United States District Court, D. Nevada
M. NAVARRO, UNITED STATES DISTRICT JUDGE
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).
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.
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).
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).
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).
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
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).
have now moved to dismiss several grounds of the petition as
non-cognizable, unexhausted, untimely and/or procedurally
argue that Grounds One, Two, Five and Nine are not cognizable
on federal habeas review.
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.
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.
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.
argue that Grounds One, Two and Five are unexhausted because
petitioner never asserted them as federal claims in state
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).
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. ...