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Towles v. Baca

United States District Court, D. Nevada

August 1, 2017

DEE V. TOWLES, Petitioner,
BACA, et al., Respondents.


          Howard D. McKibben Senior U.S. District Judge

         This pro se habeas matter under 28 U.S.C. § 2254 comes before the court on respondents' motion to dismiss several grounds in petitioner Dee V. Towles' petition (ECF No. 17).

         I. Procedural History and Background

         Towles was originally charged with one count of sexual assault and one count of lewdness with a child under age 14 (exhibits. 1, 3).[1] On February 10, 2009, Towles was convicted pursuant to a guilty plea agreement of one count of misdemeanor disturbing the peace. Exh. 12. The state district court sentenced Towles to six months in county jail. Ex. 11. The sentence was to run consecutively to case no. C70938 wherein he was sentenced to two concurrent sentences of life with the possibility of parole and a concurrent five-year sentence for lewdness with a minor. Exhs. 10, 11, 12, 13. Judgment of conviction was filed on February 25, 2009. Exh. 12.

         Ultimately, on January 27, 2015, the state district court vacated Towles' sentence in this case because it found that the prosecution had violated the terms of the plea agreement. Exh. 22. The state district court resentenced Towles and imposed the same sentence - six months consecutive to his sentences in C70938. Exhs. 23, 24.

         The Nevada Supreme Court affirmed the amended conviction on August 25, 2015, and remittitur issued on September 21, 2015. Exhs. 28, 29.

         The court received Towles' federal habeas petition on February 2, 2016 (see ECF No. 1). Respondents now argue that several grounds are subject to dismissal as unexhausted and noncognizable in federal habeas corpus (ECF No. 17).

         II. Legal Standards

         a. 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 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw 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).

         b. Guilty Plea and Federally Cognizable Claims

         In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the United States Supreme Court held that “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.” A petitioner may only attack the voluntary and intelligent character of the guilty plea. Id. When a petitioner has entered a guilty plea then subsequently seeks to claim his counsel rendered ineffective assistance, such claim is limited to the allegation that defense counsel was ineffective in advising petitioner to plead guilty. Fairbank v. Ayers, 650 F.3d 1243, 1254-1255 (9th Cir.2011) (citing Tollett, 411 U.S. at 266-267, and explaining that because a guilty plea ...

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