United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which Petitioner, a state prisoner, is proceeding pro se. The following motions are before the Court: a motion to dismiss (ECF No. 18), a motion for order to extend prison copy work limit (ECF No. 10), a motion for order directing respondents to produce copies of the certified judgement (ECF No. 11), motions to extend time (ECF No. 15, 22), and an ex parte motion for three different orders (ECF No. 26).
I. PROCEDURAL HISTORY
On January 23, 2007, Petitioner filed a motion for a Faretta  hearing. (Exhibit 17). On July 26, 2007, the state trial court canvassed Petitioner and granted Petitioner's request to represent himself. (Exhibit 18). In January 2009, Petitioner represented himself in a four day jury trial with the assistance of standby counsel. (Exhibits 54, 55, 56, 57).
The jury found Petitioner guilty of attempted robbery (Count 1), battery with substantial bodily harm (Count 2), and destroying evidence (Count 3). (Exhibit 20). The trial court sentenced Petitioner to 10 years to life for both attempted robbery and battery with substantial bodily harm, to run consecutively, and to one year for destroying evidence, to run concurrently. ( Id. ). The trial court sentenced Petitioner under the Large Habitual Criminal Statute. ( Id. ).
Petitioner, through counsel, filed a timely notice of appeal to the Nevada Supreme Court. (Exhibit 29). Petitioner sought to remove his court-appointed appellate counsel and have alternate counsel appointed, but the Nevada Supreme Court denied the motion. (Exhibit 35). Petitioner, through counsel, filed a direct appeal brief on November 17, 2009, and raised eight claims. (Exhibit 36). On May 28, 2010, the Nevada Supreme Court held that Petitioner's arguments lacked merit and affirmed the judgment of the trial court. (Exhibit 37). On July 9, 2010, the Nevada Supreme Court issued a remittitur. (Exhibit 38). On September 7, 2010, the Nevada Supreme Court denied as untimely Petitioner's pro per requests to supplement his direct appeal and to file a motion for rehearing. (Exhibit 39).
On June 20, 2011, Petitioner, pro per, filed a petition for habeas corpus in state district court and raised 17 claims. (Exhibit 40). On May 20, 2011, Petitioner also filed a "second supplement" to his state petition. (Exhibit 41). The state district court denied the petition for habeas corpus. (Exhibit 43).
On December 8, 2011, Petitioner, pro per, filed a notice of appeal to the Nevada Supreme Court for the denial of his state petition. (Exhibit 44). On May 1, 2012, Petitioner filed an opening appellate brief with the Nevada Supreme Court and raised 18 issues regarding the denial of his state petition. (Exhibit 45). On May 14, 2012, Petitioner filed a supplemental brief to the Nevada Supreme Court. (Exhibit 46). On May 14, 2013, the Nevada Supreme Court affirmed the judgment of the state district court and issued a remittitur on June 20, 2013. (Exhibits 47, 48).
On June 14, 2011, Petitioner, pro per, filed a motion for correction of illegal sentence in state district court. (Exhibit 49). On February 1, 2012, the state district court denied the motion. (Exhibit 50). On February 12, 2013, the Nevada Supreme Court affirmed the state district court's denial of the motion and issued a remittitur on March 27, 2013. (Exhibits 51, 52).
On June 21, 2013, Petitioner submitted his petition for habeas corpus pursuant to 28 U.S.C. § 2254 to this Court. (ECF No. 7). Petitioner's federal petition alleges 24 grounds for relief. ( Id. ). Respondents' filed a motion to dismiss based on lack of exhaustion. (ECF No. 18). Petitioner filed an opposition and Respondents' filed a reply. (ECF No. 25, 27).
A. Exhaustion Standard
A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthy, 653 F.2d 374, 376 (9th Cir. 1981).
A habeas petitioner must "present the state courts with the same claim he urges upon the federal court." Picard v. Connor, 404 U.S. 270, 276 (1971). To satisfy exhaustion, each of petitioner's claims must have been previously presented to the Nevada Supreme Court, with references to a specific constitutional guarantee, as well as a statement of facts that entitle petitioner to relief. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). The federal constitutional implications of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F.Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court must be "alerted to the fact that the [prisoner is] asserting claims under the United States Constitution" and given the opportunity to correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose, 455 U.S. at 520).
A claim is not exhausted when the petitioner presents to the federal court facts or evidence which place the claim in a significantly different posture than it was in the state courts, or where different facts are presented at the federal level to support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F.Supp. 455, 458 (D. Nev. 1984).
B. Petition in the Instant Case
Respondents argue that Petitioner's claims are partially or fully unexhausted. ( See ECF No. 18). The Court addresses each claim in turn.
i. Ground 1
In Ground 1, Petitioner explicitly states that he waives this ground in both his federal and state petitions. (ECF No. 7 at 3). In response, Respondents clarify that the Court should dismiss Ground 1 of the federal petition. (ECF No. 18 at 10). The Court dismisses Ground 1 of the federal petition because Petitioner explicitly waives this ground in his federal petition.
ii. Ground 2
In Ground 2, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights to due process and effective assistance of appellate counsel were violated. (ECF No. 7 at 4).
Respondents argue that, to the extent that Petitioner is attempting to raise a due process claim, that portion of the claim is unexhausted. (ECF No. 18 at 10). Respondents assert that Petitioner's post-conviction opening appellate brief to the Nevada Supreme Court did not raise any due process claims, but rather only raised ineffective assistance of appellate counsel claims. ( Id. ). Respondents contend that any claim included in Petitioner's state petition but not raised in Petitioner's post-conviction opening appellate brief is unexhausted. ( Id. ).
In response, Petitioner asserts that his record of appeal to the Nevada Supreme Court is not limited to only his post-conviction appellate brief. (ECF No. 25 at 3). Instead, Petitioner argues that his appellate record includes his original state petition which alleges both due process and ineffective assistance of appellate counsel claims. ( Id. ). Petitioner alleges that the first 17 claims of his federal petition are exactly the same as the 17 claims in his state petition. ( Id. ). Petitioner contends that the Nevada Supreme Court did consider his June 20, 2011, state petition because the Nevada Supreme Court included a footnote in its order which stated that it had reviewed all of the documents that Petitioner had submitted. ( Id. at 3-4).
In reply, Respondents assert that because Petitioner chose to file a post-conviction opening appellate brief to the Nevada Supreme Court, exhaustion must take place within that brief. (ECF No. 27 at 2).
Ground 2 of Petitioner's state petition alleges that he "was deprived of constitutional effective assistance of appellate counsel and the due process of law" under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. (Exhibit 40 at 8). In his post-conviction opening appellate brief to the Nevada Supreme Court, Petitioner argued that he was "deprived of appellate counsel at a critical stage of his direct appeal process" and noted that he was referring to Ground 2 of his state petition. (Exhibit 45 at ...