PHILIP M. PRO, District Judge.
This action is a petition for a writ of habeas corpus by Frank Ralph LaPena, who, in a second trial, in 1989, was convicted of first degree murder and robbery with the use of a deadly weapon, and who is now on parole. Respondents have filed an answer (ECF No. 40), and LaPena has filed a reply to the answer (ECF No. 57). In their answer, respondents contend that several of LaPena's claims are unexhausted in state court. In this order, the court addresses those contentions, and concludes that Grounds 5, 6, and 7 of LaPena's petition are unexhausted. The court orders LaPena to make an election regarding those unexhausted claims.
In its opinion dismissing LaPena's appeal from his 1989 conviction, the Nevada Supreme Court summarized the facts, as disclosed by the evidence at trial, as follows:
Order Dismissing Appeal, Exhibit L, pp. 1-2 (opinion published as LaPena v. State, 107 Nev. 1126, 838 P.2d 947 (1991)).
December 7, 1998 Opinion of the Nevada Supreme Court, Exhibit R, pp. 2-5 (opinion published as State v. LaPena, 114 Nev. 1159, 968 P.2d 750 (1998)).
On the State's appeal from the grant of post-conviction relief, the Nevada Supreme Court ruled that "[t]he district court erred in granting respondent's petition for post-conviction relief on the basis of ineffective assistance of counsel." Id. at 5. The Nevada Supreme Court, therefore, reversed the state district court's judgment granting LaPena post-conviction relief. Id. at 11.
LaPena initiated this federal habeas corpus action by submitting a petition for writ of habeas corpus for filing on August 3, 2000. See Petition for Writ of Habeas Corpus, ECF No. 7.
On February 13, 2001, the respondents filed a motion to dismiss (ECF No. 16), seeking dismissal of the action "on the grounds that the instant petition contains claims substantially similar to habeas corpus claims currently being litigated in the Nevada State courts, and that the State courts should be given an opportunity to complete that pending litigation before federal habeas proceedings are initiated." Motion to Dismiss (ECF No. 16), p. 1. The court denied that motion on September 10, 2001 (ECF No. 29).
Respondents filed their answer on November 14, 2001 (ECF No. 40). LaPena then filed his reply to the answer (entitled "Petitioner's Partial Response in Opposition to Respondents Answer that Petitioner's Habeas Grounds Two-Three; Five-Six & Seven Are Unexhausted") on December 13, 2001, (ECF No. 57).
On July 24, 2002, the court dismissed the action on the ground that it was untimely, as it was filed outside the applicable limitations period. See Report and Recommendation (ECF No. 60); Amended Order entered July 24, 2002 (ECF No. 67); Amended Judgment (ECF No. 68). LaPena appealed (ECF No. 69). On October 20, 2003, the Ninth Circuit Court of Appeals reversed and remanded, upon the State's concession that the district court had not considered the tolling effect, under 28 U.S.C. § 2244(d)(2), of all of LaPena's state court post-conviction litigation. See Memorandum, ECF No. 77.
Following the remand, on March 15, 2004, LaPena filed a motion to supplement his habeas petition (ECF Nos. 84, 85), which was ultimately denied.
Along with his motion to supplement petition, on March 15, 2004, LaPena filed exhibits (ECF Nos. 84, 85, 86, 87) revealing that on March 26, 1999, he had initiated a second state court habeas action. See Order of Affirmance, Exhibit 17 to Motion to Supplement Petition. In that case, the state trial court conducted evidentiary hearings, and then denied the petition, and on May 22, 2003, the Nevada Supreme Court affirmed. Id.
In their answer to LaPena's habeas petition, respondents take the position that several of his claims are unexhausted in state court.
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 intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest state court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
The court has examined the record to determine the status of each of LaPena's claims, vis-a-vis the exhaustion of each claim in state court. The court sets forth its findings in this regard below, and directs LaPena to make an election with respect to his unexhausted claims.
In Ground 1 of his habeas petition, LaPena claims that his rights under the Fourteenth Amendment to the United States Constitution were violated because of "[i]nability of defense to secure the attendance of a crucial material witness," and "refusal of trial judge to allow investigator funds and access to seucre his attendance or deposition." Petition for Writ of Habeas Corpus (ECF No. 7), p. 3. The subject of Ground 1 is Joseph Costanza. See id. at 3-3E. Respondents concede that this claim has been exhausted in state court. See Answer, p. 15.
In Ground 2, LaPena claims that his rights under the Fourteenth Amendment to the United States Constitution were violated because the "State withheld exculpatory evidence before the grand jury to obtain a true bill and grand jury indictment." Petition for Writ of Habeas Corpus, p. 5. And, similarly, in Ground 3, LaPena claims that his rights under the Fourteenth Amendment to the United States Constitution were violated because the of the State's "withholding of exculpatory evidence from the grand jury and prosecutorial misconduct." Id. at 7.
Respondents argue that Grounds 2 and 3 are unexhausted, as somewhat similar claims were raised in state court, on LaPena's direct appeal, as only state-law claims. However, LaPena points out that in his reply brief, on his direct appeal to the Nevada Supreme Court, he did in fact cite federal cases, indicating that he raised federal constitutional claims with respect to the presentation of the case to the grand jury. See Appellant's Reply Brief, Exhibit K, pp. 19-21. Grounds 2 and 3 are exhausted.
In Ground 4, LaPena claims that his rights under the Fifth Amendment to the United States Constitution were violated because the "State failed to prove each and every element of crimes beyond a reasonable doubt [and] there was insufficient evidence of accomplice testimony." Petition for Writ of Habeas Corpus, p. 9. Respondents concede that this claim has been exhausted in state court. See Answer, p. 24.
In Ground 5, LaPena claims that his rights under the Fifth Amendment to the United States Constitution were violated because "[t]he District Court restriction of the cross-examination of Gerald Weakland deprived Petitioner of a fair trial." Petition for Writ of Habeas Corpus, p. 11. Respondents argue that Ground 5 is unexhausted, as it was presented in state court, on LaPena's direct appeal, as only a state-law claim.
The court finds that Ground 5 was not exhausted in state court. LaPena did not cite federal authority in his argument, on his direct appeal, regarding the trial judge's alleged improper restriction of the cross examination of Gerald Weakland. See Appellant's Opening Brief, Exhibit H, pp. 41-43; Appellant's Reply Brief, Exhibit K, pp. 39-41. LaPena's cryptic statement, in his direct appeal briefing, that "the limitation violated Appellant's right to confront his accusers in yet another way," was not sufficient to fairly present this federal constitutional claim to the Nevada Supreme Court and give that court the opportunity to address and resolve it. See Duncan, 513 U.S. at 365; Keeney, 504 U.S. at 10; see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) ("[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial," do not establish exhaustion.). Ground 5 is unexhausted.
In Ground 6, LaPena claims that his rights under the Fifth Amendment to the United States Constitution were violated because the "Trial Court refused to allow a jury instruction directly relating to Petitioner's theory of defense which was supported by substantial evidence." Petition for Writ of Habeas Corpus, p. 13. Respondents argue that Ground 6 is unexhausted, as it was presented in state court, on LaPena's direct appeal, as only a state-law claim.
In response, LaPena argues that "the constitutional dimension of Petitioner's claim should have been clear to the Nevada Supreme Court" (Reply, p. 9), but he does not point to anything in his briefing before the Nevada Supreme Court that would have alerted that court that this was a claim of a federal constitutional violation. See Reply, pp. 8-9; see also Appellant's Supplemental Brief, Exhibit I, pp. 1-4; Appellant's Reply Brief, Exhibit K, pp. 41-44.
Ground 6 is unexhausted.
In Ground 7, LaPena claims that his rights under the Fifth Amendment to the United States Constitution were violated because the "Trial Judge exercised actual bias and prejudice towards Petitioner prior to, during and after trial denying Petitioner his constitutional right to a fair and impartial trial." Petition for Writ of Habeas Corpus, p. 15. Respondents argue that Ground 7 is unexhausted, as it was presented in state court, on LaPena's direct appeal, as only a state-law claim.
Here, in response, LaPena argues that this claim was exhausted in state court, as a federal constitutional claim, because the State included the following in its argument, in its answering brief before the Nevada Supreme Court:
Respondent's Answering Brief, Exhibit J, pp. 46-47. That argument, by the State, did not fairly alert the Nevada Supreme Court to a federal constitutional claim. On his direct appeal, LaPena simply did not assert a federal constitutional claim with respect to the alleged bias of the trial judge.
LaPena also argues that he exhausted this federal constitutional claim in state court on account of arguments that he made in the state district court in a post-trial motion to disqualify the trial judge. See Reply, p. 10. Exhaustion, however, must be accomplished in the highest state court. See Duncan, 513 U.S. at 365. There is no showing that LaPena ever asserted in the Nevada Supreme Court his federal constitutional claim regarding the alleged bias of the trial judge.
Ground 7 is unexhausted.
In Ground 8, LaPena claims that his rights under the Sixth Amendment to the United States Constitution were violated because of ineffective assistance of counsel at trial and on appeal. Petition for Writ of Habeas Corpus, p. 17. Respondents concede that this claim has been exhausted in state court. See Answer, p. 43.
LaPena characterizes Ground 10 as a "Motion to Dismiss on grounds Petitioner is factually innocent and is being illegally and unconstitutionally detained and imprisoned for a crime he did not commit." Petition for Writ of Habeas Corpus, p. 19. Respondents appear to construe Ground 9 as a claim that there was insufficient evidence presented at trial to convict LaPena of murder, and treat Ground 9 together with Ground 4; respondents concede that both of those grounds have been exhausted in state court. Answer, pp. 23-24.
In Ground 10, LaPena claims that his rights under the Fourteenth Amendment to the United States Constitution were violated because the "State withheld Brady material from the defense and violated the Mandate of the Nevada Supreme Court." Petition for Writ of Habeas Corpus, p. 21. Respondents concede that this claim has been exhausted in state court. See Answer, p. 53.
As is discussed above, the court finds Grounds 5, 6, and 7 of LaPena's habeas petition to be unexhausted in state court. With respect to those claims, the court will direct LaPena to make an election. LaPena must either file a notice of abandonment of Grounds 5, 6, and 7, indicating that he elects to abandon those unexhausted claims and proceed with the litigation of his remaining exhausted claims (Grounds 1, 2, 3, 4, 8, 9, and 10), or alternatively, file a motion for stay, requesting a stay of these proceedings to allow him to return to state court to exhaust the unexhausted claims. If LaPena elects to file a motion for stay, he must make a showing that a stay is warranted, as prescribed in the Supreme Court case of Rhines v. Weber, 544 U.S. 269 (2005). If petitioner does not, within the time allowed, file a notice of abandonment of all his unexhausted claims, or a motion for a stay to allow exhaustion of his unexhausted claims in state court, LaPena's entire petition for writ of habeas corpus will be dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
