Smith v. Williams et al

Filing 43

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 6 respondents' motion to dismiss is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Smith must notify the court how he wishes to proceed with this action by 2/11/17. IT IS FURTHER ORDERED that 41 Smith's motion to stay is DENIED without prejudice. Signed by Judge Jennifer A. Dorsey on 1/11/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Robert Fitzgerald Smith,

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Petitioner

2:15-cv-00465-JAD-PAL
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v.

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Brian Williams, et al.,

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Order Granting in Part and Denying in
Part Motion to Dismiss and Denying
without Prejudice Motion to Stay

Respondents

[ECF Nos. 23, 42]

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Pro se Nevada state-prison inmate Robert Fitzgerald Smith brings this § 2554 petition to

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challenge his state-court conviction and sentence for attempted murder with use of a deadly weapon.

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Respondents move to dismiss Smith’s remaining grounds, and Smith moves to stay these

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proceedings. I grant in part and deny in part respondents’ motion to dismiss, deny without prejudice

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Smith’s motion to stay, and give Smith until February 11, 2017, to notify the court how he wishes

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to proceed with this case.

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Background

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In April 2008, Smith was convicted by a jury in Nevada’s Eighth Judicial District Court of

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one count of attempted murder with use of a deadly weapon.1 Smith appealed, and the Nevada

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Supreme Court affirmed.2 Smith then filed a state habeas petition,3 which the state district court

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denied,4 and the Nevada Supreme Court affirmed.5 Smith then filed this federal habeas action.

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On June 6, 2016, I screened Smith’s third-amended petition, dismissed grounds 2(B), 2(C), 5,

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ECF No. 26-19.

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ECF No. 27-7.

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ECF Nos. 27-9; 27-10.

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ECF No. 28-22.

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ECF No. 29-16.

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15, 16, and 19 and the ineffective-assistance-of-post-conviction-counsel claim in ground 18, and

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directed respondents to file a response to the remaining claims.6 Respondents now move to dismiss

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Smith’s remaining claims, and Smith has filed a motion to stay these proceedings.

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Discussion
A.

Exhaustion under 28 USC § 2254

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A federal habeas petitioner first must exhaust state court remedies on a claim before

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presenting that claim to the federal court.7 The exhaustion requirement ensures that the state courts

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will have the first opportunity to pass upon and correct alleged violations of federal constitutional

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guarantees.8 To satisfy the exhaustion requirement, a petitioner must fairly present his claims to the

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state’s highest court.9 Fair presentation requires that a petitioner (1) identify the federal legal basis

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for his claims and (2) state the facts entitling him to relief on those claims.10 A petitioner must alert

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the state court to the fact that he is asserting a federal claim;11 mere similarity between a state-law

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claim and a federal-law claim is insufficient.12

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Respondents argue that grounds 1, 2, 3, 4, 4(B), 5(B), 5(C), 5(D), 5(E), 5, 7, 10, 11, 12, 13,

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and 18 are not exhausted.13 Smith agrees.14 He requests a stay of this action so that he can return to

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state court to exhaust these unexhausted grounds.

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ECF No. 22.

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28 U.S.C. § 2254(b)(1)(A).

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See Coleman v. Thompson, 501 U.S. 722, 731 (1991).

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See, e.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Yang v. Nevada, 329
F.3d 1069, 1075 (9th Cir. 2003).

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See Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000); Castillo v. McFadden, 399 F.3d 993,
999 (9th Cir. 2005).
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Duncan v. Henry, 513 U.S. 364, 365–66 (1995).

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See Henry, 513 U.S. at 366; see also Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).

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ECF No. 23 at 8–12.

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ECF No. 42 at 3.

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B.

Smith’s petition contains unexhausted claims, and he has not shown that he is entitled
to a Rhines stay.

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As the United States Supreme Court explained in Rhines v. Weber, stay and abeyance should

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be available “only in limited circumstances.”15 Smith must show that he has “good cause for his

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failure to exhaust, his unexhausted claims are potentially meritorious,” and he has not “engaged in

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intentionally dilatory litigation tactics.”16 Smith argues that he has good cause for his failure to

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exhaust the challenged grounds because appellate post-conviction counsel failed to present them to

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the Nevada Supreme Court.17 He does not address the other two Rhines requirements.

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In Martinez v. Ryan, the United States Supreme Court held that the failure of an ineffective

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counsel or pro se petitioner to raise, in a state-court initial-review collateral proceeding, a claim of

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ineffective assistance of trial counsel can establish good cause to excuse a state-court procedural

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default.18 In Ha Van Nguyen v. Curry, the Ninth Circuit extended the Martinez rule to include

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procedurally defaulted claims of ineffective assistance of counsel on direct appeal.19 One year later,

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the Ninth Circuit panel in Blake v. Baker held that the Rhines standard for IAC-based cause is not

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“any more demanding than a showing of cause under Martinez to excuse state procedural default,”20

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and that state post-conviction IAC can also satisfy the Rhines good-cause standard.21

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Unlike these cases in which initial-review state post-conviction IAC established good cause,

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Smith relies on appellate state post-conviction IAC to establish good cause. Neither the Ninth

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Circuit nor the United States Supreme Court has held that appellate state post-conviction IAC can

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Rhines v. Weber, 544 U.S. 269, 277–78 (2005).

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Id. at 278.

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ECF No. 41 at 3.

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Martinez v. Ryan, 132 S. Ct. 1309 (2012).

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Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013).

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Blake v. Baker, 745 F.3d 977, 984 (9th Cir. 2014).

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Id.

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establish good cause. Even if Martinez or Curry applied, they would provide good cause for Smith’s

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failure to exhaust his IAC claims only; these cases have no applicability to claims alleging error by

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the trial court, and the bulk of Smith’s unexhausted claims are not IAC claims. For example, Smith

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does not address good cause for his failure to exhaust grounds 10, 11, 12, and 13—which allege

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various trial-court errors—and which are unexhausted because they were presented in state court

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only as issues of state law.22 I therefore grant in part and deny in part respondents’ dismissal motion

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and deny without prejudice Smith’s request for a stay. Because I agree with respondents’ exhaustion

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arguments, I decline to address the remaining arguments raised in their dismissal motion at this time.

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C.

Because this is a mixed petition, Smith must advise the court how he wants to proceed.

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A federal court may not entertain a habeas petition unless the petitioner has exhausted all

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available and adequate state-court remedies for all claims in the petition.23 A “mixed” petition

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containing both exhausted and unexhausted claims is subject to dismissal.24 Because Smith’s

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petition is mixed, he now has three options:

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1. Submit a sworn declaration advising the court that he is voluntarily abandoning his

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unexhausted claims and will proceed on the exhausted claims only;

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2. Submit a sworn declaration advising the court that he will return to state court to

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exhaust his unexhausted claims, in which case his federal habeas petition will be

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denied without prejudice; or

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3. File a motion asking the court to hold his exhausted claims in abeyance while he
returns to state court to exhaust his unexhausted claims.25

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As to the third option, Smith is cautioned that a stay and abeyance is available only in limited

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See Henry, 513 U.S. at 366; see also Zenon, 88 F.3d at 830. Ground 12 is also unexhausted
because Smith alleges new facts to support it that he did not raise in state court.

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Rose v. Lundy, 455 U.S. 509, 510 (1982).

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Id.

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See Lundy, 455 U.S. at 510; Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063
(9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009).
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circumstances. If Smith chooses to file a motion for stay and abeyance, he must keep the above

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standards in mind.

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If Smith fails to choose one of these three options or seek other appropriate relief by

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February 11, 2017, his federal habeas petition will be dismissed without prejudice as a mixed

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petition.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that respondents’
motion to dismiss [ECF No. 6] is GRANTED in part and DENIED in part.

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IT IS FURTHER ORDERED that Smith must notify the court how he wishes to proceed
with this action by February 11, 2017. He must do so in one of three ways:

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1. Submit a sworn declaration advising the court that he is voluntarily abandoning his

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unexhausted claims and will proceed on the exhausted claims only;

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2. Submit a sworn declaration advising the court that he will return to state court to

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exhaust his unexhausted claims, in which case his federal habeas petition will be

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denied without prejudice; or

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3. File a motion asking the court to hold his exhausted claims in abeyance while he

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returns to state court to exhaust his unexhausted claims.

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If Smith does nottake one of these three actions by this date or request other appropriate relief,

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this case will be dismissed without prejudice and without further notice.

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IT IS FURTHER ORDERED that if Smith elects to abandon the unexhausted grounds and

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proceed on the remaining grounds, respondents must file and serve an answer that complies with

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Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts within 45

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days of service Smith’s declaration. Smith will then have 45 days from service of the answer to file

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a reply.

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IT IS FURTHER ORDERED that Smith’s motion to stay [ECF No. 41] is DENIED
without prejudice.
Dated this 11th day of January, 2017.
_________________________________
________________________
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Jennifer A. Dorsey
ennifer A Dorse
i
se
se
ey
United States District Judge
nited States
d ate
t Judge
d

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