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Myers v. Filson

United States District Court, D. Nevada

November 17, 2017

JOSHUA CARY MYERS, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Petitioner 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 appeal.

         II. DISCUSSION

         A. Exhaustion

         1. Governing Law

         Under 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).

         Under 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.

         2. Ground 1(A)

         In 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 10-13.)[1]

         The 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 2.)[2] 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).

         Ground 1(A) is exhausted.

         3. Ground 2(B)

         In 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 ...


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