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Salcido v. Baker

United States District Court, D. Nevada

April 29, 2019

CARLOS SALCIDO, Petitioner,
v.
BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This pro se habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court on Respondents' motion to dismiss. (ECF No. 25.) Petitioner has not opposed, and the time for doing so has expired. As explained below, the Court will grant in part, and deny in part, the motion.

         II. BACKGROUND

         Petitioner challenges his 2012 conviction for assault with a deadly weapon, attempted murder with the use of a deadly weapon and with the intent to promote, further or assist a criminal gang, battery with use of a deadly weapon with the intent to promote, further or assist a criminal gang, carrying a concealed firearm or other deadly weapon, robbery with the use of a deadly weapon, and battery with use of a deadly weapon. (ECF No. 19 at 2.) Petitioner pursued a direct Lozada appeal and a postconviction petition for habeas relief in the state courts, and the state's highest courts affirmed in both cases. (Exhibits (“Exs.”) 54, 65, 78, 82, 93, 97.)[1]

         In his federal habeas petition, Petitioner asserts fourteen claims for relief. (ECF No. 19.) Respondents argue that Grounds 2, 3, 4, 5 and 7 have not been exhausted, and that Grounds 1, 2, 3, 4, and 5 are not cognizable. For the reasons that follow, the motion will be granted in part and denied in part, and Petitioner will be directed to advise the Court how he would like to proceed on his mixed petition.

         III. DISCUSSION

         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. See 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. See 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. See 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).

         A. Ground 1

         In Ground 1, Petitioner asserts a violation of his Fifth and Fourteenth Amendment due process rights because the trial court participated in a discussion of a potential plea agreement. (ECF No. 19 at 3.) Respondents assert that this alleges only a violation of state law and move to dismiss the claim as not cognizable on federal habeas review. The Court disagrees. Ground 1 asserts the state court violated his federal due process rights and is not a claim of only a state law violation. Ground 1 is therefore a cognizable habeas claim.

         B. Ground 2

         In Ground 2, Petitioner asserts that the state court violated his federal due process rights by admitting prior bad act evidence without first conducting a Petrocelli hearing. (ECF No. 19 at 5.) While “it is not the province of the federal habeas court to reexamine state court determinations on state-law questions, ” Estelle v. McGuire, 502 U.S. 62, 68 (1991), and therefore, as a general rule, federal courts may not review a trial court's evidentiary rulings, Crane v. Kentucky, 476 U.S. 683, 689 (1986), a state court's evidentiary ruling can be grounds for federal habeas relief if it is so fundamentally unfair as to violate due process. See Dillard v. Roe, 244 F.3d 758, 766 (9th Cir. 2001); see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (The federal court's “role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.”). Petitioner has alleged that the state court's evidentiary ruling violated his due process rights and therefore has stated a cognizable federal habeas claim.

         Respondents argue that, nevertheless, Ground 2 is unexhausted because it was not presented as a federal claim to the state courts. The Court agrees. On his Lozada appeal, Petitioner raised this claim only as a matter of state law and did not allege the trial court's decision violated his federal rights at all, let alone his federal due process rights. (Exs. 54, 63.) None of the cases cited in the briefs rely on the federal due process clause. (Exs. 54, 63.) Nor did the Nevada Supreme Court decide this as a federal claim. (Ex. 65.) Petitioner did not otherwise raise this as a federal claim in his state postconviction habeas petition, and the Nevada Court of Appeals did not address any such claim. (Exs. 93, 97.) Ground 2 is therefore unexhausted.

         C. ...


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