ROBERT C. JONES, District Judge.
This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254. On March 23, 2015, respondents filed to a motion to dismiss petitioner's claims arguing that several of the claims in the pending habeas petition are either unexhausted or procedurally barred. ECF No. 34. In opposition, petitioner Rodney argues that this court should hear his entire petition, but if not, it should issue a stay to allow for state court exhaustion. ECF No. 36.
On February 3, 2010, the State of Nevada charged Rodney in the state district court for Clark County, Nevada, with burglary while in possession of a deadly weapon, conspiracy to commit robbery, robbery with use of a deadly weapon, conspiracy to commit murder, attempted murder with use of a deadly weapon, and battery with use of a deadly weapon resulting in substantial bodily harm. On June 28, 2010, a jury found Rodney guilty on all counts. The court sentence Rodney to various concurrent and consecutive sentences ranging from 2 to 20 years.
Rodney appealed. On October 5, 2011, the Nevada Supreme Court affirmed the judgment of conviction.
On November 9, 2011, Rodney filed, pro se, a state post-conviction petition for writ of habeas corpus. The state district court issued an order denying that petition on February 29, 2012, that was affirmed on appeal on September 12, 2012. Rodney initiated a second state post-conviction proceeding on November 1, 2012, by filing another petition in the state district court. That petition was dismissed on procedural grounds on April 9, 2012. Rodney appealed.
In June of 2013, while the appeal of the dismissal of his second state post-conviction was pending, Rodney brought this federal habeas action. The Nevada Supreme Court affirmed the dismissal of his second state petition on January 16, 2014.
On January 22, 2015, Rodney filed an amended federal petition, which is now subject to respondents' motion to dismiss.
A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground for relief to the state's highest court, and must give that court the opportunity to address and resolve it. Duncan v. Henry, 513 U.S. 364, 365 (1995); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
The "fair presentation" requirement is satisfied when the claim has been presented to the highest state court by describing the operative facts and the legal theory upon which the federal claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Batchelor v. Cupp, 693 F.2d 859, 862 (9
Respondents argue that Grounds 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, and 14 of Rodney's amended petition are unexhausted. With respect to Grounds 7, 8, 13, and 14, Rodney's amended petition indicates that these claims were not raised in his direct appeal or his state post-conviction proceedings. ECF No. 33, pp. 19, 22, 39, 42.
In Ground 1, Rodney claims that his constitutional rights were violated because there was insufficient evidence presented at trial to support the guilty verdicts. On direct appeal, Rodney argued that there was not sufficient evidence to support the conspiracy to commit murder and attempted murder convictions. ECF No. 16-22, p. 7-9. He also raised a sufficiency of the evidence claims in his first and second state habeas petitions. ECF No. 17-8, p. 10; ECF No. 17-23, p. 7-8. Ground 1 is exhausted.
In Ground 2, Rodney claims that his constitutional rights were violated because his convictions were based on the unreliable testimony of the victim.
In Ground 3, Rodney alleges a violation of his constitutional right to effective assistance of counsel due to his counsel's failure to investigate or challenge the State's case as to medical evidence of the victim's injuries. Rodney presented this claim in his second state post-conviction proceeding. ECF No. 17-23, p. 9-12. Ground 3 is exhausted.
In Ground 9, Rodney alleges a violation of his constitutional right to effective assistance of counsel due to his counsel's failure to investigate and object to the victim's testimony that he had to be re-hospitalized due to wounds inflicted by Rodney, when, in fact it was due to a staph infection. Rodney presented this claim in his second state post-conviction proceeding. ECF No. 17-23, p. 10-11. He also alleges, in Ground 9, that the victim falsely testified about suffering from seizures. While he never presented it to the state court, that allegation does not "fundamentally alter the legal claim already considered by the state courts" so as to render Ground 9 unexhausted. See Vasquez v. Hillery, 474 U.S. 254, 260 (1986). Ground 9 is exhausted.
In Ground 10, Rodney alleges a violation of his constitutional right to effective assistance of counsel due to his counsel's failure to object to the victim's perjured testimony about the extent of his wounds. This claim is duplicative of Grounds 3 and 9 and shall be dismissed on that basis.
In Ground 11, Rodney alleges a violation of his constitutional right to counsel due to irreconcilable differences between himself and appointed counsel. Rodney did not present this claim to the Nevada Supreme Court. Ground 11 is unexhausted.
In Ground 12, Rodney alleges a violation of his constitutional right to effective assistance of counsel due to his counsel's failure to object to the victim's testimony about the weapons that were used against him. Rodney did not present this claim to the Nevada Supreme Court. Ground 12 is unexhausted.
Rodney argues that his failure to exhaust state court remedies for his claims should be excused because it is attributable to his lack of legal knowledge and the pleading form used by the state court that, according to him, discouraged him from citing legal authority for his claims. However, Rodney's lack of legal training or knowledge does not allow him to circumvent the exhaustion requirement and, as respondents point out, Rodney did cite to constitutional provisions and case law in support of the claims he did present in his first and second post-conviction proceedings. ECF No. 17-8, ECF No. 17-23. Finally, Rodney also argues that exhaustion should be excused because the state court allowed his trial counsel to act as direct appeal counsel despite a known conflict. That would not excuse, however, Rodney's failure to raise the claims in his state post-conviction proceedings.
In summary, Rodney has failed to exhaust state court remedies for Grounds 7, 8, 11, 12, 13 and 14. Ground 10 is dismissed as duplicative of claims raised elsewhere in his petition.
Rodney asks the court, to the extent it concludes that he has failed to exhaust claims, to issue a stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court authorized, but also placed limitations upon, the discretion of the court to facilitate habeas petitioners' return to state court to exhaust claims. The Rhines Court stated:
Rhines, 544 U.S. at 277.
The Court in Rhines went on to state that, "[I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278.
Thus, the court may stay a petition containing both exhausted and unexhausted claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics. Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977-80 (9
While he blames the lack of effective counsel on appeal for his failure to exhaust claims, Rodney has not advanced good cause for failure to exhaust his unexhausted claims in either of the two subsequent state post-conviction proceedings. Allowing the mere fact that Rodney was proceeding pro se or lacked knowledge of the law to establish "good cause" would undermine the admonition in Rhines that stay and abeyance be available only in "limited circumstances." See Wooten v. Kirkland, 540 F.3d 1019, 1024 (9
Thus, Rodney's request for stay and abeyance shall be denied because he has not shown good cause for his failure to exhaust his claims in state court before proceeding in federal court.
Rhines, 544 U.S. at 278.
Therefore, the court will provide Rodney with an opportunity to abandon Grounds 7, 8, 11, 12, 13 and 14. If Rodney abandons those claims, this case will proceed on the claims remaining in the amended petition. If Rodney does not abandon the claims, his entire amended petition will be dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
A "procedural default" occurs when a petitioner presents a federal law claim for habeas corpus relief to the state courts but the state courts dispose of the claim on procedural grounds instead of on the merits. A federal court will not review the claim if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
The Coleman Court stated the effect of a procedural default, as follows:
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).
A state procedural bar is "independent" if the state court explicitly invokes the procedural rule as a separate basis for its decision. McKenna v. McDaniel, 65 F.3d 1483, 1488 (9
A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established at the time of the petitioner's purported default." Calderon v. United States Dist. Court, 96 F.3d 1126, 1129 (9
Respondents argue that Grounds 2, 3, 4, 5, 6 and 9 of Rodney's amended petition are procedurally barred.
ECF No. 17-21, p. 5-6.
Nev. Rev. Stat. § 34.810(1)(b) provides that the court shall dismiss a petition if petitioner's conviction was the result of a trial and the grounds for the petition could have been presented to the trial court, raised in a direct appeal or a prior petition for a writ of habeas corpus or post-conviction relief, or raised in any other proceeding that the petitioner has taken to secure relief from the petitioner's conviction and sentence. Respondents contend that claims dismissed by the Nevada Supreme Court under this procedural bar correspond with Grounds 2, 3, 4, 5 and 6 of Rodney's federal petition. With the exception of Ground 3, which is an ineffective assistance of counsel claim, the court agrees.
The Ninth Circuit Court of Appeals has held that, at least in non-capital cases, application of the procedural bar at issue in this case—Nev. Rev. Stat. § 34.810—is an independent and adequate state ground. Vang v. Nevada, 329 F.3d 1069, 1073-75 (9
In its order affirming the denial of Rodney's second state post-conviction petition, the Nevada Supreme Court dismissed all the claims in the petition, again relying upon Nev. Rev. Stat. § 34.810.
Rodney does not argue that he can demonstrate cause and prejudice or a fundamental miscarriage of justice. As noted above, he attributes his failure raise claims on direct appeal to the absence of effective counsel in that proceeding. However, he is unable to rely on that as cause for his procedural default because he has not independently exhausted that claim in the state court. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000)
