Bargas v. Burns
| Decision Date | 14 June 1999 |
| Docket Number | No. 98-15450.,98-15450. |
| Citation | 179 F.3d 1207 |
| Parties | Willie BARGAS, Petitioner-Appellant, v. Brenda BURNS, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for petitioner-appellant.
David K. Neidert, Assistant Attorney General, Carson City, Nevada, for respondent-appellee.
Before: SNEED, TASHIMA, and SILVERMAN, Circuit Judges.
Opinion by Judge SNEED; Dissent by Judge TASHIMA.
Willie Bargas ("petitioner") appeals from the decision of the United States District Court for the District of Nevada, the Honorable David Warner Hagen, Presiding, which denied his petition for a writ of habeas corpus. Petitioner asserts two claims in this petition: (1) that his trial counsel was ineffective; and (2) that his guilty plea was not knowing and voluntary. The district court held that petitioner procedurally defaulted his ineffective assistance of counsel claim and denied on the merits his claim that his guilty plea was not knowing and voluntary.
We have jurisdiction pursuant to 28 U.S.C. § 2253 and affirm the decision of the district court in its entirety.
Petitioner pleaded guilty to sexual assault in March of 1983. At his arraignment, the trial court judge read the sexual assault statute to petitioner, the attorney for the state read the elements of the offense in open court and petitioner acknowledged that his counsel advised him of the nature of the charge against him. The attorney for the state, however, neglected to mention the mens rea element of the statute. During the plea hearing, the trial court read the amended information to petitioner, informed him of the minimum and maximum penalties under the statute and received assurances from petitioner that he indeed understood the nature of his guilty plea.
Petitioner has filed multiple-two state and two federal-challenges to his guilty plea. In December of 1983, petitioner filed his first state habeas petition, alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The court denied his request for relief; it did not in any detail discuss the merits of petitioner's ineffective assistance of counsel claim in its opinion. Petitioner appealed to the Nevada Supreme Court, arguing only that his plea was not knowing and voluntary. He failed to appeal the state court's decision to deny his habeas petition with respect to his claim of ineffective assistance of counsel. The Nevada Supreme Court rejected petitioner's plea argument.
Petitioner then filed his first federal habeas petition, alleging ineffective assistance of counsel and arguing that his plea was defective. The district court dismissed the petition, concluding that petitioner failed to exhaust his state court remedies for ineffective assistance of counsel.
Petitioner, with the assistance of counsel, filed his third habeas petition, this time in state court, again alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The trial court held that petitioner procedurally defaulted on his ineffective assistance of counsel claim because he failed to raise the issue on appeal from the denial of his first petition for writ of habeas corpus. The portion of that order relevant to this appeal stated:
Petitioner next filed a petition for a writ of habeas corpus in federal court, once again alleging ineffective assistance of counsel and challenging the constitutionality of his plea agreement. The district court refused to reach the merits of the ineffective assistance of counsel claim, finding that issue was resolved on an independent and adequate state ground (i.e., the procedural default). The court also denied petitioner's guilty plea argument on its merits.
Petitioner now appeals from the district court's dismissal of his petition for a writ of habeas corpus.
Petitioner first argues that the state court erred in concluding that he procedurally defaulted his ineffective assistance of counsel claim. To repeat, in December of 1983, petitioner filed his first state habeas petition, alleging ineffective assistance of counsel and claiming that his plea was not knowing and voluntary. The court denied his request for relief and petitioner appealed that denial to the Nevada Supreme Court, arguing only that his plea was not knowing and voluntary. He failed to appeal the state court's decision denying his claim of ineffective assistance of counsel. Petitioner then filed a second state habeas petition alleging, inter alia, ineffective assistance of counsel. The court refused to reach the merits of that claim, finding that petitioner procedurally defaulted by failing to appeal the first denial of relief.
Petitioner asserts that the Nevada state court erred in concluding that he procedurally defaulted his ineffective assistance of counsel claim. Because we conclude that (A) firmly established and regularly followed Nevada law requires a petitioner to appeal from the denial of post-conviction relief or risk procedural default; (B) the state court in this case clearly rested its decision on independent state ground; and (C) petitioner failed to demonstrate cause and prejudice for his failure to follow Nevada procedural law, we affirm the decision of the district court dismissing petitioner's ineffective assistance of counsel claim on the grounds that petitioner procedurally defaulted this claim.
We must decide whether the Nevada state court in this case followed "firmly established and regularly followed" Nevada law when it held that petitioner was procedurally barred from raising his ineffective assistance of counsel claim. The court barred petitioner from proceeding with his ineffective assistance of counsel claim because he failed to appeal the denial of that claim in his first state habeas petition. We agree and conclude that, under "firmly established and regularly followed" Nevada law, a defendant must raise a claim on appeal from a denial of a petition for a writ of habeas corpus; if he fails to do so, Nevada law procedurally bars him from raising that claim in a subsequent petition.
"When a state prisoner has defaulted a claim by violating a state procedural rule which would constitute adequate and independent grounds to bar direct review in the U.S. Supreme Court, he may not raise the claim in federal habeas, absent a showing of cause and prejudice." Wood v. Hall, 130 F.3d 373, 376 (9th Cir.1997), cert. denied sub. nom Wood v. Cook, ___ U.S. ___, 118 S.Ct. 1818, 140 L.Ed.2d 955 (1998); see also Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994); see also Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) ().
Petitioner contends that the state court misapplied Nevada procedural default law. He argues that there are not any reported cases in Nevada specifically holding that a petitioner procedurally defaults a claim when he fails to appeal from the denial of post-conviction relief, and instead files a second petition for habeas corpus. Although we agree with that conclusion, Nevada law nevertheless clearly requires a petitioner to raise all claims in his first petition, unless he can demonstrate cause and prejudice:
Many petitions for habeas corpus or other post-conviction relief are repetitious; others often are specious. This places an unnecessary burden upon the courts. It is highly desirable that a petitioner be required to assert all of his claims in one petition. His failure to assert them constitutes a waiver.
Rogers v. Warden, 86 Nev. 359, 468 P.2d 993, 994 (1970) (). Justice Zenoff, in an oft-quoted concurrence, first articulated the rationale for requiring a petitioner to raise all claims in one petition:
We should heed the clamor that `something should be done' about the crowded court calendars and cease the practice of allowing repeated appeals over and over again from confined litigants who have nothing else to do but pester the judicial process for release on grounds that in most instances are imaginary. Yet, so long as...
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