Leiva v. Williams et al

Filing 16

ORDER. IT IS HEREBY ORDERED that 8 respondents' motion to dismiss is GRANTED in part and DENIED in part: Grounds 1(E)(F), 2, and 3 are UNEXHAUSTED; Leiva must inform the court how he wishes to proceed with this action by 3/13/2017. IT IS FURTHER ORDERED that 14 respondents' motion for partial waiver of Local Rule IA 10-3 is GRANTED.See Order for further details. Signed by Judge Jennifer A. Dorsey on 2/13/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Eriksen Raul Leiva,
2:15-cv-01265-JAD-PAL

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Petitioner

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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 Granting
Motion for Partial Waiver of Local
Rules

Respondents
[ECF Nos. 8, 14]

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Respondents move to dismiss Eriksen Raul Leiva’s § 2254 petition, arguing that his claims

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are partially unexhausted. Because Leiva’s petition contains unexhausted claims, I grant in part and

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deny in part respondents’ motion and give Leiva until March 13, 2017, to notify the court how he

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wishes to proceed in this action. I also grant respondents’ motion for partial waiver of local rules.

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Background

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On March 11, 2011, a jury in Nevada’s Eighth Judicial District Court convicted Leiva of

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burglary while in possession of a deadly weapon, conspiracy to commit robbery, robbery with use of

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a deadly weapon, attempted murder with use of a deadly weapon, and battery with use of a deadly

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weapon.1 The Nevada Supreme Court affirmed Leiva’s conviction on February 9, 2012.2 Leiva, still

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represented by counsel, then filed a state habeas petition.3 The state district court denied Leiva’s

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petition, and the Nevada Supreme Court affirmed. Leiva timely dispatched this federal habeas

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petition on May 29, 2015, asserting three grounds for relief.4 Respondents move to dismiss, arguing

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The exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 8, and
are found at ECF Nos. 9-13.
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Exhs. 48, 49.

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Exhs. 84, 85.

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ECF No. 3.

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that ground one is partially unexhausted and grounds two and three are entirely unexhausted.5

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Discussion
A.

Exhaustion

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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.6 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.7 To satisfy the exhaustion requirement, a petitioner must fairly present his claims to the

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state’s highest court.8 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.9 A petitioner must alert

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the state court to the fact that he is asserting a federal claim;10 mere similarity between a state-law

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claim and a federal-law claim is insufficient.11

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B.

Leiva’s claims are partially unexhausted.

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1. Ground one is partially unexhausted.

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Ground one is a claim of ineffective assistance of trial counsel that I break down into six

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subparts: 1(A) failure to object to confrontation-clause violation; 1(B) opening the door to the

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admission of the co-conspirator’s statement; 3(C) failure to investigate a witness; 4(D) cumulative

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effect of trial counsel’s errors; 5(E) failure to object to a witness testifying about an out-of-court

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identification; 5(F) failure to investigate and make a “Brady request” for fingerprint evidence from

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ECF No. 8.

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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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the sliding-glass door and the handle of a bat.12 I agree with respondents that subparts 1(E) and 1(F)

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are unexhausted because Leiva did not present them to the Nevada Supreme Court.13

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2. Grounds two and three are unexhausted.

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In ground two, Leiva asserts that his appellate counsel was constitutionally ineffective.14 This

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claim is unexhausted because Leiva did not raise any claims of ineffective assistance of appellate

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counsel to the Nevada Supreme Court.

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In Leiva’s third and final claim, he contends that the trial court erred because it should have

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“taken notice of trial counsel’s lack of objection under the Confrontation Clause” and “cautioned

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trial counsel of a possible confrontation violation” and because it failed to consider jury instruction

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number eight about witness credibility.15 Though Leiva raised IAC claims based on confrontation-

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clause violations, he never presented these trial-court-error claims to the Nevada Supreme Court, nor

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did he present his claim for trial-court error based on jury instruction number 8. Accordingly,

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ground three is also unexhausted.

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C.

Because this is a mixed petition, Leiva must advise the court how he wishes 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.16 A mixed petition

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containing both exhausted and unexhausted claims is subject to dismissal.17 Because Leiva’s petition

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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
unexhausted claims and will proceed on the exhausted claims only;

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ECF No. 3 at 3–5.

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ECF No. 8 at 4–5; See Exh. 78.

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ECF No. 3 at 7–8.

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Id. at 11.

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

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Id.

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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 denied without

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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.

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

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circumstances. To receive a stay and abeyance, Leiva 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.18

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D.

Motion for partial waiver of local rules
Respondents also move for waiver of Local Rules IA 10-3(e) and 10-3(i).19 Respondents ask

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the court to waive LR IA 10-3(e)’s requirement that the cover page of each exhibit include a

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description of the exhibit, representing that the requirement is unduly burdensome because this

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action contains 85 exhibits. Because of the voluminous record in this case, I waive LR 1A 10-3(e)’s

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cover-page requirement for both parties.

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Respondents also seek a waiver of LR 10-3(i), which requires paper courtesy copies of

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exhibits when the exhibits exceed 100 pages. Because respondents complied with an earlier court

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order in this case permitting the parties to submit courtesy copies to the court either in paper format

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or on a CD (ECF No. 4), I grant their request to waive LR 10-3(i).

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that respondents’ motion to dismiss [ECF No. 8] is

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Grounds 1(E)–(F), 2, and 3 are UNEXHAUSTED;

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Leiva must inform the court how he wishes to proceed with this action by March 13, 2017.

25 He has three options: (1) submit a sworn declaration advising the court that he is voluntarily
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Rhines v. Weber, 544 U.S. 269, 278 (2005).

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ECF No. 14.
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1 abandoning his unexhausted claims and will proceed on the exhausted claims only;(2) submit a sworn
2 declaration advising the court that he will return to state court to exhaust his unexhausted claims, in
3 which case his federal habeas petition will be denied without prejudice, or (3) file a motion asking the
4 court to hold his exhausted claims in abeyance while he returns to state court to exhaust his
5 unexhausted claims. If Leiva fails to take one of these actions by March 13, 2017, this action will
6 be dismissed without prejudice and without further notice.
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IT IS FURTHER ORDERED that if Leiva elects to abandon his unexhausted grounds,

8 respondents will have 30 days from the date Leiva serves his declaration of abandonment to file an
9 answer to Leiva’s remaining grounds for relief. The answer must comply with Rule 5 of the Rules
10 Governing § 2254 cases in the United States District Court. Leiva will then have 30 days from receipt
11 of respondents’ answer to file a reply.
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IT IS FURTHER ORDERED that respondents’ motion for partial waiver of Local Rule IA 10-

13 3 [ECF No. 14] is GRANTED.
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Dated February 13th, 2017
_________________________________
Jennifer A. Dorsey
United States District Judge

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