United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
habeas matter comes before the court on respondents'
motion to dismiss certain claims in petitioner Fernando
Gallegos' counseled third-amended petition (ECF No. 43).
Gallegos opposed (ECF No. 47), and respondents replied (ECF
Procedural History and Background
November 22, 2008, a jury convicted Gallegos of first-degree
murder (exhibit 28). A separate penalty hearing was then held
before a jury, and Gallegos was sentenced to life in prison
without the possibility of parole. Exh. 31. Judgment of
conviction was entered on March 11, 2009. Exh. 34.
Nevada Supreme Court affirmed Gallegos' conviction on
September 28, 2010. Exh. 4.
April 15, 2015, the Nevada Court of Appeals affirmed the
denial of Gallegos' state postconviction petition. Exh.
8. Remittitur issued on May 11, 2015. Exh. 56.
dispatched his federal habeas petition for filing on or about
May 10, 2015 (ECF No. 6). This court appointed the Federal
Public Defender as counsel for Gallegos. Gallegos ultimately
filed a counseled, third-amended petition on May 4, 2017 (ECF
No. 42). Respondents now argue that some claims in the
third-amended petition do not relate back to any timely-filed
earlier petition and that some grounds are unexhausted or
procedurally barred (ECF No. 43).
Legal Standards & Analysis
argue that grounds 1 through 3 and parts of ground 4 of the
third-amended petition do not relate back to a timely-filed
petition and should thus be dismissed as untimely (ECF No.
43, pp. 7-11). 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
the parties do not dispute that the claims in Gallegos'
third-amended petition must relate back to his timely,
original federal pro se petition in order to be
deemed timely (ECF Nos. 43, 47).
1 alleges that the trial court's jury instructions on
murder, first-degree murder, and felony murder violated
Gallegos' Fourteenth Amendment due process and fair trial
rights because they were misleading and failed to give effect
to all elements necessary for conviction (ECF No. 42, pp.
original pro se petition, Gallegos argues that his
trial counsel was ineffective (IAC) for failing to object to
the murder instructions that improperly instructed the jury
on malice, premeditation and deliberation (ECF No. 6, pp. 19,
23). The new claim alleges trail court error, but the IAC
claim is based on the same allegations of improper jury
instructions on murder. The facts supporting the grounds are
the same, and ground 1 relates back. Mayle, 545 U.S.
at 659 and n.5; Ha Van Nguyen, 736 F.3d at 1297.
contends that the jury sentencing proceedings violated his
Fourteenth Amendment due process rights and Eighth Amendment
right to be free from cruel and unusual punishment due to the
accumulation of errors and discretionary abuses (ECF No. 42,
pp. 21-28). (ECF No. 6, pp. 17, 25, 29)
break down the errors alleged in ground 2 as follows:
(a) allowing a jury to determine Gallegos' sentence;
(b) testimony that petitioner “stabbed his girlfriend
in the leg numerous times with an icepick, ” and
“stabbed a man in the chest and abdomen with a
(c) evidence of four arrests in 1982, 1983, and 1998 which
all resulted in convictions for different related crimes;
(d) evidence of prior convictions for gross misdemeanors;
(e) evidence that petitioner punched a police officer in the
throat when she attempted to handcuff him in 2005;
(f) testimony from an officer with the Repeat Offender
Program (ROP) that petitioner was the “worst of the
worst” of 700 targets in the ROP; and
(g) allowing the victim's sisters to recommend to the
jury the sentence they thought should be imposed.
Respondents argue that certain subparts do not relate back to
the original petition
(ECF No. 43, pp. 9-10). This court has carefully reviewed the
original petition and the third-amended petition and
concludes that a fair reading indicates that the new claims
rely on the same core facts as the timely filed claims and do
not depend upon events separate in “both time and
type” from the original facts alleged. Mayle,
545 U.S. at 657. Ground 2 relates back, and therefore, it is