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Elliott v. McDaniel

United States District Court, D. Nevada

August 22, 2019

ROBERT W. ELLIOTT, Petitioner,
v.
E.K. MCDANIEL, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Robert W. Elliott's 28 U.S.C. § 2254 habeas corpus petition is before the Court on Respondents' motion to dismiss (“Motion”).[1] (ECF No. 60.) For the reasons discussed herein, the Motion is granted in part and denied in part.

         II. BACKGROUND

         On September 13, 2005, a jury convicted Elliott of two counts of robbery with use of a deadly weapon in connection with a robbery at a Reno Dollar Tree store (Exhibits (“Exh.”) 34, 35).[2] The state district court sentenced him to two consecutive terms of 72 to 180 months, with two equal and consecutive terms for the deadly weapon enhancement. (Exh. 40.) Judgment of conviction was filed on October 25, 2005. (Exh. 41.)[3]

         Elliott appealed, and the Nevada Supreme Court affirmed his convictions in May 2006. (Exh. 55.)

         Elliott filed a state postconviction petition for writ of habeas corpus. (Exh. 61.) The state district court granted his motion for appointment of counsel, and Elliott filed a supplemental petition. (Exh. 71.) Following an evidentiary hearing, the state district court denied the petition. (Exhs. 84, 85.) The Nevada Supreme Court affirmed the denial of the petition on December 10, 2010. (Exh. 99.)

         Elliott originally dispatched this federal petition for writ of habeas corpus in January 2011. (ECF No. 5.) Through counsel, Elliott filed an amended petition in May 2018. (ECF No. 49.) Respondents now move to dismiss most grounds of the amended petition as unexhausted. (ECF No. 60.)

         III. LEGAL STANDARD

         State prisoners seeking federal habeas relief must comply with the exhaustion rule codified in § 2254(b)(1):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) The applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

         The purpose of the exhaustion rule is to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal court, and to “protect the state courts' role in the enforcement of federal law.” Rose v. Lundy, 455 U.S. 509, 518 (1982); 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. See 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 also 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 v. Lundy, 455 U.S. 509, 520 (1982)). “[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 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw that applies federal constitutional principles will suffice. See 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. See Bland v. California Dep't of Corrections, 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).

         IV. DISCUSSION

         A. Grounds ...


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