United States District Court, D. Nevada
ORDER ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS AND GRANTING MOTION FOR PARTIAL WAIVER OF
LOCAL RULES [ECF NOS. 8, 14].
Jennifer A. Dorsey United States District Judge.
move to dismiss Eriksen Raul Leiva's § 2254
petition, arguing that his claims are partially unexhausted.
Because Leiva's petition contains unexhausted claims, I
grant in part and deny in part respondents' motion and
give Leiva until March 13, 2017, to notify the court how he
wishes to proceed in this action. I also grant
respondents' motion for partial waiver of local rules.
March 11, 2011, a jury in Nevada's Eighth Judicial
District Court convicted Leiva of burglary while in
possession of a deadly weapon, conspiracy to commit robbery,
robbery with use of a deadly weapon, attempted murder with
use of a deadly weapon, and battery with use of a deadly
weapon. The Nevada Supreme Court affirmed
Leiva's conviction on February 9, 2012. Leiva, still
represented by counsel, then filed a state habeas
petition. The state district court denied
Leiva's petition, and the Nevada Supreme Court affirmed.
Leiva timely dispatched this federal habeas petition on May
29, 2015, asserting three grounds for relief. Respondents move
to dismiss, arguing that ground one is partially unexhausted
and grounds two and three are entirely
federal habeas petitioner first must exhaust state-court
remedies on a claim before presenting that claim to the
federal court. The exhaustion requirement ensures that
the state courts will have the first opportunity to pass upon
and correct alleged violations of federal constitutional
guarantees. To satisfy the exhaustion requirement, a
petitioner must fairly present his claims to the state's
highest court. 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. A petitioner must alert the state court to
the fact that he is asserting a federal claim; mere
similarity between a state-law claim and a federal-law claim
Leiva's claims are partially unexhausted.
Ground one is partially unexhausted.
one is a claim of ineffective assistance of trial counsel
that I break down into six subparts: 1(A) failure to object
to confrontation-clause violation; 1(B) opening the door to
the admission of the co-conspirator's statement; 3(C)
failure to investigate a witness; 4(D) cumulative effect of
trial counsel's errors; 5(E) failure to object to a
witness testifying about an out-of-court identification; 5(F)
failure to investigate and make a “Brady
request” for fingerprint evidence from the
sliding-glass door and the handle of a bat. I agree with
respondents that subparts 1(E) and 1(F) are unexhausted
because Leiva did not present them to the Nevada Supreme
Grounds two and three are unexhausted.
ground two, Leiva asserts that his appellate counsel was
constitutionally ineffective. This claim is unexhausted
because Leiva did not raise any claims of ineffective
assistance of appellate counsel to the Nevada Supreme Court.
Leiva's third and final claim, he contends that the trial
court erred because it should have “taken notice of
trial counsel's lack of objection under the Confrontation
Clause” and “cautioned trial counsel of a
possible confrontation violation” and because it failed
to consider jury instruction number eight about witness
credibility. Though Leiva raised IAC claims based on
confrontation-clause violations, he never presented these
trial-court-error claims to the Nevada Supreme Court, nor did
he present his claim for trial-court error based on jury
instruction number 8. Accordingly, ground three is also
Because this is a mixed petition, Leiva must advise the court
how he wishes to proceed.
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. A mixed petition containing both
exhausted and unexhausted claims is subject to