Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Boney v. Smith

United States District Court, D. Nevada

February 21, 2017

WILLIAM D. BONEY, Petitioner,
v.
GREGORY SMITH, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. Before the Court is respondents' motion to dismiss the petition. (ECF No. 10.)

         I. PROCEDURAL HISTORY

         In the Second Judicial District for the State of Nevada, petitioner was charged with multiple crimes in separate cases. Pursuant to a guilty plea, petitioner was convicted of robbery with the use of a firearm in Case No. CR09-1250B and one count of robbery with the use of a firearm in Case No. CR09-1378A. (Exhs. 40 & 42.)[1] In exchange for petitioner's guilty pleas, the State agreed to dismiss all other charges and not to file additional charges. (Id.) On April 9, 2010, petitioner was sentenced to consecutive sentences of 72 to 180 months in prison for robbery with the use of a firearm in Case No. CR09-1250B. On the same date, in Case No. CR09-1378A, petitioner was sentenced to consecutive sentences of 72 to 180 months in prison for robbery with the use of a firearm, consecutive to sentences in Case No. CR09-1250B. (Exhs. 43, 44, 45.)

         Petitioner appealed his convictions in Case Nos. CR09-1250B & CR09-1378A. (Exhs. 50 & 51.) As to both convictions, petitioner claimed that the state district court erroneously failed to grant his motion to suppress or motion to dismiss charges based on an alleged impermissibly suggestive photographic lineup. (Exhs. 62 & 63.) In identical orders filed September 29, 2010, the Nevada Supreme Court affirmed petitioner's convictions in both cases. (Exhs. 72 & 73.)

         On July 7, 2011, petitioner filed post-conviction habeas petitions in the state district court in Case Nos. CR09-1250B and CR 09-1378A. (Exhs. 84 & 85.) Counsel was appointed, and petitioner's counsel filed a combined supplemental petition on January 29, 2012. (Exh. 105.) An evidentiary hearing on the petitions was held on January 21, 2014. (Exh. 125.) On March 27, 2014, the state district court entered identical written findings and orders denying the petitions. (Exhs. 128 & 129.)

         Petitioner appealed the denial of his post-conviction habeas petitions. (Exhs. 133 & 134.) Petitioner argued that: (1) the state district court erred by concluding that he had failed to establish prejudice from counsel's coercive and inaccurate letter; (2) the state district court erred by applying the wrong analysis to petitioner's claims of ineffective assistance of appellate counsel; and (3) the state district court erred by concluding that the plea memoranda and plea canvass sufficiently complied with the statutory requirement that a plea memoranda contain a certificate of counsel. (Exh. 142.) On November 12, 2014, the Nevada Supreme Court affirmed the denial of petitioner's post-conviction habeas petitions. (Exh. 146.)

         Petitioner dispatched his federal petition to this Court on March 31, 2015. (ECF No. 6 at 1.) This Court ordered respondents to file a response to the petition. (ECF No. 5.) Respondents filed the instant motion to dismiss on January 1, 2016. (ECF No. 10.) Petitioner has filed a response to the motion. (ECF No. 18.) Respondents filed a reply in support of the motion to dismiss. (ECF No. 19.)

         II. DISCUSSION

         A. Ground 1(k) is Not a Cognizable Federal Habeas Claim

         In Ground 1(k) of the petition, petitioner claims that the attorney appointed to represent him during his post-conviction habeas petition in state court rendered ineffective assistance of counsel. (Petition at 45-47.)[2] Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a federal habeas petition must specify all grounds for relief and “state the facts supporting each ground.” Rule 2(c) requires specific pleading of facts that, if proven to be true, would entitle the petitioner to federal habeas relief. Petitioner has no right to counsel or to the effective assistance of counsel during post-conviction proceedings. 28 U.S.C. § 2254(i); Pennsylvania v. Finley, 481 U.S. 551 (1987); see also Coleman v. Thompson, 501 U.S. 722, 752 (1991); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993); Martinez v. Ryan, 132 S.Ct. 1309, 1319 (2012) (United States Supreme Court expressly eschewed making a holding that a freestanding right to counsel existed in state post-conviction proceedings). Ground 1(k) is dismissed with prejudice because it is not a cognizable federal habeas claim.

         B. Unexhausted Grounds

         1. Exhaustion in General

         Respondents contend that Grounds 1(a)-(f) of the federal petition are unexhausted. Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal courts. To satisfy the exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available, in this case, the Nevada Supreme Court. See, e.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Yang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee and must also state the facts that entitle the petitioner to relief on the federal constitutional claim. Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). Fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which the claim is based. See, e.g. Castillo v. McFadden, 399 F.3d 993, 999 (9th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.