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Castro v. Neven

United States District Court, D. Nevada

August 7, 2017

MARTIN SALAZAR CASTRO, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Nevada state prisoner Martin Salazar Castro is before the Court on respondents' motion to dismiss part of Ground 2. (ECF No. 12.)

         I. PROCEDURAL HISTORY AND BACKGROUND

         On March 22, 2010, a jury convicted Castro of count 1: conspiracy to commit robbery; count 2: burglary while in possession of a deadly weapon; counts 3-6: first-degree kidnapping with use of a deadly weapon; counts 7-8: robbery with use of a deadly weapon; count 9: conspiracy to commit sexual assault; counts 10, 12, 13: sexual assault with use of a deadly weapon; count 11: attempted sexual assault with use of a deadly weapon; counts 14-15: battery with intent to commit sexual assault with use of a deadly weapon; counts 16-19: battery with use of a deadly weapon; and counts 20-23: open or gross lewdness with use of a deadly weapon (Exh. 46).[1] The state district court sentenced Castro to terms that amount to about twenty-five years to life, with 908 days' credit for time served (ECF No. 7 at; Exh. 51). Judgment of conviction was filed on August 9, 2010. (Exh. 51.)

         The Nevada Supreme Court affirmed the convictions on March 30, 2012. (Exh. 56.) Remittitur issued on May 1, 2012. (Exh. 57.)

         Castro filed a proper person state postconviction petition for writ of habeas corpus. (Exh. 58.) The state district court appointed counsel, who filed a supplemental petition, and the court held an evidentiary hearing. (Exhs. 65, 67, 68.) The state district court denied Castro's postconviction petition on April 28, 2014. (Exh. 69.) The Nevada Supreme Court affirmed the denial of the petition on December 18, 2015, and remittitur issued on January 15, 2016. (Exhs. 74, 75.)

         Castro dispatched his federal habeas petition for filing on or about May 25, 2016 (ECF No. 7). Respondents now argue that Grounds 2(B) and 2(C) are subject to dismissal as unexhausted (ECF No. 12).

         II. LEGAL STANDARDS & ANALYSIS

         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. Ground 2

         Castro sets forth three claims in Ground 2. In Ground 2(A) he alleges that trial counsel rendered ineffective assistance by failing to investigate the criminal histories of state witnesses Wyzga, Marquez and Tigrett (ECF No. 7 at 14-16). In Ground 2(C) he argues that counsel was ineffective for failing to file motions to admit prior bad acts of the victims. (Id. at 18-19.) In Ground 2(B) Castro appears to claim that, due to the trial court or the state's error, exculpatory photographs were missing at trial. (Id. at 16-17.) ...


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