United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL HISTORY AND BACKGROUND
September 25, 2012, a jury found Walker guilty of
first-degree murder (ECF No. 30-13 (Ex. 71)). 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).)
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.
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).
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); 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).
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).
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.
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
• 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 ...