MIRANDA M. DU, Chief District Judge.
This is a habeas corpus action under 28 U.S.C. § 2254. Respondents have filed a motion to dismiss (ECF No. 12). Petitioner Donald Alva Oliver has not opposed the motion to dismiss, but he has filed a motion for stay and abeyance (ECF No. 18). Respondents oppose that motion (ECF No. 19). The Court agrees with Respondents that Oliver has not exhausted his state-court remedies for all of his grounds. The Court finds that Oliver has not shown good cause for his failure to exhaust those state-court remedies. Consequently, the Court grants Respondents' motion to dismiss and denies Petitioner's motion for stay and abeyance.
The Court takes the statement of facts from the order denying Oliver's state post-conviction habeas corpus petition:
(ECF No. 7 at 20-22.)
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. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).
On direct appeal, Oliver alleged two violations of Brady v. Maryland, 373 U.S. 83 (1963). Before trial, on March 21, 2013. Oliver had requested all statements, including inconsistent statements, by prosecution witnesses. Oliver also had requested all photographic lineups presented to witnesses in this case. Before a hearing on the matter on March 27, 2013, the prosecutor and Oliver's counsel reviewed the file and determined that the prosecution had disclosed all the documents that Oliver had requested. (ECF No. 14-1 at 15-16.)
According to Oliver on direct appeal, that was inaccurate. First, around 4:30 p.m. on May 17, 2013, the Friday before the start of trial, defense counsel learned that prosecution witness S.S. had made an inconsistent statement that had not been in the prosecution's file. (Id. at 16-17.) Second, on the final day of trial, police officer Cori Rapp testified that prosecution witness Belinda Kappert had identified Oliver's co-conspirator, who was in the back seat of her car, in a photographic lineup. This was the first time that Oliver's counsel knew about this lineup. (Id. at 18-19.)
The Nevada Supreme Court did not grant relief on the Brady claims. (ECF No. 14-5 at 2-3.)
Ground one of the federal petition contains two issues of federal law. First, Oliver alleges the Brady violations that he had alleged on direct appeal.
The Brady claim in ground one is exhausted because Oliver presented it on direct appeal. The judicial partiality claim in ground one is not exhausted because Oliver never has presented it in state court, let alone to the Nevada Appellate Courts.
On direct appeal, Oliver argued that the state district court should have severed the counts into two separate trials. He presented the argument under the Fifth and Fourteenth Amendments' guarantees of due process of law. (FOE No. 14-1 at 23.) In ground two of the federal petition, Oliver presents the same claim. (ECF No. 7 at 5.) That part of ground two is exhausted. In ground 2, Oliver also argues that the state district court's refusal to sever the counts violated the Sixth Amendment and the guarantee of having an impartial judge. (Id.) This part of ground two is not exhausted because Oliver never has presented it in state court, let alone to the Nevada Appellate Courts.
Ground three is a claim of ineffective assistance of trial counsel. Oliver argues that trial counsel should have impeached prosecution witness George Williams because Williams testified that he had circled Oliver's picture in a photographic lineup, but Williams actually had not circled Oliver's picture. (Id. at 7.) Oliver raised the same claim in ground three of his proper-person state post-conviction habeas corpus petition. (ECF No. 14-18 at 31-34.) The state district court denied the claim. (ECF No. 14-39 at 12-13.) However, Oliver did not appeal the denial of that claim.
Ground four also is a claim that the trial court, the prosecution, and defense counsel allowed George Williams and Belinda Kappert to give knowingly perjured testimony. Oliver raised the same claim in ground seven of his proper-person state post-conviction petition. (ECF No. 14-19 at 3-6.) The state district court denied the claim. (ECF No. 14-39 at 17.) However, Oliver did not appeal the denial of that claim. Ground four is not exhausted.
To stay this action while Oliver litigates the unexhausted issues in state court, Oliver must show "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." Rhines v. Weber, 544 U.S. 269, 278 (2005).
Good cause under Rhines is no more strict than the good cause required under Martinez v. Ryan, 566 U.S. 1 (2012); Blake v. Baker, 745 F.3d 977, 983-84 (9th Cir. 2014). Martinez, in turn, allows the excuse of a procedurally defaulted claim of ineffective assistance of trial counsel upon a showing of ineffective assistance of counsel, or lack of counsel, in the initial post-conviction proceedings. 566 U.S. at 14.
Oliver's motion to stay has no connection with the unexhausted claims in the current petition. Oliver argues that he has good cause to stay the action because post-conviction counsel failed to investigate and raise the following claims of ineffective assistance of trial counsel:
(ECF No. 18 at 11-16.) Oliver also asks for discovery and evidentiary hearing to develop both the ineffective assistance of post-conviction counsel and these four claims of ineffective assistance of trial counsel. Id. at 17-19. These four claims are unexhausted, because Oliver did not present them to any level of the state courts. More important for the question of good cause for the stay of this action, Oliver did not present these claims in his federal habeas corpus petition. These claims appear for the first time in his motion for a stay.
These claims are untimely. Oliver had one year from the finality of his judgment of conviction to file a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1)(A). The time that Oliver's state post-conviction petition was pending does not count toward the one-year limit. 28 U.S.C. § 2244(d)(2). However, the time that this current federal habeas corpus action has been pending does count toward the one-year limit. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). This action was open for more than a year before Oliver filed his motion for a stay. The grounds are untimely unless they relate back to the original petition. Relation back is allowed "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts. . .." Mayle v. Felix, 545 U.S. 644, 664 (2005). The facts in the claims in the motion to stay appear nowhere in the original petition. No common core of operative fact exists, and the new claims are untimely.
Staying the action to permit Oliver to exhaust these new claims would be futile. Even if Oliver could convince the state courts to excuse the state-law bars against untimely, successive, and abusive petitions, the new claims still would be untimely under 28 U.S.C. § 2244 once Oliver returns to this Court.
Although Oliver has made no argument for good cause for the failure to exhaust the claims that are in the petition, the Court will adapt his argument based upon Martinez. However, that argument still would fail.
Martinez has limits. First, the Supreme Court has reaffirmed that Martinez is limited only to claims of ineffective assistance of trial counsel. Davila v. Davis, 137 S.Ct. 2058 (2017). Grounds 1 and 2 are claims of trial-court error, not claims of ineffective assistance of trial counsel. Ground 4 is a claim that the trial court, the prosecution, and the defense counsel all allowed Williams and Kappert to give knowingly perjured testimony, so at least part of ground 4 is not a claim of ineffective assistance of trial counsel. Martinez cannot provide good cause for the failure to exhaust these grounds.
Second, the Supreme Court limited Martinez to the initial post-conviction review proceedings. In Nevada, this would be the state district court's consideration of the post-conviction habeas corpus petition. Martinez does not apply to claims of ineffective assistance of trial counsel that are procedurally defaulted, or, as in this case, unexhausted, because they were not raised on appeal from the denial of the post-conviction petition. 566 U.S. at 16. Ground 3 and ground 4 are not exhausted because Oliver did not raise the same claims on appeal from the denial of the state post-conviction petition, but he did raise the claims in that petition and received a ruling on the merits of those claims from the state district court. Consequently, Martinez cannot provide good cause for the failure to exhaust grounds three and four.
The federal petition (ECF No. 7) 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). The Court is denying Petitioner's motion for a stay. Oliver may voluntarily dismiss the unexhausted grounds one in part, two in part, three, and four, and proceed with the exhausted parts of grounds one and two, or he may voluntarily dismiss this action without prejudice while he returns to state court to exhaust grounds one in part, two in part, three, and four. If Oliver chooses the second option, the Court makes no assurances about any possible state-law procedural bars or the timeliness of a subsequently filed federal habeas corpus petition.
It therefore is ordered that Respondents' motion to dismiss (ECF No. 12) is granted.
It further is ordered that Petitioner's motion for stay and abeyance (ECF No. 18) is denied.
It further is ordered that Petitioner will have 30 days from the date of entry of this order to do one of the following: (1) inform this Court in a sworn declaration that he wishes to dismiss the unexhausted part of ground one, the unexhausted part of ground two, ground three, and ground four of his petition (ECF No. 7), and proceed only on the remaining grounds for relief, or (2) inform this court in a sworn declaration that he wishes to dismiss this action to return to state court to exhaust his state remedies. Failure to comply will result in the dismissal of this action.
It further is ordered that if Petitioner elects to dismiss the aforementioned grounds of his petition (ECF No. 7) and proceed on the remaining grounds, Respondents must file and serve an answer, which must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, within 45 days after petitioner serves his declaration dismissing those grounds. Petitioner will have 45 days from the date on which the answer is served to file and serve a reply.
