United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
fully briefed motions are before the court: Respondents'
motion to dismiss and Petitioner Esquivel's motion for
discovery. ECF Nos. 20, 29. For the following reasons, the
Court grants Respondents' motion to dismiss, finding that
grounds 6 and 7 are not exhausted. Grounds 1(B), 1(C), 3, 4,
and 5, although not presented to the state courts, are
technically exhausted and procedurally defaulted because
Esquivel cannot show good cause and prejudice in state court
to overcome state-law procedural bars. The Court defers any
finding of good cause and prejudice on those claims until
Esquivel has refiled his motion so that it contains only
exhausted claims. Finally, the Court denies Esquivel's
motion for discovery because if finds that the discovery
request is premature.
court recites only a general, summary statement of facts that
are relevant to the issues in the motion to dismiss.
Freitas, Esquivel's roommate, and Eddie Wernicke, the
decedent, did not like each other. The dislike arose from a
housing arrangement between Freitas and Wernicke that soured
early in 2009.
January 19, 2011, Freitas drove past the residence of Brent
West at least twice. Wernicke and Lorrie-Ann Williams, his
girlfriend, were staying at the residence. Freitas taunted
Wernicke. Wernicke chased Freitas on foot and tried to pull
Freitas out of the car. Freitas drove away toward his own
house. Wernicke continued to chase Freitas. Williams and West
got into West's mother's car, followed Wernicke,
picked him up, and drove to Freitas' house.
Freitas' house, Wernicke and Freitas started fighting.
Also present were Williams, West, and Esquivel. Until that
point, Esquivel had never seen Wernicke, Williams, and West,
and those three had never seen Esquivel. The fight soon
included everyone present. The fight ended either upon mutual
exhaustion or when Freitas called to Esquivel to get his gun;
the testimonies differ.
January 20, 2011, Esquivel walked past West's house
twice. He had put a gun into the back waistband of his pants.
The first time, he was walking south, away from Freitas'
house. Esquivel saw Eduardo Sepulveda and Esmeralda Leon in
their car, which they had backed into West's driveway.
They also saw him. Sepulveda and Leon left West's house
then returned later, this time parking head-on into the
driveway. The second time, Esquivel was walking north, toward
Freitas' house. Wernicke was outside this time.
words were said; the testimonies differ on who said what.
Eventually, six people were outside, or on the front
threshold, of West's house. Esquivel was standing in the
front yard. Sepulveda and Leon still were in their car.
Williams was standing at the back of West's pickup truck,
holding a baseball bat. West was near the front of the pickup
truck. Mike Malinky, who also lived at West's house, was
near the front door. Wernicke was outside, but his location
point, Wernicke threw a chair at Esquivel. Esquivel either
knocked it away or sidestepped it. Esquivel took out his gun
and shot Wernicke. Esquivel testified that Wernicke was
advancing on him. Ex. 54, at 50-51; ECF No. 21-24, at 51-52.
However, Wernicke was shot in the back, with an immediately
fatal wound. Ex. 53, at 125-39, ECF No. 21-23, at 126-40.
Wernicke fell across the threshold of the front door, around
20 feet away from where Esquivel was standing.
jammed. West, Leon, and Sepulveda all testified that Esquivel
tried to shoot again, realized that the gun had jammed, tried
unsuccessfully to clear the jam, and then fled in the
direction toward Freitas' house. Ex. 52, at 192-93, ECF
No. 21-22, at 193-94 (West's testimony); Ex. 53, at
30-31, ECF No. 21-23, at 31-32 (Leon's testimony); Ex.
53, at 68, 70-71, ECF No. 21-23, at 69, 71-72
(Sepulveda's testimony). Esquivel testified that he shot
only once, that he tried to shoot only once, and only learned
later that the gun had jammed. Ex. 54, at 55-56, ECF No.
21-24, at 56-57.
his arrest, Esquivel was charged with murder with the use of
a deadly weapon. Ex. 40, ECF No. 21-10. After a trial, the
jury found Esquivel guilty of second-degree murder with the
use of a deadly weapon. Ex. 9, ECF No. 16-9. The state
district court convicted Esquivel accordingly. Ex. 10, ECF
No. 16-10. Esquivel appealed, and the Nevada Supreme Court
affirmed. Ex. 15, ECF No. 16-15.
then filed a post-conviction habeas corpus petition in the
state district court. Ex. 17, ECF No. 16-17. The state
district court appointed counsel, who filed a supplement. Ex.
19, ECF No. 16-19. The state district court held an
evidentiary hearing. The state district court denied the
petition. Ex. 84, ECF No. 23. Esquivel appealed, and the
Nevada Supreme Court affirmed. Ex. 27, ECF No. 16-27.
then commenced this action. The Court appointed counsel, who
filed the amended petition. ECF No. 15. Respondents'
motion to dismiss and Esquivel's motion for discovery
followed. ECF Nos. 20, 29.
a federal court may consider a petition for a writ of habeas
corpus, a petitioner must exhaust the remedies available in
state court. 28 U.S.C. § 2254(b). To exhaust a ground
for relief, a petitioner must fairly present that ground to
the state's highest court, describing the operative facts
and legal theory, and give that court the opportunity to
address and resolve the ...