United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Before the court is the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#13), respondents' motion to dismiss (#18), petitioner's opposition (#26), and respondents' reply (#27). Also before the court is petitioner's motion for stay and abeyance (#28) and respondents' opposition (#29). The court finds that petitioner has not exhausted his available state-court remedies for all of ground 1. The court also finds that a stay is not warranted. Petitioner will need to decide whether to dismiss the unexhausted parts of ground 1 or to dismiss the action in its entirety.
Pursuant to a plea agreement, petitioner was convicted in state court of conspiracy to commit robbery (count 1), robbery with the use of a deadly weapon (count 2), and second-degree murder (count 3). The original sentence structure was 12-72 months for count 1, 60-180 months for the robbery part of count 2 plus an equal and consecutive 60-180 months for the deadly-weapon part of count 2, count 2 running consecutive to count 1, and life imprisonment with eligibility for parole starting after 10 years for count 3, count 3 running consecutive to count 2. Ex. 32 (#21). The state district court then adjusted the sentences. Now, the prison terms for counts 1 and 2 run concurrently, and the prison term for count 3 runs consecutive to counts 1 and 2. Ex. 36 (#21). Petitioner appealed the original judgment and the amended judgment. The Nevada Supreme Court affirmed. Ex. 72 (#22).
Petitioner filed multiple post-conviction motions and petitions. All were unsuccessful. For the purposes of this order, the important document is the opening brief that petitioner filed in the appeal from the denial of his state post-conviction habeas corpus petition. Ex. 98 (#23).
Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) ( per curiam ); Anderson v. Harless, 459 U.S. 4, 6 (1982).
"[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) ( en banc ). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general 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).
Respondents argue that petitioner has not presented all of the facts in ground 1, a claim of ineffective assistance of counsel, to the Nevada Supreme Court in the appeal from the denial of his state habeas corpus petition. The following issues of ineffective assistance were raised in the appellate brief:
1. Counsel coerced petitioner into pleading guilty by pressuring him to think that the sentences for counts 1, 2, and 3 would run concurrently, and thus petitioner's plea was not knowingly or voluntarily entered.
2. The public defender who handled petitioner's plea canvass testified in the postconviction evidentiary hearing that he walked away from petitioner and would not participate in the canvass anymore.
3. Petitioner did not have enough time to understand his plea.
Ex. 98 (#23). Respondents argue that petitioner did not present the following issues, raised in ground 1 of the petition (#13), to the Nevada Supreme Court:
1. Counsel failed to explain that the deadly-weapon enhancement could not run concurrently with any sentence structure.
2. Petitioner expected to receive 10-25 years on the count of ...