United States District Court, D. Nevada
WILLIAM P. CASTILLO, Petitioner,
TIMOTHY FILSON, et al, Respondents.
capital habeas corpus action, the respondents filed their
answer on August 1, 2016, (ECF No. 189), the petitioner,
William P. Castillo, filed his reply on December 23, 2016
(ECF No. 195), and the respondents filed a response to
Castillo's reply on May 12, 2017 (ECF No. 215).
Castillo's remaining claims for habeas corpus relief are,
therefore, fully briefed, and under submission to the Court.
December 23, 2017, Castillo also filed four motions: a motion
for partial reconsideration of the Court's order of March
2, 2016 (ECF No. 196); a motion for evidentiary hearing (ECF
No. 201); a motion for leave to supplement his second amended
habeas petition (ECF No. 199); and a motion for stay and
abeyance (ECF No. 198). Each of those motions is fully
briefed and before the Court.
for Reconsideration and Motion for Evidentiary Hearing
motion for reconsideration (ECF No. 196), Castillo requests
reconsideration of the Court's ruling, in its March 2,
2016 order (ECF No. 184), that he did not show cause and
prejudice, under Martinez v. Ryan, 132 S.Ct. 1309
(2012), for his procedural default of certain of his claims
in state court. See Order entered March 2, 2016 (ECF
No. 184), pp. 41-43. Respondents filed an opposition to that
motion on May 16, 2017 (ECF No. 217). Castillo replied on
June 15, 2017 (ECF No. 220).
Court "possesses the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for
cause seen by it to be sufficient, " so long as the
court has jurisdiction. City of L.A., Harbor Div. v.
Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001) (emphasis and quotation omitted).
The ruling in the Court's March 2, 2016 order that
Castillo challenges is the following:
With respect to the procedural default of his claims of
ineffective assistance of counsel in Claims l(I)(A),
l(II)(A), l(II)(B), l(II)(C), 3(I)(C), 3(II)(B), 4, 5, 6,
7(II)(A), 7(II)(B), 10, 11 and 12, Castillo argues, relying
upon Martinez v. Ryan, U.S., 132 S.Ct. 1309, 182
L.Ed.2d 272 (2012), that ineffective assistance of counsel in
his first state habeas action was cause for his procedural
default. See Opposition to Motion to Dismiss, pp.
In Martinez, the Supreme Court noted that it
previously held, in Coleman v. Thompson, 501 U.S.
722, 746-47 (1991), that "an attorney's negligence
in a postconviction proceeding does not establish cause"
to excuse procedural default. Martinez, 132 S.Ct. at
1319. The Court in Martinez "qualified]
Coleman by recognizing a narrow exception:
inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at
trial." Id. at 1315. The Court described
"initial-review collateral proceedings" as
"collateral proceedings which provide the first occasion
to raise a claim of ineffective assistance at trial."
Here, however, Castillo's assertion under
Martinez, that ineffective assistance of counsel in
his first state habeas action was the cause of his procedural
default, under the state statute of limitations, in his
second state habeas action, is flawed. In Martinez,
the petitioner's procedural default was based on an
Arizona rule barring successive petitions; as such, the
petitioner's procedural default was complete when his
counsel in the initial-review collateral proceeding failed to
raise claims. See Martinez, 132 S.Ct. at 1314. The
procedural default at issue here is different. Castillo's
procedural default was grounded on the state statute of
limitations, NRS 34.726. The procedural default occurred
because Castillo delayed for more than ten years after his
direct appeal ended on April 28, 1999 - and for almost five
years after the appeal in his first state habeas action ended
on October 27, 2004 - before initiating his second state
habeas action on September 18, 2009. The attorney who
represented Castillo in his first state habeas action
represented Castillo only until late 2004, while
Castillo's first state habeas action was pending; that
was only part of die time over which die statute of
limitations default occurred. Ineffective assistance of
Castillo's first state post-conviction counsel cannot
explain the last five years of the delay. In essence, diere
is an insufficient causal connection between the alleged
ineffective assistance of Castillo's first
post-conviction counsel and the procedural default. As a
matter of equity, this court does not accept Castillo's
assertion of ineffective assistance of his counsel in his
first state habeas action as cause for his failure to comply
with the state statute of limitations in his second state
habeas action. See [Nguyen v. Curry, 736 F.3d 1287,
1289 (9th Cir. 2013)] ("The Supreme Court in
Martinez established an equitable rule under which
the failure of an ineffective counsel or pro se petitioner to
raise, in a state court initial-review collateral proceeding,
a claim of ineffective assistance of counsel ('IAC')
at trial can be 'cause' to excuse a state-court
procedural default."). Ineffective assistance of counsel
in Castillo's first state habeas action does not function
as cause for the procedural default of the claims of
ineffective assistance of counsel in Claims l(I)(A), l(H)(A),
l(U)(B), l(n)(C), 3(I)(C), 3(H)(B), 3(II)(C), 4, 5, 6,
7(II)(A), 7(E)(B), 10, 11 and 12.
Castillo requests an evidentiary hearing concerning his
argument that he can show cause and prejudice for die
procedural default of his ineffective assistance of counsel
claims, because of ineffect assistance of counsel in his
first state habeas action. See Motion for
Evidentiary Hearing, pp. 3-8. However, the court's
rulings in this regard ~ that ineffective assistance of
Castillo's counsel in his first state habeas action
cannot explain the long delay that led to his default under
NRS 34.726 in his second state habeas action, and that there
is an insufficient causal connection between the alleged
ineffective assistance of Castillo's counsel in his first
state habeas action and the procedural default at issue - do
not turn on any question of fact. There is no showing of any
need for an evidentiary hearing.
entered March 2, 2016 (ECF No. 184), pp. 41-43 (footnotes
waited more tiian nine months, and until more than four
months after the respondents filed their answer, before
seeking reconsideration of this ruling in the Court's
March 2, 2016, order. While neither the Federal Rules of
Civil Procedure nor the local rules of this Court set a limit
on die time for seeking reconsideration of an interlocutory
order, such a motion must, in this Court's view, be made
within a reasonable time. There is no apparent reason - such
as a change in die law or discovery of new facts - explaining
Castillo's delay. The Court finds diat Castillo
unreasonably delayed in seeking reconsideration of the March
2, 2016, order, and die Court will deny the motion on that
however, the Court determines that Castillo does not show
diat reconsideration is warranted. In his motion for
reconsideration, Castillo argues that the Court "refused
to consider his allegations of cause-and-prejudice under
Martinez v. Ryan, 132 S.Ct. 1309 (2012).
See Motion for Partial Reconsideration (ECF No.
196), pp. 1, 3. That is an inaccurate characterization of the
Court's order. The Court considered, but rejected,
Castillo's assertion of cause and prejudice under
Martinez. Castillo also argues that the Court ruled
that "Martinez does not apply to state statute
of limitation default bars." See Id. at 5-8.
That argument, too, is plainly inaccurate. The Court did not
rule that Martinez does not apply to state statute
of limitations bars; rather, the Court ruled that, as a
matter of equity, Castillo's particular assertion of
cause and prejudice under Martinez fails.
undisputed that the exception to the rule of Coleman v.
Thompson, 501 U.S. 722 (1991), established by
Martinez, is equitable in nature. See
Martinez, 132 S.Ct. at 1318 ("Allowing a federal
habeas court to hear a claim of ineffective assistance of
trial counsel when an attorney's errors (or the absence
of an attorney) caused a procedural default in an
initial-review collateral proceeding acknowledges, as an
equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective
counsel, may not have been sufficient to ensure that proper
consideration was given to a substantial claim.");
see also Motion for Partial Reconsideration, pp. 4,
6, 9 (repeatedly recognizing that Martinez rule is a
matter of equity). This Court's ruling was that, as a
matter of equity, Castillo's assertion of ineffective
assistance of counsel in his first state habeas action as
cause for his failure to comply with the state statute of
limitations failed because "Castillo delayed for more
than ten years after his direct appeal ended on April 28,
1999 - and for almost five years after the appeal in his
first state habeas action ended on October 27, 2004 «
before initiating his second state habeas action on September
18, 2009." Order entered March 2, 2016 (ECF No. 184), p.
42. Ineffective assistance of Castillo's counsel in his
first state habeas action was not the cause of much of the
delay in Castillo's filing of his second state habeas
it is notable that, had Castillo initiated his second state
habeas action within a reasonable amount of time after the
conclusion of his first state habeas action, he might have
overcome the state-law statute of limitations bar by showing
ineffective assistance of counsel in his first state habeas
action. See Order of Affirmance, Exhibit 268, pp.
3-5 (ECF No. 144-12, pp. 4-6); see also Crump v.
Warden, 934 P.2d 247, 253 (Nev. 1997) (in Nevada capital
cases, where postconviction counsel is appointed pursuant to
statutory mandate, the petitioner is entitled to effective
assistance of counsel, and ineffective assistance of that
counsel may function as cause to overcome a procedural
default); Hathaway v. State, 71 P.3d 503, 505-08
(Nev. 2003) (claim of cause relative to a procedural bar,
based on performance of counsel, maybe made within reasonable
time). Castillo's failure to initiate his second state
habeas action within a reasonable time cannot be attributed
to any failing of his counsel in his first state habeas
does not show that the Court should reconsider its ruling;
the Court will deny the motion for reconsideration.
motion for evidentiary hearing, Castillo requests an
evidentiary hearing "to develop Castillo's
allegations of cause and prejudice for the delay in raising
his IAC claims under Martinez v. Ryan, 132 S.Ct.
1309 (2012)." Motion for Evidentiary Hearing (ECF No.
201), p. 3. The Court's ruling regarding Castillo's
attempt to show cause for his procedural default, under
Martinez, does not turn on any disputed issue of
fact. Castillo does not demonstrate any need for an
evidentiary hearing. His motion for evidentiary hearing will
for Leave to Supplement and Motion for Stay
December 23, 2016, Castillo filed a Motion for Leave to
Supplement the Second Amended Petition (ECF No. 199). In that
motion, Castillo requests leave of court to add two claims to
his petition: a claim, based on Hurst v. Florida,
136 S.Ct. 616 (2016), that it was a violation of his
constitutional rights for the Nevada Supreme Court to reweigh
aggravating and mitigating factors after striking two of the
four aggravating factors found by the jury; and a claim that
the "avoid and prevent lawful arrest" aggravating
factor, one of the two remaining aggravating factors
considered in the Nevada Supreme Court's reweighing, is
invalid because it was not supported by sufficient evidence,
and is impermissibly vague and overbroad. Castillo filed the
proposed additional claims in a document entitled
"Supplement to Second Amended Petition for Writ of
Habeas Corpus (ECF No. 200). Respondents filed an opposition
to petitioner's motion on February 16, 2017 (ECF No. 69).
Petitioner replied on February 23, 2017 (ECF No. 70).
December 23, 2017, Castillo also filed a Motion for Stay and
Abeyance (ECF No. 198). In that motion, Castillo requests
that this Court stay this action while he returns to state
court to exhaust his state-court remedies with respect to his
Hurst claim. Respondents filed an opposition to that
motion on April 6, 2017 (ECF No. 209), and Castillo replied
on April 12, 2017 (ECF No. 214).
petition for a writ of habeas corpus "may be amended or
supplemented as provided in the rules of procedure applicable
to civil actions." 28 U.S.C. § 2242; see
also Rule 12, Rules Governing Section 2254 Cases (Rules
of Civil Procedure apply to federal habeas proceedings
"to the extent that they are not inconsistent.").
Federal Rule of Civil Procedure 15(a) permits a party to
amend a pleading with the opposing party's written
consent or the court's leave. See Fed. R. Civ.
P. 15(a)(2). "The court should freely give leave when
justice so requires." Id. "Courts may
decline to grant leave to amend only if there is strong
evidence of 'undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or]
futility of amendment, etc.'" Sonoma County.
Ass'n of Retired Employees v. Sonoma County, 708
F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). "[T]he
consideration of prejudice to the opposing party carries the
greatest weight." Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Rhines v. Weber, 544 U.S. 269 (2005), the stay and
abeyance procedure was condoned by the Supreme Court as a
means by which a habeas petitioner with a mixed petition
subject to dismissal under Rose v. Lundy, 455 U.S.
509 (1982), could fully exhaust his petition without the risk
of running afoul of the one-year statutory time limit for
filing federal petitions. See Rhines, 544 U.S. at
276. The Rhines Court cautioned, however, that stay
and abeyance, if too frequently used, would undermine
AEDPA's goals of prompt resolution of claims and
deference to state court rulings. Id. The Court held
that, in order to obtain "stay and abeyance, " a
petitioner must show: (1) good cause for the failure to
exhaust claims in state court, (2) that the unexhausted
claims are potentially meritorious, and (3) the absence of
abusive tactics or intentional delay. Id.; see also
Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005).
respect to Castillo's request for leave of court to add
to his petition a claim based on Hurst, and his
request for a stay while he exhausts that claim in state
court, the Court determines that Castillo's
Hurst claim is not potentially meritorious,
amendment of his petition to add that claim would be futile,
and a stay is unwarranted.
Hurst, the Supreme Court held that Florida's
capital sentencing scheme violated the Sixth Amendment right
to a jury trial because, under the scheme, the jury rendered
an advisory verdict but the judge ultimately found the facts
necessary to impose a sentence of death. See Hurst,
136 S.Ct. at 624. In reaching that holding, the Court relied
upon Ring v. Arizona, 536 U.S. 584 (2002), which
held that any fact necessary for the imposition of the death
penalty must be found by a jury, not a judge. See
Ring, 536 U.S. at 589. Ring and Hurst
are both based on Apprendi v. New Jersey, 530 U.S.
466 (200), which held that any fact that "expose[s] the
defendant to a greater punishment than that authorized by the
jury's guilty verdict" is an "element"
that must be submitted to a jury. Apprendi, 530 U.S.
a jury imposed the death penalty in Castillo's case,
Castillo claims that his death sentence is unconstitutional
under Hurst because, on the appeal in one of his
state habeas actions, the Nevada Supreme Court struck two
aggravating factors found by the jury, reweighed the
remaining aggravating factors and the mitigating factors, and
affirmed the state district court's denial of relief.
Castillo reasons that, under Hurst, the weighing of
aggravating and mitigating factors is an "element"
that must be submitted to the jury and that cannot
constitutionally be subject to reweighing by an appellate
claim extends the holding in Hurst beyond its
cognizable bounds. Neither Ring nor Hurst
holds that the weighing of aggravating and mitigating
circumstances is an "element" that must be
submitted to the jury. The Court in Ring noted that
"[t]he State's law authorizes the judge to sentence
the defendant to death only if diere is at least one
aggravating circumstance and 'there are no mitigating
circumstances sufficiently substantial to call for
leniency.'" Ring, 536 U.S. at 593. Yet, the
Ring Court identified only the existence of an