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Walker v. Baker

United States District Court, D. Nevada

June 17, 2019

CODIE MS WALKER, Petitioner,
RENEE BAKER, 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 Codie Walker's Petition (ECF No. 21). Walker did not oppose or respond to the motion in any way.


         On September 25, 2012, a jury found Walker guilty of first-degree murder (ECF No. 30-13 (Ex. 71)).[1] The state district court sentenced him to a term of 20 to 50 years in prison. (ECF No. 31-5 (Ex. 82).) Judgment of conviction was entered on November 30, 2012. (ECF No. 31-6 (Ex. 83).)

         The Nevada Supreme Court affirmed Walker's conviction in April 2014. (ECF No. 32-24 (Ex. 139).) The Nevada Court of Appeals affirmed the denial of Walker's state postconviction petition in March 2018. (ECF No. 47-4 (Ex. 207).)

         Walker dispatched his federal habeas petition for filing on April 10, 2018 (ECF No. 11). Respondents have moved to dismiss the Petition and the statement of additional claims (ECF Nos. 11, 12) on the basis that many claims are unexhausted or conclusory (ECF No. 21).


         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); see also 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, 455 U.S. at 520). “[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. Cal. Dep't of Corr., 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).

         Respondents assert that Walker did not present any of the following claims to the highest state court and that they are, therefore, unexhausted (ECF No. 21 at 6-8):

• Claim 4: Walker argues that the statute under which he was prosecuted lacked an enacting clause in violation of his Fifth, Sixth, and Fourteenth Amendment rights (ECF No. 12 at 2).[2]
• Claim 6: Walker contends that the prosecutor engaged in misconduct by incorrectly stating to the jury that Walker had no remorse. Id.
• Claim 7: Walker asserts that the trial court and the State both failed to have a medical professional evaluate Walker's competency or mental health. Id.
• Claim 8: Walker contends that he was never tested to see if he was under the influence either during the altercation with the victim or during the ...

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