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Esquivel v. Williams

United States District Court, D. Nevada

September 30, 2019

JOHNNY ESQUIVEL, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         Two 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.

         I. Factual Background

         The court recites only a general, summary statement of facts that are relevant to the issues in the motion to dismiss.

         Henrique 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.

         On 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.

         At 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.

         On 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.

         Heated 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 was disputed.

         At some 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.

         The gun 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.

         II. Procedural Background

         After 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.

         Esquivel 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.

         Esquivel 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.

         III. DISCUSSION

         Before 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 ...


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