United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
represented habeas matter under 28 U.S.C. § 2254 comes
before the Court on respondents' motion to dismiss. (ECF
No. 49.) Respondents contend that Grounds 1(A), 2(B) and 3
are unexhausted. The parties further have provided
preliminary argument as to the handling of procedural default
issues in the event that the Court finds that the amended
petition includes one or more unexhausted claims.
Joshua Myers challenges his Nevada state conviction, pursuant
to a guilty plea, of first-degree murder with the use of a
deadly weapon. He moved to withdraw his plea prior to
sentencing. The state district court denied the motion, and
the court thereafter sentenced petitioner to life without the
possibility of parole and a consecutive sentence of 96 to 240
months. Petitioner challenged the conviction on direct appeal
and in a state post-conviction petition. Petitioner was
represented by appointed counsel during the state
post-conviction proceedings, including the post-conviction
28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first
must exhaust state court remedies on a claim before
presenting that claim to the federal courts. To satisfy this
exhaustion requirement, the claim must have been fairly
presented to the state courts completely through to the
highest state court level of review available. Peterson
v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en
banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th
Cir. 2003). In the state courts, the petitioner must refer to
the specific federal constitutional guarantee upon which he
relies and must also state the facts that entitle him to
relief on that federal claim. See Shumway v. Payne,
223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation
requires that the petitioner present the state courts with
both the operative facts and the federal legal theory upon
which the claim is based. See Castillo v. McFadden,
399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement
insures that the state courts, as a matter of federal-state
comity, will have the first opportunity to pass upon and
correct alleged violations of federal constitutional
guarantees. See, e.g., Coleman v. Thompson, 501 U.S.
722, 731 (1991).
Rose v. Lundy, 455 U.S. 509 (1982), a mixed petition
presenting unexhausted claims must be dismissed unless the
petitioner dismisses the unexhausted claims and/or seeks
other appropriate relief, such as a stay to return to the
state courts to exhaust the claims.
Ground 1(A), petitioner alleges that his guilty plea was not
entered voluntarily, intelligently, or knowingly, in
violation of the Fifth, Sixth and Fourteenth Amendments,
because initial trial counsel Roger Whomes intimidated and
bullied Myers into pleading guilty. (ECF No. 38 at
Court is not persuaded that Ground 1(A) is unexhausted. On
direct appeal, the Supreme Court of Nevada expressly
addressed a claim that petitioner's “guilty plea
was involuntary . . . [because] counsel intimidated and
bullied him into pleading guilty.” (ECF No. 40-20, at
A state supreme court decision on the merits of a claim of
course exhausts the claim. See Comstock v.
Humphries, 786 F.3d 701, 707 (9th Cir. 2015).
Nuances such as petitioner referencing counsel's size in
a footnote in his direct appeal brief rather than in the
discussion in the text of the brief do not render Ground 1(A)
unexhausted. Nothing in federal Ground 1(A) fundamentally
alters the exhausted claim or places it in a different and
significantly stronger evidentiary posture than when it was
presented to the state courts. (Compare ECF No. 38
at 10-13 with ECF No. 40-16 at 16-18.) See
generally Dickens v. Ryan, 740 F.3d 1302, 1318
(9th Cir. 2014) (en banc) (allegedly new
factual allegations do not render a claim unexhausted if the
allegations do not fundamentally alter the legal claim
considered by the state courts or place the case in a
significantly different and stronger evidentiary posture than
when the state courts considered the claim).
1(A) is exhausted.
Ground 2(B), petitioner alleges that he was denied effective
assistance of counsel in violation of the Sixth and
Fourteenth Amendments when he functionally was denied the
assistance of counsel on his pro se pre-sentencing
motion to withdraw guilty plea and at the evidentiary hearing
on the motion, given that the attorney appointed in that
regard took the position that he ...