McLellan v. Baker et al
Filing
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ORDER. IT IS ORDERED that 7 respondents' motion to dismiss is GRANTED in part. Ground E is unexhausted. IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from the date of entry of this order to file a motion for dismissal without prejudice of the entire petition, for partial dismissal of ground E, or for other appropriate relief. Signed by Judge James C. Mahan on 8/23/2018. (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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CURT MCLELLAN,
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Petitioner,
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Case No. 2:16-cv-03038-JCM-CWH
ORDER
v.
RENEE BAKER, et al.,
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Respondents.
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Before the court are the petition for a writ of habeas corpus (ECF No. 1), respondents’
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motion to dismiss (ECF No. 7), petitioner’s opposition (ECF No. 11), and respondents’ reply
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(ECF No. 14). The court finds that petitioner has not exhausted ground E, and the court grants
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respondents’ motion in part.
Exhaustion
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Before a federal court may consider a petition for a writ of habeas corpus, the petitioner
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must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for
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relief, a petitioner must fairly present that ground to the state’s highest court, describing the
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operative facts and legal theory, and give that court the opportunity to address and resolve the
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ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459
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U.S. 4, 6 (1982).
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“[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state
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remedies only if he characterized the claims he raised in state proceedings specifically as federal
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claims. In short, the petitioner must have either referenced specific provisions of the federal
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constitution or statutes or cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th
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Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case
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law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d
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1153, 1158 (9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal
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error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional
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principles, such as due process, equal protection, and the right to a fair trial, are insufficient to
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establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).
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With two exceptions, respondents argue that grounds are not exhausted because petitioner
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has alleged facts in the current federal petition that he did not allege either on direct appeal or in
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post-conviction proceedings. The court has reviewed all the relevant documents. In all of the
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grounds challenged, the court finds that the additional facts do not fundamentally alter the claims
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from what petitioner has presented in state court.
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The first exception is ground A(2), which respondents concede in their reply is exhausted.
ECF No. 14, at 3.
The second exception is ground E, a claim of cumulative error. In petitioner’s direct
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appeal, he presented a claim that the cumulative effect of all the trial-court errors required a new
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trial. Ex. X, at 18 (ECF No. 1-5, at 23). In petitioner’s appeal from the denial of his state post-
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conviction habeas corpus petition, he presented a claim that the cumulative effect of the errors of
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trial counsel and appellate counsel required a new trial. Ex. JJ, at 58-61 (ECF No. 1-7, at 85-88).
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Now, petitioner argues that the cumulative effect of both trial-court errors and ineffective
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assistance of counsel warrants a new trial. ECF No. 1, at 68. The Nevada Supreme Court never
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has had a single opportunity to consider the cumulative effect of all the errors that petitioner now
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alleges. Under these circumstances, ground E is not exhausted. The court also will not consider
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ground E as separate claims of cumulative error that mirror what the Nevada Supreme Court
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considered; it would amount to the court re-writing the petition.
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Redundancy
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Respondents argue that parts of ground D duplicate other parts of ground D. If
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respondents are correct, then they can answer those parts all at once. The court will not dismiss
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any grounds that might be redundant.
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Conclusory Claims
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Respondents argue that some claims are conclusory. This is an issue that respondents
need to address in their answer.
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Non-Cognizable Claims
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Respondents argue that ground A is not cognizable because the Supreme Court of the
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United States has not clearly established whether prior-bad-act evidence may be admitted. This is
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a matter that respondents need to address in their answer.
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Respondents argue that ground B is not cognizable because petitioner cites state law.
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Petitioner alleges at the outset that ground B is a claim of prosecutorial misconduct in violation of
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the Constitution of the United States. That allegation sufficient for the claim to be addressable in
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federal habeas corpus.
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Respondents argue that ground D(10)(i) is not cognizable. Ground D contains 10 parts.
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Parts 1 through 9 contain claims of ineffective assistance of counsel. Part 10 is titled, “This Court
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Should Grant No Deference To The District Court’s Findings.” It contains no allegations of
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ineffective assistance of counsel. Instead, it is an argument, as the title indicates, why the court
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should not defer to the findings in the state-court post-conviction proceedings. Part 10(i) is not a
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claim for relief, and the court will not dismiss it.
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Conclusion
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The petition (ECF No. 1) is mixed, containing both claims exhausted in state court and
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claims not exhausted in state court, and it is subject to dismissal. See Rose v. Lundy, 455 U.S.
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509, 521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983).
IT THEREFORE IS ORDERED that respondents’ motion to dismiss (ECF No. 7) is
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GRANTED in part. Ground E is unexhausted.
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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from the date of
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entry of this order to file a motion for dismissal without prejudice of the entire petition, for partial
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dismissal of ground E, or for other appropriate relief. Within ten (10) days of filing such motion,
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petitioner must file a signed declaration under penalty of perjury pursuant to 28 U.S.C. § 1746
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that he has conferred with his counsel in this matter regarding his options, that he has read the
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motion, and that he has authorized that the relief sought therein be requested. Failure to comply
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with this order will result in the dismissal of this action.
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DATED: August 23, 2018.
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______________________________
JAMES C. MAHAN
United States District Judge
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