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Flores v. State

United States District Court, D. Nevada

March 14, 2018

JESUS I. FLORES, Petitioner,
v.
STATE OF NEVADA, Respondents.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Court.

         Before the court are the third amended petition for writ of habeas corpus (ECF No. 28), respondents' motion to dismiss (ECF No. 45), petitioner's opposition (ECF No. 48), and respondents' reply (ECF No. 49). The court finds that petitioner has not exhausted his state-court remedies for ground 2(E). Based upon the representations of petitioner, the court dismisses the ground.

         Exhaustion

         Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

         Ground 2(E) is a claim that trial counsel provided ineffective assistance for not investigating mitigating evidence to present at petitioner's sentencing. In the appeal from the denial of his state post-conviction habeas corpus petition, the Nevada Supreme Court held:

Fifth, appellant argues that his counsel were ineffective for failing to investigate mitigation evidence and then present such evidence at the sentencing hearing. This claim was not raised in the petition before the district court. Appellant only mentioned this issue in the procedural history portion of his supplemental petition by saying that no mitigation evidence was presented at the sentencing hearing. Appellant did not claim that counsel was ineffective regarding this issue and did not discuss any mitigation evidence that reasonably diligent counsel could have obtained. Therefore, we decline to consider this claim in the first instance on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103 P.3d 25, 33 (2004).

Ex. 80, at 4-5 (ECF No. 15-9, at 5-6). The Nevada Supreme Court was correct that the state supplemental post-conviction petition mentions the lack of mitigation evidence at sentencing only in the procedural history and not as a claim for relief. See Ex. 63, at 9 (ECF No. 14-38, at 13). “Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (per curiam) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Ground 2(E) is not exhausted.

         Procedural Default

         Petitioner argues that the court should consider these grounds technically exhausted because they would be untimely under Nev. Rev. Stat. § 34.726(1) and successive under Nev. Rev. Stat. § 34.810 if he returned to the state courts, and thus the grounds would be procedurally defaulted in this court. Although a state court can excuse those procedural bars upon a showing of cause and prejudice, petitioner also argues that the only argument he has for cause and prejudice to excuse the procedural default-ineffective assistance of post-conviction counsel-is not recognized in Nevada. See Brown v. McDaniel, 331 P.3d 867 (Nev. 2014). Based upon petitioner's concession, the court will consider ground 2(E) to be exhausted but procedurally defaulted.

         A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state-law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The grounds for dismissal upon which the Nevada Supreme Court relied in this case is an adequate and independent state rule. Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (Nev. Rev. Stat. § 34.726); Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996) (same).

[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to ...

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