United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Gustavo Contreras, a Nevada prisoner. On June 23,
2017, respondents filed a motion to dismiss certain claims in
Contreras's petition, arguing that they are procedurally
defaulted. ECF No. 37. Also pending before the court is
Contreras's motion for leave to file a supplement to his
petition. ECF No. 39. The court decides those motions as
20, 2011, after a jury trial in the state district court for
Clark County, Nevada, Contreras was convicted of battery by a
prisoner and sentenced under the small habitual criminal
statute to 60 to 150 months in the Nevada Department of
Corrections (NDOC). On September 12, 2012, the Nevada Supreme
Court affirmed his conviction and sentence.
April 12, 2013, Contreras filed a state post-conviction
petition for a writ of habeas corpus. That petition was
denied on June 26, 2013. Contreras appealed. The Nevada
Supreme Court affirmed.
initiated this proceeding by mailing his federal habeas
petition on August 5, 2014. His petition contains ten
separate grounds for habeas relief, all alleging ineffective
assistance of counsel in his state criminal proceeding. On
October 29, 2015, this court granted Contreras's request
to stay these proceeding to allow him to exhaust state court
remedies with respect to three claims - Grounds 8, 9, and 10.
that he had concluded state court proceedings, Contreras
filed, on April 3, 2017, a motion to reopen federal habeas
proceedings. This court granted the motion. Thereafter, the
parties filed the motions now before the court for decision.
argue that this court is barred from considering Grounds 8,
9, and 10 because they are procedurally defaulted. “The
independent and adequate state ground doctrine prohibits the
federal courts from addressing the habeas corpus claims of
state prisoners when a state-law default prevented the state
court from reaching the merits of the federal claims.”
Thomas v. Lewis, 945 F.2d 1119, 1122 (9th
presented Grounds 9 and 10 to the Nevada Supreme Court in his
most recent state post-conviction proceeding. ECF Nos. 38-1
and 38-6. Respondents note that the Nevada Supreme Court
determined that the claims were procedurally barred as
untimely and successive. ECF No. 38-7. Respondents further note
that, because Contreras failed to present Ground 8, the claim
is either (1) unexhausted or (2) technically exhausted, but
have carried the initial burden of adequately pleading
“the existence of an independent and adequate state
procedural ground as an affirmative defense.”
Bennett v. Mueller, 322 F.3d 573, 586
(9th Cir. 2003). Under Bennett, the
burden then shifts to the petitioner “to place that
defense in issue, ” which the petitioner may do
“by asserting specific factual allegations that
demonstrate the inadequacy of the state procedure, including
citation to authority demonstrating inconsistent application
of the rule.” Id. at 586.
responding to the motion to dismiss, Contreras does not
challenge the independence or adequacy of the state's
procedural bars. ECF No. 41. Thus, he has not met his burden
under Bennett. In addition, there is no reason to
suspect that Ground 8 would not also be procedurally barred
if Contreras were to present that claim to the Nevada courts.
Thus, the claim is technically exhausted, but still subject
to the doctrine of procedural default. See Woodford v.
Ngo, 548 U.S. 81, 93 (2006) (citing Coleman v.
Thompson, 501 U.S. 722, 744-51 (1991) and Gray v.
Netherland, 518 U.S. 152, 162 (1996)).
he concedes the procedural default of his claims, Contreras
argues the defaults should be excused because he can
demonstrate that he is actually innocent. A federal court may
consider a habeas petitioner's claims notwithstanding his
procedural default if he can demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). To demonstrate a fundamental miscarriage of justice,
a petitioner generally must show the constitutional error
complained of probably resulted in the conviction of an
actually innocent person. Schlup v. Delo, 513 U.S.
298, 323 (1995). “‘[A]ctual innocence' means
factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
To establish actual innocence, a petitioner must prove with
new reliable evidence that “it is more likely than not
that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.” Schlup, 513 U.S.
at 324, 327.
State presented evidence at trial that, on September 19,
2010, petitioner Contreras, an inmate at Clark County
Detention Center (CCDC), “sucker punched” another
inmate, Christian Contreras, then sliced his head with a
sharp object. The State also presented evidence that a third
inmate, Matthew Romero, intervened in ...