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High v. Nevens

United States District Court, D. Nevada

March 2, 2015

DWIGHT NEVENS, et al., Respondents.


ANDREW P. GORDON, District Judge.

This is petitioner's first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed through counsel (Dkt. #21). Before the court is respondents' motion to dismiss (Dkt. #49). Petitioner opposed the motion (Dkt. #51), and respondents replied (Dkt. #55).

I. Procedural History and Background

On October 30, 2008, a jury found petitioner guilty of count 1: first-degree kidnapping; counts 2, 3, 4, 6, 7, and 10: lewdness with a child under age fourteen; count 5: sexual assault of a minor under age fourteen; and count 9: administration of a drug to aid commission of a felony; and not guilty of count 8: attempted lewdness with a child under age fourteen.[1] Exhs. 66-67.[2]

On January 15, 2009, the state district court sentenced petitioner as follows: count 1: five years to life; counts 2, 3, 4, 6, 7, 10: ten years to life on each count, to run concurrently to each other and to count1; count 5: twenty years to life, consecutive to count 1; and count 9: sixteen to seventy-two months, to run concurrently with counts 1-7. Exh. 69 at 12-14. The court filed the judgment of conviction on January 27, 2009. Exh. 71.

Petitioner appealed. Exh. 73. The Nevada Supreme Court affirmed his convictions on February 3, 2010, and remittitur issued on March 2, 2010. Exhs. 94, 95.

On June 10, 2010, petitioner filed his first proper person state postconviction petition for writ of habeas corpus. Exh. 103. On September 16, 2010, the state district court orally denied the petition, and the court filed findings of fact, conclusions of law and order denying the petition on November 22, 2010. Exhs. 2, 112. The Nevada Supreme Court affirmed the denial of the first state postconviction petition on April 6, 2011, and remittitur issued on July 6, 2011. Exhs. 118, 123.

Meanwhile, on or about March 23, 2011, petitioner dispatched his first federal habeas petition. 2:11-cv-0454-JCM-LRL, Dkt. #1-1. On April 1, 2011, the district court dismissed the petition without prejudice as wholly unexhausted due to petitioner's pending appeal of the denial of his first state postconviction petition. 2:11-cv-0454-JCM-LRL, Dkt. #7. The court also denied petitioner's motion for stay and abeyance and denied a certificate of appealability. Id. at 2-3.

The Ninth Circuit granted petitioner a certificate of appealability on two issues:

(1) [W]hether the district court improperly determined that the petition was wholly unexhausted, and, if not, (2) whether the district court has discretion to use the stay and abeyance procedure outlined in Rhines v. Weber, 544 U.S. 269 (2005), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), to stay and hold in abeyance a habeas petition containing only unexhausted claims.

Case No. 11-16139, Dkt. #2-1 at 1.

Also before the Nevada Supreme Court affirmed the denial of the first state postconviction petition, petitioner filed a second proper person state postconviction petition on April 4, 2011. Exh. 116. The state district court denied the petition as untimely pursuant to NRS 34.726 and successive pursuant to NRS 34.810(1)(b)(2). Exh. 127. On April 11, 2012, the Nevada Supreme Court affirmed the denial of the second state postconviction petition as untimely and successive and an abuse of the writ, and concluded that petitioner failed to demonstrate good cause to excuse the procedural bars. Exh. 134. Remittitur issued on May 8, 2012. Exh. 136.

Before the Nevada Supreme Court issued the order affirming the denial of the first state postconviction petition and while the second state postconviction petition was pending, petitioner dispatched the instant second federal petition on May 27, 2011 (Dkt. #7). The Ninth Circuit granted petitioner's motion to defer briefing on the appeal of his first federal petition pending resolution of his second federal petition. Case No. 11-16139, Dkt. #s 8, 9.

Petitioner filed a counseled amended federal petition on May 30, 2012 (Dkt. #21). The court granted petitioner's motion for leave to conduct discovery (Dkt. #s 32, 39). Following discovery, petitioner filed supplemental exhibits but did not further amend his petition (Dkt. #s 45, 46). Respondents now move to dismiss this petition, arguing that the claims are unexhausted and/or procedurally barred (Dkt. #49).

II. Legal Standards

A. 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); see 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 463, 470 (9th Cir.1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir.1982); Johnstone v. Wolff, 582 F.Supp. 455, 458 (D.Nev. 1984).

B. Procedural Bar

"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the merits. A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).

The Coleman Court stated the effect of a procedural default, as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural default doctrine ensures that the state's interest in correcting its own mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir.2003).

To demonstrate cause for a procedural default, the petitioner must be able to "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991).

III. Instant Petition

Ground 1

Petitioner alleges that his Sixth and Fourteenth Amendment rights to due process and a fair trial were violated when the prosecution repeatedly used improper ...

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