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Mendoza v. Legrand

United States District Court, D. Nevada

July 31, 2014

ANDRES H. MENDOZA, Petitioner,
v.
WARDEN LEGRAND, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This habeas matter under 28 U.S.C. ยง 2254 comes before the Court on petitioner's motion (#18) for rehearing. The motion was filed within the time period for seeking relief under Rule 59 of the Federal Rules of Civil Procedure.

The Court dismissed the action with prejudice on the basis of procedural default, describing the procedural history as follows:

Petitioner Andres Mendoza seeks to challenge his Nevada state conviction, pursuant to an Alford plea, of attempt lewdness with a child under the age of 14 and attempt sexual assault of a minor under the age of 14. The original judgment of conviction was filed on May 27, 2009, in No. C253233 in the state district court. Petitioner did not file a direct appeal.
Three years later, on June 27, 2012, petitioner filed a proper person motion seeking an additional twelve days of presentence credit for time served. The state district court entered an amended judgment of conviction on August 6, 2012, which corrected the amount of credit for time served by four days. Petitioner appealed the district court's ruling on the motion, and the Supreme Court of Nevada affirmed in an April 9, 2013, order of affirmance in No. 61545 in that court. The ninety-day time period for seeking certiorari review in the United States Supreme Court expired on July 8, 2013.
Meanwhile, on May 6, 2013, petitioner filed a proper person state post-conviction petition, which was denied as untimely on August 20, 2013. Petitioner did not appeal.
During the pendency of the first state petition, on July 29, 2013, petitioner filed a proper person second state post-conviction petition, which was denied on October 28, 2013. The Supreme Court of Nevada affirmed the dismissal of the second petition as untimely and an abuse of writ in an April 10, 2014, order of affirmance in No. 64355 in that court. The remittitur issued on May 5, 2014.
In federal court, petitioner mailed his initial suit papers to the Clerk for filing on or about October 31, 2013. On February 18, 2014, the Court dismissed the original papers without prejudice, with an opportunity to amend, because nothing in petitioner's original bare papers set forth any claim for relief. On or about February 25, 2014, petitioner mailed the amended petition herein to the Clerk for filing.

#16, at 1-2.

After making a number of arguendo assumptions favoring petitioner, the Court held as follows regarding petitioner's claim of cause to overcome the procedural default:

The decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), does not provide a basis for overcoming the procedural default of the claims that petitioner exhausted on the second state post-conviction appeal. Martinez holds that "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." 132 S.Ct. at 1320.
Martinez has no application to this case because the exhausted claims were procedurally defaulted in petitioner's second state post-conviction proceeding.
Petitioner nonetheless urges that he was "forced" to file the successive second petition because of alleged ineffective assistance of counsel during "initial post conviction review" on the proper person first state petition. Nothing in Martinez provides for such "bootstrapped" cause for a procedural default of claims on a second petition because of the absence or ineffective assistance of counsel on a first petition. If petitioner had exhausted his claims in the first petition by filing an appeal to the state supreme court - which he did not - then a Martinez issue potentially would have been presented on federal review if the state supreme court had held that ineffective-assistance claims were procedurally barred. However, petitioner did not exhaust the claims in the first petition; claims presented in the first petition thus are not before this Court as such; and petitioner instead must overcome the procedural default of the exhausted claims in his second petition. The second petition was not the initial-review collateral proceeding under Martinez.
Moreover, the claims in the first petition did not reach the Supreme Court of Nevada because the proper person petitioner did not appeal the state district court's denial of the first petition. Martinez reaffirmed the long-established rule under Coleman v. Thompson, 501 U.S. 722 (1991), that the absence or ineffectiveness of counsel on a state post-conviction appeal does not provide a basis for cause to overcome a procedural default. See Martinez, 132 S.Ct. at 1312 & 1321. Petitioner thus is maintaining that he was "forced" to file a second petition due to a circumstance - not ...

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