Moe v. Williams et al, No. 3:2014cv00410 - Document 20 (D. Nev. 2015)
Court Description: ORDER granting in part and denying in part Respondents' 7 Motion to Dismiss (see order for details). Petitioner to have until 7/31/2015 to either: (1) inform the Court that he wishes to abandon the unexhausted claims; (2) file a motion for a stay while he exhausts his unexhausted claims; or (3) file a declaration that he wishes to voluntarily dismiss his entire petition without prejudice. Signed by Judge Robert C. Jones on 6/25/2015. (Copies have been distributed pursuant to the NEF - KR)
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Moe v. Williams et al Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 MICHAEL JOHN MOE, 9 Petitioner, 10 vs. 11 3:14-cv-00410-RCJ-WGC BRIAN E. WILLIAMS, SR., et al., ORDER 12 13 Respondents. _________________________________/ 14 15 Introduction 16 In this habeas corpus action, the respondents have filed a motion to dismiss. The court will 17 grant that motion to dismiss in part and deny it in part. The court finds several claims in the habeas 18 petition in this case to be unexhausted in state court. The court will require the petitioner, Michael 19 John Moe, to make an election regarding his unexhausted claims. 20 Background 21 On May 22, 2009, Moe was convicted, in Nevada’s Second Judicial District Court, pursuant 22 to a jury verdict, of one count of burglary. See Judgment, Exhibit 39. (The exhibits referred to in 23 this order were filed by respondents, and are located in the record at ECF Nos. 8, 9, 10, 11, 12, and 24 13.) The burglary involved Moe entering a sporting goods store and shoplifting items from that 25 store. Moe was adjudicated an habitual criminal and sentenced to 10 to 25 years in prison. See id. 26 Dockets.Justia.com 1 Moe appealed. On appeal he raised two claims, neither of which included any assertion that 2 his federal constitutional rights had been violated. See Fast Track Statement, Exhibit 53. The 3 Nevada Supreme Court affirmed Moe’s judgment of conviction on November 5, 2009. See Order of 4 Affirmance, Exhibit 55. 5 On April 21, 2010, Moe filed a post-conviction petition for writ of habeas corpus in the state 6 district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 60. After counsel 7 was appointed for him, Moe filed a supplemental petition on August 7, 2011. See Supplemental 8 Petition for Writ of Habeas Corpus, Exhibit 88. Moe subsequently amended his petition. 9 See Motion for Leave to Amend, Exhibit 109; Order Granting Motion for Leave to Amend, Exhibit 10 117. On January 8, 2013, the state district court held an evidentiary hearing. See Transcript of 11 Proceedings, January 8, 2013, Exhibit 121. The state district court denied Moe’s petition in a written 12 order on April 8, 2013. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 124. Moe 13 appealed. On appeal he asserted only claims of ineffective assistance of trial counsel. See Fast 14 Track Statement, Exhibit 132. On September 18, 2013, the Nevada Supreme Court affirmed the 15 denial of Moe’s petition. See Order of Affirmance, Exhibit 138. 16 This court received Moe’s pro se federal habeas corpus petition on August 6, 2014. See 17 Petition for Writ of Habeas Corpus (ECF No. 4). Moe’s federal habeas petition includes 44 grounds 18 for relief, some with several subparts. See id. 19 On February 17, 2015, respondents filed a motion to dismiss, contending that all Moe’s 20 claims are unexhausted in state court. See Motion to Dismiss (ECF No. 7). Respondents also 21 contend that all Moe’s claims are conclusory and that some of his claims are not cognizable in a 22 federal habeas action. See id. Moe filed an opposition to the motion to dismiss on June 8, 2015 23 (ECF No. 18), and respondents filed a reply on June 17, 2015 (ECF No. 19). 24 Discussion 25 26 A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is 2 1 intended to allow state courts the initial opportunity to correct constitutional deprivations. See 2 Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the 3 claim to the highest state court, and must give that court the opportunity to address and resolve it. 4 See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 10 (1992). A claim is fairly presented to the state’s highest court if, before that court, the petitioner 6 describes the operative facts and legal theory upon which the claim is based. See Anderson v. 7 Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d 8 859, 862 (9th Cir. 1982). 9 The question of Moe’ exhaustion of claims in state court is controlled by the claims that Moe 10 asserted on his direct appeal (see Fast Track Statement, Exhibit 53) and on the appeal in his state 11 habeas action (see Fast Track Statement, Exhibit 132). 12 Ground 1 13 In Ground 1 of his habeas corpus petition, Moe claims that his federal constitutional rights 14 were violated because law enforcement obtained statements from him without giving him a Miranda 15 warning, and without obtaining a voluntary, knowing and intelligent waiver of his constitutional 16 rights. See Petition for Writ of Habeas Corpus (ECF No. 4). Moe did not assert this claim on his 17 direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the 18 appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 1 is unexhausted. 19 Ground 2 20 In Ground 2, Moe claims that his federal constitutional rights were violated “due to trial 21 court’s error in admitting into evidence a statement by arresting officer which was filled with lies 22 and fabrications.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his 23 direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the 24 appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 2 is unexhausted. 25 26 3 1 Ground 3 2 In Ground 3, Moe claims that his federal constitutional rights were violated because “[t]he 3 sentence of imprisonment of 10 to 25 years in Nevada State Prison for a burglary offense, which had 4 $0.00 loss, was an excessive, disproportionate, and cruel and unusual sentence.” See Petition for 5 Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track 6 Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. 7 See Fast Track Statement, Exhibit 132. Ground 3 is unexhausted. 8 Ground 4 9 In Ground 4, Moe claims that his federal constitutional rights were violated because the State 10 failed to prove, beyond a reasonable doubt, that he committed burglary. See Petition for Writ of 11 Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, 12 Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast 13 Track Statement, Exhibit 132. Ground 4 is unexhausted. 14 Ground 5 15 In Ground 5, Moe claims that his federal constitutional rights were violated because Nevada 16 law permitted him to be convicted of burglary based solely on the “fabricated and uncorroborated 17 testimony” of the arresting officer. See Petition for Writ of Habeas Corpus. Moe did not assert this 18 claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim 19 on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 5 is 20 unexhausted. 21 Ground 6 22 In Ground 6, Moe claims that his federal constitutional right to confront and cross-examine 23 the witnesses against him was violated because “the trial court allowed trial to proceed without the 24 State’s witness, Burl Sutter.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim 25 on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on 26 4 1 the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 6 is 2 unexhausted. 3 Ground 7 4 In Ground 7, Moe claims that his federal constitutional rights were violated, on account of 5 ineffective assistance of his appellate counsel, because his appellate counsel failed to raise certain 6 issues on his direct appeal. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 7 his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on 8 the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 7 is 9 unexhausted. 10 Ground 8 11 In Ground 8, Moe claims that his federal constitutional rights were violated because the trial 12 court denied a challenge for cause regarding a potential juror. See Petition for Writ of Habeas 13 Corpus. On his direct appeal, Moe made a claim regarding the trial court’s denial of the challenge to 14 the prospective juror. See Fast Track Statement, Exhibit 53, pp. 4-8. However, Moe did not claim 15 that his federal constitutional rights were violated. See id. Therefore, Moe did not exhaust this 16 claim. See Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.2000) (“[T]he petitioner must make the 17 federal basis [of the claim] explicit either by citing federal law or the decisions of federal courts, 18 even if the federal basis of a claim is ‘self-evident,’ or the underlying claim would be decided under 19 state law on the same considerations that would control resolution of the claim on federal grounds.”), 20 as amended by 247 F.3d 904 (9th Cir.2001). Moe did not assert this claim on the appeal in his state 21 habeas action. See Fast Track Statement, Exhibit 132. Ground 8 is unexhausted. 22 Ground 9 23 In Ground 9, Moe claims that his federal constitutional rights were violated because of the 24 Nevada Supreme Court’s unwillingness to conduct a fair and adequate appellate review. See 25 Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast 26 5 1 Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas 2 action. See Fast Track Statement, Exhibit 132. Ground 9 is unexhausted. 3 Ground 10 4 In Ground 10, Moe claims that his federal constitutional rights were violated because “the 5 state court and district attorney ... sentenced and asked for habitual criminal status by using 3 6 misdemeanor convictions and 1 felony conviction that was uncounseled.” See Petition for Writ of 7 Habeas Corpus. On his direct appeal, Moe made a claim regarding his sentencing as an habitual 8 criminal, but he did not there challenge the sentencing on the basis that any of his prior convictions 9 were “uncounseled,” and, at any rate, he did not claim that his federal constitutional rights were 10 violated. See Fast Track Statement, Exhibit 53, pp. 8-11. Moe did not assert this claim on the 11 appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 10 is unexhausted. 12 Ground 11 13 In Ground 11, Moe claims that his federal constitutional rights were violated “due to the trial 14 court’s abuse of discretion in denying a meaningful opportunity to present his defense by allowing 15 less than 16 mins. for a defense.” See Petition for Writ of Habeas Corpus. Moe did not assert this 16 claim on his direct appeal. See Fast Track Statement, Exhibit 53. Nor did Moe present this federal 17 constitutional claim to the Nevada Supreme Court on the appeal in his state habeas action. Ground 18 11 is unexhausted 19 Ground 12 20 In Ground 12, Moe claims that his federal constitutional rights were violated “because trial 21 court admitted a statement ‘not’ made by petitioner which was the result of Officer Robertson lying 22 to court, which was either by his own doing or brought about by a request by prosecuting attorney.” 23 See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast 24 Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas 25 action. See Fast Track Statement, Exhibit 132. Ground 12 is unexhausted. 26 6 1 Ground 13 2 In Ground 13, Moe claims that his federal constitutional rights were violated because “[t]he 3 state court ... enhanced the petitioner’s burglary charge to habitual criminal status because of a 4 Nevada law that allows for enhancement of a behavior or crime, which a person may have no control 5 over because of medical reasons and not criminal reasons.” See Petition for Writ of Habeas Corpus. 6 Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe 7 did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 8 132. Ground 13 is unexhausted. 9 Ground 14 10 In Ground 14, Moe claims that his federal constitutional rights were violated because of the 11 State’s failure to properly preserve evidence. See Petition for Writ of Habeas Corpus. Moe did not 12 assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert 13 this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 14 14 is unexhausted. 15 Ground 15 16 In Ground 15, Moe claims that his federal constitutional rights were violated, as a result of 17 ineffective assistance of his appellate counsel. See Petition for Writ of Habeas Corpus. Moe claims 18 that his appellate counsel had a conflict of interest, and, as a result, did not raise, on Moe’s direct 19 appeal, any claims of ineffective assistance of trial counsel. Moe did not assert this claim before the 20 Nevada Supreme Court. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. 21 Ground 15 is unexhausted. 22 Ground 16 23 In Ground 16, Moe claims that his federal constitutional rights were violated “due to the 24 State’s introduction of evidence of Burl Sutter’s GPS box, even though Burl Sutter was never 25 available for cross-examination.” See Petition for Writ of Habeas Corpus. Moe did not assert this 26 claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim 7 1 on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 16 is 2 unexhausted. 3 Ground 17 4 In Ground 17, Moe claims that “[t]he GPS device and video games were admitted into 5 evidence in violation of the Fourth Amendment of the United States Constitution’s prohibition 6 against unreasonable searches and seizures. See Petition for Writ of Habeas Corpus. Moe did not 7 assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert 8 this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 9 17 is unexhausted. 10 Ground 18 11 In Ground 18, Moe claims that he “is in custody in violation of his right to due process of law 12 under the Fifth and Fourteenth Amendments of the U.S. Constitution as the result of vindictive 13 prosecution, when an habitual criminal adjudication was sought by the prosecution, after trial was 14 complete and petitioner exercised his right to trial by jury.” See Petition for Writ of Habeas Corpus. 15 Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe 16 did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 17 132. Ground 18 is unexhausted. 18 Ground 19 19 In Ground 19, Moe claims he “is in custody in violation of his right to due process of law 20 under the Fifth and Fourteenth Amendments of the U.S. Constitution when the trial court abused its 21 discretion in adjudicating petitioner an habitual criminal.” See Petition for Writ of Habeas Corpus. 22 Moe asserts that the trial court abused its discretion because his prior convictions were “stale and 23 remote,” because one of his prior convictions was the result of a jury trial conducted without him 24 present, because all the prior convictions were for non-violent property crimes, and because “the 25 present offense had $0 loss.” See id. On his direct appeal, Moe made a similar claim. See Fast 26 Track Statement, Exhibit 53, pp. 8-11. However, Moe did not claim that his federal constitutional 8 1 rights were violated. See id. Therefore, Moe did not exhaust this claim on his direct appeal. See 2 Lyons, 232 F.3d at 670 (“[T]he petitioner must make the federal basis [of the claim] explicit either 3 by citing federal law or the decisions of federal courts, even if the federal basis of a claim is 4 ‘self-evident,’ or the underlying claim would be decided under state law on the same considerations 5 that would control resolution of the claim on federal grounds.”), as amended by 247 F.3d 904. Moe 6 did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 7 132. Ground 19 is unexhausted. 8 Ground 20 9 In Ground 20, Moe claims he “was denied his Sixth and Fourteenth Amendment rights to 10 effective assistance of counsel when counsel failed to conduct any pretrial investigation on State’s 11 witnesses, and witnesses Petitioner requested to be investigated and called for trial.” See Petition for 12 Writ of Habeas Corpus. 13 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 14 action. On that appeal, Moe claimed that his trial counsel was ineffective for failure to investigate 15 witnesses Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, pp. 5-9. To this 16 extent, the claim in Ground 20 is exhausted. In all other respects, Ground 20 is unexhausted. 17 Ground 21 18 In Ground 21, Moe claims that his federal constitutional rights were violated “due to the 19 failure of the Washoe County public defender’s office to provide him with resources necessary for 20 his defense.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct 21 appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in 22 his state habeas action. See Fast Track Statement, Exhibit 132. Ground 21 is unexhausted. 23 Ground 22 24 In Ground 22, Moe claims that his federal constitutional rights were violated “because the 25 trial court was biased, prejudicial, and abused it’s discretion and misconducted himself during 26 motion hearings, trial, and during sentencing.” See Petition for Writ of Habeas Corpus. Moe did not 9 1 assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert 2 this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 3 22 is unexhausted. 4 Ground 23 5 In Ground 23, Moe claims that his federal constitutional rights were violated because of 6 prosecutorial misconduct. See Petition for Writ of Habeas Corpus. Ground 23 has 16 subparts, 7 designated A through P. See id. Moe did not assert any claim of prosecutorial misconduct on either 8 his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 9 Track Statement, Exhibit 132. Ground 23 is unexhausted. 10 Ground 24(2) 11 In Ground 24(2) (Ground 24 includes 31 subparts, numbered 2 through 32; there is no 12 Ground 24(1)), Moe claims that he was denied his federal constitutional right to effective assistance 13 of his trial counsel on account of his trial counsel’s failure to call at least 5 witnesses petitioner told 14 him to call. See Petition for Writ of Habeas Corpus. 15 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 16 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to prepare, 17 encourage, and subpoena Pam Metzger to testify. See Fast Track Statement, Exhibit 132, pp. 12-14. 18 To this extent, the claim in Ground 24(2) is exhausted. In all other respects, Ground 24(2) is 19 unexhausted. 20 Ground 24(3) 21 In Ground 24(3), Moe claims that he was denied his federal constitutional right to effective 22 assistance of his trial counsel on account of his trial counsel’s failure “to call and allow petitioner to 23 testify in motion to suppress hearing and at trial.” See Petition for Writ of Habeas Corpus. 24 25 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to encourage 26 10 1 Moe to testify at trial. See Fast Track Statement, Exhibit 132, pp. 10-12. To this extent, the claim in 2 Ground 24(3) is exhausted. In all other respects, Ground 24(3) is unexhausted. 3 Ground 24(4) 4 In Ground 24(4), Moe claims that he was denied his federal constitutional right to effective 5 assistance of his trial counsel on account of his trial counsel’s failure “to object to prosecutorial 6 misconduct, judicial misconduct.” See Petition for Writ of Habeas Corpus. Moe did not assert this 7 claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, 8 Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(4) is unexhausted. 9 10 Ground 24(5) In Ground 24(5), Moe claims that he was denied his federal constitutional right to effective 11 assistance of his trial counsel on account of his trial counsel’s failure “to object to speculative 12 testimony by Scott Catron and Jeffrey Duncan, along with speculative testimony by Officer 13 Robertson.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 14 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 15 Track Statement, Exhibit 132. Ground 24(5) is unexhausted. 16 Ground 24(6) 17 In Ground 24(6), Moe claims that he was denied his federal constitutional right to effective 18 assistance of his trial counsel on account of his trial counsel’s failure “to object to the prosecutor’s 19 constant leading in questions asked.” See Petition for Writ of Habeas Corpus. Moe did not assert 20 this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 21 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(6) is unexhausted. 22 Ground 24(7) 23 In Ground 24(7), Moe claims that he was denied his federal constitutional right to effective 24 assistance of his trial counsel on account of trial counsel’s failure “to object to prosecutorial abuse 25 and misconduct during voir dire questioning, opening statement, during trial, and during closing 26 arguments.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 11 1 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 2 Track Statement, Exhibit 132. Ground 24(7) is unexhausted. 3 Ground 24(8) 4 In Ground 24(8), Moe claims that he was denied his federal constitutional right to effective 5 assistance of his trial counsel on account of trial counsel’s failure “to instruct trial court to give jury 6 instruction #11, prior to the start, or during jury trial.” See Petition for Writ of Habeas Corpus. Moe 7 did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast 8 Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(8) is unexhausted. 9 10 Ground 24(9) In Ground 24(9), Moe claims that he was denied his federal constitutional right to effective 11 assistance of his trial counsel on account of trial counsel’s failure “to investigate any of State’s 12 witnesses along with lying about availability of petitioner’s witnesses.” See Petition for Writ of 13 Habeas Corpus. 14 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 15 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to investigate 16 witnesses Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, pp. 5-9. To this 17 extent, the claim in Ground 24(9) is exhausted. In all other respects, Ground 24(9) is unexhausted. 18 Ground 24(10) 19 In Ground 24(10), Moe claims that he was denied his federal constitutional right to effective 20 assistance of his trial counsel because “[t]rial counsel misrepresented petitioner at and during 21 preliminary hearing.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 22 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 23 Fast Track Statement, Exhibit 132. Ground 24(10) is unexhausted. 24 Ground 24(11) 25 In Ground 24(11), Moe claims that he was denied his federal constitutional right to effective 26 assistance of his trial counsel because “[t]rial counsel offered fabricated and forged evidence to court 12 1 at preliminary hearing.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 2 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 3 Fast Track Statement, Exhibit 132. Ground 24(11) is unexhausted. 4 Ground 24(12) 5 In Ground 24(12), Moe claims that he was denied his federal constitutional right to effective 6 assistance of his trial counsel because “[t]rial counsel attempted at [every] meeting and through 7 letters to coerce me, petitioner, into taking a deal.” See Petition for Writ of Habeas Corpus. Moe did 8 not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast 9 Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(12) is unexhausted. 10 Ground 24(13) 11 In Ground 24(13), Moe claims that he was denied his federal constitutional right to effective 12 assistance of his trial counsel because “[t]rial counsel failed, to the point of abuse, to follow and 13 carry out [jury instruction number 11] during trial.” See Petition for Writ of Habeas Corpus. Moe 14 did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast 15 Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(13) is unexhausted. 16 Ground 24(14) 17 In Ground 24(14), Moe claims that he was denied his federal constitutional right to effective 18 assistance of his trial counsel because “[t]rial counsel failed to ask for a lesser included offense in 19 jury instruction.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 20 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 21 Track Statement, Exhibit 132. Ground 24(14) is unexhausted. 22 Ground 24(15) 23 In Ground 24(15), Moe claims that he was denied his federal constitutional right to effective 24 assistance of his trial counsel because “[t]rial counsel purposely violated [HIPAA] during 25 sentencing.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 26 13 1 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 2 Track Statement, Exhibit 132. Ground 24(15) is unexhausted. 3 Ground 24(16) 4 In Ground 24(16), Moe claims that he was denied his federal constitutional right to effective 5 assistance of his trial counsel because “[t]rial counsel failed to present evidence at motion to 6 suppress hearing, at trial, and during sentencing.” See Petition for Writ of Habeas Corpus. 7 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 8 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to offer at trial, 9 as evidence, “the advertisement flyer showing sale jackets from Cabela’s store and [the receipt from] 10 Metzger’s gambling tournament at Boomtown.” See Fast Track Statement, Exhibit 132, p. 14. To 11 this extent, the claim in Ground 24(16) is exhausted. In all other respects, Ground 24(16) is 12 unexhausted. 13 Ground 24(17) 14 In Ground 24(17), Moe claims that he was denied his federal constitutional right to effective 15 assistance of his trial counsel because “[t]rial counsel attempted ... to coerce petitioner into not filing 16 an appeal on this case.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 17 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 18 Fast Track Statement, Exhibit 132. Ground 24(17) is unexhausted. 19 Ground 24(18) 20 In Ground 24(18), Moe claims that he was denied his federal constitutional right to effective 21 assistance of his trial counsel because “[t]rial counsel failed to object to the exclusion of the State’s 22 witness Burl Sutter during trial.” See Petition for Writ of Habeas Corpus. Moe did not assert this 23 claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, 24 Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(18) is unexhausted. 25 26 14 1 Ground 24(19) 2 In Ground 24(19), Moe claims that he was denied his federal constitutional right to effective 3 assistance of his trial counsel because “[t]rial counsel was psychologically unfit to be a lawyer and 4 represent me during trial.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 5 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 6 Fast Track Statement, Exhibit 132. Ground 24(19) is unexhausted. 7 Ground 24(20) 8 In Ground 24(20), Moe claims that he was denied his federal constitutional right to effective 9 assistance of his trial counsel because “[t]rial counsel failed to object to inadmissible evidence 10 during trial and during sentencing.” See Petition for Writ of Habeas Corpus. Moe did not assert this 11 claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, 12 Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(20) is unexhausted. 13 Ground 24(21) 14 In Ground 24(21), Moe claims that he was denied his federal constitutional right to effective 15 assistance of his trial counsel because “[t]rial counsel failed to adequately review and investigate 16 defendant’s case.” See Petition for Writ of Habeas Corpus. 17 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 18 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to “investigate 19 the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger 20 selling videotapes stolen by Moe.” See Fast Track Statement, Exhibit 132, pp. 20-21. To this extent, 21 the claim in Ground 24(21) is exhausted. In all other respects, Ground 24(21) is unexhausted. 22 Ground 24(22) 23 In Ground 24(22), Moe claims that he was denied his federal constitutional right to effective 24 assistance of his trial counsel because “[t]rial counsel failed to present evidence and to object to 25 evidence during sentencing that would of made habitual sentence improper sentence.” See Petition 26 for Writ of Habeas Corpus. 15 1 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 2 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object to “the 3 prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling 4 videotapes stolen by Moe.” See Fast Track Statement, Exhibit 132, pp. 20-21. Also, on that appeal, 5 Moe claimed that his trial counsel was ineffective for failing to offer evidence at the sentencing that 6 one of his prior convictions was the result of a trial at which he was not present. See id. at 21. In 7 these respects, the claim in Ground 24(22) is exhausted. In all other respects, Ground 24(22) is 8 unexhausted. 9 10 Ground 24(23) In Ground 24(23), Moe claims that he was denied his federal constitutional right to effective 11 assistance of his trial counsel because “[t]rial counsel failed to object to improper statements by 12 prosecuting attorney during voir dire questioning, trial, and sentencing.” See Petition for Writ of 13 Habeas Corpus. 14 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 15 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object to “the 16 prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling 17 videotapes stolen by Moe.” See Fast Track Statement, Exhibit 132, pp. 20-21. To that extent, the 18 claim in Ground 24(23) is exhausted. In all other respects, Ground 24(23) is unexhausted. 19 Ground 24(24) 20 In Ground 24(24), Moe claims that he was denied his federal constitutional right to effective 21 assistance of his trial counsel because “[t]rial counsel failed to object to improper commentary by 22 prosecuting attorney during opening statements, and during closing arguments, and during 23 sentencing.” See Petition for Writ of Habeas Corpus. 24 Here again, the court finds that Moe exhausted this claim, in part, on the appeal in his state 25 habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object 26 to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger 16 1 selling videotapes stolen by Moe.” See Fast Track Statement, Exhibit 132, pp. 20-21. To that 2 extent, the claim in Ground 24(24) is exhausted. In all other respects, Ground 24(24) is 3 unexhausted. 4 Ground 24(25) 5 In Ground 24(25), Moe claims that he was denied his federal constitutional right to effective 6 assistance of his trial counsel because “[t]rial counsel failed to object to testimony that was the result 7 of an absent Miranda rights warning.” See Petition for Writ of Habeas Corpus. Moe did not assert 8 this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 9 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(25) is unexhausted. 10 Ground 24(26) 11 In Ground 24(26), Moe claims that he was denied his federal constitutional right to effective 12 assistance of his trial counsel because “[t]rial counsel failed to object to judicial misconduct and 13 judicial abuse of discretion during motion to suppress hearing, trial, and during sentencing.” See 14 Petition for Writ of Habeas Corpus. 15 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 16 action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object “when 17 the court ordered there were sixteen minutes left to finish the jury trial after the State’s case.” See 18 Fast Track Statement, Exhibit 132, pp. 9-10. To that extent, the claim in Ground 24(26) is 19 exhausted. In all other respects, Ground 24(26) is unexhausted. 20 Ground 24(27) 21 In Ground 24(27), Moe claims that he was denied his federal constitutional right to effective 22 assistance of his trial counsel because “[t]rial counsel failed to adequately cross-examine State’s 23 witnesses.” See Petition for Writ of Habeas Corpus. Moe bases this claim on his counsel’s alleged 24 failure to adequately cross-examine Officer Robertson. See id. Moe did not assert this claim on 25 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 26 Fast Track Statement, Exhibit 132. Ground 24(27) is unexhausted. 17 1 Ground 24(28) 2 In Ground 24(28), Moe claims that he was denied his federal constitutional right to effective 3 assistance of his trial counsel because “[t]rial counsel failed in calling Evo Novak as defense witness 4 [and Novak] testified in State’s favor.” See Petition for Writ of Habeas Corpus. Moe did not assert 5 this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 6 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(28) is unexhausted. 7 Ground 24(29) 8 In Ground 24(29), Moe claims that he was denied his federal constitutional right to effective 9 assistance of his trial counsel because “[t]rial counsel failed in having Evo Novak investigate 10 petitioner’s case and testify, since Evo Novak is [an] ex-cop.” See Petition for Writ of Habeas 11 Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas 12 action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(29) is 13 unexhausted. 14 Ground 24(30) 15 In Ground 24(30), Moe claims that he was denied his federal constitutional right to effective 16 assistance of his trial counsel because “[t]rial counsel failed to adequately prepare for direct- 17 examination and cross-examination.” See Petition for Writ of Habeas Corpus. As supporting facts 18 for this claim, Moe states: 19 20 21 [Trial counsel] was not ready for anything in this case and since his only position is really a go-between for the court and D.A. to get a satisfactory deal, it was obvious [trial counsel] was going to be a joke at trial. For the court to say “[trial counsel] did a good job” was appropriate to the go-between behavior [trial counsel] did exhibit during this whole process. Was also appropriate for a conviction I was not guilty of. 22 23 Id. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. 24 See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(30) is 25 unexhausted. 26 18 1 Ground 24(31) 2 In Ground 24(31), Moe claims that he was denied his federal constitutional right to effective 3 assistance of his trial counsel because “[t]rial counsel failed to object to legality of the search of 4 petitioner’s person.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either 5 his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 6 Track Statement, Exhibit 132. Ground 24(31) is unexhausted. 7 Ground 24(32) 8 In Ground 24(32), Moe claims that he was denied his federal constitutional right to effective 9 assistance of his trial counsel because “[t]rial counsel failed to call impeachment witnesses and 10 failed to offer impeachment evidence to impeach the complaining witnesses.” See Petition for Writ 11 of Habeas Corpus. 12 The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas 13 action. On that appeal, Moe claimed that his trial counsel “should have played the videotape from 14 Cabela’s security office to impeach Officer David Robertson’s supplemental report,” and should 15 have cross-examined Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, 16 pp. 5-9. To that extent, the claim in Ground 24(32) is exhausted. In all other respects, Ground 17 24(32) is unexhausted. 18 Ground 25 19 In Ground 25, Moe claims that his federal constitutional rights were violated as a result of 20 cumulative error. See Petition for Writ of Habeas Corpus. This claim is exhausted to the extent of 21 Moe’s other exhausted claims. 22 Ground 26 23 In Ground 26, Moe claims that NRS 171.1965 is unconstitutional. See Petition for Writ of 24 Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state 25 habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 26 26 is unexhausted. 19 1 Ground 27 2 In Ground 27, Moe claims that his federal constitutional rights were violated “due to the 3 failure to provide him a pre 4 liminary hearing as provided by law.” See Petition for Writ of Habeas Corpus. Moe did not assert 5 this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 6 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 27 is unexhausted. 7 Ground 28 8 In Ground 28, Moe claims that his federal constitutional rights were violated “due to the 9 fact that jury instructions #3, #5, #7, #8, #10, #11, #13, #16, #17, #18, and #19 should of been given 10 to the jury prior to beginning of the trial.” See Petition for Writ of Habeas Corpus. Moe did not 11 assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 12 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 28 is unexhausted. 13 Ground 29 14 In Ground 29, Moe claims that his federal constitutional rights were violated “because jury 15 instruction #22 erroneously states ‘burglary is complete when a building is entered with the specific 16 intent to commit larceny therein,[’] also erroneously states ‘larceny is the unlawful stealing.’” See 17 Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his 18 appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, 19 Exhibit 132. Ground 29 is unexhausted. 20 Ground 30 21 In Ground 30, Moe claims that his federal constitutional rights were violated “because the 22 burglary statute in Nevada is unconstitutional on its face, by inappropriately defining burglary 23 beyond [its] definition found in appropriate dictionaries.” See Petition for Writ of Habeas Corpus. 24 Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See 25 Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 30 is unexhausted. 26 20 1 Ground 31 2 In Ground 31, Moe claims that his federal constitutional rights were violated “due to the lack 3 of a complete and adequate record, which prevented petitioner an effective confrontation of the 4 State’s witnesses and rendered an inappropriate appellate review of his conviction and sentence 5 fundamentally unfair.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on 6 either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; 7 Fast Track Statement, Exhibit 132. Ground 31 is unexhausted. 8 Ground 32 9 In Ground 32, Moe claims that his “sentencing as an habitual criminal was unconstitutional 10 because it denied him his due process rights, equal protection of laws, and twice put petitioner in 11 jeopardy of life or limb, by sentencing [him] to second sentence for crimes [he] had already served a 12 punishment.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 13 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 14 Track Statement, Exhibit 132. Ground 32 is unexhausted. 15 Ground 33 16 In Ground 33, Moe claims that his federal constitutional rights were violated because, in 17 sentencing him, the trial court considered crimes committed outside its jurisdiction. See Petition for 18 Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his 19 state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. 20 Ground 33 is unexhausted. 21 Ground 34 22 In Ground 34, Moe claims that his federal constitutional rights were violated because of 23 “[t]he trial court’s refusal to grant petitioner’s motion to suppress and trial court’s prejudicial and 24 biased ruling on [photos] and GPS device during trial.” See Petition for Writ of Habeas Corpus. 25 Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See 26 Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 34 is unexhausted. 21 1 Ground 35 2 In Ground 35, Moe claims that his federal constitutional rights were violated because of 3 repeated use of the word “shoplifting” during trial by the prosecutor, defense counsel, and witnesses. 4 See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or 5 his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, 6 Exhibit 132. Ground 35 is unexhausted. 7 Ground 36 8 In Ground 36, Moe claims that his federal constitutional rights were violated because of 9 “[t]he trial court’s minimizing prosecutor misconduct on video tape comment.” See Petition for Writ 10 of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state 11 habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 36 12 is unexhausted. 13 Ground 37 14 In Ground 37, Moe claims that his federal constitutional rights were violated “due to ... [an] 15 effort by trial court, district attorney, and trial counsel to keep this trial one day only.” See Petition 16 for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in 17 his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. 18 Ground 37 is unexhausted. 19 Ground 38 20 In Ground 38, Moe claims that his “sentence to a term of 10 to 25 years was an excessive, 21 disproportionate sentence that constituted cruel and unusual punishment in violation of the Eighth 22 and Fourteenth Amendments to the U.S. Constitution and his right to equal protection of the law 23 under the Fifth and Fourteenth Amendments.” See Petition for Writ of Habeas Corpus. Moe did not 24 assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track 25 Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 38 is unexhausted. 26 22 1 Ground 39 2 In Ground 39, Moe claims that his federal constitutional rights were violated “because trial 3 counsel failed to point out that $0.00 loss failed to meet the larceny threshold of less than $250 for 4 petit larceny, or more that $250 for grand larceny.” See Petition for Writ of Habeas Corpus. Moe 5 did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast 6 Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 39 is unexhausted. 7 Ground 40 8 In Ground 40, Moe claims that his federal constitutional rights were violated “due to trial 9 counsel’s failure to instruct trial court to instruct or give instructions on a lesser crime.” See Petition 10 for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in 11 his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. 12 Ground 40 is unexhausted. 13 Ground 41 14 In Ground 41, Moe claims that his federal constitutional rights were violated “because jury 15 instruction #9 is unconstitutional and allowed the trial court to proceed with trial without the 16 availability of Burl Sutter.” See Petition for Writ of Habeas Corpus. Moe did not assert this claim 17 on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 18 53; Fast Track Statement, Exhibit 132. Ground 41 is unexhausted. 19 Ground 42 20 In Ground 42, Moe claims that his federal constitutional rights were violated “because of 21 prosecutorial misconduct introducing evidence that is of a Brady violation, along with a ... judicial 22 abuse of discretion, when trial court admitted Brady violation evidence during trial in order to 23 achieve a biased and prejudicial verdict against petitioner.” See Petition for Writ of Habeas Corpus. 24 Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See 25 Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 42 is unexhausted. 26 23 1 Ground 43 2 In Ground 43, Moe claims that his federal constitutional rights were violated “due to trial 3 court’s abuse of discretion sentencing petitioner to habitual criminal status due to past conviction[s] 4 that are remote in time, all non-violent offenses, and trivial in nature; also, the sentence was a 5 reflection of petitioner exercising petitioner’s right to trial by jury.” See Petition for Writ of Habeas 6 Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas 7 action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. On his direct 8 appeal, Moe did argue that the imposition of an habitual criminal sentence was an abuse of 9 discretion; however, Moe did not claim a federal constitutional violation. See Fast Track Statement, 10 Exhibit 53. Ground 43 is unexhausted. 11 Ground 44 12 In Ground 44, Moe claims that he was denied his federal constitutional right to effective 13 assistance of his trial counsel because his counsel was ineffective in his state post-conviction 14 proceedings. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his 15 direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast 16 Track Statement, Exhibit 132. Ground 44 is unexhausted. 17 Summary Regarding Exhaustion of Claims 18 The court, therefore, finds that Moe’s habeas corpus petition is mixed, in that it contains both 19 20 exhausted and unexhausted claims. The following claims in Moe’s habeas petition are exhausted: Ground 20 (to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron); 21 22 Ground 24(2) (to the extent based on trial counsel’s alleged failure to call Pam Metzger to testify); 23 Ground 24(3) (to the extent based on trial counsel’s alleged failure to encourage Moe to testify at trial); 24 25 Ground 24(9) (to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron); 26 24 1 2 3 4 5 6 Ground 24(16) (to the extent based on trial counsel’s alleged failure to offer at trial, as evidence, “the advertisement flyer showing sale jackets from Cabela’s store and [the receipt from] Metzger’s gambling tournament at Boomtown”); Ground 24(21) (to the extent based on trial counsel’s alleged failure to “investigate the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); Ground 24(22) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe,” and to offer evidence that one of his prior convictions was the result of a trial at which he was not present); 7 8 Ground 24(23) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); 9 10 Ground 24(24) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); 11 12 Ground 24(26) (to the extent based on trial counsel’s alleged failure to object “when the court ordered there were sixteen minutes left to finish the jury trial after the State’s case”); 13 14 Ground 24(32) (to the extent based on trial counsel’s alleged failure to play “the videotape from Cabela’s security office to impeach Officer David Robertson’s supplemental report,” and to cross-examine Donnelly, Duncan, and Catron); and 15 Ground 25 (to the extent of Moe’s other exhausted claims) 16 17 The following claims in Moe’s habeas petition are unexhausted: Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 18 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 (except to the extent based on trial counsel’s alleged failure to 19 investigate witnesses Donnelly, Duncan and Catron), 21, 22, 23, 24(2) (except to the extent based on 20 trial counsel’s alleged failure to call Pam Metzger to testify), 24(3) (except to the extent based on 21 trial counsel’s alleged failure to encourage Moe to testify at trial), 24(4), 24(5), 24(6), 24(7), 24(8), 22 24(9) (except to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, 23 Duncan and Catron), 24(10), 24(11), 24(12), 24(13), 24(14), 24(15), 24(16) (except to the extent 24 based on trial counsel’s alleged failure to offer at trial, as evidence, “the advertisement flyer showing 25 sale jackets from Cabela’s store and [the receipt from] Metzger’s gambling tournament at 26 Boomtown”), 24(17), 24(18), 24(19), 24(20), 24(21) (except to the extent based on trial counsel’s 25 1 alleged failure to “investigate the prosecutor’s hearsay remarks regarding Game Stop contacting 2 Cabela’s about Pam Metger selling videotapes stolen by Moe”), 24(22) (except to the extent based 3 on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop 4 contacting Cabela’s about Pam Metger selling videotapes stolen by Moe,” and to offer evidence that 5 one of his prior convictions was the result of a trial at which he was not present), 24(23) (except to 6 the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks 7 regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”), 8 24(24) (except to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s 9 hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes 10 stolen by Moe”), 24(25), 24(26) (except to the extent based on trial counsel’s alleged failure to 11 object “when the court ordered there were sixteen minutes left to finish the jury trial after the State’s 12 case”), 24(27), 24(28), 24(29), 24(30), 24(31), Ground 24(32) (except to the extent based on trial 13 counsel’s alleged failure to play “the videotape from Cabela’s security office to impeach Officer 14 David Robertson’s supplemental report,” and to cross-examine Donnelly, Duncan, and Catron), 25 15 (except to the extent of Moe’s exhausted claims), 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 16 39, 40, 41, 42, 43, and 44. 17 Respondents’ Other Arguments 18 Respondents argue in their motion to dismiss that all Moe’s claims are conclusory, and that 19 some of Moe’s claims are not cognizable in this federal habeas corpus action. See Motion to 20 Dismiss, pp. 6-8, 20-36. The court finds that these arguments will be better addressed in conjunction 21 with consideration of the merits of Moe’s claims. Therefore, if and when respondents are called 22 upon to answer Moe’s claims with respect to their merits, respondents may assert these arguments in 23 their answer, and the court will consider them at that time. 24 Moe’s Election 25 The court will require Moe to make an election with respect to his unexhausted claims. With 26 respect to his unexhausted claims, Moe must elect one of the following: (1) file a declaration stating 26 1 that he wishes to abandon his unexhausted claims, and proceed, in this action, with the litigation of 2 his exhausted claims; (2) file a motion for a stay, under Rhines v. Weber, 544 U.S. 269 (2005), 3 requesting a stay of this action while he exhausts his unexhausted claims in state court; or 4 (3) voluntarily dismiss this entire action, without prejudice. The court will set a schedule for Moe to 5 make that election. 6 Moe is warned that, if he does not make his election, as required, within the time allowed, 7 the court will dismiss his entire petition, “without prejudice,” pursuant to Rose v. Lundy, 455 U.S. 8 509 (1982). 9 Moe is further warned that if his action is dismissed in its entirety “without prejudice,” either 10 because he elects such dismissal or because he does not make an election within the time allowed, 11 he may be barred by the statute of limitations from ever initiating any subsequent federal habeas 12 corpus action. That is because -- unless there is some form of tolling available to Moe that is not 13 now apparent to the court from the record -- the limitations period imposed by 28 U.S.C. § 2244(d) 14 has likely run out during the pendency of this action. A federal habeas corpus petition does not toll 15 the statute of limitations relative to a subsequent federal habeas action. See Duncan v. Walker, 533 16 U.S. 167, 181-82 (2001) (holding that “an application for federal habeas corpus review is not an 17 ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. 18 § 2244(d)(2).”). 19 If Moe elects to file a motion for stay, he must make a showing in such motion that a stay is 20 warranted under Rhines. In Rhines, the Supreme Court circumscribed the discretion of federal 21 district courts to impose stays to facilitate habeas petitioners’ exhaustion of claims in state court. 22 The Rhines Court stated: 23 24 25 26 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application 27 1 for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). 2 * * * 3 4 5 [I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. 6 7 Rhines, 544 U.S. at 277-78. In short, in a motion for stay, Jones must show (1) that there was good 8 cause for his failure to exhaust his unexhausted claims, (2) that his unexhausted claims are not 9 plainly meritless, and (3) that he has not engaged in intentionally dilatory litigation tactics. 10 IT IS THEREFORE ORDERED that respondents’ Motion to Dismiss Petition for Writ of 11 Habeas Corpus (Doc. 8) is GRANTED IN PART AND DENIED IN PART. The court finds the 12 following claims in petitioner’s habeas petition to be exhausted: 13 Ground 20 (to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron); 14 15 Ground 24(2) (to the extent based on trial counsel’s alleged failure to call Pam Metzger to testify); 16 Ground 24(3) (to the extent based on trial counsel’s alleged failure to encourage Moe to testify at trial); 17 18 19 20 21 22 23 24 Ground 24(9) (to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron); Ground 24(16) (to the extent based on trial counsel’s alleged failure to offer at trial, as evidence, “the advertisement flyer showing sale jackets from Cabela’s store and [the receipt from] Metzger’s gambling tournament at Boomtown”); Ground 24(21) (to the extent based on trial counsel’s alleged failure to “investigate the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); Ground 24(22) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe,” and to offer evidence that one of his prior convictions was the result of a trial at which he was not present); 25 26 Ground 24(23) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); 28 1 2 3 4 Ground 24(24) (to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”); Ground 24(26) (to the extent based on trial counsel’s alleged failure to object “when the court ordered there were sixteen minutes left to finish the jury trial after the State’s case”); 6 Ground 24(32) (to the extent based on trial counsel’s alleged failure to play “the videotape from Cabela’s security office to impeach Officer David Robertson’s supplemental report,” and to cross-examine Donnelly, Duncan, and Catron); and 7 Ground 25 (to the extent of Moe’s other exhausted claims) 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The court finds the following claims in petitioner’s habeas petition to be unexhausted: Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 (except to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron), 21, 22, 23, 24(2) (except to the extent based on trial counsel’s alleged failure to call Pam Metzger to testify), 24(3) (except to the extent based on trial counsel’s alleged failure to encourage Moe to testify at trial), 24(4), 24(5), 24(6), 24(7), 24(8), 24(9) (except to the extent based on trial counsel’s alleged failure to investigate witnesses Donnelly, Duncan and Catron), 24(10), 24(11), 24(12), 24(13), 24(14), 24(15), 24(16) (except to the extent based on trial counsel’s alleged failure to offer at trial, as evidence, “the advertisement flyer showing sale jackets from Cabela’s store and [the receipt from] Metzger’s gambling tournament at Boomtown”), 24(17), 24(18), 24(19), 24(20), 24(21) (except to the extent based on trial counsel’s alleged failure to “investigate the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”), 24(22) (except to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe,” and to offer evidence that one of his prior convictions was the result of a trial at which he was not present), 24(23) (except to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”), 24(24) (except to the extent based on trial counsel’s alleged failure to object to “the prosecutor’s hearsay remarks regarding Game Stop contacting Cabela’s about Pam Metger selling videotapes stolen by Moe”), 24(25), 24(26) (except to the extent based on trial counsel’s alleged failure to object “when the court ordered there were sixteen minutes left to finish the jury trial after the State’s case”), 24(27), 24(28), 24(29), 24(30), 24(31), Ground 24(32) (except to the extent based on trial counsel’s alleged failure to play “the videotape from Cabela’s security office to impeach Officer David Robertson’s supplemental report,” and to cross-examine Donnelly, Duncan, and Catron), 25 (except to the extent of Moe’s exhausted claims), 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44. 24 25 The court will require the petitioner to make an election regarding his unexhausted claims. In all 26 other respects, respondents’ motion to dismiss is denied. 29 1 IT IS FURTHER ORDERED that, with respect to the unexhausted claims in his habeas 2 petition, petitioner must, no later than July 31, 2015, make an election. By that date, petitioner must 3 do one of the following: (1) file a declaration stating that he wishes to abandon all the claims found 4 by this court to be unexhausted, (2) file a motion for a stay, requesting that this case be stayed while 5 he exhausts his unexhausted claims, or (3) file a declaration stating that he wishes to voluntarily 6 dismiss his entire habeas petition in this case without prejudice. If petitioner does not make that 7 election within the time allowed, the court will dismiss his entire habeas petition, without prejudice, 8 pursuant to Rose v. Lundy, 455 U.S. 509 (1982). 9 10 Dated this 25th day of June, 2015. Dated this _____ day of June, 2015. 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 30
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