Cardenas v. Vare
| Decision Date | 18 March 2013 |
| Docket Number | 3:04-cv-00720-PMP-WGC |
| Parties | ESAUL CARDENAS, Petitioner, v. WARDEN VARE, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by Esaul Cardenas, a prisoner represented by counsel. This matter comes before the Court on respondents' motion to dismiss the amended petition. (ECF No. 62). Also before the Court is respondents' motion to strike exhibits. (ECF No. 64).
On June 17, 2002, petitioner was charged with one count of sexual assault with a minor under fourteen years of age and five counts of lewdness with a minor under the age of fourteen, in a criminal complaint filed with the Justice Court in Las Vegas. (Exhibit 2).1 The State amended thecriminal complaint on June 28, 2002, adding five additional counts of lewdness with a minor under the age of fourteen, a single count of open or gross lewdness, and a single count of indecent exposure. (Exhibit 5). Pursuant to plea negotiations, a criminal information was filed on July 5, 2002, charging petitioner with two counts of lewdness with a child under the age of fourteen. (Exhibits 9, 10).
On July 7, 2002, petitioner unconditionally waived his right to a preliminary hearing. (Exhibit 10). Petitioner's attorney, Jordan S. Savage, informed the court that the case had been resolved with a plea agreement. (Id.). Pursuant to a guilty plea agreement signed by petitioner, plea counsel Jordan Savage, and the State, the state district court accepted petitioner's plea of guilty to the two counts charged in the information on July 9, 2002. (Exhibit 12). The written plea agreement was filed on July 9, 2002. (Exhibit 11).
At the scheduled sentencing hearing on September 11, 2012, plea counsel Jordan Savage informed the court that petitioner wished to withdraw his guilty plea. (Exhibit 8, at p. 2; Exhibit 128, at pp. 3-4). At the September 11, 2012 hearing, the state district court appointed conflict counsel, Gregory Denue, for the purpose of reviewing petitioner's proceedings to determine whether there was a basis for withdrawal of the guilty plea. (Exhibit 8, at p. 2; Exhibit 105, at p. 3). Petitioner filed a motion, in pro per, on November 18, 2002, requesting that conflict counsel Gregory L. Denue be dismissed as his lawyer. (Exhibit 20). Also on November 18, 2002, petitioner filed a motion to proceed pro se. (Exhibit 21). Petitioner filed a third motion on November 18, 2002, to withdraw his guilty plea, alleging that he was "misled and coerced to plea," that he was not aware that the plea required life sentences, and that he was innocent of the charges. (Exhibit 22). Petitioner filed other motions with the state district court, in pro per, concerning transcripts, tapes, and evidence. (Exhibits 15, 17, & 18).
Conflict counsel Denue filed a written motion to withdraw the guilty plea on November 19, 2002. (Exhibit 23). The state opposed the motion, and petitioner replied through counsel. (Exhibits25, 26). At a hearing on the motion to withdraw plea, the state district court summarily denied the motion. (Exhibit 107). No evidentiary hearing was held, and attorney Denue did not permit petitioner to speak for himself at that hearing. (Id., at 8). The court then addressed petitioner's motion to dismiss conflict counsel Gregory Denue after it had denied the motion to withdraw the plea. (Id.). Petitioner then withdrew his request to have conflict counsel Gregory Denue removed from his case. (Id.). The Court ordered that Denue remain as petitioner's counsel, and continued the case for sentencing. (Id.).
On February 19, 2003, petitioner filed a pro per notice of appeal. (Exhibit 29). On March 11, 2003, petitioner submitted a motion to the Nevada Supreme Court asking for an interlocutory appeal. (Exhibits 33 & 34). The Nevada Supreme Court denied the request in an order filed April 8, 2003, noting that petitioner had not been sentenced and that a judgment of conviction had not been entered. (Exhibit 37).
Petitioner then filed another set of pro per pleadings with the state district court. This included an April 21, 2003 motion to dismiss conflict counsel Gregory Denue as his counsel (Exhibit 40), an April 22, 2003 motion to proceed in pro se (Exhibit 41), and a May 13, 2003 motion to withdraw his plea (Exhibit 49).
The state district court held a hearing on May 5, 2003, at which the court conducted a canvass of petitioner pursuant to Faretta v. California, 422 U.S. 806 (1975). (Exhibit 108). The Court granted petitioner's motion for withdrawal of counsel and permitted petitioner to proceed in pro per, while appointing two attorneys to act as stand-by counsel, Francis Kocka and Jennifer Bolton. (Exhibit 108). At a hearing on June 10, 2003, the state district court denied petitioner's pro per motion for withdrawal of his guilty plea and his other motions. (Exhibit 54).
The state district court sentenced petitioner at a hearing on June 12, 2003. (Exhibit 55). At the sentencing hearing, one of petitioner's stand-by attorneys, Frank Kocka, was present, however, conflict counsel Gregory Denue, was not present. (Exhibit 55, at p. 9). The state district courtsentenced petitioner to two concurrent life sentences with eligibility for parole after ten years on the lewdness charges, as well as lifetime supervision. (Exhibit 55; Exhibit 64). After the state district court sentenced petitioner, petitioner indicated his desire to appeal the denial of his motion to withdraw his guilty plea. (Exhibit 55, at pp. 8-9). Petitioner asked to withdraw conflict counsel Gregory Denue and asked the court to have stand-by attorney Frank Kocka prepare petitioner's appeal. (Id.). Stand-by attorney Frank Kocka told the court that he came into the case late, thought that he was "appointed as standby just for the purpose of sentencing," and stated that "I don't know anything about the case." (Id., at p. 9). On the record and over petitioner's objection, the state district court appointed the attorney previously appointed as conflict counsel, Gregory Denue, to handle petitioner's direct appeal, noting that Denue was already familiar with the case and could get it done faster than attorney Kocka. (Id.). However, the state district court did not issue a written order notifying conflict counsel Gregory Denue of the appointment for handling petitioner's direct appeal at that time.
Conflict counsel Gregory Denue did not file a notice of appeal. However, petitioner, acting in pro per, filed two separate timely notices of appeal, one on June 16, 2003 and one on June 27, 2003. (Exhibits 57 & 61). As a result, the Nevada Supreme Court initially designated petitioner's appeal as a proper person appeal. (Exhibit 59). After reviewing the record, the Court re-designated the appeal as one in which petition was represented by counsel and sent a notice to Gregory Denue, dated June 27, 2003, instructing him to file a docketing statement within 15 days. (Exhibit 62A). This notice was not sent to petitioner, and this may explain why petitioner, in a July 27, 2003 letter to the Nevada Supreme Court, continued to believe that he was representing himself on appeal. (See Exhibit 65).
Petitioner filed a motion to withdraw counsel on August 12, 2003, in the state district court, seeking "permission to withdraw his present counsel of record" and that counsel be ordered to provide him copies of his file. (Exhibit 67). The state district court held a hearing on the motion onAugust 25, 2003, at which petitioner was not present. (Exhibit 112). Attorney Jennifer Bolton, who was originally appointed as stand-by counsel along with Frank Kocka, made an appearance at the hearing. (Exhibit 112, at pp. 2-3). In the transcript of the hearing, State District Judge Bonaventure denied petitioner's motion to dismiss counsel and proceed proper per, and also denied his motion for transcripts. (Id., at p. 3). The Clerk directed the State to prepare the order. (Id.). The written order, signed by the judge and filed August 29, 2003, granted the motion to withdraw stand-by counsel Jennifer Bolton, and denied petitioner's motion for transcripts. (Exhibit 70).
In a motion dated July 13, 2003, petitioner asked the Nevada Supreme Court to dismiss Denue as his appellate counsel and appoint a new attorney. (Exhibit 77). Although the Nevada Supreme Court received the motion on July 21, 2003, no immediate action was taken. (Id.). Petitioner's motion was finally filed by the Nevada Supreme Court on December 30, 2003. (Id.).
Petitioner filed a pro per state habeas petition in the state district court on November 14, 2003, along with a memorandum of points and authorities, raising three grounds for relief, which alleged that the district court failed to appoint counsel, or qualified counsel, on his direct appeal. (Exhibit 72 & 73).
On December 30, 2003, the Nevada Supreme Court filed an order denying petitioner's motion to dismiss attorney Denue as his appellate counsel. (Exhibit 78). In that order, the Nevada Supreme Court noted that attorney Denue failed to submit a docketing statement or an opening brief, which had been previously ordered by the Court. (Id.). The Court ordered petitioner to submit his docketing statement, opening brief, and appendix through conflict counsel Gregory Denue within 20 days. (Id.).
Weeks after the deadline set by the Nevada Supreme Court's December 30, 2003 order, attorney Gregory Denue sent the Nevada Supreme Court a letter, dated February 4, 2004, in which he claimed that he had never been appointed as petitioner's appellate counsel. (Exhibit 86). The letter was received by the Nevada Supreme Court on February 6, 2004, and filed into the Court's docket onFebruary 25, 2004. (Id.). In an order filed February 25, 2004, the Nevada Supreme Court, after studying the district court record, concluded that Denue was in fact petitioner's attorney of record for the direct appeal. (Exhibit 85). The Nevada...
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