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Kelly v. Smith

United States District Court, D. Nevada

November 16, 2017

JOSEPH KELLY, Petitioner,
v.
WARDEN SMITH, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This habeas action under 28 U.S.C. § 2254 comes before the Court on respondents' motion (ECF No. 25) for reconsideration of the denial of their motion to dismiss. Respondents contend that the Court erred: (a) in failing to dismiss what respondents designate as Ground 2(c) as a federally noncognizable state law claim; and (b) failing to dismiss what respondents designate as Grounds 2(b) and 2(c) as unexhausted.

         I. BACKGROUND

         Petitioner Joseph Kelly challenges his Nevada state conviction, pursuant to a guilty plea, of two counts of robbery with the use of a deadly weapon and one count of attempted robbery with the use of a deadly weapon.

         In Ground 2 of the petition, Kelly alleges that he was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments when counsel failed to investigate and challenge the weapon enhancements under NRS § 193.165 on the ground that the airsoft pellet gun that he used did not qualify as a deadly weapon. In extensive underlying allegations, petitioner alleges, inter alia, that: (1) the weapon enhancements were premised under Nevada statutory law upon the airsoft gun being capable of expelling a metallic projectile; (2) the gun instead is designed to fire 6 mm plastic balls; (3) no investigation ever was done as to whether the specific airsoft gun could fire a metallic projectile; (4) defense counsel induced petitioner to plead guilty based upon the prosecutor's representation that the State had an expert ready to testify that the airsoft gun could fire a metallic projectile, without defense counsel ever investigating, challenging and/or testing that premise; and (5) when petitioner questioned the statement in the guilty plea memorandum that he was in possession of a black handgun or BB gun, “his attorney told him that the DA said it would shoot a metal projectile therefore it was a BB gun.” (ECF No. 6 at 6-12.)[1]

         II. DISCUSSION

         A. Cognizability

         At the very end of Ground 2, petitioner includes a paragraph asserting that “Petitioner also feels the district court and NV Supreme Court errored [sic] [on state post-conviction review] in there [sic] finds [sic] of a [sic] airsoft guns [sic] capability and ruling it to be a deadly weapon” because no one ever tested the specific airsoft gun in question to determine whether it could fire metallic projectiles. (ECF No. 6 at 12.) Respondents break this paragraph out as a separate Ground 2(c) and contend that the purportedly separate claim presents a federally noncognizable state law claim. In his opposition to the motion to dismiss, petitioner did not directly address the cognizability argument, but he maintained that Ground 2 presented only an ineffective-assistance claim. (ECF No. 16 at 5.) The Court's prior order also did not directly address respondents' cognizability argument.

         Particularly given petitioner's response, the Court does not read Ground 2 as including a separate, substantive claim that the state courts erred in holding that the airsoft gun was a deadly weapon under Nevada state law. In short, there is no separate Ground 2(c) as parsed by respondents. To the extent, if any, that the federal law ineffective-assistance claim asserted in Ground 2 is premised upon an underlying allegation that the state courts erred under state law, that may be addressed in the answer to Ground 2.

         B. Exhaustion

         Respondents contend that the ineffective-assistance claim in a purportedly separate Ground 2(b) is not exhausted. A purportedly separate Ground 2(b), read in full context, would allege that petitioner was denied effective assistance of counsel because, when petitioner questioned the statement in the guilty plea memorandum that he was in possession of a black handgun or BB gun, “his attorney told him that the DA said it would shoot a metal projectile therefore it was a BB gun.” (ECF No. 6 at 9-10.)[2]

         The Court is not persuaded that the purported Ground 2(b) sets forth a separate and unexhausted claim vis-á-vis the core claim in Ground 2 that petitioner was denied effective assistance of counsel when counsel failed to investigate and challenge the weapon enhancements on the ground that the airsoft gun did not qualify as a deadly weapon.

         Petitioner alleged in the state courts, inter alia, that “[t]he fact that Petitioner's counsel and the DA allowed Petitioner to entry [sic] a plea of guilty to a deadly weapon enhancement for that charge, alleging it was a BB gun, which can be considered a deadly weapon and used as an enhancement was ineffective assistance of counsel.” (ECF No. 11-9 at 3; Exhibit 55.) (See also Id. at 4:1-2.) The Court is not persuaded that petitioner's allegation in the federal petition specifically that defense counsel said that the district attorney said that the airsoft gun was a BB gun renders the claim in Ground 2 unexhausted. Nor is the Court persuaded by the argument that petitioner's more explicit references to this very same factual specific in his state court evidentiary hearing testimony and in the statement of facts in his appellate fast track statement of facts failed to exhaust the claim in Ground 2. (See ECF No. 11-11 at 20-21, Exhibit 57; ECF No. 12-7 at 5-6, Exhibit 73.)

         Moreover, in all events, even if the Court were to assume for purposes of this discussion that these explicit references in these contexts were insufficient for exhaustion, the purported addition of this specific factual allegation on federal habeas review does not fundamentally alter or substantially strengthen the exhausted core ineffective-assistance claim. The factual allegation therefore does not render Ground 2 unexhausted. See generally Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en banc) (new factual allegations do not render a claim unexhausted if the allegations do not fundamentally alter the legal claim ...


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