Dollar v. Smith et al
Filing
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ORDER Granting 21 Motion to Dismiss. The Petition is Dismissed without Prejudice as unexhausted. It Is Further Ordered that a Certificate of Appealability is Denied. It Is Further Ordered that 20 , 24 , and 28 Motions for Extension of Time are Granted Nun Pro Tunc. Signed by Judge James C. Mahan on 8/26/2015. (Copies have been distributed pursuant to the NEF - DC)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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CHRISTOPHER ADAM DOLLAR,
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Petitioner,
2:13-cv-01952-JCM-GWF
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vs.
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ORDER
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GREGORY SMITH, et al.,
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Respondents.
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This is a counseled, first-amended petition for writ of habeas corpus pursuant to 28 U.S.C. §
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2254 (ECF #16). Before the court is respondents’ motion to dismiss (ECF #21). Petitioner has opposed
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the motion (ECF #26), and respondents replied (ECF #29).
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I. Procedural History and Background
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On November 9, 2010, Christopher Adam Dollar (“petitioner”) pled guilty to one count of
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conspiracy to commit robbery and one count of robbery (exhibits to motion to dismiss, ECF #21, exh.
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3).1 On January 27, 2011, the state district court sentenced petitioner to 19 to 48 months for conspiracy
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and a consecutive term of 60 to 180 months for robbery, with 104 days credit for time served. Exh. 8.
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The court entered the judgment of conviction on February 7, 2011. Exh. 9. On September 14, 2011,
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the Nevada Supreme Court affirmed his conviction. Exh. 14.
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All exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF
#21, and are found at ECF #23.
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On January 26, 2012, petitioner filed a pro per motion for modification of harsh sentence
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requesting that the court modify his sentence to 12 to 30 months, which was the term Parole and
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Probation had recommended. Exh. 16. On February 24, 2012, the state district court denied the motion.
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Exh. 17.
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On May 3, 2012, petitioner filed a proper person postconviction petition for writ of habeas
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corpus in state district court. Exh. 18. The state district court conducted a limited evidentiary hearing
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at which petitioner’s trial counsel testified regarding whether he had reason to question petitioner’s
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competency and to seek a competency hearing. Exh. 22. The state district court entered its order
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denying the state postconviction petition on November 1, 2012, finding that petitioner received effective
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assistance of trial and appellate counsel. Exh. 24. On July 23, 2013, the Nevada Supreme Court
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affirmed the district court’s denial of the petition, and remittitur issued on August 21, 2013. Exhs. 25,
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26.
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Petitioner dispatched his federal petition for writ of habeas corpus on or about October 14, 2013
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(ECF #5). This court appointed counsel, and petitioner filed a counseled, first-amended petition on
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April 1, 2014 (ECF #16). Respondents argue that the single claim in the first-amended petition should
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be dismissed because it is unexhausted.
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II. Legal Standard for Exhaustion
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A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has
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exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28
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U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims
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before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844
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(1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
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petitioner has given the highest available state court the opportunity to consider the claim through direct
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appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004);
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Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
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A habeas petitioner must “present the state courts with the same claim he urges upon the federal
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court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim,
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not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v.
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Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve
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exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims under the
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United States Constitution” and given the opportunity to correct alleged violations of the prisoner’s
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federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106
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(9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to
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potential litigants: before you bring any claims to federal court, be sure that you first have taken each
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one to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S.
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509, 520 (1982)). “[G]eneral appeals to broad constitutional principles, such as due process, equal
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protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala v. Wood, 195
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F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw that applies
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federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)
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(en banc).
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A claim is not exhausted unless the petitioner has presented to the state court the same operative
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facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of
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Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the
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petitioner presents to the federal court facts or evidence which place the claim in a significantly different
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posture than it was in the state courts, or where different facts are presented at the federal level to
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support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v.
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Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev.
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1984).
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III. Instant Petition
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The petition sets forth one ground for relief: that trial counsel rendered ineffective assistance
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of counsel prior to and during sentencing in violation of petitioner’s Sixth Amendment rights, which
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directly served to deprive petitioner of the opportunity to receive a just and proportional sentence based
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upon a full and fair weighing of all information relevant to a fair adjudication (ECF #16, pp. 7-10).
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Petitioner attaches social security and school district records, which he alleges reflect that he was on
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disability as a child, some of his intelligence testing factors score below the mental retardation range,
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he has organic mental disorders, he cannot cook or perform tasks that require more than two steps, he
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cannot multiply two-digit numbers, and he is not able to manage his funds. Id. at 8. Petitioner argues
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that defense counsel should have acquired these school district and social security records in order to
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present them at sentencing. Id.
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In his state postconviction petition, petitioner presented three claims of ineffective assistance
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of counsel. Exh. 18. With respect to trial counsel, he alleged that counsel failed to arrange for a
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psychological evaluation of petitioner and failed to bring petitioner’s psychological issues to the
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attention of the sentencing judge. Id. at 8-9. He argued that had trial counsel conducted a thorough
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investigation he would have discovered a documented psychological history kept by the Social Security
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Administration and as such, petitioner received an unfair sentencing hearing. Id. at 12.
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In his opposition to respondents’ motion to dismiss, petitioner explains that, in the course of this
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federal litigation, his counsel obtained and submitted his social security records; these are the records
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that petitioner claims his trial counsel failed to locate and submit as mitigating evidence during
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petitioner’s sentencing. Petitioner still contends that the Nevada Supreme Court has ruled on the “core
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sentencing IAC claim” that he raises here. However, petitioner acknowledges that this documentation
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may render his federal claim unexhausted. Moreover, petitioner states that he has returned to state court
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and filed a motion to correct an illegal sentence or in the alternative a successive postconviction
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petition. He informs this court that the state district court dismissed the second state postconviction
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petition as successive and time-barred, and that he awaits the Nevada Supreme Court’s disposition of
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his appeal of that dismissal. Id. at 7, n.4.
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Petitioner claims that, even though unexhausted, his federal petition is not subject to dismissal
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(ECF #26, p. 2). Instead, he argues that because he has little hope that the Nevada Supreme Court will
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grant him relief, the Ninth Circuit teaches in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014), that at this
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juncture this court should anticipate that the state supreme court will affirm the dismissal of his claim
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as procedurally barred and proceed with an analysis pursuant to Martinez v. Ryan, 132 S.Ct. 1309
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(2012). Id. However, as respondents note, the practice in this court has not been to default to a
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position that it will deem that the state court would bar the claim and ignore the actual remedy the
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petitioner has within state court. See, e.g., White v. McDaniel, No. 3:10-cv-00803-HDM-WGC, 2014
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WL898112 (D. Nev., March 6, 2014). A claim remains unexhausted until the petitioner has given the
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highest available state court the opportunity to consider the claim through direct appeal or state
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collateral review proceedings. See Casey, 386 F.3d at 916; Garrison, 653 F.2d at 376. Accordingly,
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petitioner’s claim is unexhausted until his state proceedings conclude.
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A federal court may not entertain a habeas petition unless the petitioner has exhausted available
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and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy, 455 U.S.
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509, 510 (1982). Petitioner urges that this court may stay this petition under Rhines v. Weber, 544 U.S.
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269, 276, (2005). However, a Rhines stay is only available in the event of a “mixed” petition, that is,
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a petition that contains both exhausted and unexhausted claims. Id. Because the petition before the
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court contains one claim for relief, and that claim is unexhausted, the petition must be dismissed
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without prejudice as unexhausted.
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IV. Certificate of Appealability
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In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28
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U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-51 (9th
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Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a
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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a
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certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84
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(2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s
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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In
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order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are
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debatable among jurists of reason; that a court could resolve the issues differently; or that the questions
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are adequate to deserve encouragement to proceed further. Id. Pursuant to Rule 11(a) of the Rules
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Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of
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appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than
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waiting for a notice of appeal and request for certificate of appealability to be filed. This court has
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considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance
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of a certificate of appealability, and determines that none meets the standard. The court will therefore
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deny petitioner a certificate of appealability.
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V. Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF #21) is
GRANTED. The petition is DISMISSED without prejudice as unexhausted.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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IT IS FURTHER ORDERED that respondents’ two motions for extension of time (ECF #s
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20 and 28) are both GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time (ECF #24) is
GRANTED nunc pro tunc.
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August 26, 2015.
Dated this ______ day of August, 2015.
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UNITED STATES DISTRICT JUDGE
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