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Leiva v. Williams

United States District Court, D. Nevada

February 13, 2017

Eriksen Raul Leiva, Petitioner
v.
Brian Williams, et al., Respondents

          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.

         Respondents 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.

         Background

         On 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.[1] The Nevada Supreme Court affirmed Leiva's conviction on February 9, 2012.[2] Leiva, still represented by counsel, then filed a state habeas petition.[3] 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.[4] Respondents move to dismiss, arguing that ground one is partially unexhausted and grounds two and three are entirely unexhausted.[5]

         Discussion A. Exhaustion

         A federal habeas petitioner first must exhaust state-court remedies on a claim before presenting that claim to the federal court.[6] The exhaustion requirement ensures that the state courts will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees.[7] To satisfy the exhaustion requirement, a petitioner must fairly present his claims to the state's highest court.[8] 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.[9] A petitioner must alert the state court to the fact that he is asserting a federal claim;[10] mere similarity between a state-law claim and a federal-law claim is insufficient.[11]

         B. Leiva's claims are partially unexhausted.

         1. Ground one is partially unexhausted.

         Ground 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.[12] I agree with respondents that subparts 1(E) and 1(F) are unexhausted because Leiva did not present them to the Nevada Supreme Court.[13]

         2. Grounds two and three are unexhausted.

         In ground two, Leiva asserts that his appellate counsel was constitutionally ineffective.[14] This claim is unexhausted because Leiva did not raise any claims of ineffective assistance of appellate counsel to the Nevada Supreme Court.

         In 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.[15] 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 unexhausted.

         C. Because this is a mixed petition, Leiva must advise the court how he wishes 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.[16] A mixed petition containing both exhausted and unexhausted claims is subject to ...


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