United States District Court, D. Nevada
RICHARD F. BOULWARE, II United States District Judge
the court are the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 4) and
respondents' motion to dismiss (ECF No. 14). Petitioner
has not responded to the motion to dismiss. The court finds
that petitioner has not exhausted ground 1, and the court
grants the motion to dismiss in part.
to a guilty plea agreement, petitioner was convicted in state
district court of one count of robbery. Ex. 69 (ECF No.
16-25). Petitioner did not file a direct appeal. Petitioner
filed a proper-person motion to withdraw his plea. Ex. 39
(ECF No. 15-39). The state district court denied the motion
because a post-conviction challenge to a guilty plea must be
raised in a post-conviction habeas corpus petition. Ex. 53
(ECF No. 16-9). Petitioner filed a post-conviction habeas
corpus petition in the state district court. Ex. 49 (ECF No.
16-5). The state district court denied the petition. Ex. 65
(ECF No. 16-21). Petitioner appealed, and the Nevada Court of
Appeals affirmed. Ex. 79 (ECF No. 16-35). Petitioner then
filed a motion to correct an illegal sentence in the state
district court. Ex. 72 (ECF No. 16-28). The state district
court denied the motion. Petitioner appealed, and the Nevada
Court of Appeals affirmed. Edmiston v. State, 2015
WL 4715297 (Nev. App. Aug. 4, 2015).
a federal court may consider a petition for a writ of habeas
corpus, the petitioner must exhaust the remedies available in
state court. 28 U.S.C. § 2254(b). To exhaust a ground
for relief, a petitioner must fairly present that ground to
the state's highest court, describing the operative facts
and legal theory, and give that court the opportunity to
address and resolve the ground. See Duncan v. Henry,
513 U.S. 364, 365 (1995) (per curiam); Anderson
v. Harless, 459 U.S. 4, 6 (1982).
ground 1, petitioner alleges that a prior state-court
proceeding for the same offense was dismissed because of
prosecutorial misconduct. The prosecution then opened a new
proceeding in state court. Petitioner alleges that trial
counsel provided ineffective assistance because trial counsel
did not move to dismiss the second state-court proceeding.
The court agrees with respondents that petitioner has not
presented this claim to the state courts. In his
proper-person motion to withdraw plea, petitioner presented
the underlying issue that the second prosecution was
improper, but he did not argue in that motion that counsel
was ineffective for failing to file a motion to dismiss. Ex.
39 (ECF No. 15-39). Petitioner did not present in his state
post-conviction habeas corpus petition the claim that he
presents in ground 1. Ex. 49 (ECF No. 16-5). In his motion to
correct an illegal sentence, petitioner alleges that if
counsel had appealed the judgment of conviction, he could
have raised the issue of the improper second prosecution. Ex.
72 (ECF No. 16-28). The issue presented in the
illegal-sentence motion does not exhaust ground 1 for two
reasons. First, the operative facts are different. In the
state-court illegal-sentence motion, petitioner argued that
counsel should have filed a direct appeal from the judgment
of conviction. In ground 1, petitioner argues that counsel
should have filed a motion to dismiss before he pleaded
guilty. Second, petitioner was not using the correct
procedure. A motion to correct an illegal sentence is used
only for claims that the sentence exceeded what the governing
statute authorizes, that the court was without jurisdiction,
or that the state district court based its sentence upon a
mistaken, material assumption of the defendant's criminal
record. Edwards v. State, 918 P.2d 321, 323-25 (Nev.
1996). The Nevada Court of Appeals held that petitioner's
claim in the illegal-sentence motion was not within the
narrow scope of an illegal-sentence motion. Edmiston v.
State, 2015 WL 4715297 (Nev. App. Aug. 4, 2015).
“Submitting a new claim to the state's highest
court in a procedural context in which its merits will not be
considered absent special circumstances does not constitute
fair presentation.” Roettgen v. Copeland, 33
F.3d 36, 38 (9th Cir. 1994) (citing Castille v.
Peoples, 489 U.S. 346, 351 (1989)). For these reasons,
ground 1 is not exhausted.
next argue that petitioner's guilty plea bars
consideration of grounds 2 and 3. Ground 2 is a claim that
trial counsel provided ineffective assistance because counsel
did not investigate an alibi defense or potential witnesses.
Ground 3 is a claim that trial counsel provided ineffective
assistance because trial counsel did not move to suppress
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was not
within the standards set forth in [McMann v.
Richardson, 397 U.S. 759 (1970)].
Tollett v. Henderson, 411 U.S. 258, 267 (1973). The
court will not address this argument now. Petitioner first
needs to decide what to do with the unexhausted ground 1. If
petitioner decides to dismiss ground 1 and proceed with
grounds 2 and 3, then respondents may renew the argument in
petition (ECF No. 4) is mixed, containing both claims
exhausted in state court and claims not exhausted in state
court, and it is subject to dismissal. See Rose v.
Lundy, 455 U.S. 509, 521-22 (1982); Szeto v.
Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983). Petitioner
may a.) voluntarily dismiss the unexhausted ground 1 and
proceed with the remaining grounds; b.) voluntarily dismiss
this action without prejudice while he returns to state court
to exhaust ground 1; or c.) move to stay this action while he
returns to state court to exhaust ground 1. If petitioner
chooses the second option, the court makes no assurances
about any possible state-law procedural bars or the
timeliness of a subsequently filed federal habeas corpus
petition. If petitioner chooses the last option, he must show
that he has “good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber,
544 U.S. 269, 278 (2005). If petitioner chooses the last
option, he also will need to designate an alternative choice
in case the court declines to stay the action. Otherwise, the
court will dismiss the action.
THEREFORE ORDERED that respondents' motion to dismiss
(ECF No. 14) is GRANTED in part with respect to ground 1.
FURTHER ORDERED that petitioner shall have forty-five (45)
days from the date of entry of this order to do one of the
following: (1) inform this court in a sworn declaration that
he wishes to dismiss ground 1 of his petition (ECF No. 4),
and proceed only on the remaining grounds for relief, (2)
inform this court in a sworn declaration that he wishes to
dismiss his petition (ECF No. 4) to return to state court to
exhaust his state remedies with respect to the claims set out
in ground 1 of his petition (ECF No. 4), or (3) move to stay
this action while he returns to state court to exhaust his
state remedies with respect to the claims set out in ground 1
of his petition (ECF No. 4). Failure to comply will result in
the dismissal of this action.
FURTHER ORDERED that the Court for good cause now reconsiders
its previous order (ECF No. 3) denying the appointment of
counsel and ORDERS that counsel shall be appointed for
petitioner. The Clerk of Court shall serve a copy of this
Order on the Federal Public Defender's Office for Nevada
within a week. Petitioner shall have (45) days from the date
of entry of this order to file an amended petition or file a
motion to file with a requested amount of time for the filing
of the amended petition.
FURTHER ORDERED that if petitioner elects to dismiss the
aforementioned grounds of his petition (ECF No. 4) and
proceed on the remaining grounds, respondents shall file and
serve an answer, which must comply with Rule 5 of the Rules
Governing Section 2254 Cases in the United States District
Courts, within forty-five (45) days after petitioner serves
his declaration dismissing those grounds. ...