United States District Court, D. Nevada
ROBERT W. ELLIOTT, Petitioner,
E.K. MCDANIEL, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
W. Elliott's 28 U.S.C. § 2254 habeas corpus petition
is before the Court on Respondents' motion to dismiss
(“Motion”). (ECF No. 60.) For the reasons discussed
herein, the Motion is granted in part and denied in part.
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). 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.)
appealed, and the Nevada Supreme Court affirmed his
convictions in May 2006. (Exh. 55.)
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.)
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.)
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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
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
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)
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).