United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.)
PROCEDURAL HISTORY AND BACKGROUND
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.
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.)
Nevada Supreme Court affirmed the convictions on March 30,
2012. (Exh. 56.) Remittitur issued on May 1, 2012. (Exh. 57.)
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,
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
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. 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).
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.) ...