United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid.
On initial review, it appears that the petition is subject to dismissal without prejudice because none of the claims therein have been fairly presented in the state courts through to the Supreme Court of Nevada and exhausted. Petitioner therefore will be directed to show cause why the petition should not be dismissed without prejudice for lack of exhaustion.
Petitioner Gerardo Castillo challenges his 2005 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon. He challenged the conviction on direct appeal and on state post-conviction review.
The Court may raise issues of exhaustion sua sponte. See, e.g., Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988). Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his 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 Supreme Court of Nevada. 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 his 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).
A petition that is completely unexhausted is subject to immediate dismissal. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001).
The federal constitutional claims in the petition clearly are wholly unexhausted.
In Ground 1, petitioner alleges that he was denied due process of law in violation of the Fourteenth Amendment because the state district court denied a request for a new trial based upon alleged newly discovered evidence that was presented in connection with a state post-conviction petition. Petitioner raised no constitutional claim in this regard on the state post-conviction appeal. Review of the post-conviction appeal briefing on the online docket record of the Supreme Court of Nevada reflects that petitioner instead contended that the state district court abused its discretion in denying a new trial based upon alleged newly discovered evidence. Presenting a state law claim that the state district court abused its discretion did not fairly present a federal constitutional due process claim to the Supreme Court of Nevada. Petitioner cited to two federal appellate decisions in his argument that the state district court abused its discretion. However, he cited both cases for the applicable standard for a new trial based upon alleged newly discovered evidence, not for any federal constitutional principle. Neither case applied any federal constitutional law with respect to a claim seeking a new trial based upon alleged newly discovered evidence. The citation to these federal cases applying the standard for a new trial in a federal criminal case therefore did not exhaust a federal constitutional due process claim. See, e.g., Castillo, 399 F.3d at 1003 ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.").
Ground 1 therefore is unexhausted. Petitioner must present both the operative facts and the federal legal theory upon which his federal ground is based to the state courts through to the state supreme court in order to exhaust a claim. He did not raise the federal legal theory in Ground 1 on the state post-conviction appeal.
In Grounds 2 and 3, petitioner presents claims of alleged ineffective assistance of trial counsel. He indisputably raised no such claims on the state post-conviction appeal. Petitioner attaches with the petition a copy of an August 20, 2012, letter from his state post-conviction appellate counsel reflecting that he had made an independent professional judgment to pursue only a claim regarding the denial of a new trial. The briefing on the state post-conviction appeal accordingly does not set forth any claims of ineffective assistance of counsel. The Supreme Court of Nevada further expressly confirmed in footnote 1 of its December 12, 2013, order of affirmance that petitioner had not pursued any claims of ineffective assistance of counsel on the state post-conviction appeal and that the claims therefore were abandoned.
Grounds 2 and 3 therefore also are unexhausted. To exhaust a claim in the Nevada courts, it must be fairly presented in the state courts through to the Supreme Court of Nevada. No claims of ineffective assistance of counsel ...