United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
pro se amended habeas petition (ECF No. 7) comes
before the Court for consideration of the respondents'
combined motion to dismiss and answer (ECF No. 14 & 20).
Petitioner has replied (ECF No. 21).
challenges the Nevada Department of Corrections'
(“NDOC”) refusal to grant him educational time
credits for obtaining his G.E.D. and high school diploma
while incarcerated. Respondents argue that petitioner's
claims are not cognizable or do not state a claim and further
that they are unexhausted. Respondents argue that even if the
claims are cognizable and exhausted, they fail on the merits
because petitioner had already obtained an associate degree
by the time he was incarcerated and under pertinent
regulations he could not earn credits for degrees below that,
including a G.E.D. and a high school diploma.
Court disagrees that petitioner has not asserted any
cognizable claims. Petitioner asserts that his Fifth, Eighth
and Fourteenth Amendment rights to due process, against cruel
and unusual punishment, and to equal protection have been
violated by NDOC's refusal to grant him the educational
credits for his G.E.D. and his high school diploma. (ECF No.
7 at 6-8). These are viable federal claims. Although these
claims involve to some extent state law, that does not render
these claims non-cognizable as a matter of federal
constitutional law. In fact, the state law on which
petitioner bases his claims is a relevant factor in
determining whether he has a protectible liberty or property
interest to the credits he claims he is entitled to. The
motion to dismiss the petitioner's claims as
non-cognizable or for failure to state a claim will therefore
to the question of exhaustion, 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. 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 he relies and must also state the facts
that entitle her to relief on that federal claim. 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. 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).
petitioner asserts violations of his Fifth, Eighth and
Fourteenth Amendment rights to due process, against cruel and
unusual punishment, and to equal protection. (ECF No. 7 at
6-8). However, although petitioner raised many of these
claims in his state court petition, he raised none of these
claims on appeal. (Ex. 57). Nor did the Nevada Court of
Appeals decide petitioners' appeal on constitutional
grounds - federal or otherwise. (Ex. 60). Accordingly, the
federal claims petitioner here asserts have not been fairly
presented to the state's highest courts. The petition is
unexhausted in its entirety.
accordance with the foregoing, IT IS THEREFORE ORDERED that
respondents' motion to dismiss (ECF No. 14) is DENIED IN
PART and GRANTED IN PART. It is denied insofar as respondents
argue the petitioner presents no cognizable or viable claims.
It is granted insofar as respondents argue the petition is
FURTHER ORDERED that, within thirty days of the date of this
order, petitioner will either (1) move to dismiss the
petition without prejudice or (2) file a motion for other
appropriate relief, including potentially a motion to stay
and abey. Failure to comply with this order will result in
the dismissal of the petition without prejudice and without
further advance notice.
 While petitioner invoked the
Fourteenth Amendment Equal Protection Clause in his motion
for rehearing, (Ex. 61 at 5), the Nevada Court of Appeals
denied rehearing without comment, (Ex. 62). Nevada appellate
rules do not permit assertion of new arguments when seeking
rehearing. Nev. R. App. P. 40(c)(1). Thus, petitioner's
invocation of a federal constitutional guarantee in this
manner did not exhaust any federal claim. See Casey v.
Moore, 386 F.3d 896, 917-18 (9th Cir. 2004) (discussing