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Torres v. Neven

United States District Court, D. Nevada

December 21, 2017

ANGEL TORRES, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, UNITED STATES DISTRICT JUDGE.

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes before the Court on the respondents' motion to dismiss (ECF No. 10). Petitioner has opposed (ECF No. 19), and respondents have replied (ECF No. 15).

         I. Background

         Petitioner in this action challenges his conviction pursuant to a guilty plea of one count of second-degree kidnapping and one count of child abuse and neglect with substantial bodily harm. (ECF No. 8; Ex. 42).[1] Shortly after pleading guilty, petitioner moved to withdraw his plea. (Ex. 44). The trial court denied the motion after conducting a hearing. (Ex. 56). On August 29, 2013, petitioner was sentenced to a term of six to fifteen years on the kidnapping count and a concurrent term of eight to twenty years on the child abuse count. (Ex. 57). Judgment of conviction was entered on September 6, 2013 (Ex. 58), and petitioner appealed (Ex. 59). While his direct appeal was pending, petitioner filed a state petition for writ of habeas corpus. (Ex. 70).

         The Nevada Supreme Court affirmed petitioner's conviction on October 15, 2014, and remittitur issued on November 20, 2014. (Exs. 68 & 69).

         On December 8, 2014, petitioner filed a second state habeas petition. (Ex. 77). On December 19, 2014, the district court ordered respondents to respond to the second petition. (Ex. 79). Respondents filed responses to both the first and second petitions on March 16, 2015. (Ex. 82).

         On April 27, 2015, the district court entered an order denying petitioner's second petition on the grounds that it was successive and therefore barred by Nevada Revised Statutes § 34.810(2). (Ex. 88). On April 30, 2015, the district court entered an order denying petitioner's first state petition as procedurally barred pursuant to § 34.810(1)(a). (Ex. 87). The district court further found that petitioner's claims should have been raised on direct appeal, if at all. (Id.)

         On September 16, 2015, the Nevada Court of Appeals affirmed the denial of both petitions. (Ex. 90). As to the first petition, the Court of Appeals held that the ineffective assistance of counsel claims therein lacked merit and that the remaining claims could have been, but were not, raised on direct appeal and therefore were barred pursuant to Nevada Revised Statutes § 34.810(1)(b). (Id.) As to the second petition, the Court of Appeals held that it was barred under Nevada Revised Statutes § 34.810(1)(b)(2) because the claims could have been raised in his prior habeas petition but were not. (Id.)

         On February 8, 2016, petitioner mailed the instant federal habeas petition for filing with this Court. The petition asserts thirteen grounds for relief. Respondents move to dismiss the petition in part on the grounds that some of the claims are procedurally defaulted and others are not cognizable on federal habeas review.

         II. Procedural Default

         Respondents assert that Grounds 1 and 5 and Grounds 2, 3, 4, 7, 8, 10, 11 and 12 are procedurally defaulted.

         A. Standard

         The court cannot review a claim “if the Nevada Supreme Court denied relief on the basis of ‘independent and adequate state procedural grounds.'” Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails to comply with the state's procedural requirements in presenting his claims is barred from obtaining a writ of habeas corpus in federal court by the adequate and independent state ground doctrine. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).

         A state procedural bar is “adequate” if it is “clear, consistently applied, and well-established at the time of the petitioner's purported default.” Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). A state procedural bar is “independent” if the state court “explicitly invokes the procedural rule as a separate basis for its decision.” Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state court's decision is not “independent” if the ...


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