United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
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).
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). 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.
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.
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
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).
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. (Ex. 111).
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.
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.
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 ...