Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gayler v. Neven

United States District Court, D. Nevada

December 22, 2017

BRANDYN WILLIAM GAYLER, Petitioner,
v.
NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON, United States District Judge

         This habeas matter under 28 U.S.C. § 2254 having come before the Court on motions (ECF Nos. 53 and 54) for reconsideration or amendment of order filed by both respondents and petitioner.

         The parties correctly note that the prior order (ECF No. 52) incorrectly stated that Grounds 1 through 8 had been abandoned and dismissed when instead only Grounds 1 and 8 had been abandoned and dismissed. The Court accordingly will grant the motions for reconsideration and reach a number of issues that were not addressed in the prior order on respondents' motion to dismiss.

         Exhaustion

         Respondents contend that Grounds 5, 6, and 7 are not fully exhausted.[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. E.g., 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. E.g., 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. E.g., 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 petition presenting unexhausted claims must be dismissed unless the petitioner seeks other appropriate relief.

         Ground 5

         In Ground 5, petitioner alleges that he was denied a right to due process in violation of the Fifth and Fourteenth Amendments when the state district court allegedly was biased in all rulings subsequent to the court discovering that it had revoked his probation without an original judgment of conviction previously having been filed, in an alleged effort to cover up the prior failure to enter judgment. (ECF No. 1, at 89-92.)[2]

         Respondents contend that Ground 5 was not fairly presented to the state supreme court because the state district court denied petitioner's motion to amend to add the claim and an order denying a motion to amend a state post-conviction petition is not appealable under Nevada practice. The Court is not sanguine that the cited Nevada authority and the authority relied upon therein establishes that the denial of a motion to amend is not reviewable on an appeal from a final judgment as opposed to establishing merely that a stand-alone denial order is not independently appealable. See Means v. State, 2010 WL 2396863, No. 56226 (Nev., July 15, 2010)(unpublished). In the present case, the state district court denied the motion to amend in the disposition paragraph but nonetheless rejected Ground Five as procedurally barred because it was untimely and successive, as it had held as to the petition itself. (ECF No. 17-23, at 11-12 & 17; Exhibit 148.)[3] The state supreme court affirmed the state district court's application of the state procedural bars on appeal. (ECF No. 17-28; Exhibit 153.)

         Ground 5 accordingly is exhausted by the application of the state procedural bars.

         Ground 6

         In Ground 6, petitioner alleges that he was denied a right to due process in violation of the Fifth and Fourteenth Amendments because he pled guilty unaware that there was no factual basis to either the original charges or to the charge to which he pled. (ECF No. 1, at 93-108.)

         In order to fairly present and exhaust a federal claim in the state courts, a petitioner must present both the operative facts and the federal legal theory upon which the claim is based together in the claim presented in the state courts. See, e.g., Castillo, 399 F.3d at 999. As the en banc court recognized in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014), basing a claim on different factual allegations in federal court potentially can render an otherwise exhausted legal claim unexhausted:

. . . . A claim has not been fairly presented in state court if new factual allegations either “fundamentally alter the legal claim already considered by the state courts, ” Vasquez [v. Hillery, ] 474 U.S. [254, ] 260 [(1986)]; Beaty [v. Stewart, ] 303 F.3d [975, ] 989-90 [(9th Cir. 2002)], or “place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it.” Aiken [v. Spalding, ] 841 F.2d[ 881, ] 883 [(9th Cir. 1988)]; accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988).

740 F.3d at 1318.

         The Court is persuaded that federal Ground 6 both fundamentally alters the claim instead presented to the state courts in state Ground 1 and further seeks to place the claim in a significantly different and stronger evidentiary posture than when petitioner presented state Ground 1 to the state courts.

         In state Ground 1, petitioner alleged that he pled guilty to an attempted sexual assault charge that could not have occurred because the evidence reflected that he had sexual intercourse with the victim, albeit consensual sex under his version of the events. That is, he maintained that he could not have committed an attempt because an attempt by definition involved acting with intent to commit an offense but failing to accomplish it. (ECF No. 15-3, at 6-11; Exhibit 65.)

         In federal Ground 6, in contrast, petitioner alleges that there was no factual basis to support any of the original charges and that there was no factual basis for the attempted sexual assault charge as opposed to instead a lesser offense of coercion. That is, he alleges that: (a) there was no factual basis, under any version of the events presented, for the multiple sexual assault charges, the first-degree kidnapping charge, the charge of administration of a drug to aid the commission of a felony, and the charge of administration of a controlled substance to aid the commission of a crime of violence; and (b) there further was no factual basis for the attempted sexual assault offense to which he pled guilty, as the facts supported only a charge of coercion. (ECF No. 1, at 93-108.)

         The federal ground fundamentally alters the state court claim. The federal ground further seeks to place the claim in a significantly different and stronger evidentiary posture. Petitioner now seeks to to establish that not only was there no factual basis for the reduced charge with reduced sentencing exposure to which he entered a plea but there further was no factual basis for any of the charges brought against him, as opposed to instead a charge only of coercion. Petitioner presents no nonconclusory argument to the contrary.

         Ground 6 therefore is unexhausted. The entire petition must be dismissed unless petitioner either dismisses the unexhausted ground or seeks other appropriate relief, such as a stay to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.