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Miguel v. Howell

United States District Court, D. Nevada

September 16, 2019

JAVON MIGUEL, Petitioner,
v.
JERRY HOWELL, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Petitioner Javon Miguel, a former Nevada prisoner who is proceeding pro se.[1] Currently before the Court is Respondents' Motion to Dismiss (ECF No. 8). Miguel did not oppose the motion, despite receiving an extension of time in which to do so.[2] (ECF No. 28.) For the reasons discussed below, Respondents' motion is granted in part and denied in part.

         BACKGROUND [3]

         Miguel challenges a conviction and sentence imposed by the Eighth Judicial District Court for Clark County, Nevada (“state court”). In October 2012, the State charged Miguel with pandering of a child; first-degree kidnapping; and pandering by furnishing transportation. (ECF No. 9-8.) Following a five-day trial, a jury found Miguel guilty on all three charges. (ECF No. 14-2.) On December 8, 2014, the state district court sentencing Miguel to consecutive sentences of 16 to 72 months for pandering of a child, five to 15 years for first-degree kidnapping, and 12 to 34 months for pandering by furnishing transportation. (ECF No. 14-9.) The judgment of conviction was entered days later. (ECF No. 14-10.)

         Miguel filed a direct appeal, arguing that the State failed to adduce sufficient evidence to support a conviction on two counts: pandering of a child and first-degree kidnapping. (ECF No. 14-12 at 23.) On December 17, 2015, the Nevada Supreme Court affirmed the conviction, and a remittitur issued the following month. (ECF Nos. 19-3, 19-4.)

         Days after sentencing, on December 12, 2014, Miguel filed a pro se state petition for writ of habeas corpus (“state petition”) seeking post-conviction relief. (ECF No. 19-5.) The state court appointed counsel (“post-conviction counsel”) and stayed consideration of the state petition until the direct appeal was decided. (ECF No. 20-7 at 11.) Once the Nevada Supreme Court affirmed the conviction and the stay was lifted, Miguel submitted a counseled supplemental petition. (ECF No. 20-1.) The state court held an evidentiary hearing and denied the state petition in March 2017. (ECF Nos. 20-3.)

         Miguel filed a state habeas appeal through post-conviction counsel. (ECF No. 20-7.) Miguel argued that trial counsel was ineffective because he conceded the elements of pandering by furnishing transportation. (Id. at 15.) The Nevada Court of Appeals affirmed the state court's denial of the state petition, and a remittitur issued in September 2018. (ECF Nos. 20-9, 20-10.)

         On November 1, 2018, Miguel initiated this proceeding by filing a pro se federal petition for writ of habeas corpus (ECF Nos. 1, 4). Respondents now move to dismiss the petition as unexhausted.

         DISCUSSION

         I. Exhaustion

         A. Legal Standard

         Pursuant to 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies on a claim before presenting that claim to the federal courts. This exhaustion requirement ensures that the state courts, as a matter of comity, will have the first opportunity to address and correct alleged violations of federal constitutional guarantees. E.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991). “A petitioner has exhausted his federal claims when he has fully and fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims.”)). To satisfy the exhaustion requirement, a claim must have been raised through one complete round of either direct appeal or collateral proceedings to the highest state court level of review available. O'Sullivan, 526 U.S. at 844-45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). A properly exhausted claim “ ‘must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief'.” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162-63 (1996)). Fair presentation therefore requires a petitioner to present the state courts with both the operative facts and the federal legal theory upon which the claim is based. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005).

         B. Analysis

         Respondents contend that Miguel did not exhaust Grounds 1, 2, 3, 4, and 6, as well as part of Ground 5, because he did not present these subclaims to the Nevada Court of Appeals on direct appeal or habeas appeal. To support their assertions that claims are not exhausted, Respondents point to Miguel's statement in the federal petition indicating that Grounds 1-6 were not raised by appellate counsel in the direct appeal or post-conviction counsel in the habeas appeal.[4] (Id. at 6.)

         1. Ground 1 is Not Exhausted

         In Ground 1, Miguel alleges a violation of his rights under the Fifth and Fourteenth Amendments because the State “adduced no evidence to corroborate its principal witness, A.B., ”[5] as required by NRS 175.291(1); thus, the evidence ...


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