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Walsh v. Dzurenda

United States District Court, D. Nevada

June 12, 2019

ROBERT WALSH, Petitioner,
JAMES DZURENDA, et al., Respondents.



         This 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).

         I. Procedural History and Background

         On January 24, 2014, a jury found Walsh guilty of trafficking in a Schedule I controlled substance (methamphetamine) in excess of 28 grams (exhibit 19).[1] 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.

         The 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.

         Walsh 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. 6).

         II. Legal Standards & Analysis

         a. Exhaustion

         A 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 Cir. 1981).

         A 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 banc).

         A claim 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).

         Ground 1

         Walsh 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.

         Ground 2

         Walsh 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.

         Ground 3

         Walsh 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 unexhausted.

         Ground 4

         Walsh 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.

         Grounds ...

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