Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gallegos v. Baca

United States District Court, D. Nevada

February 9, 2018

FERNANDO GALLEGOS, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         This 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 No. 51).

         I. Procedural History and Background

         On November 22, 2008, a jury convicted Gallegos of first-degree murder (exhibit 28).[1] 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.

         The Nevada Supreme Court affirmed Gallegos' conviction on September 28, 2010. Exh. 4.

         On 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.

         Gallegos 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).

         II. Legal Standards & Analysis

         a. Relation Back

         Respondents 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 Cir. 2013).

         Here, 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).

         Ground 1

         Ground 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. 15-21).

         In his 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.

         Ground 2

         Gallegos 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)

         Respondents 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 nail;”
(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 timely.

         Grou ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.