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Recktenwald v. Neven

United States District Court, D. Nevada

August 22, 2017

DWIGHT NEVEN, et al., Respondents.



         This 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).

         I. Procedural History and Background

         On 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).[1] 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.

         On 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.

         On June 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.

         Recktenwald 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).

         II. Legal Standards & Analysis

         a. Exhaustion

         State 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 process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

         The 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).

         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).

         Ground 1

         Recktenwald 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.

         Respondents 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.

         Ground 2

         Recktenwald 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. Id.

         Respondents 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.

         Ground 5

         Recktenwald 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.

         Ground 6

         Recktenwald 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. 23-24).

         Respondents 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 not ...

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