United States District Court, D. Nevada
LEONARD W. HILL, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
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).
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).
Hill has not exhausted ground 1
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).
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. Ex. 85 (ECF No. 33-35)
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
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.
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).
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.
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. Hill now argues only that the trial court
erred in admitting Dr. Olson's testimony because it was