United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
counseled habeas matter under 28 U.S.C. § 2254 comes
before the Court on respondents' motion to dismiss
several grounds in petitioner Lance Reberger's
second-amended petition (ECF No. 66). Reberger opposed (ECF
No. 72), and respondents replied (ECF No. 93).
PROCEDURAL HISTORY AND BACKGROUND
January 22, 1993, a jury found Reberger guilty of count I:
burglary; count II: robbery with use of a deadly weapon; and
count III: first-degree murder with use of a deadly weapon
(Exhs. 132-134). Reberger was sentenced as follows: count I
- six years; count II - ten years, with an additional
ten-year enhancement for the use of a deadly weapon; count
III - life with the possibility of parole with an additional
life with the possibility of parole for the deadly weapon
enhancement, all to run consecutively. (Exh. 149.) Judgment
of conviction was filed on April 27, 1993. (Id.) The
Nevada Supreme Court dismissed Reberger's appeal on May
26, 1995, and remittitur issued on June 14, 1995. (Exhs. 169,
filed a state postconviction habeas petition on January 30,
1996. (Exh. 173.) The state district court appointed several
attorneys for Reberger-who eventually moved to dismiss all of
them and proceed pro se-conducted an evidentiary
hearing, and ultimately denied the petition. (Exhs. 225, 227,
231, 233, 234, 236, 238, 240.) The Nevada Supreme Court
affirmed the denial of the petition on December 12, 2012, and
remittitur issued on January 7, 2013. (Exhs. 249, 250.)
dispatched his federal petition for mailing about February
14, 2013 (ECF No. 9). Respondents now move to dismiss certain
claims in the second-amended petition on the grounds that the
claims are unexhausted, procedurally barred and/or
noncognizable in federal habeas corpus (ECF No. 66).
prisoners seeking federal habeas relief must comply with the
exhaustion rule codified in § 2254(b)(1):
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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). The 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 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). 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.
Grounds 4, 6B, and 8
argue that federal grounds 4, 6B, and 8 are unexhausted
because Reberger raised the claims as state-law claims only
on direct appeal (ECF No. 66 at 19, 21). In ground 4, he
argues that his Fifth, Sixth, and Fourteenth Amendment due
process and fair trial rights were violated when the trial
court permitted a patently unreliable jailhouse informant to
testify. (ECF No. 65 at 71.) He essentially raised this claim
on direct appeal; however, respondents are correct that he
raised it as a state-law issue only, citing
D'Agostino v. Nevada, 823 P.3d 283 (1991). (Exh.
164 at 31.)
claims in ground 6B that his Fifth, Sixth, and Fourteenth
Amendment due process and fair trial rights were violated
when Harvey was allowed to testify without independent
corroboration of her testimony. (ECF No. 65 at 78-81.). He
raised this claim on direct appeal as a state-law claim.
(Exh. 164 at 44-46.)
ground 8, Reberger argues that his Fifth and Fourteenth
Amendment due process rights were violated when the trial
court refused to charge two proposed instructions on the
theory of the defense. (ECF No. 65 at 82-83.). He raised this
claim on direct appeal as a state-law issue only, citing
D'Agostino, 823 P.3d 283. (Exh. 164 at 46-47.)
also raised the above claims as federal constitutional claims
in his appeal of the denial of his first state postconviction
petition. (Exh. 246 at 40-42, 52-54, 57-59.) The Nevada
Supreme Court stated that these claims were barred by the
doctrine of the law of the case because it had already held
on direct appeal that the claims lacked merit. (Exh. 249 at
8, n.4.) Having reviewed the order, this Court concludes that
the Nevada Supreme Court implicitly considered the federal