United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
pro se habeas matter under 28 U.S.C. § 2254
comes before the court on respondents' motion to dismiss
the unexhausted petition (ECF No. 10). In response to the
motion to dismiss, petitioner Frank Macias filed a motion for
stay and abeyance in accordance with Rhines v. Weber
pending the conclusion of his state postconviction
proceedings (ECF No. 12). Respondents opposed the motion for
stay (ECF No. 14).
Procedural History and Background
August 5, 2008, a jury convicted Macias of count 1: robbery
with the use of a deadly weapon; count 2: attempt murder with
use of a deadly weapon; and count 3: possession of a firearm
by ex-felon (exhibit 4). The state district court sentenced him
as follows: counts 1 and 2 - two terms of 72 to 180 months,
each with an equal and consecutive term for the deadly weapon
enhancement; count 2 consecutive to count 1; count 3 - 13 to
60 months, concurrent with counts 1 and 2; with 543 days
credit for time served. Id. The Nevada Supreme Court
affirmed the convictions on November 4, 2009. Exh. 6.
January 19, 2010, Macias filed a pro se state
postconviction habeas corpus petition. Exh. 7. The state
district court appointed counsel, and Macias filed a
counseled, second postconviction petition. Exh. 9. The State
filed a response to the petition. Instead of issuing a
decision, on July 31, 2012, the state district court issued
an order to statistically close the case incorrectly stating
the matter was resolved pursuant to a guilty plea. Exh.10.
action was taken on Macias' post-conviction petitions
until he resubmitted his initial pro se petition
again with the state district court on July 10, 2013. Exh.
11. The State again filed a response, and on November 4,
2013, the district court issued an order denying
“Defendant's Third Petition on the merits
(referring to Macias' pro se petition filed on
July 10, 2013). Exh. 12.
timely appealed through counsel, arguing: “This case
should be remanded in order for the District Court to make a
ruling on all issues raised by Defense Counsel in
Defendant's Second Petition.” On September 18,
2014, the Nevada Supreme Court dismissed the appeal, stating:
The district court order denying Macias' petition failed
to address the claims raised in the petition filed on October
13, 2011, by his counsel, Brett Whipple. Because the district
court order does not resolve all of the claims raised below,
it is not a final order. Therefore, we lack jurisdiction over
this appeal . . . .
Exh. 14 (Nevada Supreme Court Case No. 64466). Remittitur
issued October 22, 2014. Exh.15.
Macias dispatched his federal habeas petition for filing on
September 3, 2015 (ECF No. 6). Then, on September 30, 2015,
Macias initiated continued state postconviction proceedings
by filing a pro se, fourth postconviction petition
alleging a double jeopardy violation of the Fifth and Eighth
Amendments. Exh. 16. The State filed a response requesting
the district court to “address the concerns outlined in
the Nevada Supreme Court's September 18, 2014 Order
Dismissing Appeal.” Exh. 17 (arguing that the state
district court should deny all claims in Macias' January
19, 2010, October 13, 2011, and July 10, 2013 petitions). As
to the claims in Macias' fourth postconviction petition,
the State argued that the petition was time-barred, barred by
laches and/or was successive and waived. Id.
2, 2016, Macias' postconviction counsel filed a
supplemental brief addressing the “unresolved claims
from [the] October 13, 2011 petition.” Exh. 9. At the
time respondents filed their motion to dismiss Macias'
federal petition, the state postconviction petition was
briefed and ready for disposition by the state district
court. See exh. 1. This court may take judicial
notice of the Nevada Supreme Court docket, and it appears
that Macias' appeal of the denial of his state
postconviction petition is currently before the Nevada
Supreme Court. Case No. 71475.
Legal Standards & Analysis
of state remedies is a prerequisite to a federal court's
consideration of claims presented in a petition for writ of
habeas corpus. 28 U.S.C. 2254(b). The exhaustion doctrine is
based on a policy of federal-state comity designed to give
state courts the initial opportunity to correct alleged
constitutional deprivations. See Picard v. Conner,
404 U.S. 270, 275 (1971). It requires the habeas petitioner
to “fairly present” the “substance”
of his federal habeas corpus claim to the state courts.
Anderson v. Harless, 459 U.S. 4, 6 (1982). The
“fair presentation” requirement is only satisfied
when the claim has been presented to the highest state court
by describing the operative facts and legal theory upon which
the federal claim is based. Anderson, 459 U.S. at 6;
Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.
motion for stay and abeyance, Macias acknowledges that his
federal petition is unexhausted (ECF No. 12). Macias explains
that in the midst of the confusion of the errors in the state
district court, and as it was unclear whether the state
courts were going to consider his state postconviction claims
on the ...