Lemus v. Garrett

[[COURTLISTENER_SUBOPINION {"id":"11167574","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
1                                                                        

2                                                                        

3                     UNITED STATES DISTRICT COURT                       

4                          DISTRICT OF NEVADA                            

5                                  * * *                                 

6    MARIO ANTONIO LEMUS,              Case No. 3:21-cv-00425-MMD-CLB    

7                           Petitioner,          ORDER                   
         v.                                                             
8                                                                        
    TIMOTHY GARRETT, et al.,                                            
9                                                                        
                        Respondents.                                    
10                                                                       
   I.   SUMMARY                                                         
11                                                                       
        Petitioner  Mario  Antonio  Lemus, a  Nevada  state  prisoner,  filed an  Amended 
12                                                                       
   Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254
. (ECF No. 42.) This habeas 
13                                                                       
   matter is before the Court on Respondents’ motion to dismiss (ECF No. 45 (“Motion”).) 
14                                                                       
   For the reasons discussed below, Respondents’ Motion is granted, in part, and denied, 
15                                                                       
   in part.                                                             
16                                                                       
   II.  BACKGROUND                                                      
17                                                                       
        Lemus challenges a 2018 conviction and sentence imposed by the Second Judicial 
18                                                                       
   District Court for Washoe County. Following a jury trial, the state court entered a judgment 
19                                                                       
   of conviction for three counts of sexual assault against a child under 14 and one count of 
20                                                                       
   lewdness with a child under the age of 14. (ECF No. 25-3.) The state district court 
21                                                                       
   sentenced Lemus to an aggregate term of 105 years to life. (Id.) The Nevada Supreme 
22                                                                       
   Court affirmed the judgment of conviction. (ECF No. 25-52.)          
23                                                                       
        Lemus  did  not  file  a  state  habeas  petition  seeking  post-conviction  relief.  He 
24                                                                       
   initiated this federal habeas action. (ECF No. 1-1.) The Court dismissed his federal 
25                                                                       
   habeas petition without prejudice for failure to follow the Court’s order instructing him to 
26                                                                       
   pay the filing fee. (ECF Nos. 4, 7.) Following his motion for relief from judgment, the Court 
27                                                                       
28                                                                       
1   vacated the judgment. (ECF No. 10.) Following appointment of counsel, Lemus filed his 
2   amended petition raising five grounds for relief. (ECF Nos. 31, 42.) Respondents move 
3   to dismiss Grounds 2 and 3 as duplicative, Ground 4 as noncognizable, Grounds 5(a) 
4   and 5(b) as untimely, Grounds 1, 4, 5(a), and 5(b) as unexhausted, and Grounds 5(a) 
5   and 5(b) as procedurally barred. (ECF No. 45.)                       
6   III.  DISCUSSION                                                     
7        A.   Duplicative                                                
8        In Ground 2, Lemus alleges that the reasonable doubt jury instruction at trial 
9   violated his Fifth, Sixth, and Fourteenth Amendment rights. (ECF No. 42 at 14.) In Ground 
10  3, he alleges that he was precluded from presenting his theories of defense through jury 
11  instructions and argument in violation of his Fifth, Sixth, and Fourteenth Amendment 
12  rights. (Id. at 19.) He asserts that his objections to the reasonable doubt definition were 
13  supported by corollary proposed jury instructions that articulated Lemus’s theory of the 
14  case, which the state district court denied. (Id. at 19-20.)         
15       Respondents argue that Ground 2 should be dismissed as duplicative because the 
16  argument that the reasonable doubt instruction is unconstitutional is encompassed within 
17  Ground  3.  (ECF  No.  45  at  7.)  Lemus  argues  that  Ground  2  only  involves  the 
18  constitutionality of the reasonable doubt instruction while Ground 3 contains allegations 
19  of state district court errors and its implications on his trial. (ECF No. 50 at 11.) Although 
20  Ground 2 and 3 are closely related, the Court does not find that the claims and their 
21  supporting  arguments  are  duplicative.  Accordingly,  the  Court  denies  Respondents’ 
22  Motion to dismiss Ground 2 as duplicative.                           
23       B.   Cognizability                                              
24       In Ground 4, Lemus alleges that he was prejudiced by the cumulative errors raised 
25  on direct appeal. (ECF No. 42 at 26.) Respondents assert that Ground 4 should be 
26  dismissed because cumulative errors claims are not cognizable on federal habeas review, 
27  citing decisions from other circuits. (Id. at 13-14.) They acknowledge that the Ninth Circuit 
28  Court of Appeals has recognized cumulative error habeas claims but assert that “in the 
1   absence of Supreme Court precedent,” this claim is not clearly established by federal law. 
2   (Id.  at 14.)  The  Court,  however,  is  bound by  the  Ninth  Circuit’s  interpretation,  and 
3   therefore finds Ground 4 is cognizable. See Parle v. Runnels,
505 F.3d 922, 927
(9th Cir. 
4   2007) (“The Supreme Court has clearly established that the combined effect of multiple 
5   trial-court  errors  violates  due  process  where  it  renders  the  resulting  criminal  trial 
6   fundamentally unfair.”) (cleaned up) (quoting Chambers v. Mississippi,
410 U.S. 284
, 298 
7   (1973));  see  also  Michaels  v.  Davis,
51  F.4th  904
,  935  (9th  Cir.  2022)  (analyzing 
8   cumulative-error claim on habeas review); Noguera v. Davis,
5 F.4th 1020
, 1051 (9th Cir. 
9   2021)  (same).  The  Court  denies  Respondents’  Motion  to  dismiss  Ground  4  as 
10  noncognizable.                                                       
11       C.   Relation Back                                              
12       A  new  claim  in  an  amended  petition  that  is  filed  after  the  expiration  of  the 
13  Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will 
14  be timely only if the new claim relates back to a claim in a timely-filed pleading. Fed. R. 
15  Civ. P. 15(c). An untimely amendment properly “relates back to the date of the original 
16  pleading” as long as it arises out of the same “conduct, transaction, or occurrence.”
Id.
17  “Relation back depends on the existence of a common core of operative facts uniting the 
18  original and newly asserted claims.” Mayle v. Felix,
545 U.S. 644, 659
(2005). 
19       New claims in an amended habeas petition do not arise out of “the same conduct, 
20  transaction or occurrence” as prior claims merely because they challenge the same trial, 
21  conviction, or sentence.
Id. at 661
; Hebner v. McGrath,
543 F.3d 1133, 1134
(9th Cir. 
22  2008). Rather, to properly relate back, a new claim must arise from the same collection 
23  of facts alleged in the earlier petition. See Mayle,
545 U.S. at 661
; Schneider v. McDaniel, 
24
674 F.3d 1144, 1151
(9th Cir. 2012) (holding that one shared fact in two divergent legal 
25  theories was “not sufficient to conclude that they arise out of a common core of operative 
26  facts.”). An amended habeas petition “does not relate back (and thereby escape AEDPA’s 
27  one-year time limit) when it asserts a new ground for relief supported by facts that differ 
28  in both time and type” from those alleged in the timely petition. Mayle,
545 U.S. at 650
. 
1   The Court is “obligated to ‘liberally construe[ ] documents filed pro se,’” like Lemus’s 
2   original petition. Ross v. Williams,
950 F.3d 1160
, 1173 n.19 (9th Cir. 2020) (en banc). 
3        In Ground 5(a), Lemus alleges trial counsel rendered ineffective assistance for 
4   failure to investigate and call witnesses in support of the motion to dismiss charges and 
5   disqualify the prosecution. (ECF No. 42 at 27-29.) Lemus asserts that Ground 5(a) arises 
6   out of the conduct, transaction, or occurrence set forth in Ground 2 of his pro se petition, 
7   regarding the prosecution’s misconduct in issuing misleading subpoenas, as well as 
8   Ground 1 of his pro se petition, regarding his motion to dismiss or disqualify counsel. 
9   (ECF No. 50 at 6.) He contends that the facts underlying Ground 5(a) do not differ in time 
10  and type as those included in his pro se petition and that they are tied to a common core 
11  of operative facts. (Id. at 7.) The Court finds that Ground 5(a) of the first amended petition, 
12  while presenting a different legal theory, is tied to the same core of operative facts as 
13  alleged in Lemus’s timely-filed pro se petition. See, e.g., Nguyen v. Curry,
736 F.3d 1287
, 
14  1296–97 (9th Cir. 2013) (ineffective assistance claim based on failure to raise double 
15  jeopardy related back to timely-raised substantive double jeopardy claim), abrogation on 
16  other  grounds  recognized  by  Ross  v.  Williams,  950  F.3d  at  1168.  Accordingly, 
17  Respondents’ Motion is denied as to Ground 5(a).                     
18       In Ground 5(b), Lemus alleges trial counsel rendered ineffective assistance for 
19  failure to cross-examine the State’s critical expert witness, Dr. Kristin McLeod. (ECF No. 
20  42 at 19-31.) Lemus asserts that although Dr. McLeod is not specifically named in his pro 
21  se petition, his allegations relate to insufficient evidence and reasonable doubt in Grounds 
22  3 and 4 of his pro se petition. (ECF No. 50 at 8-9.) He further asserts that he cites to the 
23  transcript of this specific day of trial wherein counsel failed to cross-examine Dr. McLeod 
24  in his pro se petition. (Id.)                                        
25       Even liberally construing the pro se petition, the Court finds that Ground 5(b) does 
26  not relate back because the claim does not arise from the same core operative facts as 
27  any claim identified in the pro se petition. The facts underlying the claims asserted in his 
28  pro se petition are different in type from the core facts underlying his theory of ineffective 
1   assistance of counsel based on a failure to cross-examine a critical expert witness. See 
2   Mayle,
545 U.S. at 650
. Even though Lemus refers to the transcript of the day of trial 
3   where Dr. McLeod testified in his pro se petition, he does not assert any factual allegations 
4   relating to his claim in Ground 5(b). Ross made clear that, for relation back, facts found 
5   in documents attached to, and incorporated into, an original petition must support a claim 
6   asserted in that petition. See 950 F.3d at 1167 (“If a petitioner attempts to set out habeas 
7   claims by identifying specific grounds for relief in an original petition and attaching a court 
8   decision that provides greater detail about the facts supporting those claims, that petition 
9   can support an amended petition’s relation back.”) (emphasis added); see also id. at 1168 
10  (“If an exhibit to the original petition includes facts unrelated to the grounds for relief 
11  asserted in that petition, those facts were not ‘attempted to be set out’ in that petition and 
12  cannot form a basis for relation back.”). Accordingly, Ground 5(b) does not relate back 
13  and is dismissed as untimely.                                        
14       D.   Exhaustion                                                 
15       A state prisoner first must exhaust state court remedies on a habeas claim before 
16  presenting  that  claim  to  the  federal  courts.  See
28  U.S.C.  § 2254
(b)(1)(A).  This 
17  exhaustion requirement ensures that the state courts, as a matter of comity, will have the 
18  first  opportunity  to  address  and  correct  alleged  violations  of  federal  constitutional 
19  guarantees.  See Coleman v. Thompson,
501 U.S. 722
, 730–31 (1991). “A petitioner has 
20  exhausted his federal claims when he has fully and fairly presented them to the state 
21  courts.” Woods v. Sinclair,
764 F.3d 1109, 1129
(9th Cir. 2014) (citing O’Sullivan v. 
22  Boerckel,
526 U.S. 838
, 844–45 (1999)). To satisfy the exhaustion requirement, a claim 
23  must have been raised through one complete round of either direct appeal or collateral 
24  proceedings to the highest state court level of review available. See O’Sullivan,
526 U.S. 
25
at 844–45; Peterson v. Lampert,
319 F.3d 1153, 1156
(9th Cir. 2003) (en banc). A 
26  properly exhausted claim “‘must include reference to a specific federal constitutional 
27  guarantee, as well as a statement of the facts that entitle the petitioner to relief.’” Woods, 
28
764 F.3d at 1129
(quoting Gray v. Netherland,
518 U.S. 152
, 162–63 (1996)); see also 
1   Castillo v. McFadden,
399 F.3d 993, 999
(9th Cir. 2005) (fair presentation requires both 
2   the operative facts and federal legal theory upon which a claim is based).   
3             1.   Ground 1                                              
4        In Ground 1, Lemus alleges that the State engaged in coercive and unethical 
5   tactics by misusing and misrepresenting subpoenas in violation of his due process right 
6   to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (ECF No. 
7   42 at 8.) Respondents argue that Lemus presented this claim on direct appeal as a state-
8   law claim and his references to Chapman v. California,
386 U.S. 18
(1967) and Arizona 
9   v. Fulminate,
499 U.S. 279
(1991) did not exhaust his claims as federal violations. (ECF 
10  No. 55 at 5.) Lemus raised the claim on direct appeal that the district court erred in 
11  denying his motion to disqualify prosecution counsel based on the language used in 
12  subpoenas to witnesses to testify at trial. (ECF No. 25-31 at 36-40.) In his brief on appeal, 
13  Lemus cites federal authority when discussing the harmless error doctrine, but such 
14  citations do not federalize the underlying substantive claim. The Court finds that Lemus 
15  did not present this claim as a federal constitutional claim in his direct appeal. Accordingly, 
16  Ground 1 is unexhausted.                                             
17            2.   Ground 4                                              
18       Respondents argue that Lemus’ cumulative error claim is unexhausted because, 
19  while Lemus raised a cumulative error claim on direct appeal, material portions of the 
20  cumulative error claims are unexhausted, and the state appellate court did not review the 
21  same claims cumulatively. (ECF No. 55 at 6.) The Court finds that to the extent his 
22  underlying claims have been exhausted, so too has his cumulative error claim.  
23       E.   Technical Exhaustion and Anticipatory Default              
24       Federal courts are barred from considering a state prisoner’s habeas claim if the 
25  state courts denied his claim based on an independent and adequate state procedural 
26  rule. See Edwards v. Carpenter,
529 U.S. 446, 454-55
(2000). “The Ninth Circuit has 
27  elaborated that a state rule must be clear, consistently applied, and well-established at 
28  the time of the petitioner's purported default.” Collier v. Bayer,
408 F.3d 1279, 1284
(9th 
1   Cir. 2005) (internal quotation marks omitted). “If a state procedural rule is not well-
2   established before a petitioner supposedly breaks the rule, then the rule cannot prevent 
3   federal review of the petitioner's federal claims.”
Id.
4        Respondents argue that Grounds 5(a) and 5(b) are procedurally barred. Lemus 
5   asserts that he can demonstrate cause and prejudice to overcome the procedural default 
6   of Grounds 5(a) and 5(b). The Court will address only Ground 5(a) as the Court already 
7   determined Ground 5(b) is untimely. See Cooper v. Neven,
641 F.3d 322
, 327–28 (9th 
8   Cir. 2011) (stating that when a particular issue is dispositive, a district court “need not 
9   consider alternative reasons for dismissing the petition.”).         
10       Lemus acknowledges that Ground 5(a) was not presented to the state courts but 
11  argues  the  claim  is  technically  exhausted.  A  claim  is  technically  exhausted  if  it  is 
12  procedurally defaulted. The record must reflect that “it is clear that the state court would 
13  hold the claim procedurally barred.” Sandgathe v. Maass,
314 F.3d 371, 376
(9th Cir. 
14  2002)  (internal  quotation  marks  omitted).  The  state  procedural  bars  that  would  be 
15  implicated here are the one-year time bar and the bar against second or successive 
16  petitions. See NRS. §§ 34.726, 34.810. These procedural bars allow for an excuse upon 
17  a showing of cause and prejudice or upon a showing of actual innocence. The standards 
18  state courts apply are substantially the same as the standards federal courts apply. See 
19  Robinson v. Ignacio,
360 F.3d 1044
, 1052 n.3 (9th Cir. 2004); Mitchell v. State,
149 P.3d 
20
33, 36 (Nev. 2006).                                                  
21       In  most  cases,  this  Court  has  rejected  petitioners  who  claimed  technical 
22  exhaustion by procedural default while also claiming that they could establish cause and 
23  prejudice or actual innocence to excuse that default. On one hand, if a petitioner had an 
24  argument for cause and prejudice or actual innocence under the substantially similar state 
25  and federal standards, then the petitioner could not establish that “it is clear that the state 
26  court would hold the claim procedurally barred,” and the ground would not be technically 
27  exhausted. Sandgathe,
314 F.3d at 376
. On the other hand, if a petitioner had no 
28  arguments for cause and prejudice or actual innocence, then the ground would be 
1   technically exhausted but also subject to dismissal as procedurally defaulted. 
2        The Nevada Supreme Court has declined to recognize cause under Martinez v. 
3   Ryan,
566 U.S. 1
(2012), as cause to overcome a state-law procedural bar. See Brown 
4   v. McDaniel,
331 P.3d 867
(Nev. 2014). So, a Nevada habeas petitioner who can rely on 
5   Martinez—and only Martinez—as a basis for overcoming a state procedural bar on an 
6   unexhausted claim can argue that the state courts would hold the claim procedurally 
7   barred, but that he nonetheless has a potentially viable argument for cause and prejudice 
8   under federal law.                                                   
9        Although Lemus cites Martinez, he does not set forth an argument under Martinez, 
10  ostensibly because he did not initiate a state postconviction habeas proceeding. Lemus 
11  asserts that “the only avenue available for … Ground 5(b) to be heard is in this Court,” 
12  because he cannot meet the test for actual innocence and because he does not assert a 
13  Brady/Napue claim,1 he cannot avoid dismissal of Ground 5(b) in state court. (ECF No. 
14  50 at 17.)                                                           
15       The general cause and prejudice standard in Nevada state court, however, is not 
16  limited only to an argument based on the merits of Brady or actual innocence. Again, to 
17  establish technical exhaustion, Lemus must establish that the state courts would not 
18  consider the cause and prejudice argument that he seeks to pursue in federal court. 
19  Lemus has not established that critical point here. His arguments seek to overcome the 
20  procedural  default  ultimately  under  the  same  long  established  general  cause  and 
21  prejudice standards that apply in both federal court and Nevada state court.  
22       Absent a showing that he is relying on an argument to overcome a procedural 
23  default that the Nevada state court will not consider, such as a Martinez-based argument, 
24  Lemus does not establish technical exhaustion by procedural default in this context. 
25  Lemus has not made such a showing here. Accordingly, Ground 5(a) is not technically 
26  exhausted by procedural default, and therefore remains unexhausted.  
27                                                                       
28                                                                       
1        F.   Lemus’ Options Regarding Unexhausted Claims                
2        A federal court may not entertain a habeas petition unless the petitioner has 
3   exhausted available and adequate state court remedies with respect to all claims in the 
4   petition. See Rose v. Lundy,
455 U.S. 509, 510
(1982). A “mixed” petition containing both 
5   exhausted and unexhausted claims is subject to dismissal.
Id.
In the instant case, the 
6   Court concludes that Grounds 1 and 5(a) are unexhausted. Because the Court finds that 
7   the petition contains unexhausted claims, Lemus has these options:   
8        1.   He  may  submit  a  sworn  declaration  voluntarily  abandoning  the 
             unexhausted claims in his federal habeas petition, and proceed only 
9             on the exhausted claims;                                   

10       2.   He may return to state court to exhaust his unexhausted claims, in 
             which  case  his  federal  habeas  petition  will  be  denied  without 
11            prejudice; or                                              

12       3.   He may file a motion asking this court to stay and abey his exhausted 
             federal habeas claims while he returns to state court to exhaust his 
13            unexhausted claims.                                        
14       If Lemus wishes to ask for a stay, he must file a motion for stay and abeyance in 
15  which he demonstrates good cause for his failure to exhaust his unexhausted claims in 
16  state  court  and  presents  argument  regarding  the  question  of  whether  or  not  his 
17  unexhausted  claims  are  plainly  meritless.  Respondents  would  then  be  granted  an 
18  opportunity to respond, and Lemus to reply. Or Lemus may file a declaration voluntarily 
19  abandoning his unexhausted claims, as described above. Lemus’s failure to choose any 
20  of the three options listed above, or seek other appropriate relief from this court, will result 
21  in his federal habeas petition being dismissed. Lemus is advised to familiarize himself 
22  with the limitations periods for filing federal habeas petitions contained in
28 U.S.C. § 
23
2244(d), as those limitations periods may have a direct and substantial effect on whatever 
24  choice he makes regarding his petition.                              
25  IV.  CONCLUSION                                                      
26       It is therefore ordered that Respondents’ Motion (ECF No. 45) is granted, in part, 
27  and denied in part. It is granted as follows: (1) Grounds 1 and 5(a) are unexhausted; and 
28  (2) Ground 5(b) is dismissed as untimely. It is denied as to Grounds 2, 3 and 4. 
 1          It is further ordered that  Lemus has 30 days to either:  (1) inform this court in  a 
2 || sworn  declaration  that  he  wishes  to  formally  and  forever  abandon  the  unexhausted 
3 || grounds for relief in his federal habeas petition and proceed on the exhausted grounds; 
4 || OR (2)  inform  this court in  a  sworn  declaration  that he wishes to dismiss this  petition 
5 || without prejudice in  order to return to state court to exhaust his unexhausted grounds; 
6 || OR (8) file  a  motion for a stay and  abeyance,  asking  this court to  hold  his exhausted 
7 || grounds in abeyance while he returns to state court to exhaust his unexhausted grounds. 
8 ||  If Lemus chooses to file a  motion for a  stay and  abeyance,  or seek other appropriate 
9 ||  relief, respondents may respond to such motion as provided in Local Rule 7-2. 
10          Failure to timely comply with this order will result in the dismissal of Lemus’s mixed 
11 ||  petition without further advanced notice. 
12          DATED this □□□ Day of September 2025. 

14                                        ee 
                                         MIRANDA M. DU 
15                                        UNITED STATES DISTRICT JUDGE 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
                                           10