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Hill v. Williams

United States District Court, D. Nevada

July 25, 2019

LEONARD W. HILL, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         The respondents have filed a motion to dismiss (ECF No. 32) the petitioner's first amended petition for writ of habeas corpus (ECF No. 21). Because the petitioner has not exhausted his state-court remedies for ground 1 and part of ground 5, I grant the motion to dismiss in part.

         I. Background

         After the first jury trial, petitioner Leonard Hill was convicted of first-degree murder. Ex. 71 (ECF No. 33-21). Hill appealed. The Supreme Court of Nevada reversed and remanded for a new trial, in part because a change in an expert's testimony violated both state law and fundamental notions of fairness. Ex. 85 (ECF No. 33-35). After the second jury trial, Hill again was convicted of first-degree murder. Ex. 102 (ECF No. 34-16). Hill appealed and the Supreme Court of Nevada affirmed. Ex. 44 (ECF No. 28-3).

         Hill then filed a post-conviction habeas corpus petition in state district court. Ex. 45 (ECF No. 28-4). The state district court appointed counsel, who filed a supplement. Ex. 46 (ECF No. 28-5). The state district court denied the petition. Ex. 48 (ECF No. 28-7). Hill appealed again and the Nevada Supreme Court affirmed. Ex. 50 (ECF No. 28-9).

         Hill then commenced this action with his initial, proper-person petition. ECF No. 8. The court appointed counsel, who filed the amended petition. ECF No. 21.

         II. Exhaustion

         Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

         “[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law.“ Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.“ Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

         A. Hill has not exhausted ground 1

         Ground 1 and the corresponding preceding claims in the state courts concern a change in testimony by Dr. Alane Olson. She performed the autopsy on the victim Martin and provided expert testimony on the length of time that strangulation causes unconsciousness and then death. At all times, she testified that strangulation causes unconsciousness after 10 to 15 seconds of impeding the blood flow to the brain. At the preliminary hearing, she testified that strangulation causes death after 1 to 2 minutes of continuously impeding the blood flow to the brain. Ex. 2, at 11 (ECF No. 22-2, at 4). At the first trial, she testified that strangulation causes death after 3 to 4 minutes of continuously impeding the blood flow to the brain. Ex. 9, at 71 (ECF No. 23-4, at 75). She explained that research between the preliminary hearing and trial led her to modify her conclusions. Id. at 80-81, 82-85 (ECF No. 23-4, at 84-85, 86-89). Dr. Olson's testimony at the second trial was the same as her testimony at the first trial. See Ex. 26, at 93 (ECF No. 26-1, at 94).

         The claim that is now ground 1 has changed through the course of litigation. On appeal from the first trial, Hill argued that the prosecution violated both state law regarding disclosure of expert testimony and federal constitutional protections against concealment of evidence. Ex. 77, at 10-14 (ECF No. 33-27, at 21-25). The Supreme Court of Nevada agreed, reversed the judgment of conviction, and remanded for a new trial.[1] Ex. 85 (ECF No. 33-35)

         On appeal from the second trial, the claim changed. The claim now had two parts. First, Hill argued that the prosecution failed to disclose information to the defense. That information was a pamphlet from a continuing medical education conference that Dr. Olson attended. The pamphlet discussed a case of a person who died by hanging and how long it took that person to die. Ex. 42, at 9-10 (ECF No. 28-1, at 17-18). Second, Hill argued that the pamphlet, and the event it described, was not an adequate foundation for changing her opinion, that the scientific community had no universally accepted time period for how long it takes death by strangulation to occur, and thus Olson's testimony was unreliable, unhelpful, and prejudicial. Id. at 9, 10-12 (ECF No. 28-1, at 17, 18-21). Hill did not cite any provision of the constitution or laws of the United States in this part of the opening brief. In the reply brief, Ex. 43 at 1 (ECF No. 28-2, at 8), Hill included the following quotation:

Due process does not require simply the disclosure of “exculpatory“ evidence. Evidence also must be disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation or to impeach the credibility of the State‘s witnesses. See [Kyles v. Whitley, 514 U.S. 419');">514 U.S. 419, ] 442 n. 13, 445-51, 115 S.Ct. 1555 [(1995)].

Lay v. State, 14 P.3d 1256, 1262 (Nev. 2000). The Supreme Court of Nevada rejected the claims summarily. Ex. 44, at 3 n.3 (ECF No. 28-3, at 4).

         Ground 1 of the original, proper-person petition before this court was a photocopy of Hill's opening brief on appeal from the second trial. ECF No. 8, at 3-29. The claim regarding Dr. Olson's testimony thus was the same as what he presented on direct appeal from the second trial.

         In ground 1 of the counseled first amended petition, the claim has changed again. Hill no longer claims that the prosecution failed to disclose the change in Dr. Olson's testimony or the pamphlet.[2] Hill now argues only that the trial court erred in admitting Dr. Olson's testimony because it was ...


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