United States District Court, D. Nevada
EDWARD G. RODRIGUEZ, Petitioner,
TIMOTHY FILSON, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 comes before the
Court on respondents' motion to dismiss (ECF No. 27).
contend, as per a clarification in the reply, that Grounds
1(a) and 3 are unexhausted. As discussed further,
infra, the parties seek supplemental briefing as to
procedural default issues in the event that the Court finds
that the amended petition includes one or more unexhausted
Edward Rodriguez challenges his Nevada state conviction,
pursuant to a guilty plea, of murder. He is sentenced to life
without the possibility of parole.
did not file a direct appeal. He challenged his conviction in
a timely state post-conviction petition.
was appointed for petitioner in the district court and
appellate courts during the state 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. 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 ensures 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) and its progeny,
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 he was denied due
process of law in violation of the Fifth and Fourteenth
Amendments when the trial court misinformed him during the
plea colloquy that he had no right to a direct appeal,
denying him his constitutional right to an appeal. (ECF No.
23 at 9-10.)
did not raise this claim in the state district court during
the post-conviction proceedings. He instead raised, inter
alia, a claim (pursued now as federal Ground 1(b)) that
he was denied effective assistance of trial counsel in
violation of the Sixth and Fourteenth Amendments when counsel
failed to inform petitioner of his appeal rights, denying him
his constitutional right to an appeal. (Compare ECF No. 25-7
at 6 with ECF No. 23 at 10-11.)
sought to present the claim of trial court error now pursued
in federal Ground 1(a) for the first time on the state
post-conviction appeal. Petitioner combined the claim of
trial court error presented now in federal Ground 1(a) and
the ineffective-assistance claim in federal Ground 1(b) into
a single ground. (ECF No. 26 at 3, 6 & 9-12.) Petitioner
also presented, inter alia, a separate ground
contending that the district ...