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Brass v. Williams

United States District Court, D. Nevada

May 24, 2018

GEORGE BRASS, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, UNITED STATES DISTRICT JUDGE

         This counseled habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 72). Petitioner has opposed (ECF No. 78), and respondents have replied (ECF No. 81).

         Background

         Petitioner in this action challenges his state court conviction pursuant to a jury trial of one count of murder with use of a deadly weapon, two counts of attempted murder with use of a deadly weapon, one count of conspiracy to commit robbery, one count of robbery with use of a deadly weapon, and two counts of attempted robbery with use of a deadly weapon. (Ex. 63).[1]

         Petitioner was initially charged with several crimes in connection with an incident on September 22, 2006, in which four men robbed and attempted to rob a group of men at gunpoint, killing one. (Ex. 2). More than two years later, petitioner was charged with several crimes in connection with an incident that took place on September 15, 2006, in which three men robbed and attempted to rob another group of men at gunpoint, killing one. (Ex. 40). On the State's motion, the trial court joined the two indictments into one trial. (Ex. 45). Petitioner initially entered a plea of guilty to two counts of robbery with use a deadly weapon, but later moved to withdraw the plea. (Exs. 23 & 28). The trial court granted petitioner's motion. (Ex. 30).

         Following a jury trial, petitioner was convicted of all charges related to the September 22, 2006, incident and acquitted of all charges related to the September 15, 2006, incident. (Ex. 58). Judgment of conviction was entered on December 30, 2009. (Ex. 63). Petitioner appealed. (Exs. 64 & 68). The Nevada Supreme Court affirmed. (Ex. 72).

         Petitioner then filed a state court petition for writ of habeas corpus. (Ex. 75). Appointed counsel filed a supplement to the petition. (Ex. 88). The trial court denied the petition (Ex. 113), and the Nevada Supreme Court affirmed (Ex. 101).

         On October 28, 2013, petitioner filed his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Appointed counsel thereafter filed the first amended petition (ECF No. 24), which is the operative petition in this case.

         On September 18, 2015, petitioner filed a second petition for writ of habeas corpus in state court. (Ex. 108). The trial court denied the petition as procedurally barred. (Ex. 110). The Nevada Court of Appeals affirmed. (Ex. 112).

         Respondents have now moved to dismiss several grounds of the petition as non-cognizable, unexhausted, untimely and/or procedurally defaulted.

         Cognizability

         Respondents argue that Grounds One, Two, Five and Nine are not cognizable on federal habeas review.

         Respondents argue that petitioner raised Grounds One, Two and Five only as issues of state law in the state courts and therefore cannot now state a federal habeas claim. The Court is not persuaded. First, as will be discussed below, petitioner raised Grounds One, Two and Five as federal constitutional violations in the state courts. Second, whatever arguments petitioner made in state court are irrelevant for purposes of determining whether a claim is cognizable in federal court. The only relevant question is what petitioner has claimed in his federal habeas petition.[2]

         Review of the petition reflects that Grounds One, Two and Five all raise cognizable federal claims. In Ground One, petitioner asserts that the trial court improperly admitted a .38 revolver in violation of his Fifth, Sixth and Fourteenth Amendment rights to a fair trial and due process. (ECF No. 24 at 16-17). In Ground Two, petitioner asserts that his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial were violated by the joinder of the two incidents for trial. (Id. at 17). And in Ground Five, petitioner asserts that his Fifth, Sixth and Fourteenth Amendment rights to a fair trial and due process were violated when the trial court denied his theory of defense instruction, gave instead a “mere presence” instruction, and then gave other instructions that contradicted the mere presence instruction. (Id. at 21-23). The motion to dismiss Grounds One, Two and Five on the grounds they are not cognizable will therefore be denied.

         Ground Nine asserts a claim of ineffective assistance of post-conviction counsel. “[T]here is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.” Martinez v. Schriro, 623 F.3d 731, 739-40 (9th Cir. 2010), rev'd on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012); see also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”). Contrary to petitioner's assertion, Martinez did not create a freestanding claim based on ineffective assistance of post-conviction counsel. See Martinez, 566 U.S. at 14-16; Lambrix v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1246, 1262-63 (11th Cir. 2014). Respondents are therefore correct that Ground Nine does not state a cognizable habeas claim. Ground Nine will therefore be dismissed with prejudice.

         Exhaustion

         Respondents argue that Grounds One, Two and Five are unexhausted because petitioner never asserted them as federal claims in state court.

         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 and must also state the facts that entitle the petitioner to relief on the federal constitutional 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 insures 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).

         Petitioner raised the factual predicate of Ground One, Two and Five in his direct appeal, but he asserted only that they violated his “constitutional rights to due process and a fair trial.” (Ex. 68). There was no indication that petitioner was stating a federal claim.[3] ...


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