United States District Court, D. Nevada
Jess Guy Anscott, Petitioner, Pro se, Indian Springs, NV.
For Brian Williams, Warden, Attorney General of the State of Nevada, Respondents: Catherine Cortez-Masto, LEAD ATTORNEY, Nevada Attorney General's Office, Carson City, NV; Jeffrey M Conner, Nevada Attorney General, Carson City, NV.
Jennifer Dorsey, United States District Judge.
This is a pro se petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by a Nevada state prisoner. Before the Court is respondents' motion to dismiss the petition. (Doc. 15). For the reasons below, I grant the motion in part.
I. Procedural History
In the Eighth Judicial District for the State of Nevada, in case no. C228372, the State of Nevada filed an information charging petitioner with two felony counts of possession of a stolen motor vehicle. (Exhibit 11). Pursuant to an agreement with the State, petitioner entered a guilty plea to a single count of possession of a stolen motor vehicle. (Exhibits 17, 18, 19). In exchange for petitioner's plea, the State agreed to recommend a sentence under the habitual offender statute (NRS 207.010) of no more than 12 1/2 years with eligibility for parole beginning after 5 years and the State retaining the right to argue for consecutive sentences with respect to two other cases. (Exhibit 19). Additionally, the State agreed to petitioner's release on his own recognizance prior to sentencing, under the condition that the State would be free to recommend a greater sentence under the habitual offender statute if petitioner failed to appear at sentencing. (Id.).
Petitioner failed to appear for sentencing, and the state district court granted the defense a continuance to give defense counsel an opportunity to locate petitioner. (Exhibit 45, at p. 3). When defense counsel was unsuccessful in finding petitioner, the state district court ultimately issued a bench warrant. (Exhibit 20; Exhibit 45, at p. 3). Subsequent to being arrested on the bench warrant, petitioner filed a motion to withdraw his guilty plea. (Exhibit 24). After a hearing on the motion to withdraw the guilty plea, the state district court denied the motion. (Exhibits 34 & 42).
Petitioner also filed a motion seeking appointment of alternate counsel for the purpose of reviewing allegations of ineffective assistance of counsel. (Exhibit 39). The state district court denied that motion and proceeded to sentencing. (Exhibit 44). The state district court adjudicated petitioner a habitual criminal under NRS 207.010, sentenced him to ten years to life in prison, and ordered the sentence to be served concurrent to his other sentences. (Exhibit 45, at p. 23; Exhibit 46, at p. 2).
Petitioner appealed from his judgment of conviction. (Exhibit 47). In his counseled opening brief on direct appeal, filed on August 24, 2009, (Exhibit 65), petitioner raised three issues: (1) whether the trial court erred when it denied petitioner's motion to withdraw his guilty plea agreement due to ineffective assistance of counsel; (2) whether the trial court erred when it denied petitioner's motion to withdraw the guilty plea agreement due to alleged mental impairment; and (3) whether the trial court erred when it denied petitioner's motion to appoint independent counsel to assess claims of ineffective assistance, because allowing the public defender's office to investigate petitioner's claims constituted a conflict of interest. (Id.). On March 11, 2010, the Nevada Supreme Court affirmed petitioner's conviction. (Exhibit 68).
On January 31, 2011, petitioner filed a pro se post-conviction habeas petition in state district court. (Exhibit 74). Petitioner was appointed counsel, who filed a supplemental petition on September 23, 2011. (Exhibits 81 & 82). On March 23, 2012, the state district court held a hearing on the petition. (Exhibit 85). The state district court denied the petition at the conclusion of the hearing. (Exhibit 85, at pp. 28-29). The state district court filed a written order on May 18, 2012, denying the petition and supplemental petition. (Exhibit 97).
Petitioner appealed the denial of his post-conviction habeas petition and supplemental petition. (Exhibit 88). In his counseled opening brief on appeal, filed January 7, 2013, (Exhibit 109), he raised these issues: (1) did the trial court err in denying the petition for writ of habeas corpus including all grounds set forth therein; (2) did the trial court err in concluding that petitioner was appropriately and effectively explained the risks of large habitual sentencing; (3) did the court err in concluding that petitioner would have accepted the plea negotiation regardless of whether the defenses were fully investigated; and (4) did the trial court err by imposing the habitual enhancement resulting in a punishment that was cruel and unusual. (Exhibit 109, at pp. 6-7). By order filed July 23, 2013, the Nevada Supreme Court affirmed the denial of the post-conviction petition and supplemental petition. (Exhibit 113). Remittitur issued on August 21, 2013. (Exhibit 115).
Petitioner dispatched his federal habeas petition to this court on October 1, 2013. (Doc. 11, at p. 1, item 5). Respondents now move to dismiss the petition. (Doc. 15). Petitioner filed an opposition to the motion. (Doc. 22). Respondents filed a reply. (Doc. 23).
A. Unexhausted Grounds
1. Exhaustion Standard
Respondents argue that several grounds of the petition are unexhausted. 28 U.S.C. § 2254(b)(1)(A) requires a habeas petitioner to first exhaust state court remedies on a claim before presenting that claim to the federal courts. To satisfy the exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available--in this case, the Nevada Supreme Court. See, 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. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000). Fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which the claim is based. See, e.g. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement ...