United States District Court, D. Nevada
DEE V. TOWLES, Petitioner,
BACA, et al., Respondents.
D. McKibben Senior U.S. District Judge
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).
Procedural History and Background
was originally charged with one count of sexual assault and
one count of lewdness with a child under age 14 (exhibits. 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.
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.
Nevada Supreme Court affirmed the amended conviction on
August 25, 2015, and remittitur issued on September 21, 2015.
Exhs. 28, 29.
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
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
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).
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).
Guilty Plea and Federally Cognizable Claims
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