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O'Neill v. Baker

United States District Court, District of Nevada

January 12, 2015

CHRISTOPHER O’NEILL, Petitioner,
v.
RENEE BAKER, et al., Respondents.

ORDER

MIRANDA M. DU UNITED STATES DISTRICT JUDGE

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed a counseled first amended petition (dkt. no. 13). Before the Court is respondents’ motion to dismiss (dkt. no. 44). Petitioner has opposed the motion (dkt. no. 50), and respondents replied (dkt. no. 54).

I. PROCEDURAL HISTORY AND BACKGROUND

On June 7, 2005, petitioner Christopher O’Neill (“petitioner”) was convicted pursuant to jury verdicts of three counts of possession of a forged instrument, felonies in violation of NRS § 205.110 (exhibits to first amended petition (dkt. no. 13, Exhs. 24, 25, 26, 30)).[1] On August 25, 2005, petitioner was adjudicated a habitual criminal, sentenced to life with the possibility of parole, with a minimum parole eligibility of ten years on all three counts, to be served concurrently, and the judgment of conviction was entered. (Exhs. 29, 30.) Petitioner was not given credit for time served. (Exh. 30.) An amended judgment of conviction was filed on April 5, 2007. (Exh. 52.)

Petitioner appealed, and the Nevada Supreme Court affirmed his conviction and sentence on March 8, 2007. (Exh. 50; O’Neill v. State, 153 P.3d 38, 45 (Nev. 2007).) Remittitur issued on April 3, 2007. (Exh. 51.)

On April 30, 2007, petitioner filed his first state postconviction petition for writ of habeas corpus. (Exh. 53.) Following an evidentiary hearing, the state district court denied the petition on July 21, 2010. (Exhs. 74, 82, 94, 102, 104, 108.) The Nevada Supreme Court affirmed the denial of the petition on November 17, 2011, and remittitur issued on December 13, 2011. (Exhs. 179, 181.)

On June 6, 2007, petitioner filed a motion for a new trial, which the state district court denied on July 24, 2007. (Exhs. 57, 60.) On November 19, 2008, the Nevada Supreme Court affirmed the denial of the motion for new trial, and remittitur issued on December 16, 2008. (Exhs. 215, 216.)

On July 25, 2010, petitioner filed a motion to correct or modify his sentence, which the state district court denied on September 1, 2010. (Exhs. 105, 123.) The Nevada Supreme Court affirmed the denial of the motion on February 9, 2011, and remittitur issued on March 7, 2011. (Exhs. 154, 159.)

On August 24, 2010, petitioner filed his second state postconviction habeas petition. (Exh. 119.) The state district court dismissed the petition on October 19, 2011. (Exh. 173.) The Nevada Supreme Court affirmed the dismissal of the petition on June 13, 2012, and remittitur issued on July 10, 2012. (Exhs. 210, 211.)

Petitioner dispatched this federal petition for writ of habeas corpus on December 8, 2011 (dkt. no. 4). Through counsel, petitioner filed an amended petition on November 21, 2012 (dkt. no. 13). Respondents argue that the petition should be dismissed because several grounds are unexhausted and/or are procedurally barred.

II. LEGAL STANDARD FOR 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 ...


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