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Hodges v. Baker

United States District Court, D. Nevada

September 9, 2019

STEVEN BRADLEY HODGES, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE.

         Before 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 dismiss.

         I. Procedural History

         In 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).

         On 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).

         On July 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.

         On 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 No. 13-15).

         On 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).

         On June 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.

         II. Exhaustion

         A. Standard for 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).

         B. Ground 1 ...


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