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Smith v. Williams

United States District Court, D. Nevada

January 11, 2017

Robert Fitzgerald Smith, Petitioner
v.
Brian Williams, et al., Respondents

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING WITHOUT PREJUDICE MOTION TO STAY [ECF NOS. 23, 42]

          Jennifer A. Dorsey United States District Judge.

         Pro se Nevada state-prison inmate Robert Fitzgerald Smith brings this § 2554 petition to challenge his state-court conviction and sentence for attempted murder with use of a deadly weapon. Respondents move to dismiss Smith's remaining grounds, and Smith moves to stay these proceedings. I grant in part and deny in part respondents' motion to dismiss, deny without prejudice Smith's motion to stay, and give Smith until February 11, 2017, to notify the court how he wishes to proceed with this case.

         Background

         In April 2008, Smith was convicted by a jury in Nevada's Eighth Judicial District Court of one count of attempted murder with use of a deadly weapon.[1] Smith appealed, and the Nevada Supreme Court affirmed.[2] Smith then filed a state habeas petition, [3] which the state district court denied, [4] and the Nevada Supreme Court affirmed.[5] Smith then filed this federal habeas action.

         On June 6, 2016, I screened Smith's third-amended petition, dismissed grounds 2(B), 2(C), 5, 15, 16, and 19 and the ineffective-assistance-of-post-conviction-counsel claim in ground 18, and directed respondents to file a response to the remaining claims.[6] Respondents now move to dismiss Smith's remaining claims, and Smith has filed a motion to stay these proceedings.

         Discussion

         A. Exhaustion under 28 USC § 2254

         A federal habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal court.[7] The exhaustion requirement ensures that the state courts will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees.[8] To satisfy the exhaustion requirement, a petitioner must fairly present his claims to the state's highest court.[9] Fair presentation requires that a petitioner (1) identify the federal legal basis for his claims and (2) state the facts entitling him to relief on those claims.[10] A petitioner must alert the state court to the fact that he is asserting a federal claim;[11] mere similarity between a state-law claim and a federal-law claim is insufficient.[12]

         Respondents argue that grounds 1, 2, 3, 4, 4(B), 5(B), 5(C), 5(D), 5(E), 5, 7, 10, 11, 12, 13, and 18 are not exhausted.[13] Smith agrees.[14] He requests a stay of this action so that he can return to state court to exhaust these unexhausted grounds.

         B. Smith's petition contains unexhausted claims, and he has not shown that he is entitled to a Rhines stay.

         As the United States Supreme Court explained in Rhines v. Weber, stay and abeyance should be available “only in limited circumstances.”[15] Smith must show that he has “good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, ” and he has not “engaged in intentionally dilatory litigation tactics.”[16] Smith argues that he has good cause for his failure to exhaust the challenged grounds because appellate post-conviction counsel failed to present them to the Nevada Supreme Court.[17] He does not address the other two Rhines requirements.

         In Martinez v. Ryan, the United States Supreme Court held that the failure of an ineffective counsel or pro se petitioner to raise, in a state-court initial-review collateral proceeding, a claim of ineffective assistance of trial counsel can establish good cause to excuse a state-court procedural default.[18] In Ha Van Nguyen v. Curry, the Ninth Circuit extended the Martinez rule to include procedurally defaulted claims of ineffective assistance of counsel on direct appeal.[19] One year later, the Ninth Circuit panel in Blake v. Baker held that the Rhines standard for IAC-based cause is not “any more demanding than a showing of cause under Martinez to excuse state procedural default, ”[20]and that state post-conviction IAC can also satisfy the Rhines good-cause standard.[21]

         Unlike these cases in which initial-review state post-conviction IAC established good cause, Smith relies on appellate state post-conviction IAC to establish good cause. Neither the Ninth Circuit nor the United States Supreme Court has held that appellate state post-conviction IAC can establish good cause. Even if Martinez or Curry applied, they would provide good cause for Smith's failure to exhaust his IAC claims only; these cases have no applicability to claims alleging error by the trial court, and the bulk of Smith's unexhausted claims are not IAC claims. For example, Smith does not address good cause for his failure to exhaust grounds 10, 11, 12, and 13-which allege various trial-court errors-and which are unexhausted because they were presented in state court only as issues of state law.[22] I therefore grant in part and deny in part respondents' dismissal motion and deny without prejudice Smith's request for a stay. Because I agree with respondents' exhaustion arguments, I decline to address the remaining arguments raised in their dismissal motion at this time.

         C. Because this is a mixed petition, Smith must advise the court how he wants to proceed.

         A federal court may not entertain a habeas petition unless the petitioner has exhausted all available and adequate state-court remedies for all claims in the petition.[23] A “mixed” petition containing both exhausted and unexhausted claims is subject to dismissal.[24] Because Smith's petition is mixed, he now has three options:

1. Submit a sworn declaration advising the court that he is voluntarily abandoning his unexhausted claims and will ...

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