Leavitt v. Neven et al

Filing 60

ORDER that 51 Motion for Leave to File Exhibits under seal is GRANTED. Additionally, petitioner's request to file respondents' exhibit DD under seal is GRANTED. Within ten (10) days from the date of entry of this order, respondents SHA LL ELECTRONICALLY FILE UNDER SEAL Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD, and MM, pursuant to Local Rule of Civil Practice 10 5. FURTHER ORDERED that, within ten (10) days from the date of entry of this order, respondents SHALL SERV E petitioners counsel with a copy of sealed Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD and MM. FURTHER ORDERED that, within ten (10) days from the date of entry of this order, respondents SHALL SERVE petitioners counsel with a copy of s ealed Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD and MM. FURTHER ORDERED that respondents' motion to strike improperly filed exhibits (ECF No. 51 ) is GRANTED IN PART as follows: The clerk of court shall strike from the record the documents and exhibits filed at ECF No. 1 , ECF No. 7 , ECF No. 19 , ECF No. 33 , and ECF No. 36 . FURTHER ORDERED that ECF No. 39 shall be stricken by the clerk of court. FURTHER ORDERED that petitioner's motion to file a redacted amend ed petition and exhibits (Contained within ECF No. 52 ) is GRANTED, as the redacted amended petition and exhibits have beenfiled at ECF No. 54 . FURTHER ORDERED that respondents' motion for an extension in which to file a reply regarding the m otion to dismiss (ECF No. 58 ) is GRANTED, nunc pro tunc. FURTHER ORDERED that respondents' motion to dismiss the amended petition (ECF No. 48 ) is GRANTED IN PART AND DENIED IN PART. FURTHER ORDERED that petitioner shall have thirty (3 0) days to inform this court as to how he wishes to proceed or file a motion for a stay and abeyance. FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. Signed by Judge James C. Mahan on 3/9/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CODY CORY LEAVITT,
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Petitioner,

Case No. 2:12-cv-00987-JCM-CWH

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vs.

ORDER

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DWIGHT NEVEN, et al.,
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Respondents.
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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a

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Nevada state prisoner represented by counsel. Before the court are the following motions: (1)

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respondents’ motion to dismiss the amended petition (ECF No. 48); (2) respondents’ motion to file

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exhibits under seal and to strike improperly filed exhibits (ECF No. 51); (3) petitioner’s motion to

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file redacted petition and exhibits (ECF No. 52); and (4) respondents’ motion for an extension to

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file a reply regarding the motion to dismiss (ECF No. 58).

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I. Procedural History

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A. Eighth Judicial District Criminal Case No. C-233866

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On March 29, 2007, the State filed a criminal complaint against petitioner charging him with

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battery with the use of a deadly weapon, first degree kidnapping, sexual assault with a minor under

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fourteen years of age, and lewdness with a child under the age of fourteen. (Exhibit A).1 On May

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31, 2007, a preliminary hearing was held in which petitioner was bound over to the Eighth Judicial

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The exhibits referenced in this order are found in the court’s record at ECF Nos. 49-50.

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District Court for the State of Nevada. (Exhibit D). On June 5, 2007, petitioner was charged by

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information, with the same crimes alleged in the criminal complaint, in Eighth Judicial District

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Court Case No. C-233866. (Exhibit C).

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On June 17, 2008, petitioner filed a motion to be released or to reduce bond. (Exhibit E).

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On July 7, 2008, the court ordered petitioner to remain on house arrest until the commencement of

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trial scheduled for August 25, 2008. (Exhibit F). On October 14, 2008, the State filed an amended

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information against petitioner, charging him with one count of child abuse and neglect with

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substantial bodily harm. (Exhibit G). Also on October 14, 2008, a guilty plea agreement was filed,

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in which petitioner pled guilty to one count of child abuse and neglect with substantial bodily harm,

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as alleged in the amended information. (Exhibit H). On January 13, 2009, petitioner was sentenced

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to 60-180 months in the Nevada Department of Corrections, with 35 days credit for time served.

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(Exhibit J). The judgment of conviction was filed on January 29, 2009. (Exhibit K).

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B. Post-Conviction Habeas Petition, Motion to Withdraw Guilty Plea, and Nevada
Supreme Court Appeal No. 57195

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On January 8, 2010, petitioner filed a counseled post-conviction habeas petition in the state
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district court. (Exhibit L). On January 13, 2010, petitioner filed a counseled motion to withdraw
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his guilty plea. (Exhibit M). On January 26, 2010, a hearing was held on petitioner’s motion to
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withdraw his plea. (Exhibit O). On February 22, 2010, petitioner filed an errata to his habeas
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petition correcting an error in the petition, but not adding anything new to the petition. (Exhibit P).
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On May 13, 2010, an evidentiary hearing was held. (Exhibit T). On May 21, 2010, petitioner filed
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a counseled supplement to the post-conviction habeas petition. (Exhibit U). The state district court
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filed findings of fact and conclusions of law on July 29, 2010, denying the post-conviction habeas
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petition. (Exhibit W). The state district court ruled that petitioner received effective assistance of
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counsel and that petitioner freely, voluntarily, and knowingly entered his guilty plea. (Id.). On
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November 12, 2010, petitioner filed a notice of appeal from the denial of the post-conviction habeas
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petition and motion to withdraw his guilty plea. (Exhibit X). On November 18, 2010, the state
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district court filed its notice of entry of decision and order. (Exhibit Y).
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On November 19, 2010, the Nevada Supreme Court entered its notice to petitioner to file a

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case appeal statement in Case No. 57195, which was petitioner’s appeal from the denial of his post-

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conviction habeas petition and motion to withdraw his guilty plea. (Exhibit Z). On December 20,

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2010, through counsel, petitioner filed his case appeal statement. (Exhibit BB). On August 31,

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2011, petitioner filed his fast track statement in Case No. 57195. (Exhibit MM). On November 28,

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2011, the Nevada Supreme Court filed an order to show cause why the appeal should not be

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dismissed for lack of jurisdiction because the findings of fact, conclusions of law, and order of July

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29, 2010 did not resolve all of the claims raised in the petition. (Exhibit OO). On January 13, 2012,

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the Nevada Supreme Court entered an order finding, upon further review, that the district court’s

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order resolved all claims for relief sought, and that it had jurisdiction to hear the appeal from the

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denial of the habeas petition and motion to withdraw his guilty plea. (Exhibit SS). On March 7,

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2012, the Nevada Supreme Court filed an order affirming the denial of the post-conviction habeas

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petition and motion to withdraw guilty plea. (Exhibit TT). Remittitur issued on June 6, 2012.

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(Exhibit WW).

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C. Petition Regarding Time Credit and Nevada Supreme Court Appeal No. 59048

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On May 13, 2011, petitioner filed a habeas petition in the state district court challenging the

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computation of credit for time served. (Exhibit DD). Petitioner asserted that he should have been

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given credit for time served for the time he was on house arrest. (Id.). On August 19, 2011, the

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state district court filed findings of fact, conclusions of law, and order granting in part and denying

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in part the petition. (Exhibit LL). The state district court reached the merits of the petition and

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ruled that credit for time served was allowed for time spent in jail, but not for time while a

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defendant is on house arrest, because house arrest is not considered confinement. (Id.). The court

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ruled that petitioner was entitled to 3 additional days of credit for time served while incarcerated

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prior to his conviction, for a total of 38 days credit for time served. (Id.). On December 2, 2011, the

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state district court filed an amended judgment of conviction, indicating that petitioner was given 38

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days credit for time served. (Exhibit PP). Petitioner appealed from the state district court’s order

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denying his petition asking for credit for time spent on house arrest. (Exhibit KK). By order filed

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April 11, 2012, in Case No. 59048, the Nevada Supreme Court affirmed the denial of the habeas
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petition seeking credit for time spent on house arrest. (Exhibit VV). The Nevada Supreme Court

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ruled that the state district court erred in reaching the merits of the claims raised on the petition,

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because the petition was procedurally barred as untimely under NRS 34.726 and was barred for

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abuse of the writ under NRS 34.810(2). (Id.). The court ruled that the petition was untimely by

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more than two years after the entry of the judgment of conviction on January 24, 2009. (Id.).

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D. Federal Petition in the Instant Case

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Petitioner dispatched (gave to prison officials for mailing) his federal petition on May 14,

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2012. (ECF No. 1, at p. 2, item 5). The petition was filed in this court on June 11, 2012. (Id.). By

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order filed June 18, 2012, this court initially denied petitioner’s motion for the appointment of

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counsel. (ECF No. 3). Petitioner made a renewed motion for the appointment of counsel. (ECF

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No. 4). On July 6, 2012, this court granted petitioner’s motion for the appointment of counsel,

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noting that due to the interrelation of another habeas action filed by petitioner in this court, the

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appointment of counsel was warranted. (ECF No. 6). On August 6, 2012, the federal public

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defender filed a notice of conflict preventing that office from representing petitioner. (ECF No. 11).

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Therefore, on August 15, 2012, the court appointed CJA panel attorney Todd M. Leventhal to

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represent petitioner in this action. (ECF No. 12). On October 18, 2012, Mr. Leventhal made an

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appearance on behalf of petitioner. (ECF No. 13).

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On March 19, 2013, counsel Leventhal filed a motion to withdraw as petitioner’s attorney.

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(ECF No. 24). This court denied the motion to withdraw, and instead stayed this case to

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accommodate Leventhal’s scheduling conflicts. (ECF No. 25). On September 27, 2013, counsel for

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petitioner filed a motion to lift the stay. (ECF No. 29). On October 8, 2013, this court granted the

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motion, directed the clerk of court to reopen this action, and set a deadline for petitioner’s counsel to

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file an amended petition. (ECF No. 34). On October 15, 2013, petitioner’s counsel filed an

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amended petition and exhibits. (ECF No. 36). The court directed respondents to file an answer or

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otherwise respond to the amended petition. (ECF No. 37). On November 5, 2013, respondents filed

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a motion to strike the amended petition because the exhibits filed in support of the amended petition

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were not properly marked pursuant to Local Rule 10-3(a). (ECF No. 38). On November 19, 2013,

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petitioner filed an errata to the exhibits in support of the amended petition, correcting the exhibits by
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properly marking them. (ECF No. 39). Respondents moved to withdraw their motion to strike in

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light of petitioner’s correction of the exhibits. (ECF No. 40). Respondents also moved for an

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extension of time in which to file response to the amended petition. (ECF No. 41). By order filed

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December 26, 2013, the court granted respondents’ motion to withdraw their motion to strike and

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set a deadline for respondents to file a response to the amended petition. (ECF No. 42).

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On March 7, 2014, respondents filed the instant motion to dismiss the amended petition.

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(ECF No. 48). Concurrently, respondents filed exhibits comprising the state court record, as well as

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a motion for leave to file certain exhibits under seal and to strike certain exhibits filed by petitioner.

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(ECF Nos. 49, 50, 51). On March 20, 2014, petitioner filed a combined response to respondents’

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motion to strike improperly filed exhibits and request to file a redacted petition and exhibits. (ECF

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No. 52). On the same date, petitioner filed an amended petition and exhibits in which inappropriate

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information is properly redacted. (ECF No. 54). On April 21, 2014, petitioner filed supplemental

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exhibit 54, in which inappropriate information is properly redacted. (Exhibit 57). On May 8, 2014,

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respondents filed a reply to petitioner’s response to the pending motion to dismiss the amended

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petition. (ECF No. 59).2

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II. Motions and Requests Concerning Exhibits

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Respondents have filed a motion to file under seal certain exhibits in support of their motion

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to dismiss. (ECF No. 51). The exhibits that respondents seek to be filed under seal include the

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following: Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, and MM. Respondents

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electronically filed only the pages marking each of the exhibits sought to be filed under seal, but did

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not file the exhibits themselves. Instead, respondents submitted hard copies of the actual exhibits

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for this court’s in camera review. (ECF No. 49).

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There is a strong presumption in favor of public access to judicial filings and documents.

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See Nixon v. Warner Commc’n, Inc., 435 U.S. 589, 597 (1978); see also Kamakana v. City and

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County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Foltz v. State Farm Mut. Auto Ins. Co.,

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On May 1, 2014, respondents filed a motion for an extension of time to file a reply to
petitioner’s response to the motion to dismiss. (ECF No. 58). Respondents’ motion is granted,
nunc pro tunc.
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331 F.3d 1122, 1134 (9th Cir. 2003). However, the court has inherent power over its own records

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and files, and access may be denied where the court determines that the documents may be used for

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improper purposes. Nixon., 435 U.S. at 598; Hagestad v. Tragesser, 49 F.3d 1430, 1433-34 (9th Cir.

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1995); Kamakana, 447 F.3d at 1179.

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The Ninth Circuit distinguishes between dispositive and nondispositive pleadings and

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motions in terms of the showing required to seal a document. For a document filed with a

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dispositive motion, “compelling reasons” must be shown to justify sealing the document.

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Kamakana, 447 F.3d at 1179-89. In contrast, for documents filed with non-dispositive motions, a

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“good cause” showing will suffice to keep the records sealed. Id. This is based on the reasoning

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that the public has less need for access to records that are merely tangentially related to the

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underlying cause of action. Id. at 1179. A showing of good cause generally requires a specific

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description of the particular document(s) sought to be sealed and a showing that disclosure of such

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documents would work a “clearly defined and serious injury.” Pansy v. Borough of Stroudsburg, 23

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F.3d 772, 776 (3rd Cir. 1994). Where good cause is shown for a protective order, the court must

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balance the potential harm to the moving party’s interests against the public’s right to access the

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court files. Kamakana, 447 F.3d at 1179-89.

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The documents that respondents seek to file under seal (Exhibits A, B, C, D, G, H, I, J, L, M,

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Q, R, S, U, V, and MM) were submitted in support of respondents’ motion to dismiss. The motion

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to dismiss is a dispositive motion and therefore respondents must show “compelling reasons” to

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keep the document sealed. Kamakana, 447 F.3d at 1179-89. In the instant case, the documents

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sought to be filed under seal contain sensitive information, including the full name of the minor

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victim in the underlying criminal case upon which this habeas action is based. On balance, the

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potential harm to the parties and the affected individual’s interests outweighs the public’s right to

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access these documents at Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, and MM.

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Respondents have made an adequate showing of compelling reasons to file the exhibits under seal.

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Additionally, in the response to the motion to dismiss, counsel for petitioner requests that

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respondents’ Exhibit DD be sealed, because it contains a presentence report with unredacted

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personal information including date of birth, social security number, address, and driver’s license
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number of petitioner Leavitt. (ECF No. 56, at pp. 3-4). The court finds that petitioner has made an

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adequate showing of compelling reasons to file Exhibit DD under seal. Accordingly, within ten (10)

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days from the date of entry of this order, respondents shall electronically file under seal Exhibits A,

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B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD, and MM, pursuant to Local Rule of Civil Practice 10-

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5. In filing these exhibits under seal, respondents need not file an accompanying motion for leave to

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file documents under seal pursuant to Local Rule 10-5(b), because this order specifically permits the

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filing of the exhibits under seal.

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Significantly, counsel for petitioner indicates in his response to the motion to dismiss that he
has not received a copy of respondents’ sealed exhibits. (ECF No. 56, at p. 4, n.3). It appears that

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respondents failed to serve petitioner’s counsel with the sealed documents. Therefore, in addition to

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electronically filing Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V, DD and MM under seal,

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respondents shall also serve petitioner’s counsel with a copy of those same sealed exhibits within

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ten (10) days from the date of entry of this order.

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Also in the response to the motion to dismiss, petitioner requests that the court strike

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respondents’ Exhibits DD, EE, FF, KK, LL, and VV. Petitioner asks that the exhibits be stricken

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because they do not directly relate to the counseled state habeas petition challenging the conviction

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and sentence in this case. (ECF No. 56, at pp. 2-3). As outlined in the procedural history of this

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order, supra, the court is aware that respondents’ Exhibits DD, EE, FF, KK, LL, and VV relate to

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petitioner’s pro se petition challenging the computation of credit for time served, rather than the

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counseled state petition challenging petitioner’s conviction and sentence. Because the exhibits are

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related to the underlying criminal case, and because petitioner has not shown sufficient cause to

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strike the exhibits, petitioner’s request is denied.

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Respondents seek to have stricken, sealed, or redacted certain documents filed by petitioner,

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including the original pro se habeas petition (ECF No. 1), petitioner’s pro se motion for evidentiary

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hearing and discovery (ECF No. 7), and the counseled amended petition (ECF No. 36).

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Respondents also seek to have stricken or redacted certain exhibits filed by petitioner, including

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exhibits to the amended petition at ECF No. 31 and ECF No. 36. Respondents argue that those

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documents and exhibits contain the full name of the minor victim in the underlying criminal case.
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Special Order 108 requires that if the involvement of a minor child must be mentioned, only the

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initials of the minor should be used. Special Order 108(b). In response to respondents’ motion,

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petitioner agrees that documents and exhibits filed at ECF No. 1, ECF No. 19, ECF No. 30, ECF

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No. 31, and ECF No. 35 should be withdrawn from the public record. The court notes that ECF

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Nos. 30 & 31 already have been stricken from the record. Petitioner requests that the following

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documents and exhibits be stricken: ECF No. 1, ECF No. 7, ECF No. 19, ECF No. 33, and ECF

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No. 36. (ECF No. 52, at p. 6). Accordingly, the clerk of court shall strike from the record the

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documents and exhibits filed at ECF No. 1, ECF No. 7, ECF No. 19, ECF No. 33, and ECF No. 36.

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Regarding ECF No. 39, the exhibits filed in support of the amended petition, petitioner seeks

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permission to file fully redacted versions of the amended petition and supporting exhibits.

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Petitioner’s request is granted. The court notes that petitioner has, in fact, already filed redacted

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versions of the amended petition and supporting exhibits at ECF No. 54. As such, the earlier filed

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unredacted exhibits filed at ECF No. 39 shall be stricken by the clerk of court.

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Respondents voice additional objections to specific exhibits filed by petitioner in support of

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the amended petition. Petitioner has filed new, redacted versions of the exhibits in support of the

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amended petition at ECF No. 54, with each exhibit labeled in numeric order. Many of respondents’

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objections to petitioner’s exhibits have been redacted or otherwise corrected at ECF No. 54. If

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respondents have further objections to particular exhibits filed by petitioner within ECF No. 54, they

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may move for such exhibits to be stricken, redacted, or filed under seal.

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III. Motion to Dismiss

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A. Procedural Bar Argument

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Respondents assert that the federal amended petition is procedurally barred because the

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Nevada Supreme Court ruled that the state petition was untimely and an abuse of the writ. (ECF

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No. 48, at p. 12). The Nevada Supreme Court’s decision relied upon by respondents concerns the

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pro se habeas petition filed on May 13, 2011, challenging the computation of credit for time served.

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(Exhibits DD & VV). By order filed April 11, 2012, in Case No. 59048, the Nevada Supreme Court

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ruled that the petition challenging computation of time credit was procedurally barred as untimely

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under NRS 34.726 and was an abuse of the writ under NRS 34.810(2). (Exhibit VV). This ruling
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was entirely separate from proceedings of the post-conviction habeas petition challenging

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petitioner’s conviction and sentence, filed on January 8, 2010. (Exhibit L). On appeal from the

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denial of the petition, in Case No. 57195, the Nevada Supreme Court reached the merits of the

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appeal. (Exhibit TT). The claims raised in the federal petition concern the claims presented in the

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state post-conviction habeas petition filed on January 8, 2010, and the claims on appeal in Case No.

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57195, filed in the Nevada Supreme Court. Because there was no procedural default of those

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claims, the court rejects respondents’ argument that petitioner’s federal claims are procedurally

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barred from review.

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B. Exhaustion
1. Exhaustion Standard

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Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust state court remedies

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on a claim before presenting that claim to the federal courts. To satisfy the exhaustion requirement,

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the claim must have been fairly presented to the state courts completely through to the highest court

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available, in this case, the Nevada Supreme Court. See, e.g., Peterson v. Lampert, 319 F.3d 1153,

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1156 (9th Cir. 2003) (en banc); Yang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state

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courts, the petitioner must refer to the specific federal constitutional guarantee and must also state

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the facts that entitle the petitioner to relief on the federal constitutional claim. Shumway v. Payne,

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223 F.3d 983, 987 (9th Cir. 2000). Fair presentation requires that the petitioner present the state

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courts with both the operative facts and the federal legal theory upon which the claim is based. See,

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e.g. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement ensures

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that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon

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and correct alleged violations of federal constitutional guarantees. See Coleman v. Thompson, 501

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U.S. 722, 731 (1991).

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2. Effect of State Petition Incorporated by Reference
Petitioner argues that the claims in his federal habeas petition were raised in his post-

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conviction habeas petition, motion to withdraw guilty plea, and supplement to the habeas petition,

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all filed in state district court. Petitioner argues that, on appeal to the Nevada Supreme Court, he

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included a copy of the petition, motion to withdraw guilty plea, supplement, and exhibits within the
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appendix to his fast track statement. Petitioner asserts that by presenting his state court documents

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in the appendix, he fairly presented the claims within those documents to the Nevada Supreme

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Court for exhaustion purposes. (ECF No. 56, at pp. 5-6).

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Petitioner cites to the following cases, arguing that exhaustion is satisfied by including a

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copy of the state court habeas petition in the appellate appendix: Insyxiengmay v. Morgan, 403 F.3d

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657 (9th Cir. 2005); Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009); Greenway v. Schriro, 653 F.3d

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790 (9th Cir. 2011). In each of these cases, the petitioner was deemed to have exhausted claims

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before the state supreme court by incorporating issues presented in a lower court pleading within an

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appendix to the appellate brief. Insyxiengmay, 403 F.3d at 668-69; Scott, 567 F.3d at 582;

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Greenway, 653 F.3d at 801-02. In the Insyxiengmay case, the State of Washington’s appellate rules

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allowed for appellants to incorporate by reference issues presented in an appendix but not argued in

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the actual appellate brief. Insyxiengmay, 403 F.3d at 668-69. In the Scott and Greenway cases,

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Arizona’s appellate rules allowed for incorporation by reference to issues presented in an appendix

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but not argued in the appellate brief. Scott, 567 F.3d at 582 n.8; Greenway, 653 F.3d at 801-02.

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The cases discussed above must be distinguished from the instant case, because Nevada’s

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appellate rules do not allow for incorporation by reference. “Parties shall not incorporate by

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reference briefs or memoranda of law submitted to the district court or refer the Supreme Court to

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such briefs or memoranda for the arguments on the merits of the appeal.” Nev. R. App. P. 28(e)(2).

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Because incorporation by reference is a procedurally incorrect manner in which to present issues to

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the Nevada Supreme Court, claims made in the post-conviction habeas petition and in motions filed

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in the state district court are not exhausted by their inclusion in the appendix on appeal. See Castille

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v. Peoples, 489 U.S. 346, 351 (1989) (exhaustion cannot be achieved by a procedurally deficient or

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improper means).

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Moreover, to exhaust a claim, a petitioner must have presented his federal constitutional

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issue before the highest available state court “within the four corners of his appellate briefing.”

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Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). The state’s highest court is “not required

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to comb the trial court’s decision to discover [a] federal constitutional issue . . . ” nor is it “required

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to review the parties’ trial court pleadings to see if it [can] discover for itself a federal constitutional
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issue.” Id. (citing Baldwin v. Reese, 541 U.S. 27 (2004)) (declining to require state appellate judges

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to read lower court state opinions). In this case, petitioner’s state post-conviction habeas petition,

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motion to withdraw guilty plea, and supplemental petition filed in the state district court contained

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more claims than were presented on appeal in his fast track statement to the Nevada Supreme Court.

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(See Exhibits L, M, U, MM). Only those issues “within the four corners” of petitioner’s state

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appellate briefing, in this case, petitioner’s fast track statement, were properly presented to the

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Nevada Supreme Court for exhaustion purposes.

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3. Claims in the Federal Amended Petition
Petitioner makes the following claims in his amended petition:
Ground 1: Leavitt’s state court conviction and/or sentence are
unconstitutional, in violation of his Sixth Amendment right to
effective assistance of counsel based on trial counsel’s performance in
falling below an objective standard of reasonableness mandated by
Strickland v. Washington, 466 U.S. 688 (1984).
Ground 2: Leavitt’s state court conviction and/or sentence are
unconstitutional, in violation of his Sixth Amendment right to
assistance of counsel because post-conviction counsel’s performance
fell below an objective standard of reasonableness mandated by
Strickland v. Washington, 466 U.S. 688 (1984).
Ground 3: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation of his Eighth Amendment right to not be
sentenced to a cruel and unusual punishment; Leavitt’s sentence was
disproportionate.

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Ground 4: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation of his Fourteenth Amendment right to
due process of law because the State could not prove every element of
the offenses lodged against him beyond a reasonable doubt.
Ground 5: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation of his Fifth Amendment right to due
process of law because Leavitt did not knowingly, voluntarily, or
intelligently enter into his guilty plea.

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Ground 6: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation of his Fourteenth Amendment guarantees
of due process and equal protection based on the State’s failure to turn
over evidence under Brady v. Maryland, 373 U.S. 83 (1963), and
prosecutorial misconduct.

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Ground 7: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation of his Fourteenth Amendment right to
due process of law and equal protection under the law because the
trial court made a series of errors and relied upon inaccurate
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information in making its sentencing determination, and abused its
discretion in not allowing Leavitt to withdraw his plea of guilty at
sentencing and at the evidentiary hearing.

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Ground 8: Leavitt’s state court conviction and/or sentence are
unconstitutional in violation his Fourteenth Amendment right of due
process of law because the Nevada Supreme Court made a series of
errors in making its appeal determination.

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(ECF No. 54, Amended Petition). In his fast track statement filed with the Nevada Supreme Court,
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petitioner raised two claims: (1) the district court erred by not granting Mr. Leavitt a full and fair
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evidentiary hearing on all of the issues in his writ of habeas corpus; and (2) the district court erred
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by not allowing Mr. Leavitt to withdraw his guilty plea. (Exhibit MM). These were the only two
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claims that were fairly presented to the Nevada Supreme Court for exhaustion purposes. As such,
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only portions of the amended petition that are exhausted are: (1) Ground 5, which alleges that
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petitioner did not knowingly, voluntarily, or intelligently enter into his guilty plea, and (2) Ground 7,
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limited to the portion alleging that the trial court abused its discretion in limiting the evidentiary
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hearing to issues of ineffectiveness or counsel and abused its discretion in not allowing petitioner to
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withdraw his guilty plea. All other grounds of the amended petition were either presented only to
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the state district court, or were not presented to the state courts at all.
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4. Petitioner’s Options Regarding Unexhausted Claims
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A federal court may not entertain a habeas petition unless the petitioner has exhausted
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available and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy,
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455 U.S. 509, 510 (1982). A “mixed” petition contains both exhausted and unexhausted claims. Id.
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In the instant case, the court finds that the following grounds of the amended petition are exhausted:
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(1) Ground 5, which alleges that petitioner did not knowingly, voluntarily, or intelligently enter into
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his guilty plea, and (2) Ground 7, limited to the portion alleging that the trial court abused its
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discretion in limiting the evidentiary hearing to issues of ineffectiveness or counsel and abused its
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discretion in not allowing petitioner to withdraw his guilty plea. The court finds that all other
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grounds of the amended petition are unexhausted. Because the court finds that the amended petition
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is a “mixed petition,” containing both exhausted and unexhausted claims, petitioner has these
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options:
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1. He may submit a sworn declaration voluntarily abandoning the
unexhausted claims in his federal habeas petition, and proceed only on the
exhausted claim;

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2. He may return to state court to exhaust his unexhausted claims, in which
case his federal habeas petition will be denied without prejudice; or

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3. He may file a motion asking this court to stay and abey his exhausted
federal habeas claims while he returns to state court to exhaust his
unexhausted claims.

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See Rose v. Lundy, 455 U.S. 509 (1982); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315
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F.3d 1063 (9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009).3 Petitioner’s failure to

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choose any of the three options listed above, or seek other appropriate relief from this court, will
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result in his federal habeas petition being dismissed. Petitioner is advised to familiarize himself
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with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as
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those limitations periods may have a direct and substantial effect on whatever choice he makes
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regarding his petition.
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C. Failure to State a Claim
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1. Ground 1
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Respondents argue that parts of ground 1, alleging counsel’s failure to investigate particular
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witnesses, fail to state a claim. In particular, respondents contend that although the amended
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petition provides extensive analysis of why petitioner believes that more investigation was needed,
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the petition fails to state what testimony would have been elicited from each witness, and how such
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testimony would have altered the outcome of the case. Respondents’ arguments are better reserved
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for a substantive answer on the merits. As such, at this juncture, the court declines to find that any
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portion of ground 1 fails to state a claim.
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///////////
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2. Ground 2
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In his response to the motion to dismiss, petitioner indicates that if the court finds some
claims unexhausted, he requests to abandon those claims and re-file his petition without them.
(ECF No. 56, at p. 19, lines 25-26). Nevertheless, the court gives petitioner all available options for
dealing with his unexhausted claims, pursuant to King v. Ryan, 564 F.3d 1133 (9th Cir. 2009).
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Respondents also argue that ground 2 of the amended petition fails to state a cognizable

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claim for federal habeas corpus relief. In ground 2, petitioner alleges that his Sixth Amendment

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right to the effective assistance of counsel was violated because post-conviction counsel’s

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performance fell below an objective standard of reasonableness. Petitioner has no right to the

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effective assistance of counsel during state post-conviction proceedings. 28 U.S.C. § 2254(i);

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Pennsylvania v. Finley, 481 U.S. 551 (1987); see also Coleman v. Thompson, 501 U.S. 722, 752

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(1991); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993); Martinez v. Ryan, 132 S.Ct. 1309, 1319

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(2012) (United States Supreme Court expressly eschewed making a holding that a freestanding right

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to counsel existed in state post-conviction proceedings). Ground 2 of the amended petition is

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dismissed with prejudice for failure to state a cognizable federal habeas corpus claim.

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IV. Conclusion

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IT IS THEREFORE ORDERED that respondents’ motion to file exhibits under seal (ECF

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No. 51) is GRANTED. Additionally, petitioner’s request to file respondents’ exhibit DD under seal

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is GRANTED. Within ten (10) days from the date of entry of this order, respondents SHALL

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ELECTRONICALLY FILE UNDER SEAL Exhibits A, B, C, D, G, H, I, J, L, M, Q, R, S, U, V,

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DD, and MM, pursuant to Local Rule of Civil Practice 10-5.

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IT IS FURTHER ORDERED that, within ten (10) days from the date of entry of this

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order, respondents SHALL SERVE petitioner’s counsel with a copy of sealed Exhibits A, B, C, D,

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G, H, I, J, L, M, Q, R, S, U, V, DD and MM.

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IT IS FURTHER ORDERED that petitioner’s request that the court strike respondents’
Exhibits DD, EE, FF, KK, LL, and VV is DENIED.

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IT IS FURTHER ORDERED that respondents’ motion to strike improperly filed exhibits

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(ECF No. 51) is GRANTED IN PART as follows: The clerk of court shall strike from the record

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the documents and exhibits filed at ECF No. 1, ECF No. 7, ECF No. 19, ECF No. 33, and ECF No.

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36.

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IT IS FURTHER ORDERED that ECF No. 39 shall be stricken by the clerk of court.

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IT IS FURTHER ORDERED that petitioner’s motion to file a redacted amended petition

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and exhibits (ECF No. 52) is GRANTED, as the redacted amended petition and exhibits have been

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filed at ECF No. 54.

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IT IS FURTHER ORDERED that respondents’ motion for an extension in which to file a
reply regarding the motion to dismiss (ECF No. 58) is GRANTED, nunc pro tunc.
IT IS FURTHER ORDERED that respondents’ motion to dismiss the amended petition
(ECF No. 48) is GRANTED IN PART AND DENIED IN PART, as follows:
1. The claims in the federal petition were not procedurally defaulted in state court, therefore
the motion to dismiss the federal petition as procedurally barred is denied.

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2. The following grounds of the amended federal petition are exhausted: (1) Ground 5,

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which alleges that petitioner did not knowingly, voluntarily, or intelligently enter into his guilty

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plea, and (2) Ground 7, limited to the portion alleging that the trial court abused its discretion in

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limiting the evidentiary hearing to issues of ineffectiveness or counsel and abused its discretion in

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not allowing petitioner to withdraw his guilty plea. All other grounds of the amended petition are

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unexhausted.

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3. Ground 1 of the amended petition states a cognizable federal habeas corpus claim.

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4. Ground 2 of the amended petition is DISMISSED WITH PREJUDICE for failure to

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state a cognizable federal habeas corpus claim.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either: (1)

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inform this court in a sworn declaration that he wishes to formally and forever abandon the

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unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds;

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OR (2) inform this court in a sworn declaration that he wishes to dismiss this petition without

23

prejudice in order to return to state court to exhaust his unexhausted claims; OR (3) file a motion

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for a stay and abeyance, asking this court to hold his exhausted claims in abeyance while he returns

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to state court to exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and

26

abeyance, or seek other appropriate relief, respondents may respond to such motion as provided in

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Local Rule 7-2.

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IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds,

2

respondents shall have thirty (30) days from the date petitioner serves his declaration of

3

abandonment in which to file an answer to petitioner’s remaining grounds for relief. The answer

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shall contain all substantive and procedural arguments as to all surviving grounds of the petition,

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and shall comply with Rule 5 of the Rules Governing Proceedings in the United States District

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Courts under 28 U.S.C. §2254.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following service
of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time
permitted, this case may be dismissed.

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Dated March 9, 2015.
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UNITED STATES DISTRICT JUDGE

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