United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 comes before the
Court on a sua sponte inquiry as to whether the
petition is subject to dismissal as completely unexhausted.
This order follows upon a prior Order to Show Cause
("OSC") (ECF No. 3) and Petitioner Daniel George
Gravelle's Response (ECF No. 5) thereto. For the reasons
discussed below, the Court dismisses this action without
prejudice for a failure to exhaust his claims in state court.
challenges a conviction and sentence imposed by the Fourth
Judicial District Court for Elko County ("state
court"). (ECF No. 6-1 at 1-2 (citing State of Nevada
v. Daniel George Gravelle, Case No. CR-FP-15-0934).) A
jury found him guilty of possession of a firearm by a person
convicted of a felony offense. (Id. at 21.) In March
2016, the state court entered a judgment of conviction and
sentenced Gravelle to 24-60 months in the custody of the
Nevada Department of Corrections. (Id. at 26,
34-37.) However, the sentence was suspended and Gravelle was
placed on probation for 60 months. (Id. at 44.) In
February 2019, he was charged with a probation violation.
(Id. at 29-30.) The state court conducted an
evidentiary hearing in March 2019 and revoked his probation;
thus, the suspended sentence was executed. (Id. at
before September 23, 2019, Gravelle initiated this habeas
matter. (ECF No. 1.) His original habeas petition (ECF No.
1-1) and amended petition (ECF No. 6-1) state that he did not
file a direct appeal to the Nevada appellate courts regarding
his conviction and he has not previously filed any petitions,
applications, or motions with respect to this judgment in any
state or federal court. The Court entered the OSC on October
1, 2019, requiring Gravelle to show cause in writing
"why this action should not be dismissed without
prejudice because of his failure to exhaust his claims in
state court," and noting that his "showing must be
factually detailed, and must, where possible, be supported by
exhibits." (ECF No. 3 at 5.) The Court further ordered
him to file an amended petition and resolve the filing fee by
either submitting a federal application to proceed in
forma pauperis ("IFP") or pay the $5 filing
fee. Gravelle filed a response to the OSC, IFP application
and amended petition on October 16, 2019. (ECF Nos. 5-6.)
28 U.S.C. § 1914(a) and the Judicial Conference Schedule
of Fees, a $5.00 filing fee is required to initiate a habeas
action in a federal district court. The Court may authorize a
person to begin an action without prepaying fees and costs if
the person submits an IFP application on the approved form
along with the appropriate supporting documentation.
See 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2.
Although Gravelle submitted the required form and supporting
documents, the Court denies his IFP application based on the
exhaustion defect explained in this order and resulting
dismissal of his amended petition.
amended petition (ECF No. 6-1) alleges three grounds for
relief: (1) violation of Sixth and Fourteenth Amendment
rights to effective assistance of counsel and due process,
(2) violation of Fourth and Sixth Amendment rights to
effective assistance of counsel and protection against
unlawful search and seizure, and (3) violation of Sixth and
Fourteenth Amendment rights to court access and due process.
OSC response contends that his attorneys deprived him of the
opportunity to appeal his 2015 conviction by failing to
properly consult with him about filing a direct appeal of his
sentence. Trial counsel filed a notice of withdrawal after
the jury trial and Gravelle was appointed new counsel for
sentencing. He claims neither attorney advised him about
filing an appeal, and argues this was per se
ineffective assistance of counsel. He believes the issue of
prejudice under Strickland v. Washington, 466 U.S.
668 (1984), "could be resolved in a different manner
from the one followed by the district court."
Court finds that the amended petition is subject to immediate
dismissal because it is completely unexhausted. Pursuant to
28 U.S.C. § 2254(b)(1)(A), a state prisoner seeking
habeas corpus relief in federal court must first exhaust
available state court remedies before presenting his claims
in the federal court. The exhaustion requirement ensures that
the state courts, as a matter of federal-state comity, will
have the first opportunity to pass upon and correct alleged
violations of federal constitutional guarantees. Coleman
v. Thompson, 501 U.S. 722, 731 (1991). To satisfy the
exhaustion requirement, a petitioner must fully and fairly
present his claims to the state courts. Woods v.
Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). A claim
must be raised through one complete round of either direct
appeal or collateral proceedings to the highest state court
level of review available. O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Peterson v.
Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc).
A petition that is completely unexhausted is subject to
immediate dismissal without further advisements or
proceedings. See, e.g., Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276
F.3d 478, 481 (9th Cir. 2001).
one and two of the amended petition are based upon claims of
ineffective assistance of counsel ("IAC"). Although
Gravelle includes additional allegations of a denial of due
process and unlawful search and seizure, these claims are
grounded in operative factual allegations asserting that IAC
violated Gravelle's constitutional rights. IAC claims are
not considered on direct appeal under Nevada state practice.
Rather, IAC claims are raised and considered in state
petitions for writ of habeas corpus seeking post-conviction
relief. See generally NRS Chapter 34, Writs:
Certiorari, Mandamus, Prohibition, Habeas Corpus. The Nevada
Supreme Court has affirmed that "[IAC] claims are
properly raised for the first time in a timely first
postconviction petition." Pellegrini v. State,
117 Nev. 860, 882, 34 P.3d 519, 534 (2001); see also
Williams v. Crawford, 669 Fed.Appx. 846, 847 (9th Cir.
2016) (noting that, because "state habeas proceedings
are the 'initial review proceedings' for claims of
ineffective assistance of trial and appellate counsel in
Nevada," petitioner "effectively was required to
bring his claims in those proceedings). Gravelle does not
allege that he has filed a state habeas petition, nor does
the state court's docket reflect the filing of a state
habeas petition (ECF No. 6-1 at 21-33). Thus, his IAC claims
three alleges a denial of due process and access to the
courts based on the state court's April 2019 denial of
free trial transcripts. Gravelle acknowledges that this claim
could not have been raised on direct appeal because it had
yet to occur. (Id. at 6-7.) However, he provides no
reason for failing to exhaust his claim through state habeas
most, Gravelle's response suggests that he could not
exhaust state remedies because counsel was ineffective in
failing to advise him regarding a direct appeal, and
their failure rendered state corrective process unavailable.
This argument misses the mark. Even after the Nevada statute
of limitations expired,  Gravelle at any time could have filed a
state habeas petition and sought to establish good cause for
his failure to file timely petition. If that petition
ultimately were denied as untimely, through to a completed
appeal from denial of the petition in the state appellate
courts, Gravelle still would have exhausted his IAC claims
through available state court procedure. Gravelle instead
brings a federal habeas petition without ever presenting his
habeas claims to Nevada courts. Gravelle's failure to file a
state habeas petition stands as the only reason for his
failure to exhaust his claims through available state
procedure. In short, state corrective process was available,
but Gravelle simply did not invoke it.
THEREFORE IS ORDERED:
Petitioner Daniel George Gravelle's Amended Petition for
Writ of Habeas Corpus (ECF No. 6-1) is DENIED without
prejudice as unexhausted.
Gravelle's Application to Proceed In Forma