United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This is petitioner's second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed through counsel (ECF #18). Before the court is respondents' motion to dismiss (ECF #21). Petitioner opposed the motion (ECF #25), and respondents replied (ECF #26).
I. Procedural History and Background
On April 4, 2005, the State of Nevada filed a criminal complaint charging petitioner with counts 1-13 - sexual assault with a minor under fourteen years of age and count 14 - sexual assault. Exh. 3. On April 18, 2005, the State filed an amended criminal complaint. Exh. 6. On that date, petitioner waived his preliminary hearing and stated his intent to plead guilty to one count of sexual assault with a minor under fourteen years of age and one count of attempted sexual assault. Exh. 5 at 2-3.
At the continued arraignment date of May 9, 2005, petitioner stated that he was not going to plead guilty. Exh. 2 at 3. Ultimately, on September 5, 2006, the State filed a second amended information, and a jury trial commenced the same day. Exhs. 21-23, 26, 28. The jury found petitioner guilty of counts 1-21 and 24-26 and not guilty of counts 22, 23 and 27. Exh. 29.
Petitioner was present at sentencing on December 4, 2006, and the State moved the district court to strike counts 2, 4, 6, 8, 11, 13, 15, 17, 19, and 21. Exh. 31. The court imposed the following sentence: counts 1, 3, 5, 7, 9, 10: life with the possibility of parole after twenty years, to run concurrently; counts 12, 14, 16: life with the possibility of parole after twenty years, to run concurrently with each other but consecutive to counts 1, 3, 5, 7, 9, 10; counts 18, and 20: life with the possibility of parole after twenty years, to run concurrently with each other but consecutive to counts 12, 14, 16; and counts 24-26: two to twenty years, to run concurrently with each other but consecutive to all other counts. Id. at 17-19. Judgment of conviction was filed on December 19, 2006. Exh. 32.
Petitioner filed a notice of appeal on January 9, 2007, and the Nevada Supreme Court affirmed his convictions on March 31, 2009. Exhs. 34, 41.
On May 28, 2009, petitioner filed a motion to withdraw his attorney of record. Exh. 43. On December 31, 2009, petitioner filed a pro se postconviction habeas corpus petition and a motion for appointment of counsel with the state district court. Exhs. 46, 47. Petitioner, through counsel, filed supplemental points and authorities in support of the petition. Exh. 51. On January 28, 2011, the state district court heard argument on the petition. Exh. 54. The state district court denied the petition and filed its written order on April 28, 2011. Exhs. 54, 55. The Nevada Supreme Court affirmed the denial of the state postconviction petition on November 15, 2012, and remittitur issued on February 1, 2013. Exhs. 63, 68.
Petitioner dispatched his federal habeas petition on March 19, 2013 (ECF #2). On July 26, 2013, petitioner filed a counseled, amended petition (ECF #6). On March 3, 2014, petitioner filed a counseled, second amended petition (ECF #18). Respondents now move to partially dismiss the second amended petition on the basis that ground 3 is unexhausted and ground 7 is procedurally barred (ECF #21, pp. 11-14).
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); 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 ...