United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
On May 18, 2012, this court entered an order lifting the stay and reopening proceedings in this case. ECF No. 130. Petitioner Hogan filed his fourth amended petition on October 18, 2012. ECF No. 139. On March 7, 2013, respondents filed a motion to dismiss various claims in the petition on the grounds that such claims were either unexhausted, procedurally defaulted, or failed to state a cognizable claim for relief. ECF No. 150. In relation to his opposition to the motion, Hogan has filed a motion for an evidentiary hearing. ECF No. 157. This order disposes of both motions.
In May of 1985, Hogan was convicted, by a jury, in the Eighth Judicial District, Clark County of first-degree murder and attempted murder. In the penalty phase of the trial, the jury found two aggravating circumstances: Hogan was previously convicted of a violent felony, and he knowingly created a great risk of death to more than one person. The jury found no mitigating circumstances sufficient to outweigh the aggravating circumstances and imposed a sentence of death.
On June 18, 1985, the court entered a judgment of conviction and one week later, on June 25, 1985, the State filed a supplemental judgment of conviction which specifically spelled out Hogan's sentence. Hogan appealed. On February 6, 1987, the Nevada Supreme Court issued an order affirming Hogan's conviction and sentence - Hogan v. Warden, 732 P.2d 422 (Nev. 1987). The United States Supreme Court denied certiorari on October 5, 1987.
On November 9, 1987, Hogan filed a pro se petition for post-conviction relief in the Eighth Judicial District and requested appointment of counsel. The trial court appointed attorney Christopher Maglaras to represent Hogan in those proceedings. On March 10, 1988, the trial court dismissed the petition. Hogan appealed.
After the district court denied his motion to withdraw as counsel, Maglaras represented Hogan on appeal. On December 21, 1988, the Nevada Supreme Court dismissed the appeal.
On January 9, 1989, Hogan filed a pro se petition for writ of habeas corpus in this court and, thereafter, requested appointment of counsel. After the brief appointment of the Federal Public Defender's office, retained counsel Annette Quintana undertook representation of Hogan.
Hogan filed a first amended petition on April 28, 1989, then a second amended petition on March 9, 1990. On September 7, 1990, pursuant to Hogan's motion, the court granted a stay of the proceedings to allow Hogan to exhaust claims in state court.
With Quintana as counsel, Hogan filed, on November 20, 1990, a petition for writ of habeas corpus in the Seventh Judicial District, White Pine County. When that petition was dismissed on April 6, 1992, Hogan appealed. The Nevada Supreme Court affirmed the lower court's dismissal of the petition on September 29, 1993. Hogan v. Warden, 860 P.2d 710 (Nev. 1993).
In October of 1993, the Nevada Supreme Court entered an order removing Quintana from the case and appointing the Nevada Appellate and Postconviction Project to represent Hogan for any remaining appellate proceedings. Michael Pescetta, then with the appellate project, filed a petition for rehearing on Hogan's behalf. On May 3, 1996, that petition was denied by the Nevada Supreme Court. A petition for writ of certiorari was denied by the United States Supreme Court on October 15, 1996.
In May of 1996, Glynn Cartledge assumed representation of Hogan in his federal capital habeas corpus proceedings. In July 1997, this court appointed Richard Cornell as second counsel. On March 2, 2001, Hogan filed a third amended petition for writ of habeas corpus in this action. Pursuant to a stipulation between the parties, this court entered an order on December 30, 2003, staying these proceedings to allow Hogan the opportunity to exhaust the unexhausted claims in the third amended federal petition.
On February 2, 2004, Hogan initiated exhaustion proceedings in the Eighth Judicial District Court. On August 26, 2004, the state court granted an evidentiary hearing on one issue in Hogan's state petition. The State filed a petition with the Nevada Supreme Court, asking that court to prevent the evidentiary hearing. The Nevada Supreme Court denied the State's petition on November 15, 2004. An evidentiary hearing was held on August 5, 2005.
On November 2, 2005, the state district court denied the petition. Hogan appealed. The Nevada Supreme Court entered an order affirming the denial on November 15, 2006. The court denied rehearing on May 31, 2007, and denied rehearing en banc on July 26, 2007.
Although counsel had been ordered in the 2003 stay order to notify this court within 30 days of the conclusion of state court proceedings, counsel failed to do so. Instead, in January of 2008, counsel moved to withdraw from representing Hogan. On February 22, 2008, this court appointed the Federal Public Defender's office to represent Hogan.
On June 27, 2008, Hogan moved this court to continue the stay of proceedings. With no opposition from the State, this court entered an order on August 14, 2008, extending the stay of federal proceedings to allow Hogan to present unexhausted claims to the state courts.
On September 10, 2008, Hogan filed a state petition for writ of habeas corpus in the Eighth Judicial District Court. Without holding an evidentiary hearing, the state court entered an order dismissing the petition on May 19, 2009. Hogan appealed. The Nevada Supreme Court affirmed the denial of relief in an order entered on January 20, 2012. Remittitur issued on March 8, 2012.
On May 18, 2012, this court vacated the stay and reopened the federal proceedings. On October 18, 2012, Hogan filed a fourth amended petition for writ habeas corpus, which is the subject of the motion to dismiss addressed in this order.
A habeas petitioner must exhaust his claims by presenting them to the state's highest court either through a direct appeal or collateral proceedings before a federal court will consider the merits of those claims. Smith v. Baldwin, 510 F.3d 1127, 1137-38 (9th Cir.2007) (citing Rose v. Lundy, 455 U.S. 509, 515 (1982)). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts... in the manner required by the state courts, thereby affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir.2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas petitioner failed to present his claims to the state courts in a procedural context in which the merits of the ...