United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
pro se habeas matter under 28 U.S.C. § 2254 is
before the court on respondents' motion to dismiss
petitioner Timothy Leroy Williams' petition (ECF No. 9).
Williams opposed (ECF No. 17), and respondents replied (ECF
Procedural History and Background
April 14, 2011, Williams pleaded guilty to two counts of
burglary (exhibit 5). The state district court adjudicated
Williams a habitual criminal and sentenced him to five to
twenty years. Exh. 10. Judgment of conviction was entered on
September 1, 2011. Id. Williams did not file a
filed a motion to correct an illegal sentence on April 23,
2012. Exh. 13. The state district court denied the motion,
and the Nevada Supreme Court affirmed that denial. Exhs. 22,
April 23, 2012, Williams filed a state postconviction habeas
corpus petition. Exh. 74. The Nevada Court of Appeals
affirmed the denial of the counseled petition on November 24,
2015, and remittitur issued on December 14, 2015. Exhs. 70,
December 11, 2015, Williams dispatched his federal habeas
petition for filing (ECF No. 7). Respondents now argue that
portions of grounds 1 and 2 are unexhausted (ECF No. 9).
Legal Standard for Exhaustion
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).
contends that his counsel rendered ineffective assistance in
violation of his Sixth Amendment rights (ECF No. 7, p. 3).