United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
Before the Court are petitioner's motion for appointment of counsel (dkt. no. 16), respondents' opposition (dkt. no. 19), and petitioner's reply (dkt. no. 21). The Court sees no reason why it should depart from its denial of petitioner's earlier motion for appointment of counsel (dkt. no. 4). See Order (dkt. no. 5).
Also before the Court is petitioner's motion to stay a ruling on the motion to dismiss (dkt. no. 15), respondents' opposition (dkt. no. 20), and petitioner's reply (dkt. no. 22). Petitioner wants the Court to delay ruling upon the motion to dismiss (dkt. no. 7) until the Court rules upon petitioner's motion for appointment of counsel (dkt. no. 16). The Court is denying the motion for appointment of counsel, and there is no reason to delay its ruling upon the motion to dismiss.
Also before the Court are respondents' motion to dismiss (dkt. no. 7), petitioner's opposition (dkt. no. 17), and respondents' reply (dkt. no. 18). Respondents argue that petitioner has not exhausted his available state-court remedies for Ground 4, in part, and Ground 5. The Court agrees with respondents, but the Court also finds that the grounds in question are without merit.
Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) ( per curiam ); Anderson v. Harless, 459 U.S. 4, 6 (1982).
"[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) ( en banc ). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).
Pursuant to a guilty plea agreement, petitioner was convicted in state district court of two (2) counts of burglary. Ex. 12 (dkt. no. 8). The state district court adjudged petitioner to be a habitual criminal pursuant to Nev. Rev. Stat. § 207.010 and sentenced him to two (2) concurrent sentences of life imprisonment without the possibility of parole. Id. Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 23 (dkt. no. 8).
Petitioner then filed in state district court a post-conviction habeas corpus petition. Ex. 27 (dkt. no. 9). The state district court appointed counsel, who in turn filed a supplemental petition. Ex. 35 (dkt. no. 9). The state district court denied the petition. Ex. 42 (dkt. no. 9). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 60 (dkt. no. 10).
Petitioner then commenced this action.
For ease of analysis, the Court will discuss the claims out of numerical order. Ground 5 is a claim that the adjudication of petitioner to be a habitual criminal violated the Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner raised a similar claim on direct appeal. See Ex. 20, at 5-8 (dkt. no. 8). Respondents argue that in state court petitioner cited to cases that mentioned the Fifth, Sixth, and Fourteenth Amendments, but not the Eighth Amendment. That is incorrect. In one case that petitioner cited, the Nevada Supreme Court considered a challenge to a life sentence because it was disproportionate, in violation of the Eighth Amendment, among other challenges. See Ex. 20, at 7 (dkt. no. 8) ( citing White v. State, 771 P.2d 152, 153 (Nev. 1989)). However, it does not appear that petitioner cited many of these cases for the purposes of a federal constitutional claim. Instead, he seemed to cite them in support of his argument that the district court abused its discretion in adjudging him to be a habitual criminal, which is a question of state law that is not addressable in federal habeas corpus.
There is one case that petitioner cited which did apply the Fourteenth Amendment. The Court of Appeals had held that Nevada law required the sentencing court to make particularized findings of fact that it is just and proper to impose a habitual-criminal sentence, and that that process is a liberty interest protected by the Fourteenth Amendment. See Ex. 20, at 6 (dkt. no. 8) ( citing Walker v. Deeds, 50 F.3d 670 (9th Cir. 1995)). However, the Nevada Supreme Court then clarified that it had never required any such findings, just that the sentencing judge realize that imposing the habitual-criminal sentence is an act of discretion and is not mandatory. Hughes v. State, 996 P.2d 890, 892-94 (Nev. 2000). Consequently, petitioner might have presented a Fourteenth Amendment claim to the Nevada Supreme Court, though it was one without merit. However, petitioner did not present the Nevada Supreme Court with claims pursuant to any other federal constitutional provision. Ground 5 is unexhausted at least in part.
Rather than requiring petitioner to decide what to do with Ground 5, the Court will dismiss it because it lacks merit. See 28 U.S.C. § 2254(b)(2). To the extent that he is claiming that the sentencing court did not make particularized findings of fact that it was just and proper to adjudge him to be a habitual criminal, that claim is without merit for the reasons in the preceding paragraph. Petitioner also claims that imposing the habitual-criminal sentence upon him is unconstitutional because the crimes for which he was convicted and the prior crimes that were used to justify habitual-criminal treatment all were non-violent offenses. "[Nev. Rev. Stat. § 207.010] makes no special allowance for non-violent crimes or for the remoteness of convictions; instead, these are considerations within the discretion of the district court." Arajakis v. State, 843 P.2d 800, 805 (Nev. 1992). Petitioner admitted that enough prior convictions existed to justify habitual criminal treatment. Consequently, Ground 5 is simply a question of whether the state district court abused its discretion in sentencing him as a habitual criminal. That claim is a question of state law that is not addressable in federal habeas corpus. Ground 5 is without merit.
Ground 4 is a claim that the cumulative effect of errors resulted in prejudice to him, in violation of the Fifth, Sixth, and Fourteenth Amendments. Petitioner presented a cumulative-error claim to the Nevada Supreme Court in the appeal from the denial of his state habeas corpus petition. Ex. 54, at 10-11 (dkt. no. 11). The issue of exhaustion arises because the cumulative-error argument in that appeal referred only to the claims presented in the state habeas corpus petition and supplemental petition. The argument did not refer to the direct-appeal claim that petitioner presents here as Ground 5. Ground 4 is unexhausted to the extent that it incorporates Ground 5. However, the Court already has dismissed Ground 5 pursuant to 28 U.S.C. § 2254(b)(2) because it lacked merit even though it was unexhausted. The Court will do the same with Ground 4. In respondents' answer to Ground 4, they will not need to address whether petitioner's adjudication as a habitual criminal violated the constitution.
Petitioner has submitted a motion for clarification of order (dkt. no. 24). The Court had ordered that hard copies, meaning paper copies, of exhibits be sent to the staff attorneys in the Las Vegas office (dkt. no. 23). The order is directed toward counsel for respondents, who will send hard copies of exhibits to the Court in addition to electronic filing of those exhibits. Petitioner need not concern ...