United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
counseled second-amended petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254 is before the court
on respondents' motion to dismiss in part Julio Cesar
Navas' petition (ECF No. 72). Navas opposed (ECF No. 76),
and respondents replied.
Procedural History and Background
23, 2003, Navas entered a nolo contendere plea in state case
no. CR02-2190 to count II: lewdness with a child under the
age of fourteen years and counts III and IV: open or gross
lewdness (exhibit 30). The state district court sentenced him as
follows: count II - life with the possibility of parole after
10 years; count 111-12 months, concurrent with count II;
count IV - 12 months, concurrent with counts II and III. Exh.
34. Also on July 23, 2003, Navas entered a nolo contendere
plea in state case no. CR03-0647 to intimidating or bribing a
witness. Exh. 31. The state district court sentenced him to
23 to 32 months, concurrent with the sentence imposed in
appealed both convictions, and the Nevada Supreme Court
approved a stipulation of the parties to consolidate the
appeals. See exh. 72. On April 26, 2004, the state
supreme court issued an order of limited remand for the
purpose of securing new counsel for Navas. Id. The
state district court appointed new counsel, and the parties
filed a supplemental fast track statement and response. Exhs.
84, 86, 87.
January 20, 2005, the Nevada Supreme Court vacated the
judgments and remanded in order to afford Navas the
opportunity to file a counseled motion to withdraw his pleas.
Exh. 89. Remittitur issued on February 15, 2005. Exh. 91. On
May 31, 2005, Navas filed a motion to withdraw both pleas.
Exh. 93. The state district court granted the motion. Exh.
February 8, 2006, a jury convicted Navas in case no.
CR02-2190 of count I: sexual assault on a child; count II:
lewdness with a child under the age of fourteen years; and
counts III and IV: open or gross lewdness. Exh. 126. The jury
also convicted him in case no. CR03-0647 of intimidating or
bribing a witness. Id. The state district court
sentenced him as follows: count I - life with the possibility
of parole after 20 years; count II - life with the
possibility of parole after 10 years, consecutive to count I;
and counts III and IV - two terms of 12 months, concurrent
with count I. Exh. 132. In case no. CR03-0647, he was
sentenced to 24 to 60 months, concurrent with case no.
CR02-2190. Exh. 130.
appealed in both cases, and the Nevada Supreme Court
consolidated the appeals. Exhs. 134, 135, 142. The state
supreme court affirmed the judgments on December 12, 2008,
and remittitur issued on January 6, 2009. Exhs. 165, 166.
filed a state postconviction habeas petition on November 30,
2009. Exh. 170. The state district court conducted an
evidentiary hearing, granted the petition as to claims of
ineffective assistance of counsel (IAC) with respect to the
sexual assault conviction, and denied the petition as to IAC
claims with respect to the lewdness with minors and witness
intimidating convictions. Exh. 200. Amended judgments of
conviction were entered. Exh. 204. Both parties appealed. On
April 15, 2015, the Nevada Supreme Court affirmed the state
district court's order. Exh. 201.
meantime, Navas had dispatched his federal habeas petition
for filing on October 12, 2010 (ECF No. 5). This court
granted respondents' motion to dismiss in part,
concluding that certain federal grounds had not been
exhausted in state court (ECF No. 38). Navas, through
counsel, filed a notice with the court stating that he would
not be filing a motion to dismiss some or all grounds of the
federal petition and indicating that he understood failure to
file such a motion would result in the dismissal of his
federal petition without prejudice (ECF No. 39). Accordingly,
on May 17, 2013, this court dismissed the federal petition
without prejudice (ECF No. 40). On July 9, 2015, the Ninth
Circuit Court of Appeals reversed and remanded (ECF No. 46).
The court of appeals noted that the Nevada Supreme Court had
granted Navas limited postconviction relief in its order
dated April 15, 2015. Id. The court of appeals
stated that Navas was neither procedurally barred nor
time-barred from filing a new federal petition and that Navas
had fully exhausted the claims in his amended federal
22, 2016, Navas filed a counseled second-amended federal
petition (ECF No. 64). Respondents have now moved to dismiss
certain grounds of the petition (ECF No. 72).
Legal Standards & Analysis
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. McCartney, 653 F.2d
374, 376 (9th Cir. 1981).
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)). A claim is not exhausted unless the petitioner has
presented to the state court the same operative facts and