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Newell v. Baca

United States District Court, D. Nevada

July 31, 2018

ISIDRO BACA, et al., Respondents.



         This 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).


         On June 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).[1] 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. 21.)

         Newell 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.)

         In the 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.)

         Newell 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.)


         A 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 Cir. 1981).

         A 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).

         A claim 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).


         Newell 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.)

         First, 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 ...

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