Raymond Gasper, aka Raymond Bernie Glasper II v. Manuel Portillo, et al.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Raymond Gasper, aka Raymond Bernie Case No.: 2:24-cv-01606-JAD-EJY Glasper II, [4] Petitioner Order Granting Motion to Dismiss 5 and Dismissing Action v. 6 (ECF No. 15) Manuel Portillo, et al., [7] Respondents [8] 9 Raymond Gasper, an individual incarcerated at Nevada’s Southern Desert Correctional 10 Center, petitions pro se for a writ of habeas corpus under 28 U.S.C. § 2254 . Respondents move 11 to dismiss, asserting that all Gasper’s claims are unexhausted in state court, and that one of his 12 claims is wholly conclusory. Gasper did not respond to the motion to dismiss. Determining that 13 the motion is meritorious, I grant it and dismiss this action. 14 Background 15 Gasper was charged by grand jury indictment with murder with use of a deadly weapon 16 and preventing or dissuading a witness from testifying or producing evidence.1 The charges 17 resulted from a shooting in Las Vegas on August 10, 2022; Gasper shot an individual named 18 Dennis Harris with a .410 shotgun, killing him, when he learned that his girlfriend, Cassiti 19 Manos, was ending their dating relationship and forming a friendship with Harris.2 20 Gasper entered into a guilty plea agreement and pled guilty in Nevada’s Eighth Judicial 21 District Court (Clark County), under North Carolina v. Alford, 400 U.S. 25 (1970), to voluntary [22] 1 ECF No. 13-3. [23] 2 See ECF No. 13-2 (grand jury transcript). 1 manslaughter with use of a deadly weapon.3 He was sentenced to an aggregate of twenty years 2 in prison, with parole possible after eight years,4 and he did not pursue a direct appeal. 3 Gasper filed a pro se petition for writ of habeas corpus in state court.5 The district court 4 denied the petition.6 Gasper appealed, and the Nevada Court of Appeals affirmed.7 5 Then, Gasper filed in state court a petition to establish factual innocence under NRS 6 34.900–990.8 The district court denied the petition.9 Gasper appealed, and on October 7, 2025, 7 the Nevada Court of Appeals reversed and remanded, instructing the district court to dismiss 8 Gasper’s petition without prejudice instead of denying it.10 9 Gasper initiated this federal habeas corpus action on August 29, 2024.11 The case 10 proceeded after the matter of payment of the filing fee was resolved.12 Gasper’s operative 11 habeas petition, filed on October 11, 2024,13 asserts three violations of his federal constitutional 12 rights: 13 Ground 1: Gasper’s trial counsel failed to inform him of his right to appeal. 14 Ground 2: Gasper’s trial counsel failed to investigate an important witness, who allegedly would have said that Manos was lying. [16] 3 ECF Nos. 13-9, 13-10, 13-11. 17 4 ECF No. 13-12 (Judgment of Conviction, filed January 20, 2023). 5 ECF No. 13-14. [18] 6 ECF No. 13-39. 19 7 ECF No. 14-5. 20 8 ECF No. 14-8. 9 ECF No. 14-10. [21] 10 ECF No. 14-21. 22 11 ECF No. 1. 12 See ECF No. 10. [23] 13 ECF No. 8. 1 Ground 3: Gasper’s trial counsel “was ineffective when the imprisonment was at first lawful, yet by some act[,] omission or event which [took] place afterwards 2 the petitioner has become entitled to be discharged.” 3 Respondents filed their motion to dismiss on October 14, 2025.14 Gasper did not 4 respond. Gasper’s failure to respond to the motion to dismiss is reason enough to grant the 5 motion.15 But I have also examined the motion to dismiss and the state court record, and I 6 conclude that the motion is meritorious and that this action must be dismissed because all of 7 Gasper’s claims are unexhausted in state court and his claim in Ground 3 is conclusory. 8 Analysis 9 A federal court cannot grant a state prisoner’s petition for writ of habeas corpus unless 10 the petitioner has exhausted available state remedies for all the claims in the petition.16 A claim 11 remains unexhausted until the petitioner has given the highest available state court the 12 opportunity to consider the claim through direct appeal or state collateral-review proceedings.17 13 To properly exhaust a claim, a habeas petitioner must “present the state courts with the same 14 claim he urges upon the federal court.”18 The petitioner must “fairly present” the claim in the 15 state courts, and “fair presentation requires that a state’s highest court has a ‘fair opportunity to 16 consider [an appellant’s constitutional claim] and to correct that asserted constitutional [18] 19 14 ECF No. 15. [20] 15 See LR 7-2(d) (“The failure of an opposing party to file points and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes 21 a consent to the granting of the motion.”). [16] 28 U.S.C. § 2254 (b); Rose v. Lundy, 455 U.S. 509 (1982). [22] 17 O’Sullivan v. Boerckel, 526 U.S. 838 , 844–45 (1999); Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). [23] 18 Picard v. Connor, 404 U.S. 270, 276 (1971). 1 defect.’”19 This means that claims presented in state court in a procedurally improper manner, 2 such that the state court did not have a fair opportunity to consider the merit of the claims, 3 remain unexhausted.20 4 Gasper did not, on the appeal in his state habeas action, assert any of the three claims he 5 asserts in his petition in this case.21 And at any rate, in its order on that appeal, the Nevada Court 6 of Appeals stated that “the claim Gasper argues on appeal was not raised and considered below” 7 and, therefore, that court “decline[d] to consider it on appeal in the first instance.”22 So, in his 8 state habeas action, Gasper did not present any claim to the state appellate court in a procedurally 9 proper manner, and, therefore, did not exhaust any claim for habeas relief. 10 Nor did Gasper exhaust any claim for habeas relief on his petition to establish factual 11 innocence. The Nevada Court of Appeals reversed and remanded the district court’s denial of 12 that petition because the district court found that Gasper did not satisfy statutory pleading 13 requirements for such a petition but denied the petition instead of dismissing it.23 So, the record 14 reflects that Gasper has not exhausted in state court any of the claims he asserts in his petition in 15 this case—in fact, it appears he has not exhausted any claim at all. 16 Respondents also point out the obvious defect of Ground 3 of Gasper’s petition: Gasper 17 does not allege any specific facts in support of the claim, and it is wholly conclusory. Gasper’s 18 claim in Ground 3, in its entirety, is this: [19] 19 Lounsbury v. Thompson, 374 F.3d 785 , 787–88 (9th Cir. 2004) (quoting Peterson, 319 F.3d at 20 1155). [21] 20 See Castille v. Peoples, 489 U.S. 346, 351 (1989). 21 Compare ECF No. 8 (Gasper’s petition in this case) with ECF No. 14-1 (Gasper’s brief on the 22 appeal in his state habeas action). 22 ECF No. 14-5 at 2. [23] 23 ECF No. 14-21. ] Counsel was ineffective when the imprisonment was at first lawful, yet by some act[,] omission or event which [took] place afterwards the petitioner has become 2 entitled to be discharged.”4 3}|In a federal habeas petition, the petitioner must state the facts supporting each ground for relief.”° 4! “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” The claim in Ground 3 is plainly conclusory, without support by any factual allegations. So I dismiss that claim for this additional reason. 7 Conclusion 8 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 15) is 9] GRANTED. This action is dismissed without prejudice. Because reasonable jurists would 10]| not find this order debatable or wrong, I decline to issue a certificate of appealability. The Clerk 11}| of Court is kindly directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. 12 IT IS FURTHER ORDERED that, under Federal Rule of Civil Procedure 25(d), Manuel Portillo is substituted for Ronald Oliver as the respondent warden. The Clerk of Court is directed to update the docket to reflect this change. [15] Cl YOY, 16 (EN RE a US. DistrictFadge Jennsfer A. Dorsey 17 December 18, 2025 [20] —___ 4 ECF No. 8 at 6. [22] Rule 2(c)(2), Rules Governing Section 2254 Cases in the United States District Courts. James v. Borg, 24 F.3d 20, 29 (9th Cir. 1994) (citing Boehme v. Maxwell, 423 F.2d 1056 (9th Cir. 1970).