United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE.
the court are the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 6),
respondents' motion to dismiss (ECF No. 9),
petitioner's opposition (ECF No. 15), and
respondents' reply (ECF No. 16). The court finds that
petitioner has not exhausted his state-court remedies for two
of his grounds, and that one ground is not addressable in
federal habeas corpus. The court grants in part the motion to
state district court, petitioner agreed to plead guilty to
one count of grand larceny and one count of burglary. Ex. 46,
at 1 (ECF No. 11-5, at 2). Under the agreement, the
prosecution agreed to recommend a habitual-criminal sentence
of 25 years in prison with parole eligibility starting after
a minimum of 10 years, and petitioner would not contest that.
Id. at 4 (ECF No. 11-5, at 5). See also
Nev. Rev. Stat. § 207.010(1)(b). Petitioner agreed that
any sentence would run consecutively to any other sentences
in other cases. Id. at 3 (ECF No. 11-5, at 4). At
the sentencing hearing, there was some confusion about how to
impose the habitual-criminal sentence. Defense counsel, the
prosecutor, and the judge thought that the two counts merged
into one. Ex. 49, at 7-8 (ECF No. 11-8, at 8-9). The judge
sentenced petitioner accordingly. Id. at 8 (ECF No.
11-8, at 9). On October 30, 2012, the state district court
entered a judgment of conviction that imposed one sentence of
25 years with a minimum parole eligibility of 10 years, that
would run consecutively to the sentence imposed in one other
case. Ex. 50 (ECF No. 11-9). Petitioner appealed, and he
filed a fast-track statement. Ex. 73 (ECF No. 11-32). On
September 18, 2013, the Nevada Supreme Court affirmed the
judgment of conviction. Ex. 76 (ECF No. 11-35).
October 31, 2013, petitioner filed his first post-conviction
habeas corpus petition in the state district court. Ex. 78
(ECF No. 11-37). The state district court appointed counsel,
who filed a supplement. Ex. 127 (ECF No. 13-6). On May 27,
2016, the state district court denied the petition. Ex. 138
(ECF No. 13-17). Petitioner appealed. On June 14, 2017, the
Nevada Court of Appeals affirmed. Ex. 167 (ECF No. 14-6).
7, 2014, while the first state post-conviction habeas corpus
petition was pending, the state district court entered an
amended judgment of conviction. Ex. 94 (ECF No. 12-13). The
original judgment of conviction erroneously stated that the
sentence would run consecutively to the sentence imposed in
one other case. However, petitioner had multiple prior active
sentences. The amended judgment of conviction made clear that
the sentence in this case runs consecutively to any other
sentence that petitioner currently was serving. Id.
March 18, 2016, as part of the first state post-conviction
proceedings, the state district court held a hearing. Among
other matters, the state district court noted that
petitioner's sentence was incorrect. Petitioner should
not have received one sentence for both counts, because the
crimes of grand larceny and burglary do not merge, and
because adjudication as a habitual criminal does not result
in one all-encompassing sentence. Instead, petitioner should
have received one sentence for each count. Ex. 135, at 29-30
(ECF No. 13-14, at 30-31). The state district court said that
it would enter an amended judgment of conviction, with two
sentences of 25 years with parole eligibility starting after
a minimum of 10 years, running concurrently. Id. at
31 (ECF No. 13-14, at 32). On March 25, 2016, the state
district court entered a second amended judgment of
conviction in accordance with its statements. Ex. 136 (ECF
November 23, 2016, while the appeal from the denial of the
first state post-conviction habeas corpus was pending,
petitioner filed his second post-conviction habeas corpus
petition in the state district court. Ex. 158 (ECF No.
13-37). On August 31, 2017, the state district court
dismissed the petition. Ex. 171 (ECF No. 14-10). Petitioner
appealed. On May 15, 2018, the Nevada Court of Appeals
affirmed. It held that the second state petition was untimely
under Nev. Rev. Stat. § 34.726(1) and successive under
Nev. Rev. Stat. § 34.810. Ex. 181 (ECF No. 14-20).
11, 2018, petitioner mailed his habeas corpus petition
pursuant to 28 U.S.C. § 2254 to this court. ECF No. 6.
The petition originally contained seven grounds for relief.
The court dismissed grounds 6 and 7, and the court directed a
response to the remaining grounds. ECF No. 5. Respondents
filed their motion to dismiss. ECF No. 9.
Standard for exhaustion
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).
Ground 1 ...