Fabian Fuentes Rosas v. Timothy Filson; Attorney General for the State of Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FABIAN FUENTES ROSAS,
Petitioner-Appellant,
v.
TIMOTHY FILSON; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 17-16839
D.C. No.
3:05-cv-00490-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted November 12, 2019**
San Francisco, California
Before: BEA and LEE, Circuit Judges, and PIERSOL,*** District Judge.
Petitioner Fabian Fuentes Rosas appeals the district court’s denial of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
FILED
NOV 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Grounds One and Two of his petition for writ of habeas corpus. Reviewing de
novo, Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc), we affirm.
Rosas exhausted Grounds One and Two of the operative petition—each of
which rely on Nevada’s alleged failure to abide by the terms of a written polygraph
agreement (“the Agreement”)—when he presented the claims to the Nevada
Supreme Court in his second petition for writ of habeas corpus. Under the doctrine
of procedural default, however, federal courts will not review the merits of claims
that a state court declined to hear due to the petitioner’s failure to abide by
adequate and independent state procedural rules. Williams v. Filson, 908 F.3d 546,
577 (9th Cir. 2018); Martinez v. Ryan, 566 U.S. 1, 9 (2012). The Nevada Supreme
Court here held, among other things, that (1) Rosas’s second state habeas petition
relying on the Agreement was procedurally barred by Nevada Revised Statute
(“NRS”) § 34.726(1) because it was filed more than one year after resolution of
Rosas’s direct appeal; and (2) Rosas did not demonstrate good cause to avoid NRS
§ 34.726(1)’s timeliness requirement because Rosas waited years after finding the
Agreement to file his second state habeas petition. As we have held before, NRS
§ 34.726 is an adequate and independent state law ground for procedural default in
non-capital cases, such as Rosas’s. See Moran v. McDaniel, 80 F.3d 1261, 1268–
70 (9th Cir. 1996). As a result, Rosas had the burden to assert specific factual
allegations that demonstrate the inadequacy of NRS § 34.726 with case citations

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demonstrating its inconsistent application. Williams, 908 F.3d at 577. Rosas failed
to carry that burden, and thus the doctrine of procedural default applies.
After correctly holding that the doctrine of procedural default applies, the
district court did not err in holding that Rosas failed to show cause to overcome the
procedural default of Grounds One and Two of the operative petition. The district
attorney’s failure to recall there being a written agreement did not render Rosas
incapable of relying on the Agreement because he too signed the Agreement and
could have disputed the district attorney’s memory. See McCleskey v. Zant, 499
U.S. 467, 497 (1991) (explaining that cause “requires a showing of some external
impediment preventing counsel from constructing or raising the claim”) (quoting
Murray v. Carrier, 477 U.S. 478, 492 (1986)). More important, the Agreement
was in the possession of Rosas’s attorney of record, in the county public defender’s
office, and Rosas does not explain why his counsel’s failure to locate the
Agreement was the fault of the State. Nor does Rosas explain why a reasonable
investigation would not have located the Agreement. See id. at 498.
AFFIRMED.

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