United States District Court, D. Nevada
CASTRO V. DECASTRO, Petitioner,
v.
ROBERT LEGRAND, et al., Respondents. v.
ORDER
ROBERT
C. JONES, UNITED STATESDISTRICT JUDGE
This
counseled habeas matter under 28 U.S.C. § 2254 is before
the court on respondents' motion to dismiss petitioner
Castro V. DeCastro's first-amended petition (ECF No. 36).
DeCastro has opposed (ECF No. 37), and respondents replied
(ECF No. 38).
I.
Procedural History and Background
On
September 4, 2009, a jury convicted DeCastro of count 1:
sexual assault of a minor under age 14; count 3: lewdness
with a child under age 14; and count 4: attempted sexual
assault of a minor under age 14 (exhibit 54).[1] The state
district court sentenced him as follows: count 1 - life with
the possibility of parole after 240 months: count 3 - life
with the possibility of parole after 120 months, to run
concurrently with count 1; and count 4 - 96 months with the
possibility of parole after 38 months, to run consecutively
to counts 1 and 3. Exh. 58. Judgment of conviction was
entered on December 7, 2009. Id.
The
Nevada Supreme Court affirmed DeCastro's convictions on
February 24, 2012, and remittitur issued on March 20, 2012.
Exhs. 100, 101.
DeCastro
filed a counseled state postconviction petition for habeas
corpus on August 22, 2012. Exhs. 104, 105. The state district
court denied the petition on April 2, 2013. Exh. 118. On June
11, 2014, the Nevada Supreme Court affirmed the denial of the
petition, and remittitur issued on July 8, 2014. Exh. 134.
On
October 10, 2014, DeCastro dispatched his federal habeas
petition for filing (ECF No. 4). Ultimately, this court
appointed the Federal Public Defender as counsel for
DeCastro, and DeCastro filed a counseled first-amended
petition on January 29, 2016 (ECF No. 31). Respondents now
argue that the first-amended petition does not relate back to
the original petition and that petitioner failed to develop
the factual basis for the claim alleged in ground 1 (ECF No.
36).
II.
Legal Standards & Analysis
a.
Relation Back
Respondents
argue that the two grounds raised in the amended petition do
not relate back to the original petition and should thus be
dismissed as untimely (ECF No. 36, pp. 4-6). A new claim in
an amended petition that is filed after the expiration of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) one-year limitation period will be
timely only if the new claim relates back to a claim in a
timely-filed pleading under Rule 15(c) of the Federal Rules
of Civil Procedure, on the basis that the claim arises out of
“the same conduct, transaction or occurrence” as
a claim in the timely pleading. Mayle v. Felix, 545
U.S. 644 (2005). In Mayle, the United States Supreme
Court held that habeas claims in an amended petition do not
arise out of “the same conduct, transaction or
occurrence” as claims in the original petition merely
because the claims all challenge the same trial, conviction
or sentence. 545 U.S. at 655-64. Rather, under the
construction of the rule approved in Mayle, Rule
15(c) permits relation back of habeas claims asserted in an
amended petition “only when the claims added by
amendment arise from the same core facts as the timely filed
claims, and not when the new claims depend upon events
separate in ‘both time and type' from the
originally raised episodes.” 545 U.S. at 657. In this
regard, the reviewing court looks to “the existence of
a common ‘core of operative facts' uniting the
original and newly asserted claims.” A claim that
merely adds “a new legal theory tied to the same
operative facts as those initially alleged” will relate
back and be timely. 545 U.S. at 659 and n.5; Ha Van
Nguyen v. Curry, 736 F.3d 1287, 1297 (9th
Cir. 2013).
DeCastro
filed his first-amended petition on January 29, 2016, about
sixteen months after he dispatched his original petition for
filing. The claims in the first-amended petition must
therefore relate back to DeCastro's original petition in
order to be deemed timely.
Ground
1
In the
amended petition, DeCastro claims that his trial counsel
rendered ineffective assistance in violation of his Sixth and
Fourteenth Amendment rights by failing to adequately advise
DeCastro of the terms of the plea and the dangers of
rejecting the offer (ECF No. 31, pp. 14-16). Prior to trial,
attorney Mark Cichoski negotiated a plea deal with the State,
wherein DeCastro would plead guilty to two counts of
attempted lewdness, which carried two sentences of five to
twenty years, with the State reserving the right to argue the
sentence. Id.
Instead,
DeCastro was convicted by a jury and sentenced to serve
twenty years before the possibility of parole, followed by a
minimum of thirty-eight months before the possibility of
parole. DeCastro argues that Cichoski failed to fully explain
the mandatory sentencing that would be imposed if he was
convicted. He ...