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Macias v. Baker

United States District Court, D. Nevada

March 6, 2017

FRANK MACIAS, Petitioner,
RENEE BAKER, et al., Respondents.



         This pro se habeas matter under 28 U.S.C. § 2254 comes before the court on respondents' motion to dismiss the unexhausted petition (ECF No. 10). In response to the motion to dismiss, petitioner Frank Macias filed a motion for stay and abeyance in accordance with Rhines v. Weber pending the conclusion of his state postconviction proceedings (ECF No. 12). Respondents opposed the motion for stay (ECF No. 14).

         I. Procedural History and Background

         On August 5, 2008, a jury convicted Macias of count 1: robbery with the use of a deadly weapon; count 2: attempt murder with use of a deadly weapon; and count 3: possession of a firearm by ex-felon (exhibit 4).[1] The state district court sentenced him as follows: counts 1 and 2 - two terms of 72 to 180 months, each with an equal and consecutive term for the deadly weapon enhancement; count 2 consecutive to count 1; count 3 - 13 to 60 months, concurrent with counts 1 and 2; with 543 days credit for time served. Id. The Nevada Supreme Court affirmed the convictions on November 4, 2009. Exh. 6.

         On January 19, 2010, Macias filed a pro se state postconviction habeas corpus petition. Exh. 7. The state district court appointed counsel, and Macias filed a counseled, second postconviction petition. Exh. 9. The State filed a response to the petition. Instead of issuing a decision, on July 31, 2012, the state district court issued an order to statistically close the case incorrectly stating the matter was resolved pursuant to a guilty plea. Exh.10.

         No action was taken on Macias' post-conviction petitions until he resubmitted his initial pro se petition again with the state district court on July 10, 2013. Exh. 11. The State again filed a response, and on November 4, 2013, the district court issued an order denying “Defendant's Third Petition on the merits (referring to Macias' pro se petition filed on July 10, 2013). Exh. 12.

         Macias timely appealed through counsel, arguing: “This case should be remanded in order for the District Court to make a ruling on all issues raised by Defense Counsel in Defendant's Second Petition.” On September 18, 2014, the Nevada Supreme Court dismissed the appeal, stating:

The district court order denying Macias' petition failed to address the claims raised in the petition filed on October 13, 2011, by his counsel, Brett Whipple. Because the district court order does not resolve all of the claims raised below, it is not a final order. Therefore, we lack jurisdiction over this appeal . . . .

Exh. 14 (Nevada Supreme Court Case No. 64466). Remittitur issued October 22, 2014. Exh.15.

         Next, Macias dispatched his federal habeas petition for filing on September 3, 2015 (ECF No. 6). Then, on September 30, 2015, Macias initiated continued state postconviction proceedings by filing a pro se, fourth postconviction petition alleging a double jeopardy violation of the Fifth and Eighth Amendments. Exh. 16. The State filed a response requesting the district court to “address the concerns outlined in the Nevada Supreme Court's September 18, 2014 Order Dismissing Appeal.” Exh. 17 (arguing that the state district court should deny all claims in Macias' January 19, 2010, October 13, 2011, and July 10, 2013 petitions). As to the claims in Macias' fourth postconviction petition, the State argued that the petition was time-barred, barred by laches and/or was successive and waived. Id.

         On May 2, 2016, Macias' postconviction counsel filed a supplemental brief addressing the “unresolved claims from [the] October 13, 2011 petition.” Exh. 9. At the time respondents filed their motion to dismiss Macias' federal petition, the state postconviction petition was briefed and ready for disposition by the state district court. See exh. 1. This court may take judicial notice of the Nevada Supreme Court docket, and it appears that Macias' appeal of the denial of his state postconviction petition is currently before the Nevada Supreme Court. Case No. 71475.

         II. Legal Standards & Analysis

         Exhaustion of state remedies is a prerequisite to a federal court's consideration of claims presented in a petition for writ of habeas corpus. 28 U.S.C. 2254(b). The exhaustion doctrine is based on a policy of federal-state comity designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). It requires the habeas petitioner to “fairly present” the “substance” of his federal habeas corpus claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982). The “fair presentation” requirement is only satisfied when the claim has been presented to the highest state court by describing the operative facts and legal theory upon which the federal claim is based. Anderson, 459 U.S. at 6; Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).

         In his motion for stay and abeyance, Macias acknowledges that his federal petition is unexhausted (ECF No. 12). Macias explains that in the midst of the confusion of the errors in the state district court, and as it was unclear whether the state courts were going to consider his state postconviction claims on the ...

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