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Nicholson v. Baker

United States District Court, D. Nevada

May 22, 2018

RICHARD NICHOLSON, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         Before the Court is Respondents' motion to dismiss (ECF No. 10) Petitioner's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 5). Petitioner has not opposed, and the time for doing so has expired.

         I. BACKGROUND

         Petitioner in this case challenges his state court convictions pursuant to a jury verdict of one count of burglary while in possession of a deadly weapon, two counts of battery constituting domestic violence with use of a deadly weapon resulting in substantial bodily harm, one count of child abuse and neglect with substantial bodily harm, and two counts of child abuse and neglect. (ECF No. 13-18.) The convictions arose from an incident on June 21, 2006, in which Petitioner beat his ex-girlfriend and her three daughters with a baseball bat.

         Following the evidence at trial, Petitioner's attorney asked the court for an advisory verdict on the child abuse and neglect charges on the grounds that the two child victims who were the subjects of the charges did not testify. (ECF No. 12-22 at 19.) The court denied the request. (Id. at 19-20.) On direct appeal, Petitioner argued that the trial court erred by refusing to give the advisory instruction, a claim the Nevada Supreme Court rejected. (ECF No. 14-1; ECF No. 14-8.)

         On June 26, 2012, Petitioner filed a petition for writ of habeas corpus in state court. (ECF No. 14-13.) Appointed counsel thereafter filed a supplemental petition. (ECF No. 14-19.) Together, the Petition and supplemental petition raised two claims: (1) trial counsel was ineffective for failing to investigate or obtain information pertaining to Petitioner's psychiatric history and for failing to investigate or call an eyewitness to the incident, Solomon Genovese; and (2) Petitioner's rights to due process and a fair trial were violated because he was not competent at the time of trial or at sentencing. (ECF No. 14-13; ECF No. 14-19.) The trial court denied all of Petitioner's claims after an evidentiary hearing. (ECF No. 15-2; ECF No. 16-14; ECF No. 16-28.)

         On appeal of the trial court's decision, Petitioner argued only his claim that counsel was ineffective for failing to investigate or interview Genovese. (See ECF No. 18-6 at 6-7.) The Nevada Court of Appeals affirmed the trial court's decision. (ECF No. 18-27.) Petitioner thereafter filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         II. STANDARD

         Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest state court level of review available. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional guarantee upon which she relies and must also state the facts that entitle her to relief on that federal claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state courts with both the operative facts and the federal legal theory upon which the claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement ensures that the state courts, as a matter of federal state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         III. ANALYSIS

         The Petition in this case asserts three grounds for relief. Respondents argue that part of Ground 1 and all of Ground 3 are unexhausted.

         A. GROUND I

         Ground 1 asserts two claims of ineffective assistance of counsel. Respondents argue that the second claim-Ground 1(b)-has not been exhausted.[1]

         Ground 1 asserts a Sixth Amendment ineffective assistance of counsel claim. (ECF No. 5 at 3.) In Ground 1(b), Petitioner asserts that “[k]nowing the court gave a defective reasonable doubt instruction, ” trial counsel's request for an advisory instruction was inappropriate. (Id.) ‚ÄúTrial counsel should have objected and raise[d] claim the omission from [court's] charge to the jury of all ...


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