Smith v. Neven et al, No. 2:2007cv00161 - Document 33 (D. Nev. 2009)

Court Description: ORDER Granting 25 Motion to Dismiss for Lack of Exhaustion. Petitioner shall have 30 days from the entry of this Order within to file a Motion for Dismissal without prejudice of the entire amended petition, or other appropriate relief. ( Motions due by 4/16/2009.) Signed by Judge James C. Mahan on 03/17/09. (Copies have been distributed pursuant to the NEF - SRK)
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Smith v. Neven et al Doc. 33 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 WILLIE J. SMITH, JR., 10 Petitioner, 2:07-cv-00161-JCM-GWF 11 vs. 12 13 14 ORDER DWIGHT NEVEN, et al., Respondents. 15 16 This habeas action under 28 U.S.C. § 2254 comes before the court on the 17 respondents’ motion (#25) to dismiss for lack of exhaustion as to a number of the claims. In 18 the federal petition, as amended, petitioner Willie J. Smith, Jr. seeks to set aside his 2003 19 Nevada state conviction, pursuant to a jury verdict, of possession of stolen property and his 20 adjudication as a habitual criminal. He was sentenced to a term of ten to twenty-five years. 21 Smith challenged the judgment of conviction both on direct appeal and in a state 22 post-conviction petition. Respondents contend that all or part of grounds 1, 2, 4, 7 and 9 are 23 not exhausted. 24 Governing Law 25 Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court 26 remedies on a claim before presenting that claim to the federal courts. To satisfy this 27 exhaustion requirement, the claim must have been fairly presented to the state courts 28 completely through to the highest court available, in this case the Supreme Court of Nevada. Dockets.Justia.com 1 See Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 2 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to a specific 3 federal constitutional guarantee and must also state the facts that entitle the petitioner to relief 4 on the federal constitutional claim. Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). 5 That is, fair presentation requires that the petitioner present the state courts with both the 6 operative facts and the federal legal theory upon which his claim is based. See Castillo v. 7 McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement accordingly 8 insures that the state courts, as a matter of federal-state comity, will have the first opportunity 9 to pass upon and correct alleged violations of federal constitutional guarantees. See,e.g., 10 Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). 11 Under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), a mixed 12 petition presenting both exhausted and unexhausted claims must be dismissed without 13 prejudice unless the petitioner dismisses the unexhausted claims or seeks other appropriate 14 relief. Discussion 15 16 17 18 General Arguments Petitioner makes a number of general arguments seeking to avoid the application of the exhaustion requirement to his case. 19 Petitioner contends that the respondents acted improperly by filing a motion to dismiss 20 on the basis of exhaustion and/or by referring in the motion to the existence of other possible 21 defenses, such as procedural default, to certain grounds. The response filed fully complies 22 with the court’s service order (#17). The court directed the respondents to file an initial 23 response addressing only the issue of exhaustion, and the court deferred consideration of any 24 other defenses such as procedural default until after it had determined whether the petition, 25 as amended, is completely exhausted. The respondents did not violate this order by filing a 26 motion to dismiss, which is the proper procedural vehicle used to present an exhaustion 27 defense. Nor did the respondents violate the order by referring to the existence of other 28 possible defenses while seeking dismissal exclusively on the basis of exhaustion. The motion -2- 1 to dismiss filed by the respondents properly raised the exhaustion defense and waived no 2 other defenses.1 3 Petitioner further relies upon a purported “backdrop principle” and upon relation back 4 of claims under Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 62 L.Ed.2d 582 (2005). The 5 legal principles (and purported principles) to which he refers have no bearing on the 6 exhaustion analysis. Instead, the standards outlined in the preceding section govern.2 7 8 The court therefore turns to the specific claims at issue. Ground 1 9 In ground 1 of the federal petition, Smith alleges that he was denied a right to an 10 impartial judge in violation of the Fifth, Sixth, and Fourteenth Amendments when the state trial 11 judge (1) denied a continuance; (2) admitted bad act evidence; (3) allowed the prosecution 12 to inform the jury that petitioner was the person seen stealing the vehicle; (4) told the jury that 13 petitioner was incriminated when he elected to testify; (5) denied defense motions for a 14 directed verdict and new trial; (6) denied a motion to vacate judgment; (7) denied a motion 15 to vacate and dismiss the conviction; and (8) vindictively sentenced petitioner.3 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Petitioner additionally suggests that ex parte com m unication m ay have occurred in this court because an extension of tim e was granted on an extension m otion as to which he allegedly did not receive a notice of m otion. The m otion (#22) has a certificate of service showing service upon petitioner, and the notice of electronic filing in the record further reflects that a notice was sent to petitioner. The court typically grants routine requests for an extension of tim e that do not unduly retard the progress of a case without holding action on the extension m otion for a possible opposition. Petitioner has identified no circum stances suggesting or establishing that ex parte com m unication occurred. The court cautions petitioner – now for a second tim e – that if he continues to m ake unfounded allegations of im propriety in this m atter, sanctions will be im posed. An order for sanctions based upon the m aking of false allegations further m ay give rise to a notice of a m ajor violation under prison disciplinary regulation MJ48. See #20, at 1-2. 2 Petitioner appears to suggest by his reliance upon “the backdrop principle” exhaustion of his claim s in the Suprem e Court of Nevada m ust be viewed against the backdrop of his filings subm itted in the lower court. However, it is established law that the state suprem e court is not required to com b through the state district court record to see if it can discover federal constitutional issues on its own. Castillo, 399 F.3d at 9991000. The relation back principle in Mayle, which applies to the possible relation back of a claim in an am ended federal petition to a claim in an original federal petition has nothing to do with exhaustion in the state courts. 3 See #10-7, at electronic docketing pages 7-11. The forty-five pages of the am ended petition are m ixed with copies of various state court record m aterials. -3- 1 Petitioner did not present a claim to the state courts that was based upon both the 2 same operative facts and the same legal theory as federal ground 1. The closest claims to 3 federal ground 1 were Smith’s state post-conviction ground 1 and state ground 7. However, 4 neither state ground presented both the same operative facts and the same legal theory as 5 federal ground 1. 6 In state ground 1, Smith alleged that he was denied due process and equal protection 7 of the laws when the state trial court denied a continuance, allowed the prosecution to inform 8 the jury that petitioner was the person seen stealing the vehicle, told the jury that petitioner 9 was incriminated when he elected to testify, admitted prior bad act evidence, and denied a 10 defense motion for directed verdict and a new trial.4 11 State ground 1 did not present the same legal theory as federal ground 1. In federal 12 ground 1, Smith alleges that he was denied his right to an impartial judge in violation of the 13 Fifth, Sixth and Fourteenth Amendments. In state ground 1, he alleged only that the state 14 court abused its discretion and thus denied him due process and equal protection. It is 15 established law that mere general appeals to broad constitutional principles, such as due 16 process, equal protection, and the right to a fair trial, do not exhaust a specific federal claim. 17 Castillo, 399 F.3d at 999. While state ground 1 relies upon some – but not all – of the same 18 operative facts as federal ground 1, the state claim did not present the same legal theory. To 19 exhaust the federal ground, the state ground must present the state courts with both the 20 operative facts and the federal legal theory upon which the federal claim is based. Castillo, 21 supra. Petitioner did not do so in state ground 1. 22 In state ground 7, Smith alleged that he was denied due process in violation of the Fifth 23 and Fourteenth Amendments because the state trial court engaged in “judicial 24 misconduct/bias.” Even if this court were to assume, arguendo, that this state ground 25 presented the same legal theory as federal ground 1 (which additionally relies upon the Sixth 26 Amendment), state ground 7 was not based upon the same operative facts as federal ground 27 28 4 #24-5, Ex. 12, at 11-12. -4- 1 1. State ground 7 does not include any of the factual allegations of federal ground 1, and 2 state ground 7 instead alleges vaguely only that the state trial judge engaged in an outburst 3 in front of the jury that exhibited disdain and contempt for the petitioner, abandoned the role 4 of an impartial officer, and became personally embroiled with the petitioner. Federal ground 1 therefore was exhausted by neither state ground 1 nor state ground 5 6 7. 7 Petitioner’s arguments to the contrary are unpersuasive. 8 Smith urges that the exhaustion doctrine does not bar review of ground 1 because the 9 error is a structural error that cannot be ignored, circumvented, waived or procedurally 10 defaulted. Regardless of whether or not an error allegedly is a “structural error,” the petitioner 11 nonetheless must exhaust the claim of error in the state courts. He did not do so here. 12 Petitioner further urges that the failure to consider federal ground 1 would result in a 13 fundamental miscarriage of justice. This argument, however, pertains to an exception to the 14 procedural default doctrine rather than to the application of the distinct exhaustion doctrine.5 15 Ground 1 therefore is not exhausted. 16 17 5 18 19 20 21 22 23 24 In this regard, the standards for avoiding a procedural default (such as for an untim ely and/or a successive state petition) are substantially the sam e in Nevada state court as they are in federal court. That is, the Nevada state courts apply substantially the sam e cause-and-prejudice standard as is applied in federal court in determ ining whether to excuse a procedural default. See,e.g., Mitchell v. State, 149 P.3d 33, 36 (Nev. 2006)("A petitioner can overcom e the bar to an untim ely or successive petition by showing good cause and prejudice."); see also Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004)(recognizing that Nevada's cause-and-prejudice analysis and the federal cause-and-prejudice analysis are nearly identical). And the state courts apply the sam e federal standard in determ ining whether to avoid a procedural default on the basis that a fundam ental m iscarriage of justice would result from failure to consider a claim because the constitutional violation has likely resulted in the conviction of a person who is actually innocent. See,e.g., Mitchell, 149 P.3d at 36 ("Even when a petitioner cannot show good cause sufficient to overcom e the bars to an untim ely or successive petition, habeas relief m ay still be granted if the petitioner can dem onstrate that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent," citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). 25 26 27 28 Thus, if, arguendo, petitioner in fact were able to overcom e a procedural default on a showing that a denial of review on ground 1 would result in a fundam ental m iscarriage of justice, there would be no reason why he could not first present the ground to the state courts along with his argum ent in that regard. The state courts would be applying the sam e principles to his argum ent as would be applied in federal court. The court notes, however, that Sm ith’s bald assertion that a denial of review would result in a fundam ental m iscarriage of justice falls far short of dem onstrating actual innocence under the relevant case law. -5- 1 Ground 2 2 In federal ground 2, Smith alleges that he was denied effective assistance of counsel 3 when trial counsel: (a) failed to investigate the credibility of any of the sixteen prosecution 4 witnesses; (b) failed to locate or interview potentially exculpatory “alibi” witnesses, including 5 (1) Carlos Mullins, who would testify that the minivan was not empty and (2) Las Vegas 6 Metropolitan Police Officer Eric Garcia, as his inventory would establish that the victim was 7 lying; (c) failed to produce the three documents consisting of different accounts as to what the 8 victim claimed was stolen; (d) failed to object when the state trial judge told the jury that 9 petitioner was incriminated; (e) failed repeatedly to object to prosecutorial misconduct; (f) 10 became confused during closing argument concerning the alleged fact that petitioner did in 11 fact possess the minivan and the alleged fact that when petitioner was chased away from the 12 minivan the stolen property existed; (g) asked the jury to convict the petitioner of a lesser 13 included crime without his consent; (h) waited too late to raise a Batson challenge by raising 14 the challenge only after the jury was empaneled and the remaining venire discharged; and 15 (I) waited until trial to start actively representing conflicting interests. 16 Respondents contend that parts (b)(2), (c), and (d) of ground 2 are not exhausted. 17 Petitioner does not challenge the respondents’ specific arguments regarding these claims, 18 and he expressly abandons the unexhausted sub-parts contained in the ground. 19 20 21 The court accordingly holds, on the showing and arguments made, that parts (b)(2), (c), and (d) of ground 2 are not exhausted. Ground 4 22 In federal ground 4, Smith alleges that he was denied due process and a fair trial in 23 violation of the Fifth and Fourteenth Amendments due to prosecutorial misconduct when the 24 prosecutors: (a) “bamboozled” petitioner into believing that his trial counsel was competent 25 and that he was viewed by the trial judge to be competent; (b) amended the information on 26 the day of trial to drop the grand larceny auto charge but continued without objection to tell 27 the jury that petitioner stole the vehicle; (c) failed to call Officer Garcia, who allegedly 28 conducted the vehicle inventory, as a prosecution witness; (d) informed petitioner that it would -6- 1 be improper for him to take the witness stand; (e) “is reminded from North Las Vegas Police 2 Officer Jeffrey Pollard, that Metropolitan Police Officer Eric Garcia, conducted the vehicle 3 inventory with the alleged victim;” (f) informed the jury that all of the police officers testified 4 that the alleged stolen property was no longer there; (g) claimed that there was no police 5 inventory; (h) told the jury that the victim saw the petitioner backing out in the van when 6 petitioner implored from the witness stand that the prosecution read Officer Garcia’s report; 7 (I) told the jury that a crime was committed when the vehicle was stolen; and (j) alerted the 8 jury that there was only one issue of whether petitioner knew the van was stolen and whether 9 or not he knew the missing property was in the back, whereas petitioner later was found not 10 guilty of possession of a stolen vehicle. 11 Respondents contend that parts (a) and (d) of ground 4 are not exhausted. Petitioner 12 does not challenge the respondents’ specific arguments regarding these claims, and he 13 expressly abandons the unexhausted sub-parts contained in the ground. 14 15 16 The court accordingly holds, on the showing and arguments made, that parts (a) and (d) of ground 4 are not exhausted. Ground 7 17 In federal ground 7, Smith alleges that he was denied Fifth and Fourteenth 18 Amendment rights to be free from judicial bias when the state trial judge: (a) denied a 19 continuance; (b) allowed the introduction of other bad act evidence; (c) allowed the 20 prosecution to amend the information on the day of trial; (d) allowed the prosecution then to 21 inform the jury throughout the trial that petitioner stole the vehicle although he was on trial for 22 possession of a stolen vehicle; (e) told the jury that the petitioner was incriminated when he 23 was on the stand; (f) disqualified himself from case no. C182521 because of his remarks in 24 the case and sent that case to another judge; (g) denied a motion for new trial; (h) sentenced 25 petitioner despite being asked to recuse himself; (I) appointed one of his former law clerks to 26 represent petitioner on appeal; and, as construed by respondents, (j) acted deliberately and 27 deceptively to discriminate against petitioner. (For consistency, the court has used letters 28 rather than the numbers that petitioner used to break down the subparts of ground 7). -7- 1 Respondents contend that – as designated above – only parts (e), (I) and (j) are 2 exhausted. Petitioner does not challenge the respondents’ specific arguments regarding the 3 remaining claims, and he expressly abandons the unexhausted sub-parts contained in the 4 ground. 5 6 7 The court accordingly holds, on the showing and arguments made, that parts (a), (b), (c), (d), (f), (g) and (h) of ground 7 are not exhausted. Ground 9 8 In federal ground 9, Smith alleges that he was denied Fifth, Ninth, and Fourteenth 9 Amendment rights to justice without obstruction when Judge Stewart Bell heard his state post- 10 conviction petition, following upon the retirement of the trial judge, despite Judge Bell 11 allegedly having appeared in the case while he was district attorney. He further alleges that 12 Nevada Supreme Court Justice Michael Douglas improperly sat on his post-conviction appeal 13 for the present conviction, under state case no. C182520, after having sat as a district judge 14 on the state case no. C182521, which was the case from which the state trial judge on the 15 present conviction disqualified himself. 16 This court is not persuaded by the petitioner’s suggestion that he was unable to raise 17 at an earlier time the alleged impropriety of Judge Bell hearing his state post-conviction 18 petition. Nothing prevented petitioner from objecting in the state district court to Judge Bell 19 hearing his case, and nothing thereafter prevented him thereafter from raising the issue in the 20 Supreme Court of Nevada prior to its decision on the post-conviction appeal. 21 The court similarly is not persuaded by the petitioner’s suggestion that he could not 22 raise the alleged impropriety of Justice Douglas sitting on the appeal prior to a decision being 23 rendered on the state post-conviction appeal. 24 The court further is not persuaded that petitioner fairly presented these issues to the 25 Supreme Court of Nevada by raising them for the first time in petitions for rehearing and 26 rehearing en banc. See #10-6, at electronic docket pages 29-40; #10-7, at electronic docket 27 pages 1-6 (rehearing petitions and orders denying same). The Supreme Court of Nevada 28 denied the petition for rehearing with a one-line “rehearing denied” and a citation to Rule 40(c) -8- 1 of the Nevada Rules of Appellate Procedure. #10-6, at electronic docket page 39. Rule 40(c) 2 provides in pertinent part that “no point may be raised for the first time on rehearing.” 3 Similarly, the state high court denied the petition for en banc reconsideration under Nevada 4 Rule of Appellate Procedure 40A, of which paragraph (c) states in pertinent part that “no point 5 may be raised for the first time.” Presentation of the claim on appeal for the first time in the 6 petitions for rehearing and rehearing en banc did not constitute fair presentation to the state 7 courts because new points presented for the first time in such petitions are not considered 8 by the state high court under Nevada appellate rules. 9 Petitioner further urges that the failure to consider federal ground 9 would result in a 10 fundamental miscarriage of justice. As discussed under ground 1, however, this argument 11 pertains an exception to the procedural default doctrine rather than application of the distinct 12 exhaustion doctrine.6 13 Ground 9 therefore is not exhausted.7 14 IT THEREFORE IS ORDERED that respondents’ motion (#25) to dismiss for lack of 15 exhaustion is GRANTED on the basis that the following claims are unexhausted: ground 1; 16 parts (b)(2), (c), and (d) of ground 2; parts (a) and (d) of ground 4; parts (a), (b), (c), (d), (f), 17 (g) and (h) of ground 7; and ground 9. 18 IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from entry of this 19 order within which to file a motion for dismissal without prejudice of the entire amended 20 petition, for partial dismissal only of the unexhausted claims listed above, and/or for other 21 appropriate relief. 22 23 24 25 26 27 28 6 See text at 5 & n.5. 7 The court further notes that ground 9 is not cognizable in federal habeas corpus. The claim challenges alleged errors occurring in the state post-conviction proceedings. A federal habeas petition m ust be directed to the question of whether the petitioner’s detention violates federal law. Alleged errors in the m anner in which state post-conviction proceedings are conducted are not cognizable on federal habeas review. See,e.g., Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). W hile alleged errors in the state postconviction proceedings perhaps m ay have a bearing on other issues in the case, they do not present independently cognizable claim s in federal habeas cases. The court has jurisdiction under the habeas statutes to entertain collateral challenges to a state court judgm ent of conviction, not claim s of error as to other state court judgm ents. -9- 1 The entire petition, as amended, will be dismissed without prejudice for lack of 2 complete exhaustion if an appropriate motion is not timely filed. 3 DATED:this 17th day of March, 2009. 4 5 _________________________________ JAMES C. MAHAN United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-