United States District Court, D. Nevada
JESUS I. FLORES, Petitioner,
STATE OF NEVADA, Respondents.
M. Navarro, Chief Judge United States District Court.
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.
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).
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
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
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.
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)
[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 ...