Cochrane v. Baker et al, No. 3:2013cv00077 - Document 22 (D. Nev. 2014)

Court Description: ORDER granting 20 Motion to Withdraw; striking 17 Motion for Stay; granting in part and denying in part 8 Motion to Dismiss. Respondents shall file and serve an answer to the remaining grounds of the petition within 30 days (by 3/30/2014). Petitioner shall reply within 30 days after being served with the answer. Signed by Judge Miranda M. Du on 02/27/2014. (Copies have been distributed pursuant to the NEF - KR)
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Cochrane v. Baker et al Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 TERRY R. COCHRANE, 10 Petitioner, ORDER v. 11 12 Case No. 3:13-cv-00077-MMD-WGC RENEE BAKER, et al., Respondents. 13 14 15 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 16 § 2254, by a Nevada state prisoner. Before the Court is respondents’ motion to dismiss 17 the petition, seeking to dismiss Grounds 2 through 7. (Dkt. no. 8.) 18 I. PROCEDURAL HISTORY 19 On August 19, 2010, a judgment of conviction was entered against petitioner, 20 having been found guilty, pursuant to a jury trial, of possession of a stolen vehicle and 21 sentenced to a term of 240 months with minimum parole eligibility of 60 months. 22 (Exhibit 17).1 Petitioner appealed his conviction. (Exhibit 18.) Petitioner’s fast track 23 statement was filed December 13, 2010. (Exhibit 29.) On September 10, 2011, the 24 Nevada Supreme Court issued an order affirming petitioner’s convictions. (Exhibit 31). 25 Remittitur issued on October 17, 2011. (Exhibit 32.) 26 27 28 The exhibits referenced in this order are found in the Court’s record at dkt nos. 9 1 & 10. 1 On November 30, 2011, and December 19, 2011, petitioner filed post-conviction 2 petitions for a writ of habeas corpus in state district court. (Exhibits 33 & 34.) On March 3 30, 2012, the state district court entered findings of fact, conclusions of law, and order 4 denying the post-conviction habeas petitions. (Exhibit 36.) Petitioner appealed from the 5 denial of his post-conviction habeas petition. (Exhibit 37.) On January 16, 2013, the 6 Nevada Supreme Court entered an order affirming the denial of the post-conviction 7 habeas petition. (Exhibit 39.) Remittitur issued on February 12, 2013. (Exhibit 40.) 8 Petitioner dispatched his petition to this Court on February 12, 2013. (Dkt. no. 1- 9 2.) This Court entered an order on May 14, 2013, directing the Clerk of Court to file the 10 petition (dkt. no. 5) and directing respondents to file a response to the petition. (Dkt. no. 11 4.) Respondents filed the instant motion to dismiss the petition on June 24, 2013. (Dkt. 12 no. 8.) On July 18, 2013, petitioner filed a motion for a stay. (Dkt. no. 17.) Respondents 13 filed a notice of non-opposition to petitioner’s motion for stay. (Dkt. no. 18.) Petitioner 14 filed a response to the motion to dismiss on August 2, 2013. (Dkt. no. 19.) Most 15 recently, on February 12, 2014, petitioner filed a motion to withdraw his motion for a 16 stay. (Dkt. no. 20.) In light of Court’s rulings set forth in this order, petitioner’s motion to 17 withdraw his earlier-filed motion to stay is granted. 18 II. DISCUSSION 19 A. Exhaustion Argument 20 Respondents argue that Ground 3 of the petition, a claim of deficient jury 21 instructions, is unexhausted because petitioner never submitted the factual and legal 22 claim to the Nevada state courts. 23 A federal court will not grant a state prisoner's petition for habeas relief until the 24 prisoner has exhausted his available state remedies for all claims raised. Rose v. 25 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 26 courts a fair opportunity to act on each of his claims before he presents those claims in 27 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 28 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 2 1 petitioner has given the highest available state court the opportunity to consider the 2 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 3 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 4 1981). 5 In Ground 3 of the federal petition, petitioner alleges that jury instruction #3 was 6 deficient in that the instruction omitted the definitions for each element of the crime of 7 possession of a stolen vehicle. (Dkt no. 5, at pp. 11-12.) Petitioner further claims that 8 trial and appellate counsel were ineffective for failing to raise the issue that jury 9 instruction #3 was deficient. (Id., at p. 13.) In state court, petitioner raised the underlying 10 claim that jury instruction #3 omitted elements of the crime in violation of his 11 constitutional rights. (Exhibit 33, at pp. 2-3.) Petitioner also raised the claim that counsel 12 was ineffective for failing to raise the issue that jury instruction #3 was deficient. (Exhibit 13 33, at pp. 2-3 and Exhibit 34, at p. 16.) Because the claim raised in Ground 3 of the 14 federal petition was raised in the state courts, the claim is exhausted. Accordingly, 15 respondents’ motion to dismiss on this issue is denied. 16 B. 17 Respondents argue that Grounds 2, 5, 6, and 7 were procedurally defaulted in 18 state court and should be dismissed from this federal habeas corpus action. 19 “Procedural default” refers to the situation where a petitioner in fact presented a claim to 20 the state courts but the state courts disposed of the claim on procedural grounds, 21 instead of on the merits. A federal court will not review a claim for habeas corpus relief if 22 the decision of the state court regarding that claim rested on a state law ground that is 23 independent of the federal question and adequate to support the judgment. Coleman v. 24 Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court stated the effect of a 25 procedural default, as follows: 26 27 28 Procedural Default Argument In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the 3 1 alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 2 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The 3 procedural default doctrine ensures that the state’s interest in correcting its own 4 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 5 1039, 1046 (9th Cir. 2003). In order for the procedural bar doctrine to apply and preclude 6 federal review, the state court must actually rely on the procedural bar as a separate 7 basis for its disposition of the claim. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). 8 If the state court reaches the merits of a claim instead of relying on a procedural bar, the 9 claim is not procedurally defaulted in state court and the federal court may review the 10 merits of the claim. Harris, 489 U.S. at 262-63. “Unless a court expressly states that it is 11 relying upon a procedural bar, [the court] must construe an ambiguous state court 12 response as acting on the merits of the claim, if such a construction is plausible.” 13 Chambers v. McDaniel, 549 F.3d 1191, 1197 (9th Cir. 2008). 14 Respondents argue that the state district court found petitioner’s claims in 15 Grounds 2, 5, 6, and 7 were procedurally defaulted because petitioner failed to raise the 16 claims on direct appeal, pursuant to NRS 34.810(1)(b)(2). Respondents state that the 17 Nevada Supreme Court affirmed the state court’s denial of the petition without 18 comment. The Nevada Supreme Court did not affirm without comment or opinion. The 19 Nevada Supreme Court entered a 12 page order addressing the merits of petitioner’s 20 claims on appeal and affirming the denial of the state post-conviction habeas petition. 21 (Exhibit 39.) Similar to the case in Chambers v. McDaniel, 549 F.3d at 1196, the 22 Nevada Supreme Court issued an order stating that: “We have reviewed all documents 23 that appellant has submitted in proper person to the clerk of this court in this matter, and 24 we conclude that no relief based upon those submissions is warranted.” (Exhibit 39, at 25 p. 12, n.4.) In Chambers, the Nevada Supreme Court’s opinion contained a similar 26 footnote that stated: “We have considered all proper person documents filed or received 27 in this matter, and we conclude that the relief requested is not warranted.” Chambers, 28 549 at p. 1196. As in Chambers, the Nevada Supreme Court in the instant case did not 4 1 state that it would not consider petitioner’s claims, and it did not explicitly invoke any 2 state procedural rule that would bar consideration of petitioner’s claims. In Chambers, 3 the Ninth Circuit held that “unless a court expressly (not implicitly) states that it is relying 4 upon a procedural bar, we must construe an ambiguous state court response as acting 5 on the merits of a claim, if such a construction is plausible.” Chambers, 549 F.3d at 6 1197. Importantly, the Chambers court held that language indicating the Nevada 7 Supreme Court had “considered” all materials filed by the parties and “concluding” that 8 relief was unwarranted, constituted a decision on the merits. Id. at 1198. In the instant 9 case, because the Nevada Supreme Court did not expressly state that it relied on a 10 procedural bar, and because the Nevada Supreme Court’s order of affirmance indicated 11 that it considered all materials filed and concluded that relief was unwarranted, this 12 Court cannot conclude that petitioner’s claims were procedurally defaulted, but rather, 13 must conclude that the Nevada Supreme Court ruled on the merits of petitioner’s 14 claims. Accordingly, the Court denies respondents’ motion to dismiss Grounds 2, 5, 6, 15 and 7 as procedurally barred. Respondents will be required to file an answer to these 16 grounds, as specified at the conclusion of this order. 17 C. Fourth Amendment Illegal Search and Seizure Claim 18 Respondents seek to dismiss Ground 4, petitioner’s Fourth Amendment search 19 and seizure claim, pursuant to the rule announced in Stone v. Powell, 428 U.S. 465 20 (1976). 21 Where a state has provided a defendant with a full and fair opportunity to litigate 22 a Fourth Amendment claim, “a state prisoner may not be granted federal habeas corpus 23 relief on the ground that evidence obtained in an unconstitutional search or seizure was 24 introduced at his trial.” Stone v. Powell, 428 U.S. 465, 495 (1976); see also Kuhlmann v. 25 Wilson, 477 U.S. 436, 446-47 (1986). The Supreme Court has determined that 26 excluding Fourth Amendment claims from habeas corpus review created no danger that 27 the courts would deny a safeguard against compelling an innocent man to suffer an 28 unconstitutional loss of liberty because a convicted defendant seeking review of a 5 1 Fourth Amendment claim on collateral review is “usually asking society to redetermine 2 an issue that has no bearing on the basic justice of his incarceration.” Kuhlmann, 477 3 U.S. at 447. 4 In Ground 4 of the federal petition, petitioner asserts that he was subjected to an 5 illegal search and seizure in violation of his Fourth Amendment rights. It is clear from 6 the record that petitioner was given a full and fair opportunity to litigate his Fourth 7 Amendment claim before the state courts. See Terrovona v. Kinchloe, 912 F.2d 1176 8 (9th Cir. 1990); Abell v. Raines, 640 F.2d 1085 (9th Cir. 1981). Specifically, petitioner 9 litigated the Fourth Amendment claim and suppression of evidence arguments in his 10 pretrial habeas corpus writ, filed in the state district court. (Exhibit 4.) The state district 11 court denied the petition. (Exhibit 6.) Petitioner then raised the Fourth Amendment claim 12 on direct appeal to the Nevada Supreme Court. (Exhibit 29.) The Nevada Supreme 13 Court entered an order of affirmance on September 19, 2011, finding that petitioner’s 14 Fourth Amendment search and seizure claim lacked merit. (Exhibit 31, at pp. 1-3.) The 15 Fourth Amendment claim raised in Ground 4 of the federal habeas petition was 16 exhaustively litigated in the state court below. Because petitioner had the opportunity to 17 fully and fairly litigate the Fourth Amendment claim that he now presents in his federal 18 habeas petition, this Court is precluded from reviewing that claim. Stone v. Powell, 428 19 U.S. 465, 495 (1976). Accordingly, Ground 4 of the petition is dismissed with prejudice. 20 III. It is therefore ordered that petitioner’s motion to withdraw his prior motion for a 21 22 stay (dkt. no. 20) is granted. The motion for a stay (dkt no. 17) is stricken. It is further ordered that the respondents’ motion to dismiss (dkt. no. 8) is granted 23 24 CONCLUSION in part and denied in part, as follows: 25 1. The motion to dismiss Ground 3 as unexhausted is denied. 26 2. The motion to dismiss Grounds 2, 5, 6, and 7 as procedurally barred is 27 denied. 28 /// 6 1 2 3. The motion to dismiss Ground 4 of the petition is granted. Ground 4 is dismissed with prejudice pursuant to Stone v. Powell, 428 U.S. 465 (1976). 3 4. 4 It is further ordered that respondents shall file and serve an answer to the 5 remaining grounds of the petition within thirty (30) days from the entry of this order. The 6 answer shall include substantive arguments on the merits of the remaining grounds of 7 the petition. No further motions to dismiss will be entertained. 8 9 10 This action shall proceed on all grounds of the petition, except Ground 4. It is further ordered that petitioner shall file and serve a reply to the answer, within thirty (30) days after being served with the answer. DATED THIS 27th day of February 2014. 11 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7