Cordova v. Frazier

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * HAROLD CORDOVA, Case No. 3:19-cv-00388-MMD-CLB 7 Petitioner, ORDER v. ISIDRO BACA, et al., Respondents.

11 I. SUMMARY 12 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the Court is Respondents' motion to dismiss. (ECF No. 26).1 The Court finds that Petitioner Harold Petitioner has exhausted his state-court remedies for Ground 2 of the amended petition (ECF No. 13). Petitioner acknowledges that he has not exhausted Ground 3 but argues that it would be procedurally barred in the state courts without excuse. The Court defers determination of whether Petitioner can excuse the procedural default of Ground 3 to the answer and reply.

19 Also before the Court is Petitioner's motion for leave to file exhibit under seal (ECF No. 38). The Court grants this motion.

21 II. BACKGROUND 22 The State of Nevada charged Petitioner with open murder with the use of a deadly weapon. (ECF No. 27-2.) Pursuant to a plea agreement, Petitioner pleaded nolo contendere to second-degree murder with the use of a deadly weapon. (ECF No. 14-2.)

25 The state district court convicted Petitioner accordingly. (ECF No. 14-3.) Petitioner did not directly appeal the judgment of conviction.

1Petitioner filed an opposition (ECF No. 35), and Respondents filed a reply (ECF district court. (ECF No. 14-4.) The court appointed counsel, who filed a supplemental petition. (ECF No. 14-5.) The court held an evidentiary hearing on Petitioner's claims.

4 (ECF No. 14-6.) After the hearing, the court denied the petition. (ECF No. 14-7.) Petitioner appealed, and he filed an opening brief. (ECF No. 14-9.) The Nevada Supreme Court affirmed. (ECF No. 14-11.)

7 Petitioner then commenced this action. This Court appointed the Federal Public Defender, and Petitioner filed a counseled amended petition. (ECF No. 13.)

9 III. LEGAL STANDARD 10 Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. See 28 U.S.C. § 2254(b).

12 To exhaust a ground for relief, the petitioner must fairly present that ground to the state’s highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

16 IV. DISCUSSION 17 A. GROUND 2 IS EXHAUSTED 18 Ground 2 is a claim that Petitioner received ineffective assistance of counsel during plea bargaining, resulting in a nolo contendere plea that was not knowing and voluntary.2 Petitioner alleges that he suffers from post-traumatic stress disorder, and that along with his medication, made him unable to enter a valid plea. He further alleges that he did not understand that a plea of nolo contendere is the equivalent to a plea of guilty. Regarding counsel, Petitioner alleges that counsel failed to ensure Petitioner understood the consequences of the plea and that Petitioner had the ability to enter a knowing and voluntary plea. Counsel possessed Petitioner's medical records from the Department of Veterans Affairs and the jail, and Petitioner alleges that those records should have alerted counsel to the possibility that Petitioner might not have been competent.

2Ground 1 is the underlying claim that the plea was not knowing and voluntary.

2 the Nevada Supreme Court on appeal from the denial of his post-conviction petition.

3 Respondents are correct that Petitioner argued more that counsel failed to communicate with Petitioner about possible defenses. (See ECF No. 14-9 at 24-28.) However, in that argument Petitioner also argued that he wanted to proceed to trial and that he did not understand the differences among pleas of nolo contendere, guilty, and not guilty. (Id. at 25-26.). Moreover, the Nevada Supreme Court noted that Petitioner claimed "that trial counsel's lack of communication, coupled with his psychiatric issues and medication, prevented him from understanding the consequences of his plea or the defenses available if he went to trial." (ECF No. 14-11 at 3.) The Nevada Supreme Court then analyzed that claim. (Id. at 3-4.) Petitioner might not have alleged the claim with as much detail as he now does in Ground 2, but he alleged enough for the Nevada Supreme Court to understand what his claim was. Ground 2 therefore is exhausted.

14 B. THE COURT DEFERS RULING ON GROUND 3 15 1. Petitioner did not present Ground 3 to state courts 16 Ground 3 is a claim that Petitioner's trial counsel had a conflict of interest. Two attorneys with the Washoe County Public Defender's office represented Petitioner. The public defender's office also represented a jailhouse informant who told police about incriminating statements that Petitioner told the informant. Petitioner acknowledges that he did not present this claim in his state post-conviction proceedings. (ECF No. 13 at 14.)

21 2. Ground 3 is technically exhausted 22 Petitioner notes that if he returned to state court to exhaust Ground 3, then the state courts would find his new post-conviction petition to be untimely under NRS § 34.726(1) and successive under NRS § 34.810. Both of these statutes allow a court to excuse the procedural bars upon a showing of cause and prejudice. Petitioner notes that his only argument for cause and prejudice is the ineffective assistance of post-conviction counsel. The Nevada Supreme Court does not accept ineffective assistance of post- conviction counsel as an excuse to the procedural bars in a case like Petitioner's. See remains for Petitioner to raise this claim in the state courts. See 28 U.S.C. § 2254(c).

3 3. Ground 3 is procedurally defaulted 4 Because the state courts would deny relief based upon state-law reasons that are adequate and independent of federal law, Ground 3 is procedurally defaulted. This Court cannot consider Ground 3 unless Petitioner can show cause and prejudice.

7 In federal courts the ineffective assistance of post-conviction counsel can be cause and prejudice to excuse a procedurally defaulted claim of ineffective assistance of trial counsel. See Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner makes this argument. (ECF No. 35 at 10-16.) Petitioner also asks the Court to defer resolution of the Martinez issue until the petition is fully briefed on the merits. (ECF No. 35 at 16-17.) Respondents agree.

12 (ECF No. 40 at 4.) The Court will follow that procedure.

13 C. THE COURT GRANTS LEAVE TO FILE EXHIBIT UNDER SEAL 14 Petitioner's motion for leave to file exhibit under seal asks the Court to seal a portion of the preliminary hearing transcript that also was sealed in the state district court.

16 This part of the preliminary hearing was held outside the presence of the prosecutor and contains confidential information. The Court finds compelling reasons to file this document under seal, and the Court grants Petitioner’s motion. See Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

20 V. CONCLUSION 21 It is therefore ordered that Respondents' motion to dismiss (ECF No. 26) is granted in part. Ground 2 is exhausted. Ground 3 is unexhausted but is technically exhausted because it would be procedurally barred by the state courts.

24 It is further ordered that the Court defers consideration of whether Petitioner can demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012) to overcome the procedural default of Ground 3 until after the filing of an answer and reply in this action.

28 /// 1 It is further ordered that, within 60 days of entry of this order, Respondents must || file an answer addressing all claims in the amended petition on the merits, under a de || novo standard of review as to Ground 3, and also addressing whether Ground 3 is barred || by procedural default under federal law.

5 It is further ordered that Petitioner will have 30 days from service of the answer || within which to file a reply.

7 It is further ordered that Petitioner's motion for leave to file exhibit under seal (ECF || No. 38) is granted.

9 DATED THIS 22" Day of March 2021.

10 “A 11 (OL 12 mRANCR 3 CHIEF UNITED STATES DISTRICT JUDGE