4 then petitioner cannot establish that “it is clear that the state court would hold 5 the claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 6 courts in this district have generally declined to find a claim subject to 7 anticipatory procedural default unless the petitioner represents that he would be 8 unable to establish cause and prejudice in a return to state court. In such a case, 9 the claim would generally be subject to immediate dismissal as procedurally 10 defaulted, as the petitioner would have conceded that he has no grounds for 11 exception to the procedural default in federal court. 12 A different situation is presented, however, where the Nevada state courts 13 do not recognize a potential basis to overcome the procedural default arising from 14 the violation of a state procedural rule that is recognized under federal law. In 15 Martinez v. Ryan, the Supreme Court held that the absence or inadequate 16 assistance of counsel in an initial-review collateral proceeding may be relied upon 17 to establish cause excusing the procedural default of a claim of ineffective 18 assistance of trial counsel. 566 U.S. 1, 9 (2012). The Nevada Supreme Court does 19 not recognize Martinez as cause to overcome a state procedural bar under Nevada 20 state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada 21 habeas petitioner who relies upon Martinez—and only Martinez—as a basis for 22 overcoming a state procedural bar on an unexhausted claim can successfully 23 argue that the state courts would hold the claim procedurally barred but that he 24 nonetheless has a potentially viable cause-and-prejudice argument under federal 25 law that would not be recognized by the state courts when applying the state 26 procedural bars. 27 Here, Romero-Manzo advances only Martinez as a basis for excusing the 28 anticipatory default of grounds 1(a) and 1(b). (See ECF No. 32.) Accordingly, the 1 || Court considers grounds l(a) and 1(b) technically exhausted and procedurally 2 || defaulted. Because the cause and prejudice questions of overcoming the 3 || procedural default of grounds l(a) and 1(b) are necessarily intertwined with the 4 || merits of grounds l(a) and 1(b), the Court will defer a determination until the 5 || time of merits determination. Accordingly, the motion to dismiss is denied 6 || without prejudice. Respondents may renew their procedural default argument in 7 || their answer. 8 || V. CONCLUSION 9 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 27) is 10 || denied as follows: grounds l(a) and l(b) are technically exhausted, but 11 || procedurally defaulted. The Court defers consideration of whether Romero-Manzo 12 || can demonstrate cause and prejudice under Martinez v. Ryan to overcome the 13 || procedural default of grounds 1(a) and 1(b) until after the filing of an answer and 14 || reply in this action. 15 It is further ordered that Respondents must file an answer to the second- 16 || amended petition within 60 days of the date of this order. Romero-Manzo will 17 || then have 30 days from service of the answer within which to file a reply. 18 DATED THIS 8 day of February 2024. 19 20 an 21 Aras (asad 7 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28