United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
This action is petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss.
I. Procedural History
Pursuant to a jury trial and a judgment of conviction filed May 25, 2004, petitioner was found guilty of second degree murder with the use of a deadly weapon (Count I) and burglary while in possession of a firearm (Count 11). (Exhibits 55 & 57). Petitioner was sentenced as follows: Count I, life with the possibility of parole after 10 years served, plus an equal and consecutive term for the use of a deadly weapon; Count II, 22-96 months, consecutive to Count I. Petitioner received 409 days credit for time served. (Exhibit 57).
Petitioner pursued a direct appeal. (Exhibit 59). On January 26, 2005, petitioner filed his opening brief on direct appeal. (Exhibit 62). Respondents filed an answering brief on February 10, 2005. (Exhibit 63). Petitioner filed a reply brief on April 13, 2005. (Exhibit 64). On July 20, 2006, the Nevada Supreme Court issued a published opinion affirming petitioner's conviction. (Exhibit 67; Ford v. State, 122 Nev. 796, 138 P.3d 500 (Nev. 2006)). The Nevada Supreme Court subsequently denied petitioner's petitions for rehearing and en banc reconsideration. (Exhibits 68 & 71). Remittitur was issued on October 24, 2006. (Exhibit 70).
Petitioner, proceeding pro se, filed a post-conviction habeas petition in state district court on October 18, 2007. (Exhibit 79). The trial court denied the petition. (Exhibit 89). Petitioner appealed the denial of his petition. On February 4, 2009, the Nevada Supreme Court filed an order of reversal and remand, finding that the state district court had abused its discretion in denying the petition without appointing counsel. (Exhibit 91). Upon return to state district court, an attorney was appointed to assist petitioner with his post-conviction proceedings. (Exhibit 93). On June 1, 2010, counsel for petitioner filed a supplemental habeas petition in state district court, raising ineffective assistance of counsel claims. (Exhibit 94). An evidentiary hearing was set for February 2, 2011. (Exhibit 98). The court ordered further briefing by the parties. ( Id. ) Petitioner's counsel filed a supplemental brief on March 7, 2011. (Exhibit 99). The State filed a supplemental brief on April 12, 2011. (Exhibit 100). After reviewing the supplemental briefs, the state district court denied the petition. (Exhibits 101 & 102).
Petitioner filed a notice of appeal from the denial of his post-conviction habeas petition. (Exhibit 103). Petitioner's opening brief was filed on February 23, 2012. (Exhibit 106). On December 12, 2012, the Nevada Supreme Court issued an order affirming the denial of the post-conviction habeas petition. (Exhibit 110). Remittitur issued on January 7, 2013. (Exhibit 111).
Petitioner dispatched his pro se federal petition to this Court on January 11, 2013. (Dkt. #7, at p. 1). On April 2, 2013, this Court granted petitioner's motion for counsel and appointed the Federal Public Defender to represent petitioner in this action. (Dkt. #6). Through counsel, petitioner filed a first amended petition on April 16, 2013. (Dkt. #9). On November 15, 2013, through counsel, petitioner filed the second amended petition. (Dkt. #28). Respondents have filed the instant motion to dismiss, arguing that portions of the second amended petition are unexhausted, barred by Stone v. Powell, 428 U.S. 465 (1976), and present non-cognizable questions of state law. (Dkt. #34). Petitioner has opposed the motion. (Dkt. #37). Respondents have filed a reply. (Dkt. #40).
A. Ground One
Petitioner alleges that: "Petitioner Ford's right to be protected from an unreasonable search and seizure and his rights under the Fifth and Sixth Amendment as found in Miranda were violated when the police did not correctly follow procedures for arresting him." (Dkt. #28, at p. 7). Ground One appears to assert at least three separate claims: (1) that petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966) were violated; (2) that petitioner's Fourth Amendment search and seizure rights were violated; and (3) that the police failed to properly follow Nevada's Constitution and Nevada's statutory scheme for the detention and arrest of petitioner as a suspected juvenile delinquent. ( Id., at pp. 7-11).
1. Fourth Amendment Claim
Respondents argue that petitioner's Fourth Amendment claim is barred by the rule announced in Stone v. Powell . Where a state has provided a defendant with a full and fair opportunity to litigate a Fourth Amendment claim, "a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 495 (1976); see also Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986). The United States Supreme Court has determined that excluding Fourth Amendment claims from habeas corpus review created no danger that the courts would deny a safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty because a convicted defendant seeking review of a Fourth Amendment claim on collateral review is "usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration. Kuhlmann, 477 U.S. at 447.
In Ground One, petitioner asserts a violation of his right to be free from unreasonable search and seizure under the Fourth Amendment incident to his detention and arrest. It is clear from the record that petitioner was given a full and fair opportunity to litigate his Fourth Amendment claim before the state courts. See Terrovona v. Kinchole, 912 F.2d 1176 (9th Cir. 1990); Abell v. Raines, 640 F.2d 1085 (9th Cir. 1981). Specifically, petitioner alleges that his initial detention, and the seizure of certain items of clothing, fingerprinting, photographing, and the collection of a buccal swab during that detention, and his subsequent arrest, violated his right to be free from unreasonable searches and seizures. Petitioner filed a motion to suppress evidence in the state district court, relying on the Fourth Amendment. (Exhibit 30). The state district court held a hearing and granted petitioner's motion to suppress all of the clothing seized by police, except his sweatshirt and beanie stocking cap. (Exhibit 42). Petitioner also raised me Fourth Amendment claim on direct appeal to the Nevada Supreme Court. (Exhibit 62). The Nevada Supreme Court affirmed the district court's ruling on petitioner's motion to suppress. (Exhibit 67). The Fourth Amendment ...