Order Granting in Part and Denying in Part Amended Motion to Dismiss

[ECF 20]

JENNIFER A. DORSEY, District Judge.

Nevada state prisoner Phillip Smith, who is represented by court-appointed counsel, brings this habeas action challenging his Nevada state-court convictions for robbery and related charges. In his second-amended petition, Smith asserts six grounds for relief. Respondents move to dismiss grounds two and three, arguing that ground two is not cognizable on federal-habeas review under Stone v. Powell,1 and that Smith failed to exhaust claim three.2 I find that claim two is barred by Stone v. Powell and therefore dismiss it. I find that Smith has not exhausted claim three and give him until March 2, 2016, to inform the court in writing if he wishes to abandon that claim or return to state court to properly exhaust it.

Background

On March 2, 2011, a jury in Nevada's Eighth Judicial District Court convicted Smith on a laundry list of charges stemming from a pair of residential armed robberies.3 The trial judge sentenced Smith to 19 years to life imprisonment.4 Smith appealed his convictions; the Nevada Supreme Court affirmed, and remittitur issued on March 12, 2013.5 Smith dispatched his federal habeas petition for mailing on March 13, 2014.6 I appointed counsel to represent Smith, who filed a second-amended petition on Smith's behalf on December 9, 2014.7 Respondents move to dismiss grounds two and three.8

Discussion

A. Smith's Fourth Amendment claim is barred by Stone v. Powell.

Independent, substantive Fourth Amendment claims are generally barred from federal habeas review. In Stone v. Powell, the United States Supreme Court held that a Fourth Amendment claim is not cognizable in federal habeas actions if the petitioner had a "full and fair" opportunity to litigate the claim in state court.9 To bring a federal habeas claim for a Fourth Amendment violation, a petitioner must show that the state court did not afford him a full and fair opportunity to litigate it.10

In ground two of his petition, Smith claims that the state violated his Fourth and Fourteenth Amendment rights when police installed a global positioning system ("GPS") tracking device on his Honda Accord — without a valid warrant and without Smith's consent — and tracked the Honda's movements.11

Respondents contend that Smith had a full and fair opportunity to litigate this claim in state court, and Smith concedes that ground two is barred by Stone v. Powell.12 The record shows that Smith had a full and fair opportunity to litigate his claim that installing the GPS and tracking the Honda's movements was an unlawful search in state court. Smith raised this claim on direct appeal.13 The Nevada Supreme Court explained that the installation of the GPS on Smith's Honda was lawful and that, in any event, Smith waived this objection when he failed to file a motion to suppress challenging the allegedly unlawful search when he had an opportunity to do so.14 I therefore dismiss ground two as barred under Stone v. Powell.

B. Smith's due-process claim for unduly suggestive identification procedures is unexhausted.

A federal court will not entertain a state prisoner's federal habeas petition until the petitioner has exhausted all available state-court remedies for his claims.15 In other words, the petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in federal court.16 To exhaust a claim, the petitioner must give the highest available state court the opportunity to consider the claim through direct appeal or state collateral-review proceedings.17

In ground three, Smith asserts that the state's unduly suggestive identification procedures violated his Fifth and Fourteenth Amendment due-process rights.18 He argues that the two victims were unable to identify him before trial, the physical description offered by one victim differed significantly from Smith's appearance, and that the other victim viewed four photos of Smith and was unable to identify him as the intruder. Smith points out that both victims identified him for the first time at trial, where he sat with his co-defendant at the defense table; they were the only two black men.19

Smith has not exhausted this claim. On direct appeal to the Nevada Supreme Court, Smith argued only that there was insufficient evidence to sustain his convictions because the victims' in-court identifications of him did not comport with pre-trial identification attempts.20 Smith's claim that the state's use of unduly suggestive identification procedures violated his due-process rights is thus unexhausted because he did not raise it in state court. As a result, I cannot consider it.

C. Smith must abandon claim three or return to state court to exhaust it.

To bring a federal habeas action, a petitioner must exhaust his available state-court remedies for all claims in the petition.21 A "mixed" petition — one containing both exhausted and unexhausted claims — is subject to dismissal in its entirety.22 Because Smith's petition contains both exhausted and unexhausted claims, he has three options:

As to the third option, Smith is cautioned that stay and abeyance is available only in limited circumstances. If Smith chooses to file a motion for stay and abeyance, he must show that there was good cause for his failure to first exhaust claim three in state court, and that claim three is not plainly meritless.23 Respondents would then have an opportunity to respond to his motion.

If Smith fails to choose one of these three options or seek other appropriate relief by March 2, 2016, his federal habeas petition will be dismissed without prejudice as a mixed petition.

Conclusion

Accordingly, IT IS HEREBY ORDERED that respondents' amended motion to dismiss [ECF 20] is GRANTED in part and DENIED in part; ground two is DISMISSED with prejudice.

IT IS FURTHER ORDERED that petitioner has until March 2, 2016, to either: (1) inform this court in a sworn declaration that he wishes to formally and forever abandon claim three and proceed on the exhausted grounds; (2) inform this court in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust claim three; or (3) file a motion asking this court to stay this case and hold his exhausted claims in abeyance while he returns to state court to exhaust claim three. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief, respondents may respond as provided in Local Rule 7-2. If petitioner fails to respond to this order by March 2, 2016, this case will be dismissed without further notice and without prejudice.

IT IS FURTHER ORDERED that if petitioner elects to abandon claim three, respondents have 30 days from the date petitioner serves his declaration of abandonment to file an answer to petitioner's remaining grounds for relief, and petitioner will have 30 days following service of respondents' answer to file a reply.