Bryant v. Neven et al

Filing 12

ORDER that 7 Respondents' Motion to Dismiss is GRANTED. FURTHER ORDERED that, with respect to petitioner's unexhausted claims (Grounds I and III), petitioner shall have thirty (30) days to either: (1) inform this court in a sworn declara tion that he wishes to formally and forever abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to dismiss this petition withou t prejudice in order to return to state court to exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking this court to hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted claim s. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief, respondents may respond to such motion as provided in Local Rule 7-2. FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed pursuant to Rose v. Lundy . Signed by Judge Andrew P. Gordon on 2/11/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHRISTIAN BRYANT,
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Petitioner,
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vs.
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DWIGHT NEVEN , et al.,
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Respondents.
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____________________________________/

2:15-cv-00486-APG-VCF
ORDER

This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Christian Bryant, a

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Nevada prisoner. On August 21, 2015, respondents filed a motion to dismiss arguing that Bryant has

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not exhausted state court remedies for certain claims in his petition. ECF No. 7. This order decides

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that motion.

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I. PROCEDURAL BACKGROUND

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On October 5, 2011, a jury in the state district court for Clark County, Nevada, found Bryant

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guilty of robbery, battery with use of a deadly weapon, two counts of possession of a controlled

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substance, and escape. A sentencing hearing was held December 9, 2011. The court entered a

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judgment of conviction on December 20, 2011, sentencing him to concurrent terms ranging from 12

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to 120 months on the first four counts with a consecutive sentence of 12 to 60 months on the fifth.

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An amended judgment of conviction was entered on March 14, 2012.

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Bryant appealed. On September 13, 2012, the Nevada Supreme Court entered an order
affirming the lower court’s judgment.

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On February 13, 2013, Bryant filed a state habeas corpus petition in the state district court.

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After appointment of counsel, Bryant filed a supplemental petition. The court held an evidentiary

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hearing on March 31, 2014, then entered an order denying the petition on April 28, 2014. Bryant

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appealed. On December 11, 2014, the Nevada Supreme Court entered an order affirming the lower

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court’s judgment.

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In March 2015, Bryant initiated this federal habeas corpus proceeding.

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II. EXHAUSTION

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Respondents argue Bryant has failed to exhaust state court remedies for Grounds I and III of

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his federal habeas petition. A federal court will not grant a state prisoner's petition for habeas relief

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until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455

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U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to

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act on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v.

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Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim

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remains unexhausted until the petitioner has given the highest available state court the opportunity to

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consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore,

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386 F.3d 896, 916 (9th Cir. 2004); 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

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federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). To achieve exhaustion, the state court

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must be “alerted to the fact that the prisoner [is] asserting claims under the United States

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Constitution” and given the opportunity to correct alleged violations of the prisoner's federal rights.

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Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

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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

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U.S. 509, 520 (1982)).

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A claim is not exhausted unless the petitioner has presented to the state court the same

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operative facts and legal theory upon which his federal habeas claim is based. Bland v. California

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Dept. of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met

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when the petitioner presents to the federal court facts or evidence which place the claim in a

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significantly different posture than it was in the state courts, or where different facts are presented at

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the federal level to support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir.

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1988).

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In Ground I, Bryant claims a violation of his constitutional rights based on an allegation that

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insufficient evidence was presented in the state trial court to sustain his robbery conviction. On

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direct appeal, Bryant raised a similar claim with respect to the battery with use of a deadly weapon

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conviction, but not the robbery conviction. ECF No. 7-30. And, while he challenged the sufficiency

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of evidence supporting the robbery conviction in the habeas petition he filed in the state district

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court (ECF No. 7-34, p. 16-21), he did not raise the issue in his subsequent appeal to the Nevada

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Supreme Court (ECF No. 7-43). Accordingly, Ground I is unexhausted.

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In Ground III, Bryant claims a violation of his constitutional rights based on an allegation

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that insufficient evidence was presented in the state trial court to sustain his escape conviction. Here

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again, Bryant did not raise the claim on direct appeal. ECF No. 7-30). And, as with Ground I, he

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raised it in his state habeas petition (ECF No. 7-34, p. 28-33), but not in his subsequent appeal to the

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Nevada Supreme Court (ECF No. 7-43). Accordingly, Ground III is unexhausted.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 7) is
GRANTED.

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IT IS FURTHER ORDERED that, with respect to petitioner’s unexhausted claims

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(Grounds I and III), petitioner shall have thirty (30) days to either: (1) inform this court in a sworn

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declaration that he wishes to formally and forever abandon the unexhausted grounds for relief in his

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federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court in a sworn

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declaration that he wishes to dismiss this petition without prejudice in order to return to state court to

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exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking this court to

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hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted

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claims. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate

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relief, respondents may respond to such motion as provided in Local Rule 7–2.

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

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

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

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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 pursuant to Rose v. Lundy .
Dated: February 11, 2016.

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UNITED STATES DISTRICT JUDGE
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