United States District Court, D. Nevada
a habeas corpus proceeding pursuant to 28 U.S.C. § 2254
brought by Thayer Joseph Burton, Jr., a Nevada prisoner. On
May 10, 2017, respondents filed a motion to dismiss in
response to Burton's first amended habeas petition (ECF
No. 15), arguing that several of Burton's habeas claims
are partially or completely unexhausted and that five of his
claims fail to state a cognizable claim for federal habeas
relief. ECF No. 26. Burton filed a response in which he
opposes respondents' arguments with respect to some of
his claims, but concedes to their arguments with respect to
other claims. ECF No. 29.
argue Burton has failed to exhaust state court remedies for
the following claims in his federal habeas petition: Claims 8
(partial), 13 (partial), 14 (partial), 16 (partial), 18, 19,
20, 21, 22, and 23 (partial). Burton concedes that Claims 20,
21, and 22 are unexhausted and that Claim 18 is not a
federally cognizable claim. Thus, the court will analyze
Claims 8 (partial), 13 (partial), 14 (partial), 16 (partial),
19, and 23 (partial) under the exhaustion doctrine.
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 Cir. 1981).
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). 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). 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).
8 (partial) and 13 (partial)
Claim 8, Burton alleges that his constitutional rights were
violated by the trial court's refusal to allow a mental
health expert (Dr. Paglini or Dr. Glovinsky) to testify
during the penalty phase of his trial. Claim 13 is a claim
that Burton received ineffective assistance of counsel, in
violation of his constitutional rights, because trial counsel
failed to properly notice Paglini or Glovinsky as an expert
witness for the penalty phase of his trial. Respondents argue
that these claims are unexhausted as to Glovinksy because
Burton's arguments to the Nevada Supreme Court referenced
to Burton, Paglini was originally retained to provide the
testimony, but due to unexpected changes in the trial
schedule, Paglini was unavailable on the day he was to
testify, so counsel tried to have Glovinsky prepared to
provide the same testimony. ECF No. 15, p. 6 n.2. It does not
appear that the Nevada Supreme Court's consideration and
disposition of the claim would have differed if Burton had
included Glovinsky in his state court arguments. See
Burton v. State, No. 54170, 2012 WL 1994984, at *6 (Nev.
June 1, 2012); Burton v. State, No. 66935, 2015 WL
6163919, at *1 (Nev. Oct. 16, 2015). Thus, Claims 8 and 13
are either exhausted or any failure to exhaust is excused.
See Lynce v. Mathis, 519 U.S. 433, 436 n. 4 (1997)
(excusing petitioner's failure to exhaust as futile where
Florida Supreme Court had recently decided the same issue and
respondents “have not suggested any reason why the
Florida courts would have decided petitioner's case
Claim 14, Burton alleges that his constitutional rights were
violated when his trial counsel invited the State to comment
on his right to remain silent and failed to object when the
State did so. Respondents argue the claim is partially
unexhausted because, while Burton alleged ineffective
assistance based on counsel's inviting the State's
comments, he did not do so based on counsel's failure to
object to the comments.
court disagrees. Although the primary focus of Burton's
argument to the Nevada Supreme Court was the court's
prior finding that counsel invited the State to comment on
Burton's right to remain silent, the argument also
faulted counsel for failing to object to the comments. ECF
No. 20-2, p. 59-63. Claim 14 is completely exhausted.
Claim 16, Burton alleges that he received ineffective
assistance of counsel, in violation of his constitutional
rights, because trial counsel failed to competently
investigate cellular phone cell site data which would show
that he was not at the scene of the crime. Respondents argue
that the claim is partially unexhausted because it adds an
additional component that was not presented to the state
courts - i.e., that counsel was ineffective for not
investigating the whereabouts of Burton himself.
reviewed the relevant portions of the state court record,
this court is not convinced that Burton has alleged facts in
support of Claim 16 that place the claim in a significantly
different posture than it was in the state courts. Instead,
it appears that the question before the court, when it
reaches the merits of Claim 16, will be whether evidence
cited in support of the claim was contained in the state
court record when the state court adjudicated the claim on
the merits. See Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (federal habeas review of a state court proceeding
is generally limited to the record ...