Contreras v. Filson
GUSTAVO CONTRERAS, Petitioner,
TIMOTHY FILSON, [1] et al., Respondents.
LARRY R. HICKS UNITED STATES DISTRICT JUDGE
This is 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 follows.
1. Procedural Background
On May 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.
On 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.
Contreras 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.
Representing 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.
2. Procedural Default
Respondents 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 Cir. 1991).
Contreras 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.[2] 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 procedurally defaulted.
Respondents 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.
In 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)).
While 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.
The 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 ...