United States District Court, D. Nevada
ALEXANDER B. BAYOT, Petitioner,
ISIDRO BACA, et al, Respondents.
This habeas corpus action is brought by Alexander B. Bayot, a Nevada prisoner. The respondents have filed a motion to dismiss. The court will grant the motion to dismiss, and will dismiss Grounds 1, 2, 3, and 7 of Bayot's habeas petition. The court will deny a "Motion to Show Cause, or in the Alternative, Motion for Default Judgment" filed by Bayot.
On October 5, 2011, Bayot was convicted following a jury trial, in Nevada's Eighth Judicial District Court, of eleven counts of forgery and one count of conspiracy to commit forgery. See Judgment of Conviction, Exhibit 41 (the exhibits referred to in this order were filed by respondents and are located in the record at ECF Nos. 13-17). He was adjudicated an habitual criminal, and was sentenced to 8 to 20 years in prison. See id.; see also Reporter's Transcript, September 13, 2011 (ECF No. 39). Bayot appealed, and the Nevada Supreme Court affirmed on November 15, 2012. See Order of Affirmance, Exhibit 58.
On April 18, 2013, Bayot filed a post-conviction petition for writ of habeas corpus in state court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 69. The state district court denied the petition, in a written order, on September 9, 2013. See Findings of Fact, Conclusions of Law and Order, Exhibit 84. Bayot appealed, and the Nevada Supreme Court affirmed the denial of his petition on March 12, 2014. See Order of Affirmance, Exhibit 96.
This court received Bayot's federal habeas corpus petition, initiating this action pro se, on April 7, 2014 (ECF Nos. 1, 7). Bayot's habeas petition asserts thirteen grounds for relief.
On January 29, 2015, respondents filed a motion to dismiss (ECF No. 12), arguing that Ground 1 of Bayot's petition is not cognizable in this federal habeas corpus action, and that Grounds 2, 3, and 7 are unexhausted in state court.
On February 13, 2015, Bayot filed an opposition to the motion to dismiss (ECF No. 20). Bayot argues that Ground 1 is cognizable in this action. With respect to Grounds 2, 3, and 7, Bayot appears to concede that those claims are unexhausted in state court, and he states: "To avoid any further delay in this petition, Petitioner moves to withdraw Grounds Two, Three, and Seven from this petition." Opposition to Motion to Dismiss (ECF No. 20), p. 4.
On March 23, 2015, Bayot filed a "Motion to Show Cause, or in the Alternative, Motion for Default Judgment" (ECF No. 23). Respondents filed an opposition to that motion on March 30, 2015 (ECF No. 24).
Grounds 2, 3, and 7
A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest state court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). A claim is fairly presented to the state's highest court if, before that court, the petitioner describes the operative facts and legal theory upon which the claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).
The court has examined the record with respect to Grounds 2, 3, and 7, and determines that those claims are unexhausted in state court. The court will, therefore, accept Bayot's abandonment of Grounds 2, 3, and 7.
With respect to those claims, then, respondents' motion to dismiss will be granted. Grounds 2, 3, and 7 of Bayot's ...