United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
This is petitioner's third amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed through counsel (ECF #44). Before the court is respondents' motion to dismiss (ECF #47). Petitioner opposed the motion (ECF #48), and respondents replied (ECF #49).
I. Procedural History and Background
On September 8, 2006, the State of Nevada filed an amended information charging petitioner with two counts of trafficking in a controlled substance, with count I a category A felony and count II a category B felony. Exh. 20. On October 4, 2006, the State filed a second amended information charging petitioner with four counts of trafficking in a controlled substance and three counts of unlawful possession for sale. Exh. 22.
Through a sworn interpreter, petitioner was arraigned on November 17, 2006. Exh. 23. Pursuant to plea negotiations, the court struck the second amended information and arraigned petitioner on the two counts alleged in the prior amended information. Id. at 2-8. Petitioner had not yet signed a guilty plea agreement, but he entered a plea of guilty to both counts. Exhs. 23, 25. During the plea colloquy, defense counsel incorrectly stated that petitioner could receive probation on count II. Exh. 23 at 8. When questioned by the state district court, petitioner stated that no one had promised him that he would receive probation on count II. Id. at 8-9. The state district court correctly informed petitioner of the maximum penalty he faced on both counts: twenty-five years for count I and fifteen years for count II. Id
On February 13, 2007, petitioner executed a guilty plea memorandum. Exh. 25. The state district court conducted the sentencing hearing the same day. Exh. 26. During the sentencing hearing, defense counsel argued for concurrent sentences; however, he informed the state district court that he had explained to petitioner that sentencing was at the discretion of the court. Exh. 26 at 5. The state district court sentenced petitioner as follows: count I - ten to twenty-five years; count II - six to fifteen years, to be run consecutively. Exh. 26 at 2, 11. The judgment of conviction was entered on February 20, 2007. Exh. 27.
Petitioner did not file a direct appeal. On January 11, 2008, petitioner filed a state postconviction petition for writ of habeas corpus. Exh. 33. The state district court held a hearing on March 11, 2008 and dismissed the first two grounds of the petition. Exh. 41. On May 6, 2008, the state district court held an evidentiary hearing on the remaining grounds; at the conclusion of the hearing, the court dismissed the petition. Exh. 43. The state district court issued its written order dismissing the petition on July 28, 2008. Exh. 46. Petitioner appealed, and on October 29, 2009, the Nevada Supreme Court issued an order of limited remand directing the state district court to make specific findings of fact and conclusions of law. Exh. 60. The state district court complied on November 2, 2009. Exh. 61. On December 23, 2009, the Nevada Supreme Court affirmed the dismissal of the petition, and remittitur issued on January 19, 2010. Exhs. 62, 63.
About January 19, 2010, petitioner dispatched his federal habeas petition (ECF #4). Ultimately, on February 25, 2011, this court granted respondents' motion to dismiss in part, finding that grounds 2, 3, and 4 of that original petition were unexhausted and staying the case to permit petitioner to exhaust those claims in state court (ECF #22).
Petitioner filed a second state postconviction petition on April 19, 2011. Exhs. 64, 65. The state district court dismissed the petition on April 27, 2011, finding that the grounds were procedurally defaulted pursuant to NRS 34.810(2) because those claims had previously been presented in his first state postconviction petition. Exh. 66. In affirming the dismissal on October 5, 2011, the Nevada Supreme Court concluded that the petition was untimely and successive, procedurally barred absent a demonstration of good cause and actual prejudice, and further determined that petitioner failed to make a showing of good cause and that his "claims were in fact considered and rejected on the merits in the first post-conviction proceeding." Exh. 73 at 2. Remittitur issued on October 31, 2011. Exh. 74.
Petitioner filed a first amended petition in this case, which this court construed as a motion to re-open the case and granted. Exhs. 23, 25. After petitioner filed a second amended petition, this court appointed counsel, and petitioner filed a counseled third amended petition, which asserts three grounds for relief (ECF #44). Respondents argue that ground 1 is partially unexhausted, ground 2 contains conclusory allegations and is partially unexhausted, and ground 3 is untimely, unexhausted and conclusory.
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); s ee 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 ...