United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 is before the court
on Respondents' motion to dismiss Petitioner Demar
Rahymes Barnes (“Barnes”)' First Amended
Petition (ECF No. 21).
PROCEDURAL HISTORY AND BACKGROUND
7, 2012, Barnes was charged with three counts of Child Abuse
& Neglect with Substantial Bodily Harm. (ECF No. 22-3).
On May 31, 2012, the District Attorney filed an Amended
Complaint charging Barnes with one count of Child Abuse with
Substantial Bodily Harm, one count of Child Neglect Resulting
in Substantial Bodily Harm, and one count of Child Abuse with
Substantial Bodily Harm. (ECF No. 22-4). A Clark County
Public Defender was appointed to represent Barnes. (ECF No.
22-1 at 1). Barnes waived his preliminary hearing and
informed the court that he would enter a guilty plea to one
count of Child Abuse Resulting in Substantial Bodily Harm,
carrying a term of two to twenty years. (ECF No. 22-5).
Pursuant to the plea agreement, the District Attorney filed
an Information charging Barnes with one count of Child Abuse
with Substantial Bodily Harm on June 25, 2012. (ECF No. 8-1).
Barnes entered into the guilty plea agreement on June 28,
2012. (ECF No. 8-2). On September 25, 2012, the district
court sentenced Barnes to a maximum prison term of 240 months
with a minimum parole eligibility requirement of 96 months.
(ECF No. 22-7 at 8). The court credited Barnes with 51 days
for time served and assessed $25 administrative and $150 DNA
fees. The court then memorialized Barnes' sentence in the
October 2, 2012 Judgment of Conviction. (ECF No. 8-4). This
is the judgment Barnes challenges in this Amended Petition.
attorney filed a Notice of Appeal on October 10, 2012. (ECF
No. 22-9). Barnes's attorney also filed a Fast Track
Statement on February 7, 2013. (ECF No. 8-5). The Nevada
Supreme Court affirmed Barnes' conviction on June 13,
2013. (ECF No. 22-12). The court issued its remittitur on
July 11, 2013. (ECF No. 22-13). The state district court
granted Barnes' motion for the withdrawal of his attorney
on August 6, 2013, but his motion for appointment of counsel
was denied. (ECF No. 22-1 at 6). Barnes submitted a second
motion for appointment of counsel on September 13, 2013. He
subsequently filed a proper person Petition for Writ of
Habeas Corpus (Post-Conviction) on September 26, 2013,
asserting ineffective assistance of counsel claims under the
Sixth and Fourteenth Amendments. (ECF No. 8-6). The state
court conducted a hearing on the post-conviction petition and
ordered the petition denied. (ECF No. 22-8 at 9). Barnes was
not present at the hearing. Barnes filed a proper person
Notice of Appeal on January 9, 2014. (ECF No. 22-14).
Pursuant to a request from the Nevada Supreme Court, the
district court filed a Notice of Entry of Findings of Fact,
Conclusions of Law and Order on January 21, 2014. (ECF No.
22-16). The Nevada Supreme Court, without briefing, affirmed
the conviction and denied all of Barnes' claims on June
11, 2014. (ECF No. 22-18). The court issued its remittitur on
July 8, 2014. (ECF No. 22-19).
mailed his pro se Petition for Section 2254 Habeas Corpus on
November 17, 2014. (ECF No. 1-1). The Petition was filed on
November 21, 2014. (ECF No. 1). He filed a motion for
appointment of counsel on January 6, 2015. (ECF No. 2).
Pursuant to this Court's Order (ECF No. 3), he paid the
required filing fee. (ECF No. 4). On June 29, 2015, the Court
denied Barnes' motion for appointment of counsel, and
gave Respondents 45 days to answer or respond to the
Petition. (ECF No. 5). The clerk of court filed Barnes'
petition on the same day. (ECF No. 6). Respondents filed a
Motion to Dismiss the Petition and Exhibits filed in support.
(ECF Nos. 7-8). Barned filed a proper person Response to the
Motion to Dismiss / Motion to Stay. (ECF No. 10). On March
31, 2016, the Court issued an Order reconsidering its prior
order and granting Barnes' request for counsel, and
appointed the Federal Public Defender for the District of
Nevada as counsel for Barnes. (ECF No. 11). Counsel filed a
Notice of Representation on April 15, 2016. (ECF No. 12). The
First Amended Petition was filed on September 29, 2016. (ECF
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. Rose v.
Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). 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. 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. 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 v. Henry, 513 U.S. 364, 365 (1995);
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 v. Lundy, 455 U.S.
509, 520 (1982)). “[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. However, citation to state case law that applies
federal constitutional principles will suffice. Peterson
v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en
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. Cal.
Dep't of Corr., 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.
Amendment of habeas pleadings
Rule of Civil Procedure 15 applies to amendment of habeas
pleadings. Mayle v. Felix, 545 U.S. 644, 649 (2005).
"An amendment of a pleading relates back to the date of
the original pleading when . . . the claim . . . asserted in
the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original pleading." Id. (citing Fed.R.Civ.P.
15(c)(2)) (quotation marks omitted). An amended habeas
petition does not relate back to the original pleading when
it “asserts a new ground for relief supported by facts
that differ in both time and type” from those included
in the original petition. Id. at 650.