United States District Court, D. Nevada
DENNIS R. GARCIA, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
August 13, 2018, this court entered on order granting
respondents' motion to dismiss (ECF No. 11) and denying
petitioner's motion for leave to file an amended petition
(ECF No. 20) and motion for stay and abeyance (ECF No. 22).
ECF No. 24. The order also gave Garcia an opportunity to
demonstrate that the procedural default of the two claims in
his petition should be excused. Id. Garcia has filed
a response to that order, which includes a request that this
court reconsider its denial of his motions for leave to amend
and for stay and abeyance. ECF Nos. 25/26. For the reasons
that follow, Garcia's petition will be dismissed with
prejudice and his motion for reconsideration will be denied.
explained in its last order, this court is barred from
considering Garcia's defaulted claims unless he
“can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Garcia's response to the order discusses at length the
history of his state criminal proceedings but fails to
squarely address whether he can make the necessary showing to
excuse his defaults.
respect to Ground One of his petition, Garcia makes various
allegations as to his trial counsel's deficient
performance. ECF No. 25, p. 6-7. As for explaining the cause
for his default, however, he makes only a vague claim that it
was “due to delays in receiving a response from the
state court” and that “in light of the new
evidence the Court will understand, and allow him to rely on
Martinez v. Ryan, 566 U.S. 1 (2012).”
Id. Garcia does not further develop this argument.
Garcia was not represented by counsel in his initial
post-conviction review (PCR) proceeding, he does meet a
threshold requirement of the Martinez test for
establishing cause to excuse the procedural default of an
ineffective assistance of counsel (IAC) claim. See
Martinez, 566 U.S. at 14 (identifying the state
court's failure to appoint counsel as one the two
circumstances in which a petitioner may establish cause for a
default of an IAC claim). That alone is not enough, however.
This court must also find a reasonable probability that the
trial-level IAC claim would have succeeded had it been raised
in the initial PCR proceeding. Runningeagle v. Ryan,
825 F.3d 970, 982 (9thCir. 2016).
trial-level IAC claims Garcia raised in Ground One are that
counsel failed to adequately investigate the facts underlying
his case, failed to obtain exculpatory evidence related to
DNA testing that was not disclosed by the State prior to the
guilty plea, did not challenge Garcia's pre-trial
detention, and abandoned Garcia when he expressed a desire to
withdraw his guilty plea. ECF No. 9, p. 3-5. Although the
Nevada courts ultimately concluded that these claims were
procedurally-barred, both the state district court and the
Nevada Court of Appeals also rejected Garcia's trial IAC
claims on the merits. ECF No. 13-17 and 13-30. Garcia fails
to demonstrate that those decisions were erroneous. Thus, he
is not entitled to relief under Martinez.
Ground Two of his petition, Garcia claims his conviction
violates his Fourteenth Amendment right to due process
because it was obtained by the use of false evidence,
specifically a DNA sample purported to have been obtained
from the victim. Garcia concedes that he has yet to exhaust
state court remedies for this claim. ECF No. 25, p. 8. As
this court noted in its last order, the claim is procedurally
defaulted because, at this point, Nevada's procedural
rules on timeliness and successiveness bar any available
relief. ECF No. 24, p. 3 (citing Dickens v. Ryan,
740 F.3d 1302, 1317 (9th Cir. 2014). Garcia makes
no showing sufficient to excuse the default. Moreover, the
claim is also barred under Tollett v. Henderson, 411
U.S. 258 (1973), because it alleges a violation of
Garcia's constitutional rights that occurred prior to the
entry of his guilty plea. 411 U.S. at 267.
Motion for reconsideration.
seeks reconsideration of this court's order denying him
leave to file an amended petition and his request for stay
and abeyance. ECF No. 26, p. 8-12. The court denied leave to
amend because Garcia did not specify the manner in which he
intended to amend his existing petition. ECF No. 24, p. 4. It
denied stay and abeyance because such a proceeding would be
pointless given that Garcia's pending petition does not
contain an unexhausted claim. Id., p. 4-5.
to the entry of this court's order, the Fifth Judicial
District Court of Nevada (Nye County) granted Garcia's
motion to modify a judgment of conviction in a separate
criminal case. ECF No. 26, p. 15-16. As a result, the state
district court entered a second amended judgment of
conviction that removed a lifetime supervision provision that
was included in a first amended judgment. Id.; p.
18-19, 52-54. The provision was not in the initial judgment
of conviction. Id., p. 49-50.
to Garcia, the Nye County prosecutor relied on the lifetime
supervision provision to prompt Washoe County Parole and
Probation officers to conduct the home visit that resulted in
Garcia's arrest and prosecution in this case. Garcia
argues that his conviction in this case is “void”
because the lifetime supervision provision was invalid.
again, a claim premised on alleged constitutional violations
that occurred prior to the entry of Garcia's guilty plea
is barred under Tollett v. Henderson. Thus, allowing
Garcia to amend his petition to include a claim premised on
the allegedly invalid lifetime supervision provision would be
a futile exercise. See Ascon Props., Inc. v. Mobile Oil
Co., 866 F.2d 1149, 1160 (9th Cir.1989)
(leave to amend under Rule 15(a)(2) “need not be
granted where the amendment ... constitutes an exercise in
futility”). And, as it stands, Garcia's current
petition is fully exhausted, so there remains no
justification for granting him stay and abeyance. See
Rhines v. Weber, 544 U.S. 269, 275-76 (2005) (purpose of
stay and abeyance is to stay a “mixed petition”
and hold it in abeyance while the petitioner returns to state
court to exhaust his previously unexhausted claims).
THEREFORE ORDERED that the petition for writ of habeas corpus
(ECF No. 9) is DISMISSED with prejudice as all the claims
contained within it are procedurally defaulted. The Clerk of
Court shall enter judgment accordingly.
FURTHER ORDER that a certificate of appealability is DENIED,
as jurists of reason would not find the court's dismissal