United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. This matter comes before the Court on respondents' motion to dismiss the petition. (Dkt. no. 8.)
I. PROCEDURAL HISTORY
Pursuant to a jury trial in the Second Judicial District for the State of Nevada, petitioner was convicted of two counts of sexual assault of a child and one count of lewdness with a minor. (Exh. 34.) On the two counts of sexual assault with a child, petitioner was sentenced to two concurrent life terms with the possibility of parole after twenty years. On the count of lewdness with a minor, petitioner was sentenced to a life term with the possibility of parole after ten years, to run concurrent with the other sentences. (Exh. 36, at 26-27.) The judgment of conviction reflecting petitioner's convictions and sentences was filed on March 5, 2007. (Exh. 37.) Petitioner appealed from his judgment of conviction, which was docketed by the Nevada Supreme Court as case no. 49147. (Exh. 38.) On September 21, 2007, petitioner filed an opening brief on direct appeal. (Exh. 51.) The Nevada Supreme Court affirmed petitioner's convictions in an order filed June 4, 2008. (Exh. 59.) Remittitur issued on July 1, 2008. (Exh. 61.)
On May 23, 2009, petitioner filed a post-conviction habeas petition in the state district court. (Exh. 62.) On July 15, 2009, petitioner was appointed counsel for his postconviction habeas proceedings. (Exh. 68.) On November 20, 2009, petitioner's counsel filed a supplemental habeas petition in the state district court. (Exh. 78.) On May 9, 2012, the state district court filed a written order denying the habeas petition. (Exh. 220.) Petitioner appealed from the denial of his state habeas petition, which was docketed by the Nevada Supreme Court as case no. 60898. (Exh. 227.) On November 16, 2012, petitioner filed an opening brief on appeal from the denial of his state habeas petition. (Exh. 263.) On October 16, 2013, the Nevada Supreme Court filed an order affirming the denial of the post-conviction habeas petition. (Exh. 267.) Remittitur issued on November 13, 2013. (Exh. 269.)
While petitioner's post-conviction habeas proceedings were still pending, on January 28, 2012, petitioner filed a motion for a new trial. (Exh. 194.) The state district court denied the motion on February 22, 2012. (Exh. 199.) Petitioner appealed the state district court's denial of his motion for a new trial, which was docketed by the Nevada Supreme Court as case no. 60308. (Exh. 200.) On April 16, 2012, petitioner filed an opening brief on appeal from the denial of the motion for a new trial. (Exh. 212.) On July 25, 2012, the Nevada Supreme Court filed an order affirming the denial of petitioner's motion for a new trial. (Exh. 249.) Remittitur issued on August 20, 2012. (Exh. 251.)
Petitioner dispatched his pro se federal petition to this Court on October 31, 2013. (Dkt. no. 4 at 1, item 5.) The federal habeas petition contains four grounds for relief. (Dkt. no. 4.) Respondents have filed a motion to dismiss the petition, asserting that certain factual allegations and legal theories within the petition are unexhausted. (Dkt. no. 8.) Petitioner has filed an opposition to the motion to dismiss. (Dkt. no. 24.) Respondents have filed a reply. (Dkt. no. 25.) The motion to dismiss being fully briefed, the Court now considers it.
A. Exhaustion Standard
Pursuant to 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. Ground 1
Petitioner alleges ineffective assistance of counsel for failing to investigate and properly prepare for trial by: (1) not developing character evidence; (2) failing to call exculpatory witnesses that would have testified to the victim stating her sexual encounter with petitioner was consensual; and (3) failing to present expert testimony in response to the testimony of the nurse who conducted the S.A.R.T. (Sexual Assault Response Team) exam of the victim performed by Nurse Engel. (Dkt. no. 4 at 3.)
Respondents argue that the following allegation contained in Ground 1 of the federal petition is unexhausted: "Trial counsel also failed to challenge the sufficiency of the evidence supporting a sexual assault conviction in that trial counsel didn't present expert testimony to counteract the testimony of the state's expert witness, Nurse Denise Engel." (Dkt. no. 4, at p. 3.) More specifically, respondents argue that petitioner's allegation of counsel's failure "to challenge the sufficiency of the evidence" is unexhausted because petitioner never made such a claim to the Nevada Supreme Court. In his opposition, petitioner explains that his use of the phrase "to challenge the sufficiency of the evidence' was merely done to avoid plagiarizing appellant['s] counsel." (Dkt. no. 24 at 3.) Petitioner argues that this claim was raised in Ground 1 of the opening brief on appeal from the denial of his state habeas petition. ( Id. ) Ground 1 of the opening brief argued that trial counsel was ineffective for failing to retain and present a forensic expert to refute the state's nurse practitioner, Denise Engel, and her S.A.R.T. examination. (Exh. 263, at pp. 5-22.) As such, petitioner's claim in the federal petition that "trial counsel didn't present expert testimony to counteract the testimony of the state's expert witness, Nurse ...