United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT
the court are the amended petition for a writ of habeas
corpus (ECF No. 23), respondents' motion to dismiss (ECF
No. 60), petitioner's opposition (ECF No. 72), and
respondents' reply (ECF No. 81). The court finds that
petitioner has not exhausted his available state-court
remedies for all of his grounds for relief, and the court
grants the motion in part.
motion contains the relevant procedural history.
first argue that petitioner has not exhausted some of his
grounds for relief. Before a federal court may consider a
petition for a writ of habeas corpus, the petitioner must
exhaust the remedies available in state court. 28 U.S.C.
§ 2254(b). To exhaust a ground for relief, a petitioner
must fairly present that ground to the state's highest
court, describing the operative facts and legal theory, and
give that court the opportunity to address and resolve the
ground. See Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam); Anderson v. Harless,
459 U.S. 4, 6 (1982).
1 contains multiple claims of ineffective assistance of
counsel. Respondents correctly note that petitioner did not
present grounds 1.1, 1.4 through 1.14, and 1.16 through 1.20
to the Nevada Supreme Court on appeal from the denial of his
post-conviction habeas corpus petition. Petitioner does not
dispute this. He argues that the state district court erred
when it dismissed the corresponding claims from his state
habeas corpus petition. However, petitioner does not explain
how he was unable to appeal the dismissal of those claims.
Consequently, grounds 1.1, 1.4 through 1.14, and 1.16 through
1.20 are not exhausted.
2 through 4, 6, and 9 through 11 are claims of constitutional
errors that occurred before or during the proceedings in
trial court. Respondents correctly note that petitioner did
not present these claims to the Nevada Supreme Court on
direct appeal from the judgment of conviction. Petitioner
argues that counsel provided ineffective assistance because
counsel did not raise these issues on direct appeal. This
argument might be relevant in state court to excusing
operation of state-law procedural bars for filing an untimely
or successive petition. The argument also might be relevant
in this court for excusing the operation of a procedural
default based upon those state-law procedural bars. However,
the argument is not relevant to the issue whether petitioner
actually presented the claims to the Nevada Supreme Court. He
did not, and grounds 2 through 4, 6, and 9 through 11 are not
extent that petitioner argues the merits of his claims, those
arguments are not applicable to the question of exhaustion,
and the court does not address them.
5 is a claim that evidence against petitioner was obtained in
violation of the Fourth Amendment. In state court, petitioner
filed a motion to suppress that evidence. Ex. 21 (ECF No.
61-21). The state district court held a hearing to consider
the motion. Ex. 29 (ECF No. 62-3) (minutes of hearing). The
state district court denied the motion in a written decision.
Ex. 38 (ECF No. 64-8). On direct appeal, petitioner argued
that the denial of the motion to suppress was erroneous. Ex.
50, at 7 (ECF No. 64-20, at 8). The Nevada Supreme Court
affirmed the denial of the motion to suppress. Ex. 52, at 2
(ECF No. 64-22, at 3). Petitioner not only had a full and
fair opportunity to litigate his Fourth Amendment claim, he
actually did litigate it. This court cannot consider ground
5. Stone v. Powell, 428 U.S. 465, 481-82 (1976).
argues that counsel was ineffective in litigating the Fourth
Amendment claim. Even if counsel was ineffective, petitioner
still had a full and fair opportunity to litigate the claim,
and thus Stone v. Powell still bars this court from
considering the claim. Furthermore, an argument that counsel
was ineffective regarding a Fourth Amendment claim is a
distinct claim of ineffective assistance of counsel, and it
is not reason for this court to consider the Fourth Amendment
claim. See Kimmelman v. Morrison, 477 U.S. 365
7 is a claim that the admission of prior-bad-act evidence was
a violation of due process. Respondents correctly note that
the Supreme Court of the United States has never clearly
established whether admission of such evidence is a
constitutional violation. However, this argument affects the
review that the court gives to ground 7 on its merits.
See 28 U.S.C. § 2254(d)(1). If §
2254(d)(1) does not apply in this case, then the court would
review ground 7 de novo. The argument is not
appropriate for a motion to dismiss on procedural grounds.
Respondents may renew the argument in their answer on the
merits, if one is necessary.
amended (ECF No. 23) is mixed, containing both claims
exhausted in state court and claims not exhausted in state
court, and it is subject to dismissal. See Rose v.
Lundy, 455 U.S. 509, 521-22 (1982); Szeto v.
Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983). Petitioner
may voluntarily dismiss the unexhausted grounds 1.1, 1.4
through 1.14, 1.16 through 1.20, 2 through 4, 6, and 9
through 11 and proceed with the remaining grounds, he may
voluntarily dismiss this action without prejudice while he
returns to state court to exhaust grounds 1.1, 1.4 through
1.14, 1.16 through 1.20, 2 through 4, 6, and 9 through 11, or
he may move to stay this action while he returns to state
court to exhaust grounds 1.1, 1.4 through 1.14, 1.16 through
1.20, 2 through 4, 6, and 9 through 11. If petitioner chooses
the second option, the court makes no assurances about any
possible state-law procedural bars or the timeliness of a
subsequently filed federal habeas corpus petition. If
petitioner chooses the last option, he must show that he has
“good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber,
544 U.S. 269, 278 (2005). If petitioner chooses the last
option, he also will need to designate an alternative choice
in case the court declines to stay the action. Otherwise, the
court will dismiss the action.
have filed a motion to strike (ECF No. 79) petitioner's
opposition to motion for extension of time (ECF No. 78). The
opposition was moot when it was filed because the court
already had granted respondents an extension of time to file
a reply to the opposition to the motion to dismiss. ECF No.
77. The court grants respondents' motion.
THEREFORE ORDERED that respondents' motion to dismiss
(ECF No. 60) is GRANTED in part with respect
to grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2
through 4, 6, and 9 through 11.
FURTHER ORDERED that petitioner shall have thirty (30) days
from the date of entry of this order to do one of the
following: (1) inform this court in a sworn declaration that
he wishes to dismiss grounds 1.1, 1.4 through 1.14, 1.16
through 1.20, 2 through 4, 6, and 9 through 11 of his amended
petition (ECF No. 23), and proceed only on the remaining
grounds for relief, (2) inform this court in a sworn
declaration that he wishes to dismiss his amended petition
(ECF No. 23) to return to state court to exhaust his state
remedies with respect to the claims set out in grounds 1.1,
1.4 through 1.14, 1.16 through 1.20, 2 through 4, 6, and 9
through 11 of his amended petition (ECF No. 23), or (3) move
to stay this action while he returns to state court to
exhaust his state remedies with respect ...