Reed v. Baca et al, No. 3:2013cv00426 - Document 16 (D. Nev. 2015)

Court Description: ORDER granting 10 Motion to Partially Dismiss Petition as follows: Grounds 1, 2, and 7 are dismissed, Grounds 5 and 6 are unexhausted. Petitioner to have 30 days to either: (1) inform the Court that he wishes to abandon the unexhausted grou nds; (2) inform the Court that he wants to dismiss this petition to return to state court to exhaust his unexhausted claims; or (3) file a motion for a stay, asking this court to hold his exhausted claims in abeyance while he returns to state court t o exhaust his unexhausted claims. If Petitioner elects to abandon his unexhausted grounds, Respondents to have 30 days from Petitioner's declaration of abandonment to answer; Petitioner to reply 30 days thereafter. Additional exhibits to be fi led with separate index. Hard copies of any exhibits shall be forwarded, for this case, to staff attorneys in Reno. Petitioner's 13 Motion to Extend Time is granted nunc pro tunc. Signed by Judge Miranda M. Du on 6/24/2015. (Copies have been distributed pursuant to the NEF - KR)
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Reed v. Baca et al Doc. 16 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 HERMAN REED, 9 Petitioner, ORDER v. 10 11 Case No. 3:13-cv-00426-MMD-WGC ISIDRO BACA, et al., 12 Respondents. 13 14 This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before 15 the Court is respondents’ motion to partially dismiss. (Dkt. no. 10.) Petitioner has 16 opposed the motion (dkt. no. 14), and respondents have replied (dkt. no. 15). 17 I. PROCEDURAL HISTORY AND BACKGROUND 18 On October 7, 2009, petitioner Herman Reed (“petitioner”) was convicted 19 pursuant to jury verdicts of count 1: unlawful possession of a firearm; count 2: 20 possession of stolen property; and count 3: possession of a firearm by ex-felon (exhibits 21 to motion to dismiss, dkt. no. 10, Exh. 22). Counts 1 and 3 were charged under the 22 same statute, and the court granted the State’s motion to dismiss count 1. (Exh. 30.) 23 On January 22, 2010, petitioner was sentenced to forty-eight to one hundred twenty 24 months on count 2 and a consecutive sentence of twenty-eight to seventy months on 25 count 3. (Exh. 30.) The judgment of conviction was entered on February 8, 2010. (Exh. 26 31.) 27 28 Petitioner appealed, and the Nevada Supreme Court affirmed his convictions on April 11, 2012. (Exh. 42.) Remittitur issued on May 7, 2012. (Exh. 43.) Dockets.Justia.com 1 On June 11, 2012, petitioner filed his state postconviction petition for writ of 2 habeas corpus. (Exh. 44.) The Nevada Supreme Court affirmed the state district court’s 3 denial of the petition on June 12, 2013, denied a petition for rehearing on June 25, 4 2013, and remittitur issued on August 21, 2013. (Exhs. 54, 56, 57.) 5 Petitioner dispatched this federal petition for writ of habeas corpus on August 5, 6 2013. (Dkt. no. 2.) Pursuant to this Court’s order, petitioner filed an amended petition on 7 September 5, 2013. (Dkt. no. 5.) Respondents argue that the petition should be 8 dismissed because several grounds are unexhausted and/or are not cognizable in 9 federal habeas corpus. 10 II. LEGAL STANDARDS 11 A. Exhaustion 12 A federal court will not grant a state prisoner’s petition for habeas relief until the 13 prisoner has exhausted his available state remedies for all claims raised. Rose v. 14 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 15 courts a fair opportunity to act on each of his claims before he presents those claims in 16 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 17 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 18 petitioner has given the highest available state court the opportunity to consider the 19 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 20 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 21 1981). 22 A habeas petitioner must “present the state courts with the same claim he urges 23 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 24 constitutional implications of a claim, not just issues of state law, must have been raised 25 in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. 26 Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court 27 must be “alerted to the fact that the prisoner [is] asserting claims under the United 28 States Constitution” and given the opportunity to correct alleged violations of the 2 1 prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. 2 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) 3 “provides a simple and clear instruction to potential litigants: before you bring any claims 4 to federal court, be sure that you first have taken each one to state court.” Jiminez v. 5 Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. at 520). 6 “[G]eneral appeals to broad constitutional principles, such as due process, equal 7 protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala v. 8 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to 9 state caselaw that applies federal constitutional principles will suffice. Peterson v. 10 Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 11 A claim is not exhausted unless the petitioner has presented to the state court 12 the same operative facts and legal theory upon which his federal habeas claim is based. 13 Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The 14 exhaustion requirement is not met when the petitioner presents to the federal court facts 15 or evidence which place the claim in a significantly different posture than it was in the 16 state courts, or where different facts are presented at the federal level to support the 17 same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 18 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 19 458 (D. Nev. 1984). 20 B. Failure to State a Claim Cognizable in Federal Habeas Corpus 21 A state prisoner is entitled to federal habeas relief only if he is being held in 22 custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 23 2254(a). Unless an issue of federal constitutional or statutory law is implicated by the 24 facts presented, the claim is not cognizable under federal habeas corpus. Estelle v. 25 McGuire, 502 U.S. 62, 68 (1991). A petitioner may not transform a state-law issue into 26 a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d 27 1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation or application of state law 28 do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004). 3 1 III. RELEVANT GROUNDS IN INSTANT PETITION 2 Petitioner sets forth ten grounds for relief in his amended petition. (Dkt. no. 5 at 3 3-64.) Respondents argue that grounds 2, 5 and 6 are unexhausted, grounds 1 and 2 4 are not cognizable in federal habeas corpus and ground 7 is barred by Stone v. Powell, 5 428 U.S. 465 (1976). (Dkt. no. 10 at 10-15.) 6 A. 7 Grounds 1 and 2 of the federal petition relate to NRS § 202.360(c). In ground 1, 8 petitioner contends that NRS § 202.360(c), which criminalizes the possession of a 9 firearm by a drug user and/or addict, is unconstitutionally vague. (Dkt. no. 5 at 3-7.) He 10 also claims that his conviction for ex-felon in possession of a firearm violated his Fifth 11 and Fourteenth Amendment rights to due process, equal protection and a fair trial 12 because it was predicated on his conviction under the unconstitutionally vague NRS § 13 202.360(c). (Id. at 3.) In ground 2, petitioner alleges that his conviction and sentence 14 pursuant to NRS § 202.360(c) violates his Eighth Amendment right to be free from cruel 15 and usual punishment and his Fourteenth Amendment due process and equal 16 protection rights because it criminalizes narcotics addiction. (Dkt. no. 5 at. 9-10.) Grounds 1 and 2 17 Respondents argue that grounds 1 and 2 are not cognizable federal habeas 18 claims here because count 1 violation of NRS § 202.360(c) was dismissed. (Dkt. 19 no. 10 at 13-14.) As set forth above, this Court “shall entertain an application for a writ 20 of habeas corpus in behalf of a person in custody pursuant to the judgment of a State 21 court only on the ground that he [or she] is in custody in violation of the Constitution or 22 laws or treaties of the United States.” 28 U.S.C. § 2254. “[T]he traditional function of the 23 writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 24 (1973). 25 Here, count 1 possession of a firearm by a person who is an unlawful user of, 26 or addicted to, any controlled substance (NRS § 202.360(c) was dismissed. The 27 state district court entered judgment against petitioner and sentenced him only on 28 counts 2 and 3. Thus, a successful challenge to the constitutionality of NRS § 4 1 202.360(c) would not affect the fact or duration of petitioner’s confinement. Accordingly, 2 grounds 1 and 2 must be dismissed as noncognizable in federal habeas proceedings. 3 B. 4 In ground 5 of the federal petition, petitioner alleges that the trial court erred by 5 refusing to dismiss or at least sever the unlawful possession of a firearm charge from 6 the other charged crimes in violation of his Fifth and Fourteenth Amendment rights to 7 due process, equal protection and a fair trial. (Dkt. no. 5 at 21-23.) Ground 5 8 Respondents argue that petitioner presented this issue to the Nevada Supreme 9 Court in his direct appeal solely as a matter of state law, and therefore, it is 10 unexhausted. (Dkt. no. 10 at 10-12.) In petitioner’s amended direct appellate brief, he 11 argued that, under Zana v. State, 216 P.3d 244, 249 (Nev. 2009), the trial court erred by 12 refusing to dismiss or at minimum sever the unlawful possession of firearm charge from 13 the other charged crimes. (Exh. 39 at 27-29.) 14 This Court agrees that the claim that petitioner presented on direct appeal was 15 that the trial court erred under state law. Petitioner cited only state statute and the state 16 supreme court decision of Zana in support of his claim on direct appeal. (Exh. 39 at 28.) 17 In Zana, the Nevada Supreme Court cites to Robinson v. United States, 459 F.2d 847 18 (D.C. Cir. 1972). Zana, 216 P.3d at 249. However, having reviewed the cases, this 19 Court concludes that the references to Robinson do not constitute citation to state 20 caselaw that applies federal constitutional principles so as to satisfy the exhaustion 21 inquiry here. Peterson, 319 F.3d at 1158. Accordingly, ground 5 is unexhausted. 22 C. Ground 6 23 In ground 6 of the federal petition, petitioner claims that his Fifth and Fourteenth 24 Amendment rights to due process, equal protection and a fair trial were violated when 25 the trial court permitted police officers to proffer improper expert testimony. (Dkt. no. 5 26 at 25-31.) Petitioner contends that the officers lacked expert qualifications and the 27 prosecution did not provide the requisite notice to the defense of expert testimony. (Id. 28 at 25.) 5 1 Respondents point out that petitioner presented this claim to the Nevada 2 Supreme Court on direct appeal only as a matter of an error of state law. (Dkt. no. 10 at 3 12-13; Exh. 39 at 29-33.) The Court agrees. The amended appellate brief makes no 4 reference to federal constitutional guarantees in the claim that corresponds to federal 5 ground 6. Accordingly, ground 6 is unexhausted.1 6 D. 7 In ground 7 of the federal petition, petitioner claims that the trial court denied the 8 motion to suppress evidence gained in the illegal search of his car in violation of his 9 Fourth Amendment right to be free from unreasonable search and seizure and his 10 Ground 7 Fourteenth Amendment right to a fair trial. (Dkt. no. 5 at 33-42.) 11 Respondents contend that ground 7 is barred by Stone v. Powell. (Dkt. no. 10 at 12 14-15.) In Stone, the United States Supreme Court held that allegations of violations of 13 a petitioner’s Fourth Amendment rights are not cognizable in federal habeas corpus 14 actions provided that the petitioner has a “full and fair” opportunity to litigate these 15 claims in state court. Stone v. Powell, 428 U.S. at 481; Ortiz-Sandoval v. Gomez, 81 16 F.3d 891, 899 (9th Cir. 1996). The relevant inquiry is whether the petitioner had the 17 opportunity to litigate his claim, not whether he did in fact do so or even whether the 18 claim was correctly decided. Id. A petitioner seeking habeas relief based on a state 19 court’s failure to exclude evidence on Fourth Amendment grounds must affirmatively 20 demonstrate that the state court did not afford him an adequate opportunity to litigate 21 his Fourth Amendment claims. Woolery v. Arave, 8 F.3d 1325, 1326 (9th Cir. 1993). 22 Petitioner asserts that he did not have a full and fair opportunity to litigate his 23 Fourth Amendment claims because, while he acknowledges that his counsel filed a 24 motion to suppress, he and his trial counsel disagreed on what arguments to raise in the 25 motion. (Dkt. no. 5 at 40-41.) However, the record reflects that petitioner’s counsel filed 26 a motion to suppress the evidence discovered in the trunk of the car. (Id. at 89-94.) The 27 The Court notes that in petitioner’s counseled, amended appellate brief, several claims are expressly brought under the federal Constitution. (Exh. 39 at 7-27, 33-42.) 28 1 6 1 state district court denied the motion. (Exh. 14 at 5-7.) Petitioner raised the issue on 2 direct appeal in his counseled, amended opening brief. (Exh. 3 at 33-38.) The Nevada 3 Supreme Court considered the issue in its opinion and denied relief, affirming 4 petitioner’s conviction. (Exh. 42 at 4-5.) Thus, the Fourth Amendment claim raised here 5 as ground 7 of the federal petition was fully litigated in the state court below. Because 6 petitioner had the opportunity to fully and fairly litigate the Fourth Amendment claim that 7 he now presents in ground 7 in his federal habeas petition, this Court is precluded from 8 reviewing that claim and it will be dismissed. See Stone v. Powell, 428 U.S. at 495. 9 IV. PETITIONER’S OPTIONS REGARDING UNEXHAUSTED CLAIMS 10 A federal court may not entertain a habeas petition unless the petitioner has 11 exhausted available and adequate state court remedies with respect to all claims in the 12 petition. Rose v. Lundy, 455 U.S. at 510. A “mixed” petition containing both exhausted 13 and unexhausted claims is subject to dismissal. Id. In the instant case, the Court finds 14 (1) that grounds 1 and 2 are dismissed as noncognizable in federal habeas 15 proceedings; (2) ground 7 is dismissed as noncognizable on federal habeas review 16 pursuant to Stone v. Powell; and that grounds 5 and 6 are unexhausted. Respondents 17 did not challenge any other grounds as subject to dismissal. Thus the petition is a 18 “mixed petition,” containing both exhausted and unexhausted claims, and therefore, 19 petitioner has these options: 20 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only on the remaining 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. 25 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. 26 With respect to the third option, a district court has discretion to stay a petition 21 22 23 24 27 that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276 (2005). 28 /// 7 1 The Rhines Court stated: 2 7 [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”). 8 Rhines, 544 U.S. at 277. Thus the Court held that it likely would be an abuse of 9 discretion for a district court to deny a stay and to dismiss a mixed petition if the 10 petitioner had good cause for his failure to exhaust, his unexhausted claims are 11 potentially meritorious, and there is no indication that the petitioner engaged in 12 intentionally dilatory litigation tactics. Id. at 278. 13 V. 3 4 5 6 14 15 16 17 18 CONCLUSION It is therefore ordered that respondents’ motion to partially dismiss the petition (dkt. no. 10) is granted as follows: 1. Grounds 1, 2, and 7 are dismissed as noncognizable in federal habeas proceedings. 2. Grounds 5 and 6 are unexhausted. 19 It is further ordered that petitioner shall have thirty (30) days to either: (1) inform 20 this Court in a sworn declaration that he wishes to formally and forever abandon the 21 unexhausted grounds for relief in his federal habeas petition and proceed on the 22 exhausted ground; or (2) inform this Court in a sworn declaration that he wishes to 23 dismiss this petition without prejudice in order to return to state court to exhaust his 24 unexhausted claims; or (3) file a motion for a stay and abeyance, asking this Court to 25 hold his exhausted claim in abeyance while he returns to state court to exhaust his 26 unexhausted claims. If petitioner chooses to file a motion for a stay and abeyance, or 27 seek other appropriate relief, respondents may respond to such motion as provided in 28 Local Rule 7-2. 8 1 It is further ordered that if petitioner elects to abandon his unexhausted grounds, 2 respondents shall have thirty (30) days from the date petitioner serves his declaration of 3 abandonment in which to file an answer to petitioner’s remaining grounds for relief. The 4 answer shall contain all substantive and procedural arguments as to all surviving 5 grounds of the petition, and shall comply with Rule 5 of the Rules Governing 6 Proceedings in the United States District Courts under 28 U.S.C. §2254. 7 8 9 10 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. 11 It is further ordered that any additional state court record exhibits filed herein by 12 either petitioner or respondents shall be filed with a separate index of exhibits identifying 13 the exhibits by number. The CM/ECF attachments that are filed further shall be 14 identified by the number or numbers of the exhibits in the attachment. The hard copy of 15 any additional state court record exhibits shall be forwarded for this case to the 16 staff attorneys in Reno. 17 18 19 It is further ordered that petitioner’s motion to extend time to oppose the motion to partially dismiss (dkt. no. 13) is granted nunc pro tunc. DATED THIS 24th day of June 2015. 20 21 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 9