United States District Court, D. Nevada
JAMES E. HERMANSON, Petitioner,
v.
ISIDRO BACA, et al., Respondents.
ORDER
HOWARD
D. McKIBBEN UNITED STATES DISTRICT JUDGE
This
counseled habeas matter pursuant to 28 U.S.C. § 2254
comes before the court on respondents' motion to dismiss
the petition as partially unexhausted and non-cognizable.
(ECF No. 31). Petitioner has opposed (ECF No. 37), and
respondents have replied (ECF No. 41).
Petitioner
challenges his 2013 state court conviction for sexual assault
of a child under the age of 16. (ECF No. 21 at 2). He has
filed a second amended petition asserting five grounds for
relief. Respondents move to dismiss the petition as mixed
because, as conceded by petitioner, Grounds 2, 4 and 5 are
unexhausted. Respondents further argue that Ground 3 is not
cognizable or, in the alternative, is also unexhausted.
In
Ground 3, petitioner asserts that his federal due process
rights were violated because the state court sentenced him
without lawful authority to do so. Specifically, he asserts
that he was sentenced without a presentence investigation
report, which was impermissible under state law. (ECF No. 21
at 20-21). Respondents argue that Ground 3 asserts only a
state law violation, which is not a cognizable federal habeas
claim.
Petitioner
frames Ground 3 as a violation of due process arising from a
state law violation. The fact that petitioner has predicated
his due process violation on a state law violation does not
automatically render the claim a non-cognizable state law
claim. While it is true that a violation of state law will
not, standing alone, violate due process, it may rise to the
level of a due process violation if it renders the
petitioner's trial fundamentally unfair. See Estelle
v. McGuire, 502 U.S. 62, 67 (1991). The question of
whether the violation in this case rose to the level of a due
process violation is not a question that should be resolved
on a motion to dismiss. The motion to dismiss Ground 3 as
non-cognizable will therefore be denied.
The
court agrees with respondents, however, that Ground 3 is
unexhausted. 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. 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 upon which she relies and must also state the facts
that entitle her to relief on that federal claim. 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.
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).
Petitioner
asserts that he raised Ground 3 in a motion to correct
illegal sentence. (Pet. Ex. 40).[1] However, although petitioner
asserted due process several times in the motion, it was
never in relation to his claim that he was improperly
sentenced without a PSI. (Id. at 7-10). Petitioner
argues that it was clear he was asserting a federal due
process claim because he invoked his “constitutional
rights” in the conclusion of the motion. (See
Id. at 11). But this invocation did not fairly present a
due process claim, much less a federal due process claim, and
it certainly did not exhaust the specific due process claim
in Ground 3. See Hiivala v. Wood, 195 F.3d 1098,
1106 (9th Cir. 1999) (“[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” and “to ‘fairly
present' his federal claim to the state courts, [the
petitioner has] to alert the state courts to the fact that he
was asserting a claim under the United States
Constitution.”).
Moreover,
even if the motion had sufficiently alleged Ground 3,
petitioner did not pursue it through all avenues available
because he voluntarily dismissed his appeal. (Resp. Ex. 118;
Pet. Ex. 45). “Generally, a petitioner satisfies the
exhaustion requirement if he properly pursues a claim (1)
throughout the entire direct appellate process of the state,
or (2) throughout one entire judicial postconviction process
available in the state. Whether a claim is exhausted through
a direct appellate procedure, a postconviction procedure, or
both, the claim should be raised at all appellate stages
afforded under state law as of right by that
procedure.” Casey v. Moore, 386 F.3d 896, 916
(9th Cir. 2004). Although petitioner later moved to reinstate
his appeal, (Resp. Ex. 126), the Nevada Supreme Court
declined to allow him to do so. Petitioner has not cited any
authority to support a conclusion that pursuing his appeal in
this fashion was sufficient to fairly present his claims to
the state's highest courts. In fact, presenting a claim
to the state's highest court for “the first and
only time in a procedural context in which its merits will
not be considered unless there are special and important
reasons therefor . . . does not . . . constitute ‘fair
presentation.'” Castille v. Peoples, 489
U.S. 346, 351 (1989) (internal citations and quotation marks
omitted).
Alternatively,
petitioner argues that the exhaustion question is
“premature” because Ground 3 is pending
exhaustion by way of a writ of prohibition and associated
motion for reconsideration that have been awaiting decision
in state court since early 2018. (Pet. Exs. 46 & 55).
Even if petitioner's pending motions will eventually
exhaust this claim, which the court does not conclude, the
claim remains unexhausted at this time, and the court may not
proceed on a mixed petition. Petitioner's argument is
therefore not persuasive.
As
petitioner has not fairly presented the federal due process
claim asserted in Ground 3 to the state courts, Ground 3 is
unexhausted.
As to
Grounds 2, 4, and 5, petitioner concedes that these grounds
are unexhausted but asserts that if he were to return to
state court the petition would be dismissed as procedurally
barred. He therefore asks the court to find the grounds
technically exhausted but procedurally defaulted.
Although
unexhausted, a claim may be subject to anticipatory
procedural default if “it is clear that the state court
would hold the claim procedurally barred.”
Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.
2002). Petitioner asserts he would face several procedural
bars if he were to return to state court. See, e.g.,
Nev. Rev. Stat. §§ 34.726 & 34.810. However, a
procedural default may be excused by a showing of cause and
prejudice, or a fundamental miscarriage of justice,
Murray v. Carrier, 477 U.S. 478, 496 (1986), and
Nevada has cause and prejudice and fundamental miscarriage of
justice exceptions to its procedural bars, which are
substantially the same as the federal standards. If a
petitioner has a potentially viable cause-and-prejudice or
actual-innocence argument under the substantially similar
federal and state standards, then petitioner cannot establish
that “it is clear that the state court would hold the
claim procedurally barred.” For that reason, the courts
in this district have generally declined to find a claim
subject to anticipatory procedural default unless the
petitioner represents that he would be unable to establish
cause and prejudice in a return to state court. In such a
case, the claim would generally be subject to immediate
dismissal as procedurally defaulted, as the petitioner would
have conceded that he has no grounds for exception to the
procedural default in federal court.
A
different situation is presented, however, where the Nevada
state courts do not recognize a potential basis to overcome
the procedural default arising from the violation of a state
procedural rule that is recognized under federal law. In
Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme
Court held that the absence or inadequate assistance of
counsel in an initial-review collateral proceeding may be
relied upon to establish cause excusing the procedural
default of a claim of ineffective assistance of trial
counsel. Id. at 9. The Supreme Court of Nevada does
not recognize Martinez cause as cause to overcome a state
procedural bar under Nevada state law. Brown v.
McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada
habeas petitioner who relies upon Martinez-and only
Martinez-as a basis for overcoming a state
procedural bar on an unexhausted claim can successfully argue
that the state courts would hold the claim procedurally
barred but that he nonetheless has a potentially viable
cause-and-prejudice argument under federal law that would not
be recognized by the state courts when applying the state
procedural bars.
Here,
petitioner advances only Martinez as a basis for
excusing the procedural default of his claims. Further,
Grounds 2, 4 and 5 are all at least potentially saved under
Martinez because they are claims of ineffective
assistance of trial counsel. As such, the court will grant
petitioner's request to consider his unexhausted claims
as technically exhausted but procedurally defaulted. Because
the question of whether the claims are substantial is
intertwined ...