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Alvizar v. State

United States District Court, D. Nevada

July 2, 2019

GUSTAVO ALVIZAR, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER DENYING MOTION TO DISMISS (ECF NO. 10)

          HOWARD D. McKIBBEN, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This action is a petition for writ of habeas corpus by Nevada prisoner Gustavo Alvizar. The respondents have filed a motion to dismiss. The Court will deny the motion to dismiss and will set a schedule for Respondents to file an answer.

         II. Background

         On November 1, 2013, Alvizar pled guilty, in Nevada's Second Judicial District Court (Washoe County), to one count of second-degree murder. See Guilty Plea Memorandum, Exh. 19 (ECF No. 11-19); Transcript of Proceedings, November 1, 2013, Exh. 21 (ECF No. 11-21). On January 14, 2014, Alvizar was sentenced to life in prison with the possibility of parole after ten years. See Transcript of Sentencing, Exh. 28 (ECF No. 11-28). The judgment of conviction was entered that same day. See Judgment, Exh. 27 (ECF No. 11-27).

         Alvizar filed a notice of appeal on April 8, 2014. See Notice of Appeal, Exh. 29 (ECF No. 11-29). On July 23, 2014, the Nevada Supreme Court denied the appeal as untimely. See Order Dismissing Appeal, Exh. 37 (ECF No. 12-7).

         Alvizar filed a petition for writ of habeas corpus in the state district court on July 21, 2014. See Petition for Writ of Habeas Corpus, Exh. 35 (ECF No. 12-5). Counsel was appointed for Alvizar, and with counsel Alvizar filed a supplemental habeas petition on February 11, 2015. See Supplemental Petition for Writ of Habeas Corpus, Exh. 55 (ECF No. 12-25). The state district court held an evidentiary hearing on October 24, 2016. See Transcript of Evidentiary Hearing, Exh. 65 (ECF No. 13-5). The state district court then denied Alvizar's petition on February 6, 2017. See Order Denying Petition and Supplemental Petition, Exh. 66 (ECF No. 13-6). Alvizar appealed, and the Nevada Court of Appeals affirmed on April 11, 2018. See Order of Affirmance, Exh. 86 (ECF No. 13-26).

         This Court received Alvizar's pro se federal habeas corpus petition for filing, initiating this action, on August 31, 2018 (ECF No. 4). Alvizar's petition includes the following claims:

Ground 1: Alvizar's federal constitutional rights were violated as a result of ineffective assistance of counsel because his trial counsel did not properly advise him regarding the possibility of an appeal and did not file a notice of appeal on his behalf. See Petition for Writ of Habeas Corpus (ECF No. 4), pp. 3-4.
Ground 2: Alvizar's federal constitutional rights were violated as a result of ineffective assistance of counsel because his trial counsel failed to adequately investigate his case before he pled guilty. See id. at 5-6, 10.
Ground 3: Alvizar's federal constitutional rights were violated as a result of ineffective assistance of counsel because his trial counsel had a conflict of interest with respect to Alvizar's request to withdraw his guilty plea, because his trial counsel did not secure appointment of separate counsel with respect to his request to withdraw his guilty plea, because his trial counsel did not properly advise him with respect to his request to withdraw his guilty plea, and because his trial counsel did not challenge or correct the trial court's mischaracterization of the sentence he could receive if he withdrew his guilty plea. See id. at 7-8, 11.

         On January 30, 2019, Respondents filed a motion to dismiss (ECF No. 10), contending that part of Ground 3 is unexhausted in state court. Alvizar did not respond to the motion to dismiss.

         III. Discussion

         A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion requirement is based on the policy of federal-state comity, and is intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest available state court and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). A claim is fairly presented to the state court if, before that court, the petitioner describes the operative ...


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