United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
Before the court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#1), respondents' motion to dismiss (#27), petitioner's opposition (#30), and respondents' reply (#31). The court finds that petitioner has not exhausted some of his claims for relief, and the court grants the motion in part.
After a jury trial in state court and a post-verdict motion for acquittal, petitioner was convicted of twelve counts of sexual assault with a minor under fourteen years of age, four counts of lewdness with a child under the age of fourteen, and one count of attempted lewdness with a child under the age of fourteen. Ex. 51 (#18). Petitioner appealed. The Nevada Supreme Court determined that petitioner should have been acquitted on two counts of sexual assault and three counts of lewdness; the Nevada Supreme Court rejected petitioner's other contentions. Ex. 72 (#19). On April 20, 2007, the state district court then entered an amended judgment of conviction. Ex. 76 (#19). Petitioner now is convicted of ten counts of sexual assault with a minor under fourteen years of age, one counts of lewdness with a child under the age of 14, and one count of attempted lewdness with a child under the age of fourteen. Petitioner did not appeal the amended judgment of conviction, and it became final with the expiration of the time to appeal on May 21, 2007.
On April 14, 2008, 329 days later, petitioner filed in state district court points and authorities in support of a petition for a writ of habeas corpus. Ex. 78 (#19). The actual postconviction habeas corpus petition was filed on April 17, 2008. Ex. 80 (#20). The state district court denied the petition. Ex. 91 (#20). Petitioner appealed. The Nevada Supreme Court remanded for an evidentiary hearing on petitioner's claims that trial counsel provided ineffective assistance because trial counsel failed to investigate the case and failed to present a defense at trial. Ex. 119 (#21). The state district court held an evidentiary hearing. Ex. 128 (#22). It denied the petition again. Ex. 130 (#22). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 149 (#22). Remittitur issued on February 11, 2013. Ex. 151 (#22).
On July 23, 2013, 162 days later, petitioner filed his federal habeas corpus petition pursuant to 28 U.S.C. § 2254 (#1) in this court. The motion to dismiss followed.
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 8 issues of ineffective assistance of counsel to the state courts. The court will refer to these issues as issues 1 through 8. Petitioner agrees that he has not presented one issue, a claim of ineffective assistance of appellate counsel, but disputes at least six of the seven other issues. Petitioner writes:
The Respondent's argument is, by its very nature, dilatory and attempts to marginalize the arguments of the Petitioner through the labeling of issues. These alleged labels are nothing more than an organizational tool for the Petitioner's thought processes. All in all, the issues presented all fall under the same penumbra of ineffective assistance of counsel, by and through the various means that it was committed.
Opposition, at 2 (#30). Petitioner is incorrect. As respondents note, a claim of ineffective assistance of counsel is not fungible, and it is very dependent upon the facts alleged. See Hemmerle v. Schriro, 495 F.3d 1069, 1075-76 (9th Cir. 2007). "[N]ew factual allegations do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts.'" Chacon v. Wood, 36 F.3d 1459, 1468 (quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986)). The new facts alleged in the federal petition have fundamentally altered many of the issues that respondents challenge.
Issue 1 is a claim that appellate counsel provided ineffective assistance by raising a "specious" Eighth Amendment claim on direct appeal. Petitioner concedes that it is not exhausted. Opposition, at 3-4 (#30).
Issue 2 is a claim that trial counsel was operating under a conflict of interest because trial counsel previously had represented Bob Farnum, petitioner's father, on charges of sexual offenses. Petitioner disagrees that he has presented a distinct claim of ineffective assistance based upon a conflict of interest, but he waives any such claim. Opposition, at 4-5 (#30).
Issue 3 is a claim that trial counsel failed to rehabilitate the sole defense witness, Lynn Raleigh. Both petitioner and respondents point to the same part of the appellate brief in the second state habeas corpus appeal, Ex. 145, at 38-40 (#22). The court is not persuaded by respondents' argument that this was a passing reference. Trial counsel had called Raleigh, who testified to her knowledge of the mother of the victim and her opinion that the mother was not a truthful person. On cross-examination, Raleigh testified that she was petitioner's sister in law. On redirect examination, Raleigh testified that she was present pursuant to a subpoena. In the appellate brief, petitioner argued that trial counsel was ineffective in his defense theory of discrediting the mother. Part of the argument was that counsel should not have called only one witness, and one who could have been discredited with only one question. The facts and the legal theory were before the Nevada Supreme Court. Issue 3 is exhausted.
Issue 4 is a claim that trial counsel provided ineffective assistance because he gave specious testimony at the state habeas corpus evidentiary hearing about how much time he spent preparing for trial. In his his second state habeas corpus appellate brief, petitioner expressed disbelief that trial counsel actually spent as much time as trial counsel testified that he spent. Ex. 145, at 19-20, 40-42 (#22). However, petitioner did not raise the issue as a ...