O'Neill v. Baker et al, No. 3:2011cv00901 - Document 56 (D. Nev. 2015)

Court Description: ORDER granting in part and denying in part 44 motion to dismiss: Grounds 1(B), 5(A) and 5(B) are unexhausted; Grounds 1(A), 1(C), and 3 are exhausted. Petitioner to have 30 days to either: (1) inform the Court he wants to abandon the unexha usted grounds and proceed on the exhausted ground; (2) inform the Court that he wants to dismiss the petition without prejudice to return to state court to exhaust the unexhausted claims; or (3) file a motion for a stay while returning to state court to exhaust the unexhausted claims. If petitioner elects to abandon the unexhausted grounds, respondents to have 30 days from petitioner's declaration of abandonment to file an answer to the remaining grounds for relief; petitioner to reply 30 days thereafter. Any state court exhibits shall be filed with separate index. Hard copies of any exhibits shall be forwarded to the staff attorneys in Reno. (Notice of Compliance due by 2/11/2015.) Signed by Judge Miranda M. Du on 1/12/2015. (Copies have been distributed pursuant to the NEF - KR)

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O&#039;Neill v. Baker et al Doc. 56 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 CHRISTOPHER O’NEILL, 10 Petitioner, ORDER v. 11 12 Case No. 3:11-cv-00901-MMD-VPC RENEE BAKER, et al., Respondents. 13 14 This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 Petitioner filed a counseled first amended petition (dkt. no. 13). Before the Court is 16 respondents’ motion to dismiss (dkt. no. 44). Petitioner has opposed the motion (dkt. no. 17 50), and respondents replied (dkt. no. 54). 18 I. PROCEDURAL HISTORY AND BACKGROUND 19 On June 7, 2005, petitioner Christopher O’Neill (“petitioner”) was convicted 20 pursuant to jury verdicts of three counts of possession of a forged instrument, felonies in 21 violation of NRS § 205.110 (exhibits to first amended petition (dkt. no. 13, Exhs. 24, 25, 22 26, 30)).1 On August 25, 2005, petitioner was adjudicated a habitual criminal, sentenced 23 to life with the possibility of parole, with a minimum parole eligibility of ten years on all 24 three counts, to be served concurrently, and the judgment of conviction was entered. 25 (Exhs. 29, 30.) Petitioner was not given credit for time served. (Exh. 30.) An amended 26 judgment of conviction was filed on April 5, 2007. (Exh. 52.) 27 28 1 All exhibits referenced in this order are exhibits to the amended petition (dkt. no. 13) and are found at dkt. nos. 14-23. Dockets.Justia.com 1 Petitioner appealed, and the Nevada Supreme Court affirmed his conviction and 2 sentence on March 8, 2007. (Exh. 50; O’Neill v. State, 153 P.3d 38, 45 (Nev. 2007).) 3 Remittitur issued on April 3, 2007. (Exh. 51.) 4 On April 30, 2007, petitioner filed his first state postconviction petition for writ of 5 habeas corpus. (Exh. 53.) Following an evidentiary hearing, the state district court 6 denied the petition on July 21, 2010. (Exhs. 74, 82, 94, 102, 104, 108.) The Nevada 7 Supreme Court affirmed the denial of the petition on November 17, 2011, and remittitur 8 issued on December 13, 2011. (Exhs. 179, 181.) 9 On June 6, 2007, petitioner filed a motion for a new trial, which the state district 10 court denied on July 24, 2007. (Exhs. 57, 60.) On November 19, 2008, the Nevada 11 Supreme Court affirmed the denial of the motion for new trial, and remittitur issued on 12 December 16, 2008. (Exhs. 215, 216.) 13 On July 25, 2010, petitioner filed a motion to correct or modify his sentence, 14 which the state district court denied on September 1, 2010. (Exhs. 105, 123.) The 15 Nevada Supreme Court affirmed the denial of the motion on February 9, 2011, and 16 remittitur issued on March 7, 2011. (Exhs. 154, 159.) 17 On August 24, 2010, petitioner filed his second state postconviction habeas 18 petition. (Exh. 119.) The state district court dismissed the petition on October 19, 2011. 19 (Exh. 173.) The Nevada Supreme Court affirmed the dismissal of the petition on June 20 13, 2012, and remittitur issued on July 10, 2012. (Exhs. 210, 211.) 21 Petitioner dispatched this federal petition for writ of habeas corpus on December 22 8, 2011 (dkt. no. 4). Through counsel, petitioner filed an amended petition on November 23 21, 2012 (dkt. no. 13). Respondents argue that the petition should be dismissed 24 because several grounds are unexhausted and/or are procedurally barred. 25 II. LEGAL STANDARD FOR EXHAUSTION 26 A federal court will not grant a state prisoner’s petition for habeas relief until the 27 prisoner has exhausted his available state remedies for all claims raised. Rose v. 28 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 2 1 courts a fair opportunity to act on each of his claims before he presents those claims in 2 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 3 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 4 petitioner has given the highest available state court the opportunity to consider the 5 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 6 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 7 1981). 8 A habeas petitioner must “present the state courts with the same claim he urges 9 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 10 constitutional implications of a claim, not just issues of state law, must have been raised 11 in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. 12 Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court 13 must be “alerted to the fact that the prisoner [is] asserting claims under the United 14 States Constitution” and given the opportunity to correct alleged violations of the 15 prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. 16 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) 17 “provides a simple and clear instruction to potential litigants: before you bring any claims 18 to federal court, be sure that you first have taken each one to state court.” Jiminez v. 19 Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 20 (1982)). “[G]eneral appeals to broad constitutional principles, such as due process, 21 equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” 22 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, 23 citation to state caselaw that applies federal constitutional principles will suffice. 24 Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 25 A claim is not exhausted unless the petitioner has presented to the state court 26 the same operative facts and legal theory upon which his federal habeas claim is based. 27 Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The 28 exhaustion requirement is not met when the petitioner presents to the federal court facts 3 1 or evidence which place the claim in a significantly different posture than it was in the 2 state courts, or where different facts are presented at the federal level to support the 3 same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 4 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 5 458 (D. Nev. 1984). 6 III. RELEVANT GROUNDS IN INSTANT PETITION 7 Petitioner sets forth six grounds for relief in his amended petition (dkt. no. 13, pp. 8 19-50). Respondents argue that grounds 1(A), 1(B), 3, and 5 are unexhausted (dkt. no. 9 44, pp. 20-21).2 10 A. 11 In ground 1(A) of the federal petition, petitioner alleges that his trial counsel 12 rendered ineffective assistance in violation of his Sixth and Fourteenth Amendment 13 rights when he failed to communicate with petitioner prior to trial resulting in a failure to 14 present a full defense at trial (dkt. no. 13, pp. 19-26). Ground 1(A) 15 The Court agrees with petitioner that respondents’ arguments regarding ground 16 1(A) are indecipherable. Respondents contend that petitioner’s claim in ground 1(A) is 17 that his counsel was ineffective for failing to challenge the admissibility of the 18 handwriting expert’s testimony on the basis that the prosecution did not authenticate the 19 handwriting exemplar and that that claim is unexhausted (dkt. no. 44, p. 20). However, 20 that claim is not presented as part of ground 1(A). The Court has examined ground 1(A) 21 in the instant petition, compared it to the grounds raised in petitioner’s appeal of the 22 denial of his first state postconviction petition to the Nevada Supreme Court (Exh. 134, 23 pp. 24-35), and finds that ground 1(A) is exhausted. 24 B. 25 In ground 1(B) of the federal petition, petitioner alleges that his trial counsel 26 rendered ineffective assistance of counsel in violation of his Sixth and Fourteenth 27 28 Ground 1(B) 2 As will be discussed below, respondents claim in a heading only that ground 1(C) is also unexhausted, but fail to include any supporting argument. 4 1 Amendment rights when he failed to object to the state’s handwriting expert’s testimony 2 on authentication grounds (dkt. no. 13, pp. 26-29). Petitioner explains that the state’s 3 expert testified that he compared the handwriting on one of the forged checks to a 4 “known” handwriting sample from petitioner, namely a letter and an envelope. (Id. at 5 26.) Petitioner’s trial counsel failed to object to the fact that the “known” handwriting 6 sample was never authenticated. (Id. at 27.) The state relied heavily on the expert’s 7 testimony. (Id. at 28.) Petitioner states that he presented this claim to the Nevada 8 Supreme Court when he appealed the denial of his first state postconviction petition 9 (dkt. no. 13, p. 19). He also argues, in his opposition to the motion to dismiss, that in 10 affirming the denial of his second state postconviction petition, the Nevada Supreme 11 Court stated that it had already considered and rejected this claim (dkt. no. 50, p. 13). 12 Having carefully reviewed the record, including petitioner’s briefs to the Nevada 13 Supreme Court in his appeals of the denial of his first state postconviction petition and 14 the dismissal of his second state postconviction petition, as well as the Nevada 15 Supreme Court’s orders affirming the state district court in both instances, this Court 16 agrees with respondents that petitioner did not raise this claim in his appeal of his first 17 state postconviction petition. The Court notes in particular that in its order affirming the 18 dismissal of the second state postconviction petition, the Nevada Supreme Court stated 19 that it had already “considered and rejected [petitioner’s] claim that counsel was 20 ineffective for failing to present a handwriting expert at trial” when it affirmed the denial 21 of petitioner’s ineffective assistance claims in his first state postconviction petition. (Exh. 22 210, p. 3.) That is not the claim that petitioner now seeks to raise as ground 1(B) of his 23 federal petition. Accordingly, ground 1(B) is unexhausted. 24 C. Ground 1(C) 25 In ground 1(C) of the federal petition, petitioner claims that his Sixth and 26 Fourteenth Amendment rights to effective assistance of counsel were violated when trial 27 counsel failed to timely move to suppress or otherwise object to the evidence seized by 28 the parole officers during their searches of petitioner’s person and vehicle, the 5 1 admission of which was essential to convict petitioner of the crimes charged (dkt. no. 2 13, p. 29). In a heading in the motion to dismiss, respondents included ground 1(C) as a 3 ground that they contended was unexhausted (dkt. no. 44, p. 14). Respondents provide 4 no argument, however, in support of this general contention that ground 1(C) is 5 unexhausted. Further, the Court concludes that petitioner raised this claim in his appeal 6 of the denial of his first state postconviction petition to the Nevada Supreme Court. 7 (Exh. 134, pp. 14-20.) Accordingly, ground 1(C) is exhausted. 8 D. 9 In ground 3 of his federal petition, petitioner contends that he was denied his 10 Sixth and Fourteenth Amendment right to effective assistance of counsel when the court 11 failed to conduct an appropriate inquiry into his motion to replace existing appointed 12 counsel with new appointed counsel (dkt. no. 13, pp. 36-39). The claim that petitioner 13 presented to the Nevada Supreme Court in his appeal of the denial of his first state 14 postconviction petition as ground 4 was under the following heading: 15 16 17 18 19 Ground 3 The district court abused its discretion when finding that [trial counsel] was effective when he failed to communicate with [petitioner] before jury trial in order to prepare his defense, advising [petitioner] to wait until the motion to confirm hearing to present his motion for new counsel, knowing that they had irreconcilable differences under Garcia and Young, and knowing that it would be too late to receive new counsel because of the late date. (Exh. 134, p. 25.) 20 Respondents argue that petitioner’s substantive claim that the court erred in 21 failing to properly inquire into petitioner’s motion to replace counsel is unexhausted (dkt. 22 no. 44, pp. 20-21). However, in petitioner’s brief appealing the denial of his first state 23 postconviction petition, under ground 4, he further argued that he “should have received 24 new counsel or represented himself” and that “[w]hen this Court reviews the transcript of 25 the Motion to Confirm Trial, from the Friday before the Monday trial, it is clear that the 26 district court erred when not fully canvassing [petitioner] regarding the extent of the 27 conflict with [trial counsel].” (Exh. 134, pp. 25-26.) He also included the brief colloquy 28 between the court and petitioner regarding a potential conflict and also set forth many 6 1 areas of conflict that he maintained existed between himself and counsel. (Id at 26-29.) 2 Petitioner further argued that: “Because of the extent of the conflict, new counsel should 3 have been appointed. However, the district court made no inquiry about the extent of 4 the conflict.” (Id. at 29.) Particularly in light of the inherent difficulty in separating a claim 5 of conflict with counsel with a claim of ineffective assistance of counsel, this Court finds 6 that ground 3 is exhausted. 7 E. Ground 5(A) 8 In ground 5(A) of the federal petition, petitioner claims that he was denied his 9 right to the effective assistance of appellate counsel under the Fifth, Sixth, and 10 Fourteenth Amendments when counsel failed to raise on appeal that the trial court erred 11 in denying the mistrial application after an officer mentioned the parole violation report 12 prepared in his case (dkt. no. 13, p. 43). Petitioner now concedes that ground 5(A) is 13 unexhausted (dkt. no. 50, pp. 15-16). 14 F. Ground 5(B) 15 In ground 5(B) of the federal petition, petitioner claims that he was denied his 16 right to the effective assistance of appellate counsel under the Fifth, Sixth, and 17 Fourteenth Amendments when counsel failed to raise on direct appeal that the 18 handwriting expert’s testimony was inadmissible because the exemplar was not 19 authenticated (dkt. no. 13, p. 43). Respondents argue that this claim is unexhausted 20 (dkt. no. 44, p. 21). 21 Petitioner acknowledges that this claim has not been presented to the Nevada 22 Supreme Court (dkt. no. 50, p. 16). He argues that the claim is “technically” exhausted 23 because if he were to attempt to return to state court and raise this claim, the Nevada 24 Supreme Court would conclude that it is procedurally defaulted. (Id.) This argument is 25 unavailing. Ineffective assistance of trial or appellate counsel may satisfy the cause 26 requirement to overcome a procedural default. Murray v. Carrier, 477 U.S. 478, 488-489 27 (1986). However, for a claim of ineffective assistance of counsel to satisfy the cause 28 requirement, the independent claim of ineffective assistance of counsel, itself, must first 7 1 be presented to the state courts. Murray, 477 U.S. at 488-489. Tacho v. Martinez, 862 2 F.2d 1376, 1381 (9th Cir. 1988). Accordingly, ground 5(B) is unexhausted. 3 IV. PETITIONER’S OPTIONS REGARDING UNEXHAUSTED CLAIMS 4 A federal court may not entertain a habeas petition unless the petitioner has 5 exhausted available and adequate state court remedies with respect to all claims in the 6 petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both 7 exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the 8 Court finds that grounds 1(B), 5(A) and 5(B) are unexhausted. The petition is thus a 9 “mixed petition,” containing both exhausted and unexhausted claims, and therefore, 10 petitioner, through counsel, has these options: 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only on the exhausted claims; 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without prejudice; or 3. 16 He may file a motion asking this court to stay and abey his exhausted federal habeas claims while he returns to state court to exhaust his unexhausted claims. 17 With respect to the third option, a district court has discretion to stay a petition 11 12 13 14 15 18 that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). 19 The Rhines Court stated: 20 21 22 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 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”). Rhines, 544 U.S. at 277. 27 Accordingly, if petitioner files a motion for stay and abeyance, he would be 28 required to show good cause for his failure to exhaust his unexhausted claims in state 8 1 court, and to present argument regarding the question whether or not his unexhausted 2 claims are plainly meritless. Respondent would then be granted an opportunity to 3 respond, and petitioner to reply. 4 Petitioner’s failure to choose any of the three options listed above, or seek other 5 appropriate relief from this Court, will result in his federal habeas petition being 6 dismissed. Petitioner is advised to familiarize himself with the limitations periods for 7 filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations 8 periods may have a direct and substantial effect on whatever choice he makes 9 regarding his petition. 10 11 12 V. CONCLUSION It is therefore ordered that respondents’ motion to dismiss (dkt. no. 44) is granted in part and denied in part as follows: 13 1. Grounds 1(B), 5(A) and 5(B) are unexhausted. 14 2. Grounds 1(A), 1(C), and 3 are exhausted. 15 It is further ordered that petitioner shall have thirty (30) days to either: (1) inform 16 this Court in a sworn declaration that he wishes to formally and forever abandon the 17 unexhausted grounds for relief in his federal habeas petition and proceed on the 18 exhausted ground; or (2) inform this Court in a sworn declaration that he wishes to 19 dismiss this petition without prejudice in order to return to state court to exhaust his 20 unexhausted claims; or (3) file a motion for a stay and abeyance, asking this Court to 21 hold his exhausted claim in abeyance while he returns to state court to exhaust his 22 unexhausted claims. If petitioner chooses to file a motion for a stay and abeyance, or 23 seek other appropriate relief, respondents may respond to such motion as provided in 24 Local Rule 7-2. 25 It is further ordered that if petitioner elects to abandon his unexhausted grounds, 26 respondents shall have thirty (30) days from the date petitioner serves his declaration of 27 abandonment in which to file an answer to petitioner’s remaining grounds for relief. The 28 answer shall contain all substantive and procedural arguments as to all surviving 9 1 grounds of the petition, and shall comply with Rule 5 of the Rules Governing 2 Proceedings in the United States District Courts under 28 U.S.C. §2254. 3 4 5 6 It is further ordered that petitioner shall have thirty (30) days following service of respondents’ answer in which to file a reply. It is further ordered that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. 7 It is further ordered that any additional state court record exhibits filed herein by 8 either petitioner or respondents shall be filed with a separate index of exhibits identifying 9 the exhibits by number. The CM/ECF attachments that are filed further shall be 10 identified by the number or numbers of the exhibits in the attachment. The hard copy of 11 any additional state court record exhibits shall be forwarded for this case to the 12 staff attorneys in Reno. 13 DATED THIS 12th day of January 2015. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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