United States District Court, D. Nevada
C. JONES JUDGE
counseled habeas matter under 28 U.S.C. § 2254 comes
before the court on respondents' motion to dismiss
petitioner Paul Recktenwald's second-amended petition
(ECF No. 99). Recktenwald opposed (ECF No. 102), and
respondents replied (ECFNo. 107).
Procedural History and Background
October 24, 1997, a jury found Recktenwald guilty of counts
1-2, 6-10: sexual assault of a child under 16 years of age;
counts 3, 11-15: statutory sexual seduction; counts 4-5:
possession of a controlled substance; and count 16:
kidnapping (exhibit 111). At sentencing, the state district court
set aside the statutory sexual seduction counts as lesser
included offenses, pursuant to Meador v. State, 711
P.2d 852 (Nev. 1985). On February 10, 1998, the state
district court adjudicated Recktenwald a habitual criminal
and sentenced him to a term of life without the possibility
of parole, among other sentences. Exh. 120. Judgment of
conviction was filed on February 12, 1998. Exh. 122. The
Nevada Supreme Court affirmed the convictions on January 25,
2000, denied Recktenwald's petition for rehearing and
petition for rehearing en banc, and remittitur issued on May
5, 2000. Exhs. 150, 154, 156, 159.
December 6, 2000, Recktenwald filed a proper person state
postconviction petition for writ of habeas corpus. Exh. 185.
The state district court appointed nine different attorneys
to represent petitioner; only one moved to withdraw for a
reason other than a breakdown of the attorney-client
relationship. See exh. 240. On August 11, 2011,
Recktenwald's ninth appointed counsel filed a
supplemental state postconviction petition. Exh. 223. On
March 21, 2013, the state district court denied the petition.
Exh. 240. On April 10, 2014, the Nevada Supreme Court issued
an order of limited remand, directing the state district
court to enter an order with specific findings of fact and
conclusions of law. Exh. 265.
6, 2014, the state district court issued its order denying
Recktenwald's petition. Exh. 268. On November 3, 2014,
the Nevada Supreme Court affirmed the denial of the petition,
denied a petition for rehearing and a petition for rehearing
en banc, and remittitur issued on April 17, 2015. Exhs. 273,
276, 281, 282.
dispatched his federal petition for mailing on or about March
25, 2015 (ECF No. 5). This court appointed counsel (ECF No.
67). Respondents now move to dismiss the counseled,
second-amended petition on the bases that the claims are
unexhausted, procedurally barred and/or noncognizable in
federal habeas corpus (ECF No. 99).
Legal Standards & Analysis
prisoners seeking federal habeas relief must comply with the
exhaustion rule codified in § 2254(b)(1):
An 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
court so the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
purpose of the exhaustion rule is to give the state courts a
full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal
court, and to "protect the state courts* role in the
enforcement of federal law." Rose v. Lundy, 455
U.S. 509, 518 (1982); 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).
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).
alleges that the trial court allowed introduction of evidence
of prior bad acts in violation of his Fifth, Sixth, and
Fourteenth Amendment rights to due process and a fair trial
(ECF No. 98, pp. 13-15). Specifically, he argues that the
trial court improperly allowed testimony from various
witnesses, without any hearing or evidence to support it,
that: (1) Recktenwald was previously charged with the rape of
M.H. (the alleged victim in this case); (2) that he
habitually ran a methamphetamine lab; and (3) that he was a
convicted murderer. He also claims that after the trial court
held a hearing pursuant to Petrocelli v. State, 692
P.2d 503 (Nev. 1985), the court allowed into evidence (4)
testimony from M.H.'s sister Leslie Holmes that she (the
sister) had sex with Recktenwald because her mother told her
to do so as rent payment; and (5) testimony from Linda
Baumgartner that approximately 17 years ago Recktenwald had
molested her when she was 11 years old. Id.
argue that, while Recktenwald presented these factual
allegations in his direct appeal, he did not present the
alleged improper admission of these prior bad acts as a
federal constitutional violation (ECF No. 99, pp. 6).
Recktenwald argues that he federalized this claim in his
direct appeal by citing to Nevada and federal case law
regarding the introduction of prior bad acts (ECF No. 102,
pp. 11-14). However, while Recktenwald cited to Nevada and
federal cases that discussed the application of state law
governing the admission of evidence and the Federal Rules of
Evidence, he did not invoke federal constitutional provisions
in his direct appeal. Exh. 126, pp. 7-11; Ybarra,
678 F.Supp. at 1481; Duncan, 513 U.S. at 365.
Accordingly, ground 1 is unexhausted.
contends that the trial court allowed inadmissible expert
witness testimony, inadmissible hearsay testimony, and
excluded Recktenwald's impeachment evidence, in violation
of his Fifth, Sixth and Fourteenth Amendment rights to due
process and a fair trial (ECF No. 98, pp. 15-18). He contends
that state expert witness Elizabeth Ritchitt improperly
attested to M.H.'s truthfulness. He argues that the trial
court allowed the state to introduce inadmissible hearsay
evidence, including two transcripts of M.H.'s statements
to sheriffs and the entire preliminary hearing transcript.
Finally, he claims that the trial court improperly denied the
admission of a letter written by state witness Charles Moore
in which he offered to testify against multiple fellow
inmates in return for favorable treatment on his own case.
argue that Recktenwald failed to present these claims as
federal constitutional violations on direct appeal (ECF No.
99, pp. 6-7). Recktenwald responds that he argued that the
cumulative effect of these errors deprived him of a fair
trial (ECF No. 102, p. 15). However, the case law is clear
that merely referencing the general principle of a fair trial
is insufficient to present a federal constitutional claim to
the state court. Hiivala, 195 F.3d at 1106. With
respect to the admission of the preliminary hearing
transcript, Recktenwald argues that in his reply brief to the
Nevada Supreme Court he cited to United States v.
Eyster, 948 F.2d 1196, 1205 (11th Cir. 1991),
which relies in part on the Fifth and Fourteenth Amendments
(ECF No. 102, pp. 17-18). He claims that this reference was
sufficient to apprise the Nevada Supreme Court of the federal
constitutional nature of this portion of ground 2. The Nevada
Supreme Court considered this state-law claim and held that
the portions of the transcript admitted by the state were
properly admitted under state law-NRS 47.120(1). This court
disagrees that the Nevada Supreme Court was fairly presented
with this claim as a federal constitutional claim. Therefore,
the entirety of ground 2 is unexhausted.
contends that the prosecutor committed misconduct in
violation of his Fifth, Sixth and Fourteenth Amendment rights
to due process and a fair trial (ECF No. 98, pp. 20-22).
Recktenwald asserts that prosecutor Kirk Vitto personally
heard M.H. recant her testimony in a telephone call to the
district attorney's office and immediately following her
preliminary hearing testimony. He also argues that the
prosecutor repeatedly misrepresented the law, vouched for
M.H.'s truthfulness, belittled the defense, and made
victim impact statements during closing arguments.
Id. Respondents argue that Recktenwald did not raise
this claim as a Sixth Amendment violation in his direct
appeal (ECF No. 99, p. 8). In his opposition to the motion to
dismiss, Recktenwald fails to demonstrate that he raised the
claim as a Sixth Amendment violation on direct appeal
(see ECF No. 102, pp. 21-23). Accordingly, the Sixth
Amendment claim in ground 5 is unexhausted. The remainder of
ground 5 is exhausted. Seeexh. 126, pp. 18-21.
claims that the trial court erred by not granting his motion
for new trial based upon juror misconduct, in violation of
the Fifth, Sixth and Fourteenth Amendments (ECF No. 98, pp.
contend that Recktenwald failed to raise this claim as a
federal constitutional claim in his direct appeal (ECF No.
99, p. 8). Recktenwald argues that he cited to Canada v.
State,944 P.2d 781 (Nev. 1977), which he contends is
predicated on federal constitutional principles (ECF No. 102,
pp. 23-24). Having carefully reviewed the state-court record,
this court concludes that the claims in federal ground 6 were