United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is respondents' motion to dismiss certain
grounds in petitioner William Mitchell's pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (ECF No. 9). Mitchell opposed (ECF No. 24), and
respondents replied (ECF No. 25).
the court considers Mitchell's request to file an amended
petition. Two months after he filed his opposition to the
motion to dismiss, Mitchell filed a motion for leave to file
an amended petition (ECF No. 28) and attached a proposed
amended petition (ECF No. 28-1). Respondents opposed (ECF No.
29), and Mitchell replied (ECF No. 30). In Mitchell's
proposed first-amended petition, he raises verbatim the two
grounds in his original federal petition (see ECF
No. 28-1). He purports to add a third ground. However,
proposed ground 3 is a claim that his state postconviction
counsel rendered ineffective assistance. Id. at
11-12. As will be discussed below, this claim is not
cognizable in federal habeas corpus. Accordingly,
Mitchell's motion for leave to file an amended petition
court next considers respondents' motion to dismiss.
Procedural History and Background
April 27, 2011, Mitchell pleaded guilty to: count 1 -
conspiracy to obtain money under false pretenses; count 2 -
obtaining money under false pretenses, victim 60 years of age
or older; count 3 - first-degree kidnapping; and count 4 -
robbery, victim 60 years of age or older (exhibit
The state district court sentenced Mitchell as follows --
count 1: 12 months; count 2: 8 to 20 years; count 3: five
years to life, with a consecutive term of 12 to 60 months for
the age enhancement; and count 4: 48 to 120 months, with a
consecutive 19 to 48 months for the age enhancement; count 3
to run consecutively to count 2 and count 4 to run
concurrently with counts 2 and 3, with 945 days' credit
for time served. Exh. 21. Judgment of conviction was filed on
September 22, 2011. Exh. 32. Mitchell did not file an appeal.
August 6, 2012, Mitchell filed a proper person state habeas
petition. Exh. 29. The state district court appointed
counsel, and a counseled brief was filed in support of the
petition. Exh. 59. Following an evidentiary hearing, the
state district court denied the petition. Exhs. 75, 80.
Ultimately, the Nevada Court of Appeals affirmed the denial
of Mitchell's petition on April 20, 2016. Exh. 111.
Remittitur issued on May 16, 2016. Exh. 112. Mitchell
dispatched his federal petition for mailing on June 21, 2016
(ECF No. 4, p. 1).
now move to dismiss parts of ground one on the basis that the
claims are unexhausted and move to dismiss ground two as
noncognizable in federal habeas corpus (ECF No. 9).
Legal Standards & Analysis
argue that parts of ground 1 are unexhausted. State prisoners
seeking federal habeas relief must comply with the exhaustion
rule codified in § 2254(b)(1):
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that -
(A) The applicant has exhausted the remedies available in the