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Lister v. Cox

United States District Court, D. Nevada

September 30, 2014

J.C. LISTER, Petitioner,
JAMES GREG COX, et al., Respondents.


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. Before the court is respondents' motion to dismiss (ECF #13). Petitioner filed a response (ECF #18), and respondents replied (ECF #20).

I. Procedural History and Background

On July 22, 2010, petitioner J.C. Lister ("petitioner") was charged in an information with two counts of trafficking in a controlled substance, in violation of NRS 453.3385(2), a category B felony, the first count for methamphetamine and the second count for cocaine (ex. 18).[1]

On August 10, 2010, petitioner pleaded guilty to trafficking a controlled substance (ex. 23). On that day, the guilty plea agreement was filed. In exchange for petitioner's guilty plea to count I of the information, the State agreed to dismiss count II. The parties were free to argue at sentencing (ex. 22).

On May 10, 2011, the state district court sentenced petitioner to serve a minimum term of sixty (60) months to a maximum term of one hundred fifty (150) months in the Nevada State Prison consecutive to the sentence imposed in federal case no. 3:10-cr-00071-LRH-RAM (ex. 47). The judgment of conviction was filed on May 18, 2011 (ex. 48).

Petitioner appealed and claimed that both the federal and state government initiated multiple transactions for drugs in multiple jurisdictions which constituted sentencing entrapment and that such outrageous government conduct violated "fundamental fairness principles" (ex.'s 51, 57 at 1). Petitioner contended that while he was predisposed to commit the crime, the government's conduct was sufficiently outrageous to mandate a concurrent sentence. He also argued that the state district judge failed to make express findings with respect to sentence entrapment (ex. 57 at 3). The state filed its fasttrack response on August 22, 2011 (ex. 60). On November 18, 2011, the Nevada Supreme Court affirmed the judgment of conviction (ex. 61). Remittitur issued on December 15, 2011 (ex. 63).

Petitioner states that on August 22, 2012, he mailed or handed to a correctional officer for mailing his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in state custody (ECF #7 at 1). Respondents argue that the petition should be dismissed because all grounds are unexhausted.

II. Legal Standard - Exhaustion

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 (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. McCarthey, 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). 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 (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 v. Lundy, 455 U.S. 509, 520 (1982)). "[G]eneral 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). However, citation to state caselaw that applies federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

A claim is not exhausted unless the petitioner has presented to the state court the same operative facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met 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).

III. Petition in the ...

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