Saldana-Garcia v. Williams Sr

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA UBALDO SALDANA-GARCIA, Case No.: 2:19-cv-00441-APG-BNW 4 Petitioner Order Granting Petitioner’s Motion to Stay v. [ECF No. 55] BRIAN WILLIAMS, et al., 7 Respondents 8 Petitioner Ubaldo Saldana-Garcia has filed a counseled amended petition (ECF No. 4) and now requests a stay while he litigates his second state post-conviction petition. ECF No. 55.

10 I grant Saldana-Garcia’s motion to stay pending exhaustion of his unexhausted claims in state court.

12 Background 13 In November 2020, I dismissed Grounds I, II, IV, V, VI, VII, VIII, and IX of the amended petition as procedurally barred. ECF No. 34. I denied Saldana-Garcia’s motion to reconsider finding that he failed to demonstrate that Grounds I, II, IV, V, VI, VII, VIII, and IX are technically exhausted by procedural default, but that default can be overcome by Martinez v. Ryan, 566 U.S. 1 (2012). ECF No. 36.

18 Prior to answering the amended petition, the respondents informed the State of a potential error in Saldana-Garcia’s judgment of conviction. ECF No. 61 at 2. The State filed a motion to amend the judgment of conviction in state district court to eliminate 14 lewdness convictions.

21 ECF Nos. 46, 47. I granted the parties’ request to stay the case while the motion to amend the judgment of conviction was pending in state district court. Id. 1 In November 2021, the state district court issued an amended judgment of conviction dismissing numerous counts. ECF No. 48. In January 2023, Saldana-Garcia filed a second state post-conviction habeas petition seeking to exhaust the ineffective assistance of counsel claims of Grounds I, II, IV, V, VI, VII, VIII, and IX. He requests a stay of this case while he litigates his state post-conviction petition.

6 Discussion 7 A district court is authorized to stay an unexhausted petition in “limited circumstances,” to allow a petitioner to present unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 273–75 (2005). Under the Rhines test, “a district court must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 15 278).

16 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 18 F.3d 654, 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts must also “be mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state court before filing in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276– 77).

3 Saldana-Garcia makes two arguments in support of his contention that good cause exists for a Rhines stay. First, he argues that he is entitled to a second state post-conviction petition on the amended judgment of conviction. He asserts that the amended judgment of conviction was substantial because it eliminated 14 counts and was not the correction of a clerical error. The Nevada appellate court may determine that Saldana-Garcia has demonstrated good cause to overcome procedural default and rule on the merits of his claims rendering the claims exhausted, and not procedurally defaulted. Second, Saldana-Garcia asserts that good cause exists based on ineffective assistance of post-conviction counsel. He argues that post-conviction counsel failed to review the state court record to set forth claims based on trial counsel’s failure to seek dismissal or acquittal at trial, to use peremptory challenges during jury selection, and to object at trial.

14 Saldana-Garcia has demonstrated good cause to warrant a stay. The ongoing state habeas action may have a substantive impact on his claims in this federal action in that he may overcome the procedural bars or develop new evidence in state court related to his claims following the U.S. Supreme Court’s decision in Shinn v. Ramirez. 142 S. Ct. 1718 (2022) (holding that in adjudicating a Martinez claim “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state post-conviction counsel” unless the petitioner satisfies the stringent requirements of 28 U.S.C. § 2254(e)(2)). Saldana-Garcia further provides that in light of the Supreme Court’s decision in Ramirez, the issue of overturning Brown v. McDaniel,1 331 P.3d 2 867 (Nev. 2014), is before the Supreme Court of Nevada.

3 In addition, the Ninth Circuit has held that ineffective assistance of post-conviction counsel can constitute good cause to obtain a stay for purposes of exhausting a claim in state court. Blake v. Baker, 745 F.3d 977, 982-83 (9th Cir. 2014). The good cause standard under Rhines “cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default.” Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017). Although I previously found that Saldana-Garcia failed to meet his burden of showing cause under Martinez to overcome the default of Grounds I, II, IV, V, VI, VII, VIII, and IX, he demonstrates good cause to obtain a stay based on his allegations of ineffective assistance of post-conviction counsel, particularly considering the substantive impact the ongoing state habeas action may have on his claims in this federal action.

13 I further find that the unexhausted grounds are not “plainly meritless,” and that Saldana- Garcia has not engaged in intentionally dilatory litigation tactics. Accordingly, I will grant Saldana-Garcia’s motion for stay.

16 Conclusion 17 I THEREFORE ORDER that the petitioner’s Motion to Stay (ECF No. 55) is granted.

18 I further order that this action is STAYED pending exhaustion of the unexhausted claims.

19 I further order that the petitioner must file a motion to reopen within 45 days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of all state The Supreme Court of Nevada expressly declined to follow the Martinez exception to excuse state procedural bars.

1|| court proceedings.”

2 I further order that, with any motion to reopen filed following completion of all state court proceedings pursued, the petitioner: (a) shall attach supplemental exhibits containing the new state court pleadings and the state court written decisions thereon; and (b) if the petitioner 5] intends to amend the federal petition, he shall file a motion for leave to amend along with the proposed amended petition or a motion for extension of time to move for leave.

7 I direct the Clerk of Court to ADMINISTRATIVELY CLOSE this action until such time 8|| as I grant a motion to reopen the matter.

9 I further order that I will reset the briefing schedule upon reopening of the case and lifting 10]| the stay.

11 DATED this 17th day of January, 2024. fe 13 ANDREW P. GORDON 14 UNITED STATES DISTRICT JUDGE Tf certiorari review will be sought or thereafter is being sought, either party may move to extend the stay for the duration of such proceedings. Cf Lawrence v. Florida, 549 U.S. 327, 335 (2007).