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Reberger v. State

United States District Court, D. Nevada

March 23, 2018

LANCE REBERGER, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         This 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).

         II. PROCEDURAL HISTORY AND BACKGROUND

         On 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).[1] 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, 170.)

         Reberger 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.)

         Reberger 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).

         III. DISCUSSION

         A. Exhaustion

         State prisoners seeking federal habeas relief must comply with the exhaustion rule codified in § 2254(b)(1):

         An 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 process; or
(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).

         A 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).

         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); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982.

         i. Grounds 4, 6B, and 8

         Respondents 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.)

         Reberger 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.)

         In 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.)

         Reberger 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 ...


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