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Bowles v. Baca

United States District Court, D. Nevada

May 16, 2019

TRAVIS BOWLES, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This pro se habeas petition filed under 28 U.S.C. § 2254 comes before the Court on Respondents' motion to dismiss. (ECF No. 13.) Petitioner challenges his state court judgment of conviction, following a jury trial, of six counts of lewdness with a child under the age of fourteen. (Exhibit ("Ex.") 59.)[1] Respondents argue the petition is partially unexhausted, procedurally defaulted, and non-cognizable. (ECF No. 13.) Petitioner has not opposed, and the time for doing so has expired.

         II. DISCUSSION

         A. Exhaustion

         Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner must first 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-to the highest state court level of review available. See 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. See 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. See e.g., 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).

         Respondents argue that Ground 7, in part, Ground 8, and Ground 9 of the petition are unexhausted. (ECF No. 13 at 5-7.) The Court will address each ground in turn.

         1. Ground 7

         In Ground 7, Petitioner alleges ineffective assistance of counsel. (ECF No. 4 at 15.) Ground 7(1)[2] asserts that Public Defender Nickel, who had a conflict of interest, improperly represented Petitioner for three months before moving to withdraw. Ground 7(2) asserts that Nickel was ineffective for failing to challenge two continuances of the preliminary hearing without Petitioner's consent, and that this also violated his speedy trial rights. Ground 7(3) asserts that Nickel was ineffective for failing to challenge the Affidavit of Probable Cause and the five criminal complaints that were submitted, added, changed or replaced without procedural due process. Ground 7(4) asserts that Nickel failed at the preliminary hearing to object to the prosecutor's leading questions of its own complaining witness. Finally, Ground 7(5) asserts that Nickel was ineffective for failing to cross examine the State's witness as to prior consistent statements and for failing to demand discovery. Save for Ground 7(1), which is exhausted, the remainder of Ground 7 has never been presented to, nor actually decided by, the state's highest courts. (See Exs. 75, 81, 83, 161, 167, 169.) Grounds 7(2) through 7(5) are therefore unexhausted.

         2. Ground 8

         In Ground 8, Petitioner asserts that appellate counsel was ineffective for failing to raise numerous instances of prosecutorial misconduct and vindictiveness, but he does not elaborate on what those instances were. The remainder of Ground 8 complains of the state court's handling of this claim during postconviction proceedings. (ECF No. 4 at 17.)

         As will be discussed infra, the latter part of Ground 8 is not a cognizable claim. The remainder of Ground 8 is unexhausted, as it has not ever been presented to or actually decided by the state's highest courts. (See Exs. 75, 81, 83, 161, 167, 169.)

         3. Ground 9

         In Ground 9, Petitioner asserts that appellate counsel was ineffective for not arguing that the district court failed to confirm it had jurisdiction over the petitioner, violated his due process rights, and allowed leading questions of the two minor complaining witnesses during the preliminary hearing. (ECF No. 4 at 19.) None of these claims has been presented to, or actually decided ...


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