United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
pro se habeas matter under 28 U.S.C. § 2254 is before
the court on respondents' motion to dismiss several
grounds in Robert Walsh's petition (ECF No. 6). Walsh
opposed (ECF No. 23), and respondents replied (ECF No. 24).
Procedural History and Background
January 24, 2014, a jury found Walsh guilty of trafficking in
a Schedule I controlled substance (methamphetamine) in excess
of 28 grams (exhibit 19). The state district court adjudicated
him a habitual criminal and sentenced him to life in prison
without the possibility of parole. Exh. 22. Judgment of
conviction was entered on June 24, 2014. Exh. 23.
Nevada Supreme Court affirmed Walsh's conviction In
October 2015. Exh. 34. The Nevada Court of Appeals affirmed
the denial of Walsh's state postconviction petition in
July 2018. Exh. 45.
filed his federal habeas petition on August 1, 2018 (ECF No.
1). Respondents have moved to dismiss the petition on the
basis that most claims are unexhausted or fail to state a
claim for which federal habeas relief may be granted (ECF No.
Legal Standards & Analysis
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
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 v. Lundy, 455 U.S.
509, 520 (1982)). “[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. 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
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 Dept. 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); Johnstone v. Wolff, 582 F.Supp.
455, 458 (D. Nev. 1984).
argues that the trial court violated his Fourteenth Amendment
due process rights when it failed to notify him that the
State was seeking habitual criminal treatment (ECF No. 1, pp.
3-5). Respondents argue that this claim is unexhausted as a
federal constitutional claim (ECF No. 6 pp. 7-8). However,
Walsh presented this claim on direct appeal, and he cited to
LaChance v. State, 321 P.3d 919 (Nev. 2014). Exh.
27, pp. 5-7. In LaChance, the Nevada Supreme Court
discussed notice of intent to seek habitual criminal
adjudication and federal constitutional due process and fair
trial rights. Id. at 275-277. Thus, Walsh cited to
state case law that applies federal constitutional
principles, and ground 1 is exhausted. Peterson, 319
F.3d at 1158.
contends that the trial court erred in accepting two of the
felony convictions for habitual criminal purposes because the
State had not proved the convictions beyond a reasonable
doubt (ECF No. 1, pp. 7-8). The court agrees with respondents
that Walsh did not present this claim on appeal of his
conviction as a federal constitutional claim. Exh. 27, pp.
7-9. Ground 2, accordingly, is unexhausted.
asserts that the trial court improperly admitted testimony
about the results of the narcotics field test without a
hearing pursuant to Frye v. U.S. (ECF No. 1, pp.
10-17). This court has carefully reviewed Walsh's direct
appeal, and he did not present this as a federal
constitutional claim. Exh. 27, pp. 9-17. Ground 3 is
contends that the prosecutor committed misconduct when he
played a portion of an audiotaped jail telephone call 5 times
on a loop during closing arguments (ECF No. 1, pp. 19-27).
Walsh did not present this claim to the Nevada Supreme Court.
See exh. 27. It is, therefore, unexhausted.