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Pineda v. Williams

United States District Court, D. Nevada

August 22, 2017

RAY PINEDA, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Nevada state prisoner Ray Pineda is before the court on respondents' motion to dismiss several grounds (ECF No. 11). Pineda has opposed (ECF No. 19), and respondents replied (ECF No. 21).

         I. Procedural History and Background

         On July 28, 2000, a jury convicted Pineda of second-degree murder with use of a deadly weapon (exhibit 64).[1] The state district court sentenced Pineda to a term of life with the possibility of parole after ten years and an equal and consecutive term for the deadly weapon enhancement. Exh. 70. Judgment of conviction was filed on October 12, 2000. Exh. 69.

         On May 4, 2004, in a published opinion, the Nevada Supreme Court reversed and remanded for a new trial. Exh. 100. Remittitur issued on June 2, 2004. Exh. 102.

         Pineda was re-tried, and on March 2, 2006, the second jury convicted him of second-degree murder with use of a deadly weapon. Exh. 148. The state district court again sentenced him to a term of life with the possibility of parole after ten years and an equal and consecutive term for the deadly weapon enhancement. Exh. 155. Judgment of conviction was filed on May 25, 2006. Exh. 156.

         Pineda filed a state postconviction habeas corpus petition on February 5, 2009, and counsel was appointed. Exhs. 165, 167. On July 26, 2012, the state district court granted the postconviction petition in part, permitting a late appeal from the judgment of conviction. Exh. 185.

         Pineda filed the appeal; the Nevada Supreme Court affirmed the conviction on July 22, 2013, and remittitur issued on August 19, 2013. Exhs. 208, 209.

         On March 12, 2014, the state district court conducted an evidentiary hearing on the remaining four claims of ineffective assistance of counsel raised in Pineda's state postconviction petition. Exh. 214. On May 1, 2014, the state district court denied those remaining claims. Exh. 215. The Nevada Supreme Court affirmed the denial of the petition on April 15, 2015, and remittitur issued on May 13, 2015. Exhs. 237, 238.

         Pineda dispatched his federal habeas petition for filing on March 24, 2016 (ECF No. 5). Respondents now argue that several grounds are subject to dismissal as unexhausted or noncognizable in federal habeas corpus (ECF No. 11).

         Legal Standards & Analysis

         a. Exhaustion

         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).

         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

         Pineda sets forth several claims that his trial counsel rendered ineffective assistance in violation of his Sixth and Fourteenth Amendment rights (ECF No. 5, pp. 8-23). Respondents argue that several ...


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