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Leavitt v. Neven

United States District Court, D. Nevada

February 3, 2015

CODY LEAVITT, Petitioner,
v.
NEVEN, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner represented by counsel. This matter comes before the Court on respondents' motion to dismiss the amended petition. (Dkt. no. 55.)

I. PROCEDURAL HISTORY

On January 4, 2007, petitioner was charged with battery with the use of a deadly weapon. (Exh. A.)[1] On February 26, 2011, petitioner was charged by amended complaint with battery with the use of a deadly weapon resulting in substantial bodily harm. ( Id. ) On October 8, 2008, petitioner unconditionally waived his preliminary hearing and was bound over the state district court. ( Id. )

On October 17, 2008, under Case No. C248756, petitioner was charged in the Eighth Judicial District Court for the State of Nevada, by way of information, with battery with the use of a deadly weapon resulting in substantially bodily harm. (Exh. B.) On October 28, 2008, petitioner signed a plea agreement, pleading guilty to battery with the use of a weapon resulting in substantial bodily harm in Case No. C248756. (Exh. D.) Also in the plea agreement, petitioner agreed that he would plead guilty to child abuse and neglect with substantial bodily harm in a related Eighth Judicial District criminal case, Case No. C233866. ( Id. ) In the plea agreement, petitioner agreed that the State could argue as to sentence but the State would not oppose the sentence running concurrent to that in Case No. C233866. ( Id. ) The plea agreement contained the terms of the agreement, the consequences of entering into the agreement, the rights that petitioner would be waiving, a declaration of voluntariness and the possibility of restitution. ( Id. ) On January 15, 2009, petitioner was sentenced to a maximum of 120 months imprisonment with a minimum parole eligibility of 48 months, to run concurrent with his sentence in Case No. C233866. (Exhs. E & F.)

On January 8, 2010, petitioner filed a counseled post-conviction petition for writ of habeas corpus in the state district court. (Exh. G.) On January 15, 2010, petitioner filed a counseled motion to withdraw his guilty plea and request for a hearing. (Exh. H.) On July 1, 2010, the state district court ordered that an evidentiary hearing would be held. (Exh. N.) On August 20, 2010, the evidentiary hearing was held. (Exh. O.) On September 13, 2010, the state district court entered an order rejecting petitioner's claims of ineffective assistance of counsel and finding that petitioner had freely, voluntarily, and knowingly entered his guilty plea. (Exh. P.) Petitioner's motion to withdraw his guilty plea was also denied. ( Id. ). On September 15, 2010, petitioner filed a motion for reconsideration. (Exh. Q.) On December 4, 2010, the state district court filed its order denying petitioner's motion for reconsideration. (Exh. U.)

Petitioner filed a notice of appeal of the state district court's denial of the postconviction habeas petition and denial of the motion to vacate sentence. (Exh. S.) Petitioner filed his fast track statement with the Nevada Supreme Court on June 30, 2011. (Exh. X.) On January 12, 2012, the Nevada Supreme Court affirmed the denial of petitioner's post-conviction habeas petition and motion to withdraw his guilty plea. (Exh. Z.) Petitioner filed a petition for rehearing, which was denied by the Nevada Supreme Court on March 7, 2012. (Exhs. AA & BB.) Remittitur issued on April 3, 2012. (Exh. CC.)

Petitioner, acting in pro se, filed his federal habeas petition on April 16, 2012, in this Court. (Dkt. no. 1.) By order filed May 15, 2012, this Court granted petitioner's application to proceed in forma pauperis, but denied petitioner's motion for the appointment of counsel. (Dkt. no. 6.) Petitioner sought reconsideration of the Court's denial of counsel. (Dkt. no. 8.) On July 10, 2012, the Court granted petitioner's motion for reconsideration and appointed the Office of the Federal Public Defender to represent petitioner. (Dkt. no. 18.) On August 6, 2012, the Office of the Federal Public Defender filed a notice of conflict, advising the Court that they could not undertake representation of petitioner. (Dkt. no. 30.) Therefore, on August 9, 2012, the Court appointed CJA Panel Attorney Todd M. Leventhal to represent petitioner in this habeas proceeding. (Dkt. no. 31.)

On March 19, 2013, counsel Leventhal filed a motion to withdraw as petitioner's attorney. (Dkt. no. 40.) This Court denied the motion to withdraw, and instead stayed this case to accommodate Leventhal's scheduling conflicts. (Dkt. nos. 42 & 43.) The Court stayed the instant action until August 30, 2013. ( Id. ) On September 27, 2013, counsel for petitioner filed an amended petition along with exhibits. (Dkt. nos. 50 & 51.) On October 9, 2013, the Court ordered this action reopened and directed respondents to answer or otherwise respond to the amended petition. (Dkt. no. 52.) Respondents have filed a motion to dismiss the amended petition. (Dkt. no. 55.) Petitioner has opposed the motion to dismiss. (Dkt. no. 60.) Respondents filed a reply. (Dkt. no. 62.)

II. DISCUSSION

A. Exhaustion Standard

Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must 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); Yang 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 983, 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 ensures that the state courts, as a matter of federalstate comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 731 (1991).

B. Effect of State Court Petition Incorporated by Reference During Appeal

Petitioner asserts that the claims in his federal petition were raised in his postconviction habeas petition filed in state district court. Petitioner argues that, on appeal to the Nevada Supreme Court, he submitted a copy of the petition within the appendix to his fast track statement. Petitioner asserts that by presenting his state court petition in the appendix to his fast track statement, he fairly presented the claims in the petition to the Nevada Supreme Court for exhaustion purposes. Petitioner cites to the following cases, arguing that exhaustion is satisfied by including a copy of the state court habeas petition in the appellate appendix: Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005); Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009); Greenway v. Schriro, 653 F.3d 790 (9th Cir. 2011). In each of these cases, the petitioner was deemed to have exhausted claims before the state supreme court by incorporating issues presented in a lower court pleading within an appendix to the appellate brief. Insyxiengmay, 403 F.3d at 668-69; Scott, 567 F.3d at 582; Greenway, 653 F.3d at 801-02. In the Insyxiengmay case, the State of Washington's appellate rules allowed for appellants to incorporate by reference issues presented in an appendix but not argued in the actual appellate brief. Insyxiengmay, 403 F.3d at 668-69. In the Scott and Greenway cases, Arizona's appellate rules allowed for incorporation by reference to issues presented in an appendix but not argued in the appellate brief. Scott, 567 F.3d at 582 n.8; Greenway, 653 F.3d at 801-02. These cases must be distinguished from the instant case, because Nevada's appellate rules do not allow for such a practice. "Parties shall not incorporate by reference briefs or memoranda of law submitted to the district court or refer the Supreme Court to such briefs or memoranda for ...


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