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. 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.
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). Petitioner appealed, and the Nevada
Supreme Court affirmed. Ex. 94 (ECF No. 18-3).
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).
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.
The supplemental petition contains no claims for
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).
Petitioner has not exhausted his state-court remedies for
most of his claims
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).
petition contains one ground for relief, with five parts. The
court will use respondents' ...