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Hunter v. Baca

United States District Court, D. Nevada

September 26, 2019

LEO HUNTER, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          Howard D. McKibben United States District Judge.

         I. Introduction

         Before the court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 8), the supplemental petition (ECF No. 3), and respondents' motion to dismiss (ECF No. 14). Petitioner has not filed a response to the motion to dismiss. The court finds that the supplemental petition presents no claims for relief. The court also finds that four out of five parts of the sole ground for relief are not exhausted. The court thus grants the motion to dismiss in part.

         II. Procedural History

         After a jury trial in state district court, petitioner was convicted of second-degree murder with the use of a deadly weapon. Ex. 82 (ECF No. 17-21).[1] Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 94 (ECF No. 18-3).

         Petitioner then filed a proper-person post-conviction habeas corpus petition in the state district court. Ex. 98 (ECF No. 18-7). The state district court appointed counsel. Ex. 105 (ECF No. 18-14). Petitioner then filed a counseled supplemental petition. Ex. 107 (ECF No. 18-16). The state district court denied the petition. Ex. 127 (ECF No. 19-6). Petitioner appealed, and the Nevada Court of Appeals affirmed. Ex. 143 (ECF No. 19-22).

         Petitioner then commenced this action with his federal habeas corpus petition (ECF No. 8) and supplement (ECF No. 3). Respondents' motion to dismiss (ECF No. 14) followed.

         III. Discussion

         A. The supplemental petition contains no claims for relief

         In the first three pages of the supplemental petition (ECF No. 3), petitioner has copied by hand the preliminary questions of this court's § 2254 habeas corpus petition form and then answered those questions. Petitioner also attached two exhibits. The first exhibit, labeled "Supplemental Exhibit A, " is a transcript of a videotaped deposition taken during the state post-conviction habeas corpus proceedings. The second exhibit, labeled "Supplemental Exhibit B, " is the opening brief filed on appeal from the denial of the state post-conviction petition. The supplement does not contain any claims, nor does it refer to the two supplemental exhibits. Another possibility is that petitioner filed the supplement in support of the claims that he raised in the original petition. However, the original petition does not refer to the supplemental exhibits, either by name or by substance. The court will dismiss the supplemental petition. The dismissal will not cause any problems with referring to the attached documents, because respondents also have filed these documents as Exhibits 120 (ECF No. 18-29) and 135 (ECF No. 19-14).

         B. Petitioner has not exhausted his state-court remedies for most of his claims

         1. 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).

         The petition contains one ground for relief, with five parts. The court will use respondents' ...


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