United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Nevada state prisoner
Patrick Newell is before the Court on Respondents' motion
to dismiss (ECF No. 18). Newell opposed (ECF No. 29), and
Respondents filed a notice of no reply (ECF No. 31).
PROCEDURAL HISTORY AND BACKGROUND
19, 2014, a jury convicted Newell of battery with use of a
deadly weapon resulting in substantial bodily harm (Count 2);
attempted assault with a deadly weapon (Count 3); and
performance of an act in reckless disregard of persons or
property resulting in substantial bodily harm (Count 4)
(Exhibit 15). The jury found Newell not guilty of
attempted murder with a deadly weapon. Id. The
convictions stemmed from an incident where a large, drunk,
belligerent 35-year-old man was harassing 65-year-old Newell
for a ride at a gas station. (See e.g., Exh. 13 at
10-16.) The situation devolved into an altercation, and
Newell doused the victim with gasoline and lit him on fire,
causing severe injuries. The state district court sentenced
Newell as follows: 72 to 180 months for Count 2 and 24 to 60
months for Count 3 with both sentences to run concurrently.
(Exh. 20.) Count 4 was dismissed as redundant. (Id.)
Judgment of conviction was filed on August 29, 2014. (Exh.
filed a notice of appeal on September 19, 2014. (Exh. 23.) On
December 24, 2015, in a published opinion, the Nevada Supreme
Court affirmed the convictions. (Exh. 31.) The state supreme
court denied rehearing, and remittitur issued on March 7,
2016. (Exh. 38.)
meantime, on August 3, 2015, Newell filed a pro se
state postconviction habeas corpus petition challenging the
computation of his good-time credits. (Exh. 28.) The Nevada
Court of Appeals affirmed the denial of the petition on
December 14, 2016, and remittitur issued on February 3, 2017.
(Exhs. 42, 43.)
dispatched his federal habeas petition for filing on November
14, 2016. (ECF No. 6.) Respondents now argue that the
petition is subject to dismissal because neither ground is
exhausted, and ground 2 fails to state a claim for which
federal habeas relief may be granted. (ECF No. 18.)
federal court will not grant a state prisoner's petition
for habeas relief until the prisoner has exhausted his
available state remedies for all claims raised. Rose v.
Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A
petitioner must give the state courts a fair opportunity to
act on each of his claims before he presents those claims in
a federal habeas petition. 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
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 v. Henry, 513
U.S. 364, 365 (1995); 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 case law that applies federal
constitutional principles will suffice. Peterson v.
Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
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 Dep't 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).
sets forth two grounds. He argues in ground 1 that the state
courts' retroactive application of new limitations on the
use of deadly force violated ex post facto
principles and deprived him of a defense that would otherwise
have been available to him when he committed his crime. (ECF
No. 6 at 3, 8A-8D.) In ground 2 Newell claims that the state
courts' creation of new limitations on the use of deadly
force and ex post facto application of these
limitations violated his Fourteenth Amendment due process
rights. (ECF No. 6 at 5.)
this Court notes that the Constitution's Ex Post
Facto Clause provides that “[n]o State shall ...
pass any ... ex post facto Law.” Art. I, § 10, cl.
1. “As the text of the Clause makes clear, it ‘is
a limitation upon the powers of the Legislature, and does not
of its own force apply to the Judicial Branch of
government.'” Rogers v. Tennessee, 532
U.S. 451, 456 (2001) (quoting Marks v. United
States, 430 U.S. 188, 191 (1977)). The Fourteenth
Amendment Due Process and Article I Ex Post Facto
Clauses protect the common interests of fundamental fairness
and the prevention of the arbitrary and vindictive use of
laws. However, the limitations on the retroactive application
of judicial interpretations of criminal statutes are rooted
in due process. Id. at 456-457. Accordingly, the
Court views Newell's two grounds as actually setting
forth a single claim-that the state courts' retroactive