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Godoy v. Baker

United States District Court, D. Nevada

January 31, 2017

ADOLFO GODOY, Petitioner,
RENEE BAKER, et al., Respondents.



         This 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.)


         On February 4, 2010, a jury found Godoy guilty of count I: robbery; and count II: possession of a stolen vehicle; (Exh. 43).[1] 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. (Exh. 60.)

         The Nevada Supreme Court affirmed Godoy's convictions and sentences on December 10, 2010, and remittitur issued on January 4, 2011. (Exhs. 80, 81.)

         After 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.)

         On 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.)


         A. Relation Back

         Respondents 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 Cir. 2013).

         Here, 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.

         B. Exhaustion

         A 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 Cir. 1981).

         A 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 banc).

         A claim 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).


         A. Ground 1

         In the second-amended petition, Godoy claims that trial counsel rendered ineffective assistance of counsel as follows:

         1.1: Counsel failed to establish the alleged victim, Lavatai, and petitioner were romantically involved and lived together continuously. (ECF No. 21 at 8.)

         1.2: Counsel failed to investigate and interview Ramona Walker, who was the only eyewitness. (Id. at 9.)

         1.3: 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.)

         1.4: Counsel, with one phone call, could have discovered that Lavatai bailed petitioner ...

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