United States District Court, D. Nevada
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Donn Richard Moore, a Nevada prisoner. On February
6, 2015, respondents filed a motion to dismiss Moore's
amended habeas petition (ECF No. 19), arguing that his habeas
claims are untimely, unexhausted, and/or barred under
Toilet v Henderson, 411 U.S. 258 (1973).
ECF No. 24. Petitioner has not filed a response to the motion
to dismiss. This order decides respondents' motion.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year filing period for § 2254 habeas
petitions in federal court. 28 U.S.C. § 2244(d)(1). The
one-year period begins to run from the latest of four
possible triggering dates, with the most common being the
date on which the petitioner's state court conviction
became final (by either the conclusion of direct appellate
review or the expiration of time for seeking such review).
Id. Statutory tolling of the one-year time
limitation occurs while a "properly filed" state
post-conviction proceeding or other collateral review is
pending. 28 U.S.C. § 2244(d)(2).
concede that Moore filed his initial petition herein within
the one-year filing period under § 2244(d)(1).
Respondents argue, however, that Moore's amended petition
was filed after the one-year period had elapsed and that
there are habeas claims in his amended petition that are
time-barred from federal court review because they do not
"relate back" to the initial petition.
Supreme Court's decision in Mayle v. Felix, 545
U.S. 644 (2005), significantly limits a habeas
petitioner's ability to have newly-added claims
"relate back" to the filing of an earlier petition
and, therefore, be considered timely under 28 U.S.C. §
2244(d). In Mayle, the Court held that the Ninth
Circuit's former relation-back standard under Federal
Rule of Civil Procedure 15(c)(2) (now Rule 15(c)(1)(B)),
which allowed an amendment to a habeas petition to
"relate back" to the date of the original petition
"so long as the new claim stems from the habeas
petitioner's trial, conviction, or sentence, " was
too broad. Id. at 656-57. The Court held that an
amended claim in a habeas petition relates back for statute
of limitations purposes only if it shares a "common core
of operative facts" with claims contained in the
original petition. Id. at 663-64. The common core of
operative facts must not be viewed at too high a level of
generality, and an "occurrence, " for the purposes
of Fed.R.Civ.P. 15(c), will consist of each separate set of
facts that supports a ground for relief. Id. at 661.
to the respondents, the claims in Ground l(a-c) are untimely
because they do not "relate back" to the initial
petition. Respondents are correct that die amended petition
was filed beyond the one-year filing period under §
2244(d)(1). Having compared the initial petition with the
amended petition, this court concludes that respondents'
"relation back" arguments are meritorious.
Moreover, petitioner has offered no opposition to those
arguments. Thus, the court shall dismiss Ground l(a-c) as
argue Moore has failed to exhaust state court remedies for
Grounds 2(a-c), 3, and 4(a-b) of his amended petition. 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. McCartney,
653 F.2d 374, 376 (9th Cir. 1981).
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).
2(a-c), 3, and 4(a-b) of the amended petition are all
ineffective assistance of counsel claims, which, in Nevada,
are properly raised for the first time in post-conviction
proceedings. See Pellegrini v. State, 34 P.3d 519,
534 (Nev. 2001). According to the record of petitioner's
state court proceedings, he did not present any of these
claims to the Nevada Supreme Court in pursuing post-
conviction relief. See ECF No. 15-12. Consequently,
respondents are correct that the claims are unexhausted.
unexhausted claim will be procedurally defaulted, if state
procedural rules would now bar the petitioner from bringing
the claim in state court." Dickens v. Ryan, 740
F.3d 1302, 1317 (9th Cir. 2014). Moore's
unexhausted claims fit in this category because Nevada has
rules barring petitions that are untimely (Nev. Rev. Stat.
§ 34.726) or successive (Nev. Rev. Stat. § 34.810),
both of which would apply to any petition filed by Moore at
prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation
of federal law." Martinez v. Ryan, 566 U.S. 1,
10 (2012) (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991). And, with respect to ineffective assistance of
trial counsel claims, the Court in Martinez held
that when a State requires a prisoner to raise such a claim
in a collateral proceeding, a prisoner may establish cause
for a default of the claim where the state courts did not
appoint counsel in the initial-review collateral proceeding
or where appointed counsel in the initial-review collateral
proceeding was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 14.
does not assist petitioner here, though. Petitioner raised
each of his unexhausted claims in the state district court.
ECF No. 14-19. The reason the claims are unexhausted or
procedurally defaulted now is that post-conviction appellate
counsel failed to raise the claims on appeal from the denial
of his petition. The Supreme Court in Martinez made
clear that its rule "does not concern attorney errors in
other kinds of proceedings, including appeals from
initial-review collateral proceedings...." 566 U.S. ...