United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
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).
PROCEDURAL HISTORY AND BACKGROUND
November 30, 2006, a jury found Hill guilty of first-degree
murder with use of a deadly weapon (Exh. 59). 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.
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,
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.)
LEGAL STANDARDS & ANALYSIS
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.
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
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).
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).
Grounds 3, 4, 5(b), and 5(c)
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