DeCastro v. Legrand

          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 (9^th 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 ...