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Duda v. Williams

United States District Court, D. Nevada

January 24, 2018

Chester J. Duda, Petitioner
v.
Brian E. Williams, Sr., et al., Respondents

          Order Granting in Part Motion to Dismiss [ECF, 14]

          Jennifer A. Dorsey U.S. District Judge.

         Pro se petitioner Chester Duda is serving a sentence at the High Desert State Prison for using technology to lure children and attempted lewdness with a minor.[1] He petitions for a writ of habeas corpus under 28 U.S.C. § 2254, and respondents move to dismiss it.[2] I grant the motion in part.

         Procedural History and Background

         On April 11, 2013, Duda pled guilty under North Carolina v. Alford[3] to count 1: attempted lewdness with a child under the age of 14; and count 2: luring children or mentally ill persons with the intent to engage in sexual conduct.[4] The state district court sentenced Duda to a term of 48-150 months on count 1 and 48-120 months on count 2, to run concurrently.[5]Judgment of conviction was filed on August 23, 2013, [6] and Duda did not file a direct appeal.

         On July 29, 2014, Duda filed a state postconviction petition, in which he claimed that his counsel had failed to file a direct appeal as he had requested.[7] The state district court appointed counsel, conducted an evidentiary hearing, and denied the petition.[8] The Nevada Court of Appeals affirmed the denial on August 17, 2016, and remittitur issued a month later.[9]

         Duda dispatched his federal habeas petition for filing on August 31, 2016.[10] Respondents now argue that several grounds should be dismissed because they are unexhausted or noncognizable as grounds for federal habeas corpus relief.[11]

         Discussion A. Legal standards and analysis

         1. Guilty plea and federally cognizable claims

         In Tollett v. Henderson, [12] the United States Supreme Court held that “when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”[13] A petitioner may only attack the voluntary and intelligent character of the guilty plea.[14] When a petitioner has entered a guilty plea then seeks to claim that his counsel rendered ineffective assistance, that claim is limited to the allegation that defense counsel was ineffective in advising petitioner to plead guilty.[15]

         a.Grounds 2, 7, 8, 9, 10, and supplemental ground 1 Respondents argue that several of Duda's grounds are barred under Tollett.[16] Duda claims these grounds:

• Ground 2: before he pled guilty, police failed to obtain a warrant before looking at the contents of his phone;[17]
• Ground 7: he was seized without a warrant, probable cause, or Miranda warnings;[18]
• Ground 8: he was denied counsel during police questioning;[19]
• Ground 9: counsel did not seek a Brady disclosure of all material in possession of the prosecution;[20]
• Ground 10: counsel did not review the victim's medical records with him;[21] and
• Supplemental ground 1: the victim's medical exam results were not revealed to him.[22]

         Respondents are correct that grounds 2, 7, and 8 are foreclosed by Tollett. Grounds 9, 10, and supplemental ground 1, however, are claims that involve whether Duda entered his guilty plea knowingly and voluntarily. Therefore, they are not barred by Tollett.

         2. Exhaustion

         A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised.[23] A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition.[24] A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings.[25]

         A habeas petitioner must “present the state courts with the same claim he urges upon the federal court.”[26] The federal constitutional implications of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion.[27] To achieve exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims under the United States Constitution” and given the opportunity to correct alleged violations of the prisoner's federal rights.[28] It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.”[29] “[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”[30]However, citation to state caselaw that applies federal constitutional principles will suffice.[31]

         A claim is not exhausted unless the petitioner has presented the state court with the same operative facts and legal theory upon which his federal habeas claim is based.[32] The exhaustion requirement is not met when the petitioner presents to the federal court facts or evidence that place the claim in a significantly different posture than it was in the state courts, or where different facts are presented at the federal level to support the same theory.[33]

         a.Grounds 3, 4, 5, 6, 9, 10, 11 and supplemental grounds 1 and 2 In these grounds, Duda claims that:

• Ground 3: counsel was ineffective for failing to have Duda present when final judgment was issued days after he was sentenced;[34]
• Ground 4: counsel was ineffective for allowing the court to impose a penalty for an ambiguous charge;[35]
• Ground 5: counsel was ineffective for failing to raise on appeal that the court violated state procedural law in regard to penalties and sentencing procedures;[36]
• Ground 6: the prosecutor paid witnesses to testify;[37]
• Ground 9: counsel did not seek a Brady disclosure of all material in possession of the prosecution;[38]
• Ground 10: counsel did not review the victim's medical records with him;[39]
• Ground 11: his sentence is cruel and unusual in violation of the Eighth Amendment;[40]
• Supplemental ground 1: the victim's medical-exam results were not revealed to Duda;[41] and
• Supplemental ground 2: the court improperly observed at sentencing that Duda had been ...

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