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Vontress v. Nevens

United States District Court, D. Nevada

August 20, 2014

D.W. NEVENS, et al., Respondents.


GLORIA M. NAVARRO, Chief District Judge.

This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application (#1) to proceed in forma pauperis, his motion (#2) for leave to file excess pages, and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The Court will grant the pauper application and motion subject to the remaining provisions herein.

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.


The papers presented together with the online docket records of the state courts reflect the following procedural history.[1]

Petitioner George Vontress challenges his Nevada state conviction, pursuant to a jury verdict, of robbery with a deadly weapon, burglary while in possession of a firearm, battery with the intent to commit a crime (robbery), and battery with the use of a deadly weapon. Vontress represented himself at trial.

The judgment of conviction was filed on June 15, 2012, and the time for filing a direct appeal expired on July 16, 2012. Petitioner filed, inter alia, an appeal on November 1, 2012. The state supreme court ultimately held, following appointment of counsel, that the appeal was untimely and dismissed for lack of jurisdiction. The court dismissed the appeal in a March 13, 2014, order in No. 62057 in that court, and the remittitur issued on May 19, 2014.

Meanwhile, petitioner filed a motion to vacate judgment in the state district court on February 1, 2013. It does not appear that the motion has been adjudicated by the state district court as yet, with the court previously having taken all pending matters off calendar during the pendency of the untimely appeal.

Petitioner also filed a state post-conviction petition on March 27, 2013. The state district court denied the petition. The state court clerk gave notice of entry of the court's findings of fact, conclusions of law, and order on August 4, 2014.

The state district court online docket does not reflect that, at the time that this order was prepared, petitioner had appealed the denial of his state petition. Petitioner confirms in his responses to the exhaustion inquiries in the federal petition that he has not. He states that he has not appealed the dismissal because "[t]he Nevada Supreme Court is part of the conspiracy and in collusion with state officials."[2]

The only other proceeding that petitioner has pursued through to the Supreme Court of Nevada regarding the current criminal case is in No. 60674. In that proceeding, Vontress filed an original petition for extraordinary relief on April 17, 2012 - prior to his conviction - seeking an order staying the state district court proceedings pending the state supreme court's disposition of a then yet-to-be-filed petition. The state supreme court declined to exercise original jurisdiction in the matter expressly "without deciding upon the merits of any claims raised therein."

Governing Law

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).


It is clear beyond peradventure that the federal petition is wholly unexhausted.

No claims were exhausted on petitioner's untimely direct appeal. Presenting a claim in a procedural context in which the merits of the claim will not be considered, or will be considered only in special circumstances, does not constitute fair presentation of the claim. Castille v. Peoples, 489 U.S. 346, 351(1989). Clearly, the merits of a claim will not be considered on an untimely appeal over which the state supreme court has no jurisdiction.

Nor were any claims exhausted on petitioner's pre-conviction original petition for extraordinary relief. It is long-established law that a claim is not fairly presented and is not exhausted when a petitioner fails to present the claim in state district court under state postconviction procedures and instead presents the claim in an original petition to the state's high court seeking to invoke an extraordinary discretionary jurisdiction. See, e.g., Ex parte Hawk, 321 U.S. 114, 116 (1944); Sweet v. Cupp, 640 F.2d 233, 238 (9th Cir. 1981); see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994)(applying Castille v. Peoples to the filing of an original writ in a state high court); accord Lindquist v. Gardner, 770 F.2d 876 (9th Cir. 1985). The state supreme court's order declining to exercise original jurisdiction over the writ petition did so with an explicitly clear statement that the Court did not decide the merits of any claim therein.

Petitioner accordingly has not fairly presented any of the claims in the federal petition - even if arguendo raised in the above proceedings - through to the Supreme Court of Nevada in a procedural context in which the merits of the claim would be considered by the state high court absent special circumstances.

Petitioner therefore must show cause in writing why the petition should not be dismissed as completely unexhausted.

IT THEREFORE IS ORDERED that petitioner's application (#1) to proceed in forma pauperis is GRANTED and that petitioner will not be required to pay the filing fee.

IT FURTHER IS ORDERED that petitioner's motion (#2) for leave to file excess pages is GRANTED to the extent consistent with the remaining provisions herein.[3]

IT FURTHER IS ORDERED that the Clerk of Court shall file the petition.

IT FURTHER IS ORDERED that, within thirty (30) days of entry of this order, petitioner shall SHOW CAUSE in writing why the petition should not be dismissed for lack of exhaustion.

IT FURTHER IS ORDERED that, in responding to this show-cause order, petitioner shall identify by docket number, date, filing, and page and line number all state supreme court proceedings upon which he bases a claim of exhaustion. Petitioner further shall attach with his response copies of all state court papers - if not already on file herein - upon which he relies to establish that the exhaustion requirement has been satisfied.

IT FURTHER IS ORDERED that the petition will be dismissed without further advance notice if petitioner does not timely respond to this order or if he fails to demonstrate in a response that the action should not be dismissed without prejudice for lack of exhaustion.

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