ANDREW P. GORDON, District Judge.
The respondents have filed a motion to dismiss (ECF No. 32) the petitioner's first amended petition for writ of habeas corpus (ECF No. 21). Because the petitioner has not exhausted his state-court remedies for ground 1 and part of ground 5, I grant the motion to dismiss in part.
After the first jury trial, petitioner Leonard Hill was convicted of first-degree murder. Ex. 71 (ECF No. 33-21). Hill appealed. The Supreme Court of Nevada reversed and remanded for a new trial, in part because a change in an expert's testimony violated both state law and fundamental notions of fairness. Ex. 85 (ECF No. 33-35). After the second jury trial, Hill again was convicted of first-degree murder. Ex. 102 (ECF No. 34-16). Hill appealed and the Supreme Court of Nevada affirmed. Ex. 44 (ECF No. 28-3).
Hill then filed a post-conviction habeas corpus petition in state district court. Ex. 45 (ECF No. 28-4). The state district court appointed counsel, who filed a supplement. Ex. 46 (ECF No. 28-5). The state district court denied the petition. Ex. 48 (ECF No. 28-7). Hill appealed again and the Nevada Supreme Court affirmed. Ex. 50 (ECF No. 28-9).
Hill then commenced this action with his initial, proper-person petition. ECF No. 8. The court appointed counsel, who filed the amended petition. ECF No. 21.
Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).
"[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lam
Ground 1 and the corresponding preceding claims in the state courts concern a change in testimony by Dr. Alane Olson. She performed the autopsy on the victim Martin and provided expert testimony on the length of time that strangulation causes unconsciousness and then death. At all times, she testified that strangulation causes unconsciousness after 10 to 15 seconds of impeding the blood flow to the brain. At the preliminary hearing, she testified that strangulation causes death after 1 to 2 minutes of continuously impeding the blood flow to the brain. Ex. 2, at 11 (ECF No. 22-2, at 4). At the first trial, she testified that strangulation causes death after 3 to 4 minutes of continuously impeding the blood flow to the brain. Ex. 9, at 71 (ECF No. 23-4, at 75). She explained that research between the preliminary hearing and trial led her to modify her conclusions. Id. at 80-81, 82-85 (ECF No. 23-4, at 84-85, 86-89). Dr. Olson's testimony at the second trial was the same as her testimony at the first trial. See Ex. 26, at 93 (ECF No. 26-1, at 94).
The claim that is now ground 1 has changed through the course of litigation. On appeal from the first trial, Hill argued that the prosecution violated both state law regarding disclosure of expert testimony and federal constitutional protections against concealment of evidence. Ex. 77, at 10-14 (ECF No. 33-27, at 21-25). The Supreme Court of Nevada agreed, reversed the judgment of conviction, and remanded for a new trial.
On appeal from the second trial, the claim changed. The claim now had two parts. First, Hill argued that the prosecution failed to disclose information to the defense. That information was a pamphlet from a continuing medical education conference that Dr. Olson attended. The pamphlet discussed a case of a person who died by hanging and how long it took that person to die. Ex. 42, at 9-10 (ECF No. 28-1, at 17-18). Second, Hill argued that the pamphlet, and the event it described, was not an adequate foundation for changing her opinion, that the scientific community had no universally accepted time period for how long it takes death by strangulation to occur, and thus Olson's testimony was unreliable, unhelpful, and prejudicial. Id. at 9, 10-12 (ECF No. 28-1, at 17, 18-21). Hill did not cite any provision of the constitution or laws of the United States in this part of the opening brief. In the reply brief, Ex. 43 at 1 (ECF No. 28-2, at 8), Hill included the following quotation:
Lay v. State, 14 P.3d 1256, 1262 (Nev. 2000). The Supreme Court of Nevada rejected the claims summarily. Ex. 44, at 3 n.3 (ECF No. 28-3, at 4).
Ground 1 of the original, proper-person petition before this court was a photocopy of Hill's opening brief on appeal from the second trial. ECF No. 8, at 3-29. The claim regarding Dr. Olson's testimony thus was the same as what he presented on direct appeal from the second trial.
In ground 1 of the counseled first amended petition, the claim has changed again. Hill no longer claims that the prosecution failed to disclose the change in Dr. Olson's testimony or the pamphlet.
I agree with the respondents that ground 1, as Hill presents the claim now to this court, is not exhausted. In the opening brief on appeal from the second trial, Hill did not cite any provision of federal law; he cited only state statutes and state-court decisions. See Ex. 42, at 9-13 (ECF No. 28-1, at 17-21). Hill used terms such as "due process" and "fair trial." Those phrases alone, without reference to federal constitutional provisions, are insufficient to fairly present an issue of federal law to the state court. Hiivala, 195 F.3d at 1106. Hill argues that in the direct appeal reply brief he quoted Lay v. State, 14 P.3d at 1262, which in turn quoted Kyles v. Whitley, 514 U.S. 419 (1995). Kyles interprets the Constitution, but only regarding required disclosure of evidence to a defendant. Ground 1 now has no claim that the prosecution failed to disclose evidence to Hill. Kyles and the earlier decision that it interprets, Brady v. Maryland, 373 U.S. 83 (1963), have nothing to do with whether an expert witness's testimony violates constitutional norms of fundamental fairness. The citation to Lay, and its internal citation to Kyles, is irrelevant to ground 1 as it is now presented. The lack of exhaustion of ground 1 is only in dispute because, as described above, the claims regarding the change in Dr. Olson's testimony have themselves changed. It first was a claim that the prosecution failed to disclose evidence about Dr. Olson's testimony. It now is a claim that Dr. Olson failed to meet the standards for expert testimony. In the middle, it was both, in the same section of the appellate brief. I reject Hill's argument that the fair presentation of federal law regarding the failure-to-disclose claim covers the expert-testimony claim simply because Hill blended the two claims together in his state appellate brief. Ground 1 is not exhausted.
The respondents also argue that ground 1 is not exhausted because Hill has added to the claim beyond what he presented in state court. On appeal from the second trial, Hill argued that the trial court erred in admitting Dr. Olson's testimony because (1) it was not helpful to the jury, (2) it was not probative beyond the danger of confusion or prejudice, and (3) it was not reliable or trustworthy. In ground 1 of the amended federal petition, Hill argues that (1) Dr. Olson's testimony was the sole evidence to support premeditation, an element of first-degree murder, (2) Dr. Olson's testimony undermined the theory of self-defense, and (3) Dr. Olson's testimony undermined the burden of proving the elements of the crime. Hill's theory of defense was, at least in part, self-defense. A claim that Dr. Olson's testimony was prejudicial, as Hill argued in state court, necessarily is a claim that her testimony was evidence for premeditation and undermined his theory of self-defense. The argument was implicit in Hill's state-court brief. Ground 1 is not exhausted, but not because Hill added to what he alleged in state court.
The respondents initially argued that grounds 3(B) and 3(C) are unexhausted. They have withdrawn those arguments. ECF No. 43, at 6.
The respondents argue that Hill has not exhausted part of ground 5. Ground 5 is a claim of prosecutorial misconduct. Hill alleges four instances of misconduct. First, the prosecutor argued to the jury that Martin might not have been dead when the police arrived, without any evidence in the record. Second, the prosecutor's argument to the jury mischaracterized Dr. Olson's testimony about the lack of agreement in the scientific community on the time in which strangulation causes death. Third, the prosecutor's argument to the jury appealed to the passions and prejudices of the jurors. Fourth, the prosecutor disparaged trial counsel on four different occasions during the evidence phase of the trial. Hill raised the first three issues, regarding the prosecutor's argument to the jury, on direct appeal. Ex. 42, at 24-26 (ECF No. 28-1, at 32-34). Hill did not raise the fourth issue, the instances of the prosecutor disparaging defense counsel, on direct appeal. Hill argues that these instances of the prosecutor disparaging the defense counsel do not fundamentally alter the claim. I am not persuaded. Other than the prosecutor being involved, the facts of the disparagement claim are completely different from what Hill presented to the state courts. The claims that the prosecutor disparaged defense counsel are not exhausted.
Ground 7 contains five claims of ineffective assistance of trial counsel. The respondents argue that grounds 7(B) and 7(E) are not exhausted. Ground 7(B) is a claim that counsel failed to object to the hearsay testimony of Linda Jones, the sister of Robin Martin. Jones testified that Martin said that Martin intended to seek a protective order against Hill. Hill raised a failure-toobject claim in his supplemental state post-conviction habeas corpus petition, arguing that Jones' testimony suggested that he was violent, cast him in a negative light, and was evidence of a prior bad act. Ex. 46, at 9 (ECF No. 28-5, at 10). The respondents argue that in ground 7(B) Hill has added an argument that Jones' testimony undermined his theory of self-defense. This additional allegation does not render ground 7(B) unexhausted. Jones' testimony, and counsel's lack of objection to that testimony, are the operative facts. Adding an additional reason why the testimony was prejudicial does not fundamentally alter the claim.
Ground 7(E) is a claim that trial counsel failed to object to the four instances of the prosecutor disparaging the defense counsel, as noted above in the discussion of ground 5. Hill raised this failure-to-object claim in his supplemental state habeas corpus petition. Ex. 46, at 12-14 (ECF No. 28-5, at 13-15). In ground 7(E), Hill adds that the personal attacks prejudiced Hill because the prosecutor was making the defense attorneys appear to be disrespectful and attempting to hide evidence from the jury. As with ground 7(B), this additional allegation does not render ground 7(E) unexhausted. The prosecutor's comments about testimony, and counsel's lack of objection to those comments, are the operative facts. Adding an additional reason why the comments were prejudicial does not fundamentally alter the claim.
The original proper-person petition (ECF No. 8), which the court received on January 17, 2017, is timely under 28 U.S.C. § 2244(d)(1).
The respondents argue that grounds 1, 5, 7(B), and 7(E) are untimely in part. I will address grounds 1, 7(B), and 7(E) together but will ground 5 separately because it presents a different issue.
Hill's original proper-person petition (ECF No. 8) is an aggregate of state-court documents inside this court's habeas corpus petition form. Ground 1 of the original petition is a photocopy of the opening brief on direct appeal from the second trial. Compare ECF No. 8, at 11-31 with Ex. 42 (ECF No. 28-1). Ground 2 of the original petition is a photocopy of the proper-person state post-conviction habeas corpus petition. Compare ECF No. 8, at 33-63 with Ex. 45 (ECF No. 28-4). Ground 3 of the original petition is a photocopy of the supplemental state post-conviction habeas corpus petition. Compare ECF No. 8, at 68-78 with Ex. 46 (ECF No. 28-5).
The facts Hill presented in the original petition are the same as the facts he presented in state court. Consequently, the timeliness analyses of grounds 1, 7(B), and 7(E) of the first amended petition are the same as the exhaustion analyses for those grounds. The respondents argue that grounds 1, 7(B), and 7(E) are not timely because they contain allegations that Hill did not include in the original petition. As discussed above, the additional allegations in those grounds did not make them unexhausted, because those grounds still allege the same operative facts that Hill alleged in state court.
Ground 5 is more complicated. As noted above, the part of ground 5 that claims the prosecution disparaged defense counsel is not exhausted because Hill did not present those facts to the state courts in the context of a claim of prosecutorial misconduct. The respondents argue that this part of ground 5 is untimely because it does not share a common core of operative fact with the corresponding claim in ground 1 of the original petition. See ECF No. 8, at 26-28. However, Hill presented those facts to the state courts in the context of a claim of ineffective assistance of counsel for not objecting to the disparaging remarks, in his supplemental state post-conviction habeas corpus petition. Ex. 46, at 12-14 (ECF No. 28-5, at 13-15). Hill also presented the same facts in ground 3 of his original petition, because that part of the original petition is a photocopy of the supplemental state petition. ECF No. 8, at 75-77. Hill argues that because he presented the same facts in ground 3 of the original petition as part of a claim of ineffective assistance of counsel, the disparagement claims in ground 5 relate back to ground 3. ECF No. 38, at 18-19 (citing Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013)). The respondents then argue that Nguyen conflicts with, and does not address, an earlier decision of the court of appeals, Schneider v. McDaniel, 674 F.3d 1144 (9th Cir. 2012), and that under circuit rules the earlier decision controls. ECF No. 43, at 8-9.
In Schneider, Schneider and co-defendant Lisa Dehmer bound, beat, robbed, and tortured a person who had just bought methamphetamine from them. 674 F.3d at 1147.
Id. Dehmer testified consistent with her planned defense. Id. at 1147-48. Schneider's defense was that Dehmer was coercing him. Id. at 1148. The jury found Schneider guilty of all charges and Dehmer guilty of most charges.
In this court, Schneider v. McDaniel, 3:06-cv-00449-HDM-RAM, Schneider filed a proper-person habeas corpus petition. The court appointed counsel, who filed an amended petition. The court found that grounds 3, 4, 5, and 6 of the counseled amended petition did not relate back to claims in the proper-person original petition.
The court of appeals affirmed. Amended ground 4 was a claim that appellate counsel failed to argue that the convictions on two counts were redundant, and Schneider did not present any such facts in his original petition. Amended ground 5 was a claim that Schneider's trial counsel failed to investigate his defense strategy, but the closest claim in the original petition was that trial counsel failed to investigate the defense strategy of the co-defendant, Lisa Dehmer. Amended ground 6 was a claim that Schneider's trial counsel failed to develop a defense of voluntary intoxication, but the closest claim in the original petition was that trial counsel failed to have Schneider evaluated for competency to stand trial and to develop a defense of inability to know right from wrong due to manic depression and schizophrenia. 674 F.3d at 1151-52. Because those facts did not appear in the original petition, amended grounds 4, 5, and 6 did not relate back and were untimely.
In Schneider, the one amended ground that might have shared facts with a ground in the original petition was amended ground 3. The court of appeals summarized the two claims:
Schneider, 674 F.3d at 1151 (9th Cir. 2012). Although the court of appeals said that Dehmer's trial testimony was a shared fact, the original petition and the amended petition focused on two different aspects of that testimony. As this court noted, in the original ground Hill alleged that the damaging part of Dehmer's testimony was that she mentioned that Schneider was a member of the Aryan Brotherhood. In the amended ground, Hill alleged that the damaging part of Dehmer's testimony was that she claimed that Schneider was coercing her, while his defense was that she was coercing him. Schneider v. McDaniel, 3:06-cv-00449-KJD-RAM, ECF No. 70, at 22. Consequently, even with a common fact of Dehmer's testimony, the operative facts were different. Amended ground 3 in Schneider also did not relate back and was untimely.
In Nguyen, the petitioner was convicted of two felonies and one misdemeanor. The state trial court imposed a three-year sentence for the first felony, a concurrent "three-strikes" sentence of 25 years to life for the second felony, and a misdemeanor sentence that was not relevant to the case. The state court of appeal determined that the evidence was insufficient to support the conviction of the second felony and that Nguyen should have been convicted of a lesser-included misdemeanor for that count. On re-sentencing, the trial court changed the first felony's three-year concurrent sentence into a "three-strikes" sentence of 25 years to life. Nguyen had spent more than three years in prison by that time. On further appeal, he argued unsuccessfully that the sentence was grossly disproportionate under the Eighth Amendment. Nguyen then turned to federal court. He raised the Eighth Amendment claim and a claim that the re-sentencing violated the Double Jeopardy Clause of the Fifth Amendment. The double jeopardy claim was not exhausted. The federal district court stayed the habeas corpus proceedings to allow Nguyen to exhaust the double jeopardy claim. Nguyen filed a habeas corpus petition in the California Supreme Court, which found that the petition was untimely. Back in federal court, Nguyen filed an amended petition that raised the Eighth Amendment claim, the defaulted double jeopardy claim, and a new claim that appellate counsel provided ineffective assistance by not raising the double jeopardy claim on direct appeal. The federal district court held that the double jeopardy claim and the ineffective assistance claim were procedurally defaulted. The federal district court also held that the ineffective assistance claim was untimely. Nguyen v. Curry, 736 F.3d 1287, 1290-91 (9th Cir. 2012).
The court of appeals emphasized that the rule of Mayle v. Felix requires a new claim to share a common core of operative facts, not legal theories. All three claims shared the same operative facts: Nguyen had fully served the three-year sentence originally imposed when the trial court re-sentenced him to 25 years to life. Consequently, even though the ineffectiveassistance claim had a different legal theory—ineffective assistance instead of double jeopardy— and even though the claim arose on direct appeal and not at sentencing, it related back. Id. at 1296-97.
These two cases show that the operative facts, not the legal theories, determine whether a new claim relates back to a timely claim in an earlier petition. In Hill's case he alleges the same instances of prosecutorial disparagement in ground 5 that he alleged in his original ground 3, a claim of ineffective assistance of appellate counsel. Compare ECF No. 21, at 23-25, with ECF No. 8, at 75-77. Only the legal theory is different. In these circumstances, Schneider is inapplicable, and Nguyen is applicable. The claims of the prosecutor disparaging defense counsel in amended ground 5 relate back and are timely.
The respondents argue that grounds 1 and 3(B) are not cognizable in federal habeas corpus because they involve state-court determinations of admissibility of evidence under state law, and questions of state law are not reviewable in federal habeas corpus. In both grounds, Hill alleges that the admission of testimony made his trial fundamentally unfair under the Fourteenth Amendment. These are questions of merit, and I will wait until the parties have fully briefed the merits.
The first amended petition (ECF No. 21) is mixed, containing both claims exhausted in state court and claims not exhausted in state court, and it is subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983).
IT THEREFORE IS ORDERED that the respondents' motion to dismiss
IT FURTHER IS ORDERED that Hill shall have 30 days from the entry of this order to file a motion for dismissal without prejudice of the entire petition, for partial dismissal of ground 1 and the claims in ground 5 that the prosecutor disparaged defense counsel, or for other appropriate relief. Within 10 days of filing such motion, Hill must file a signed declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 that he has conferred with his counsel regarding his options, that he has read the motion, and that he has authorized that the relief sought therein be requested. Failure to comply with this order will result in the dismissal of this action.
