United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
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).
Procedural History and Background
28, 2000, a jury convicted Pineda of second-degree murder
with use of a deadly weapon (exhibit 64). 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.
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.
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.
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.
filed the appeal; the Nevada Supreme Court affirmed the
conviction on July 22, 2013, and remittitur issued on August
19, 2013. Exhs. 208, 209.
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.
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).
Standards & Analysis
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
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).
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 ...