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Lopez v. Williams

United States District Court, D. Nevada

June 13, 2019

ALEXANDER LOPEZ, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         This pro se habeas petition pursuant to 28 U.S.C. § 2254, filed by a Nevada state prisoner, comes before the court on respondents' motion to dismiss. (ECF No. 13). Petitioner has opposed (ECF No. 18), and respondents have replied (ECF No. 20). In addition, petitioner has filed a motion for evidentiary hearing (ECF No. 19), which respondents oppose (ECF No. 21).

         Petitioner Alexander Lopez (“petitioner”) initiated this action on March 7, 2018, with the filing of a federal habeas petition challenging his 2013 state court conviction for conspiracy to commit robbery and robbery with use of a deadly weapon. (ECF No. 1 at 1; Ex. 42).[1] In April 2018, the state court granted the petitioner's pending motion to correct sentence, struck his deadly weapon enhancement, and entered an amended judgment of conviction. (Exs. 118 & 119). Respondents now move to dismiss the petition as moot as it challenges the petitioner's original conviction and not the 2018 amended judgment of conviction, which is the judgment pursuant to which petitioner is currently being held. In the alternative, respondents argue the petition is partially unexhausted and non-cognizable.

         I. Mootness

         “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Dominguez v. Kernan, 906 F.3d 1127, 1132 (9th Cir. 2018) (citing Chafin v. Chafin, 568 U.S. 165, 172 (2013)) (internal punctuation omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id.

         The claims in the instant petition attacking the original judgment of conviction arise from petitioner's trial proceedings and associated appeals. Most, if not all, of these claims are as applicable to the amended judgment of conviction as they were to the original judgment of conviction, despite the fact that petitioner obtained some limited relief by way of the amended judgment of conviction. Where petitioner's claims remain viable following entry of the amended judgment of conviction, it cannot be said that no effectual relief can be granted. The petition is not therefore moot.

         II. 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. 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. 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 filed a pro se state habeas petition on May 26, 2015. (Ex. 78). Counsel was appointed and then filed a supplement to the petition. (See Ex. 90). The trial court denied the petition in a written order dated January 31, 2017. (Ex. 95). Petitioner appealed to the Nevada Supreme Court on February 24, 2017, and the appeal was transferred to the Nevada Court of Appeals on September 27, 2017. (Exs. 97 & 110). On January 9, 2018, the Nevada Court of Appeals issued an order affirming the trial court's decision.[2] (Ex. 111).

         Respondents argue that Ground 1(b), in part, Ground 3, in part, and Ground 4 are unexhausted. Specifically, respondents assert that although all of the allegedly unexhausted claims were raised in petitioner's pro se state petition, which was decided by the trial court, (Exs. 78, 90 & 95), none was raised on appeal to the Nevada Court of Appeals. It is true that the subject claims were not raised in the postconviction appeal; there, petitioner argued only that the trial court erred in denying, without an evidentiary hearing, his claim that counsel was ineffective for failing to convey a plea offer to him. (Exs. 105 & 106). However, the Nevada Court of Appeals nonetheless ruled on the merits of all the claims in the petition when it held:

Next, Lopez argues the district court erred in denying the petition without conducting an evidentiary hearing. To warrant an evidentiary hearing, a petitioner must raise claims supported by specific allegations not belied by the record, and if true, would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). The district court concluded Lopez' claims failed to meet that standard and the record before this court reveals the district court's conclusion in this regard was proper.

         (Ex. 111 at 3). The Nevada Court of Appeals indicated that it reviewed the record and agreed with the district court's conclusion that an evidentiary hearing was not warranted on any of the claims in the petition. Such a holding required finding, as to each claim, that the claim either lacked sufficient specificity, was belied by the record, or otherwise did not entitle the petitioner to relief. In short, it required an assessment of the merits of the petitioner's claims. Having made an assessment as to the merits of each of the claims in the petitioner's state petition, including those that were not raised by petitioner on appeal, the Nevada Court of Appeals actually decided all of the claims in the state petition, rendering all such claims exhausted. Cf. Chambers v. McDaniel, 549 F.3d 1191, 1196 (9th Cir. 2008) (finding Nevada Supreme Court had ruled on the merits of a petition for discretionary review when it stated that it had reviewed the petition and all documents on file and determined no relief was warranted). The motion to dismiss the petition as partially unexhausted will therefore be denied.

         III. Non-Cognizable Claims

         Finally, respondents argue that Ground 3 does not assert a cognizable claim to the extent it asserts appellate counsel was ineffective for errors that occurred during petitioner's pretrial and trial proceedings. The court agrees. Ground 3 asserts claims against both trial counsel and appellate counsel. Because appellate counsel did not represent petitioner during pretrial and trial proceedings, petitioner cannot assert any viable claim that appellate counsel was ineffective for actions improperly taken, or that should have been taken, during those times. Thus, any claims asserting appellate counsel was ineffective for taking or failing to take action during pretrial and trial proceedings will be dismissed. However, at least some of the claims contained within Ground 3 may be fairly liberally construed to allege actions that appellate counsel should have taken with ...


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