United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondents' motion to dismiss grounds 1 and 2 (Dkt. #13). Petitioner has opposed the motion (Dkt. #20), and respondents replied (Dkt. #21).
I. Procedural History and Background
On October 2, 2008, the State of Nevada charged petitioner Darryl Lee Sanders by way of criminal information with count I - burglary, count 2 - theft, and count 3 - conspiracy to commit theft (Exhibits to respondents' motion to dismiss, Dkt. #13, Exh. 10). Petitioner entered into a guilty plea to one count of burglary. Exh. 13. On May 27, 2009, the state district court conducted a hearing and adjudicated petitioner a habitual criminal. Exh. 19 at 9-10. Petitioner was sentenced to 8 to 20 years imprisonment, and judgment of conviction was entered on June 2, 2009. Exhs. 19, 20.
Petitioner appealed his conviction, which the Nevada Supreme Court affirmed on January 7, 2010. Exhs. 23, 33, 37. Remittitur issued on February 2, 2010. Exh. 39.
Petitioner filed a state postconviction habeas petition on January 12, 2011. Exh. 53. The state district court held a hearing on June 10, 2011, and on July 20, 2011, the court entered an order denying the petition. Exhs. 64, 69. The Nevada Supreme Court affirmed the denial of the petition on June 13, 2012, and remittitur issued on July 9, 2012. Exhs. 77, 79.
On July 5, 2012, petitioner dispatched the instant federal habeas petition (Dkt. #6). The federal petition raises ten grounds for relief. Id. On January 21, 2014, the court entered an order pursuant to Habeas Rule 4 dismissing grounds 3, 4, 6, 7 and 8, and dismissing grounds 2 and 9 to the extent that they allege violations of Nevada law or are duplicative of other grounds (Dkt. #8, p. 5).
Respondents argue that ground 1 and the remaining part of ground 2 should be dismissed as unexhausted (Dkt. #13, pp. 4-5).
II. Legal Standards
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). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.'" Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003) quoting Hiivala, 195 F.3d at 1106. 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 ...