United States District Court, D. Nevada
PEDRO R. DUARTE, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
JENNIFER A. DORSEY, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion (Doc. 24) to dismiss. Respondents contend that a number of claims in the first amended petition (Doc. 17) are unexhausted and/or fail to state a claim upon which relief may be granted. The Court finds the argument unsupported and denies the Motion. The Court also reconsidered its prior denial of the request to appoint counsel and finds that the interests of justice dictate the appointment of counsel for Mr. Duarte.
Petitioner Pedro R. Duarte challenges his 2003 Nevada state judgment of conviction, pursuant to a jury verdict, of one count of conspiracy to commit robbery, two counts of attempt murder without the use of a deadly weapon, three counts of attempt robbery without the use of a deadly weapon, and one count of possession of a stolen vehicle. Duarte challenged the conviction in the state courts on direct appeal and in multiple state post-conviction petitions.
Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available, in this case the state supreme court. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)( en banc ); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee and must also state the facts that entitle the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which the claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Under Rose v. Lundy, 455 U.S. 509 (1982), a mixed petition presenting both exhausted and unexhausted claims must be dismissed without prejudice unless the petitioner dismisses the unexhausted claims or seeks other appropriate relief.
With regard to claims filed in federal court, federal habeas pleading is not notice pleading; a habeas petitioner must state the specific facts that allegedly entitle him to habeas relief. See Mayle v. Felix, 545 U.S. 644, 655-56 (2005). Even under the more liberal noticepleading standard applicable to general civil actions, conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement do not state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686 (2009). Accordingly, even under the more liberal notice pleading rules, the allegations of a pleading must "permit the court to infer more than the mere possibility" that a constitutional violation has occurred. 556 U.S. at 679. The stricter habeas pleading rules similarly require more than "mere conclusions of law, unsupported by any facts." Mayle, 545 U.S. at 655. A habeas petitioner instead must "state facts that point to a real possibility of constitutional error." Id.
While federal habeas pleading is not notice pleading, the allegations of a pro se pleading nonetheless are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The law is well established that this less stringent standard applies fully to pro se habeas petitions. See, e.g., Maleng v. Cook, 490 U.S. 488, 493 (1989); Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002); Zichko v. Idaho, 247 F.3d 1015, 1020-21 (9th Cir. 2001).
The Court will discuss all issues raised as to a ground in numerical ground order rather than addressing issues directed to the same ground in different parts of the order.
Respondents contend that ground 1 fails to state a claim on the following basis:
Ground 1 Fails to State a Claim:
When DUARTE filed his federal petition, he asserted that his right to due process of law under the 14th Amendment was violated when the State did not preserve evidence. However he fails to indicate to what constitution this amendment was attached. As stated, supra, a state prisoner is entitled to habeas relief only if he is being held in custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Unless an issue of federal constitutional or statutory law is ...