United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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
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.
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
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.)
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.
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).
Petition in this case asserts three grounds for relief.
Respondents argue that part of Ground 1 and all of Ground 3
1 asserts two claims of ineffective assistance of counsel.
Respondents argue that the second claim-Ground 1(b)-has not
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.)
“Trial counsel should have objected and raise[d] claim
the omission from [court's] charge to the jury of all ...