United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
pro se habeas matter under 28 U.S.C. § 2254 is
before the Court on respondents' motion to dismiss
petitioner Adolfo Godoy's second-amended petition. (ECF
No. 24.) Godoy has filed his opposition. (ECF No. 42.)
PROCEDURAL HISTORY AND BACKGROUND
February 4, 2010, a jury found Godoy guilty of count I:
robbery; and count II: possession of a stolen vehicle; (Exh.
The state district court sentenced him to two terms of 25
years with the possibility of parole after ten years under
the habitual criminal statute, to run concurrently. (Exh.
58.) Judgment of conviction was entered on June 14, 2010.
Nevada Supreme Court affirmed Godoy's convictions and
sentences on December 10, 2010, and remittitur issued on
January 4, 2011. (Exhs. 80, 81.)
an evidentiary hearing, the state district court denied
Godoy's counseled state petition for a writ of habeas
corpus. (Exhs. 82, 97-100.) On May 13, 2014, the Nevada
Supreme Court affirmed the denial of Godoy's state
postconviction petition, and remittitur issued on June 10,
2014. (Exhs. 114, 115.)
October 8, 2014, Godoy dispatched his federal habeas petition
for filing (ECF No. 6). Godoy filed a first-amended petition
on February 13, 2015. (ECF No. 9.) The first-amended petition
failed to identify each specific claim and set forth a brief
factual basis for each claim for most of the 45 purported
grounds for review. Accordingly, the Court directed Godoy to
file a second-amended petition that briefly set forth each
ground for relief as well as the specific factual basis for
that ground. (ECF No. 13.) Godoy filed a second-amended
petition on September 23, 2015. (ECF No. 21.) Respondents now
argue that several claims in the second-amended petition do
not relate back to any timely-filed earlier petition and that
some claims are unexhausted. (ECF No. 24.)
argue that several claims in grounds 1 and 2 of the
second-amended petition do not relate back to a timely-filed
petition and should thus be dismissed as untimely. (ECF No.
24 at 11-15.) A new claim in an amended petition that is
filed after the expiration of the Antiterrorism and Effective
Death Penalty Act's (“AEDPA”) one-year
limitation period will be timely only if the new claim
relates back to a claim in a timely-filed pleading under Rule
15(c) of the Federal Rules of Civil Procedure, on the basis
that the claim arises out of “the same conduct,
transaction or occurrence” as a claim in the timely
pleading. Mayle v. Felix, 545 U.S. 644 (2005). In
Mayle, the United States Supreme Court held that
habeas claims in an amended petition do not arise out of
“the same conduct, transaction or occurrence” as
claims in the original petition merely because the claims all
challenge the same trial, conviction or sentence.
Mayle, 545 U.S. at 655-64. Rather, under the
construction of the rule approved in Mayle, Rule
15(c) permits relation back of habeas claims asserted in an
amended petition “only when the claims added by
amendment arise from the same core facts as the timely filed
claims, and not when the new claims depend upon events
separate in ‘both time and type' from the
originally raised episodes.” 545 U.S. at 657. In this
regard, the reviewing court looks to “the existence of
a common ‘core of operative facts' uniting the
original and newly asserted claims.” Id. A
claim that merely adds “a new legal theory tied to the
same operative facts as those initially alleged” will
relate back and be timely. 545 U.S. at 659 and n.5; Ha
Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th
Godoy dispatched his federal habeas petition for filing on
October 8, 2014. (ECF No. 7 at 1.) On February 13, 2015, he
filed his first-amended petition. (ECF No. 9.) The parties do
not dispute that the AEDPA one-year statute of limitations
expired on or about March 26, 2015. Thereafter, this Court
dismissed Godoy's first-amended petition without
prejudice and with leave to file a second-amended petition
within 45 days. (ECF No. 10.) Godoy complied with this
Court's order and filed a second-amended petition (ECF
No. 21.) The claims in the second-amended petition must
relate back to Godoy's pro se original or
first-amended petitions in order to be deemed timely.
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
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, 195 F.3d at
1106. However, citation to state case law that applies
federal constitutional principles will suffice. Peterson
v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en
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).
second-amended petition, Godoy claims that trial counsel
rendered ineffective assistance of counsel as follows:
Counsel failed to establish the alleged victim, Lavatai, and
petitioner were romantically involved and lived together
continuously. (ECF No. 21 at 8.)
Counsel failed to investigate and interview Ramona Walker,
who was the only eyewitness. (Id. at 9.)
Counsel failed to investigate and subpoena Virginia Brown,
especially after she went to his office with some evidence
concerning Lavatai and Godoy's relationship.
(Id. at 10.)
Counsel, with one phone call, could have discovered that
Lavatai bailed petitioner ...