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Hill v. Filson

United States District Court, D. Nevada

February 1, 2018

TIMOTHY FILSON, et al., Respondents.



         This pro se habeas matter under 28 U.S.C. § 2254 comes before the court on respondents' motion to dismiss petitioner Joaquin Broushon Hill's petition (ECF No. 8). Hill filed a response; he styled it as a motion to respond to dismissal, which the court construes as his opposition (ECF No. 17), and respondents replied (ECF No. 16).


         On November 30, 2006, a jury found Hill guilty of first-degree murder with use of a deadly weapon (Exh. 59).[1] Hill was sentenced to two consecutive terms of life in prison without the possibility of parole. (Exh. 66.) Judgment of conviction was filed on January II, 2007. (Exh. 67.) The Nevada Supreme Court affirmed his conviction in a published opinion on July 24, 2008, and remittitur issued on August 19, 2008. (Exhs. 84, 86.)

         Hill filed a state postconviction habeas petition on December 1, 2008. (Exh. 93.) The state district court appointed counsel and ultimately denied the petition. (Exh. 162.) The Nevada Supreme Court affirmed the denial of the petition on June 22, 2016, and remittitur issued on July 20, 2016. (Exhs. 187, 189.)

         Hill dispatched his federal petition for mailing on or about November 22, 2016. (ECF No. 6.) Respondents now move to dismiss the petition on the bases that the claims are unexhausted, procedurally barred and/or noncognizable in federal habeas corpus. (ECF No. 8.)


         A. Exhaustion

         State prisoners seeking federal habeas relief must comply with the exhaustion rule codified in § 2254(b)(1):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) The applicant has exhausted the remedies available in the court so the State; or
(B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

         The purpose of the exhaustion rule is to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal court, and to “protect the state courts' role in the enforcement of federal law.” Rose v. Lundy, 455 U.S. 509, 518 (1982); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). 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. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

         A habeas petitioner must “present the state courts with the same claim he urges upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F.Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). 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. Duncan, 513 U.S. at 365; see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). 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.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose, 455 U.S. at 520). “[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.” Hiivala, 195 F.3d at 1106 (citations omitted). However, citation to state caselaw that applies federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

         A claim is not exhausted unless the petitioner has presented to the state court the same operative facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the petitioner presents to the federal court facts or evidence which 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. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F.Supp. 455, 458 (D. Nev. 1984).

         1. Grounds 3, 4, 5(b), and 5(c)

         Hill asserts the following in grounds 3 through 5:

Ground 3: Hill's due process and fair trial rights were violated when trial court and public defender refused to qualify ...

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