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Williams v. Williams

United States District Court, D. Nevada

March 2, 2017

TIMOTHY LEROY WILLIAMS, Petitioner,
v.
BRIAN E. WILLIAMS, SR, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         This 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 No. 18).

         I. Procedural History and Background

         On April 14, 2011, Williams pleaded guilty to two counts of burglary (exhibit 5).[1] 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 direct appeal.

         Williams 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, 33.

         Also on 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, 73.

         On 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).

         II. Legal Standard for 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).

         III. Instant Petition

         Ground 1

         Williams contends that his counsel rendered ineffective assistance in violation of his Sixth Amendment rights (ECF No. 7, p. 3). ...


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