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Rodriguez v. Filson

United States District Court, D. Nevada

December 29, 2017

EDWARD G. RODRIGUEZ, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 27).

         Respondents contend, as per a clarification in the reply, that Grounds 1(a) and 3 are unexhausted.[1] 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 claims.

         I. BACKGROUND

         Petitioner Edward Rodriguez challenges his Nevada state conviction, pursuant to a guilty plea, of murder. He is sentenced to life without the possibility of parole.

         Rodriguez did not file a direct appeal. He challenged his conviction in a timely state post-conviction petition.

         Counsel was appointed for petitioner in the district court and appellate courts during the state post-conviction proceedings.

         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. 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).

         Under 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.

         2. Ground 1(a)

         In 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.)[2]

         Petitioner 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.)

         Petitioner 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 ...


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