Lynch v. State of Nevada et al

Filing 12

ORDER. IT IS ORDERED that 9 respondents' motion to dismiss is GRANTED as described. IT IS FURTHER ORDERED that petitioner shall have 30 days to file a declaration as described. See order for further deadlines and specifications. Signed by Judge Richard F. Boulware, II on 12/4/2018. (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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OSSIRIS DIZON LYNCH,

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Petitioner,

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Case No. 2:17-cv-01897-RFB-NJK
ORDER

v.
STATE OF NEVADA,

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Respondent.

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Before the Court is respondent’s motion to dismiss petitioner Ossiris Dizon Lynch’s pro

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se habeas petition filed under 28 U.S.C. § 2254. ECF No. 9. Lynch did not file an opposition.
I.

Procedural History and Background

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On November 17, 2014, Lynch pleaded guilty to attempted battery with use of a deadly

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weapon resulting in substantial bodily harm. Ex. 8.1 The state district court sentenced Lynch to a

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prison term of 38 to 96 months. Ex. 12. Judgment of conviction was filed on March 31, 2015.

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Ex. 13.

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Lynch did not file a direct appeal. He filed a state postconviction habeas corpus petition.

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Exs. 15, 18. The state district court denied the petition, and the Nevada Court of Appeals affirmed

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the denial. Ex. 39.

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Lynch dispatched his federal petition for mailing on approximately June 26, 2017. ECF

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Nos. 6, 6-1. Respondents now move to dismiss the petition on the bases that the claims are

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unexhausted, non-cognizable, and conclusory. ECF No. 9.

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Exhibits referenced in this Order are Exhibits to respondents’ motion to dismiss (ECF
No. 9), which are filed at ECF Nos. 10–11.
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II.

Legal Standards
a. Exhaustion
State prisoners seeking federal habeas relief must comply with the exhaustion rule codified

in § 2254(b)(1):
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that –
(A) The applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights
of the applicant.

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The purpose of the exhaustion rule is to give the state courts a full and fair opportunity to

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resolve federal constitutional claims before those claims are presented to the federal court, and to

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“protect the state courts’ role in the enforcement of federal law.” Rose v. Lundy, 455 U.S. 509,

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518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S.

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364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available

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state court the opportunity to consider the claim through direct appeal or state collateral review

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proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653

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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.”

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implications of a claim, not just issues of state law, must have been raised in the state court to

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achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard,

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404 U.S. at 276)). To achieve exhaustion, the state court must be “alerted to the fact that the

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prisoner [is] asserting claims under the United States Constitution” and given the opportunity to

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correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365

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(1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C.

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§ 2254(b) “provides a simple and clear instruction to potential litigants: before you bring any

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claims to federal court, be sure that you first have taken each one to state court.” Jiminez v. Rice,

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276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). “[G]eneral

Picard v. Connor, 404 U.S. 270, 276 (1971).

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The federal constitutional

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appeals to broad constitutional principles, such as due process, equal protection, and the right to a

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fair trial, are insufficient to establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

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1999) (citations omitted). However, citation to state caselaw that applies federal constitutional

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principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

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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

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

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1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F.

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Supp. 455, 458 (D. Nev. 1984).

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b. Guilty Plea and Federally Cognizable Claims

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In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the United States Supreme Court held

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that “when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the

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offense with which he is charged, he may not thereafter raise independent claims relating to the

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deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” A petitioner

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may only attack the voluntary and intelligent character of the guilty plea. Id. When a petitioner

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has entered a guilty plea then subsequently seeks to claim his counsel rendered ineffective

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assistance at the guilt phase of the prosecution, such claim is limited to the allegation that defense

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counsel was ineffective in advising petitioner to plead guilty. Fairbank v. Ayers, 650 F.3d 1243,

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1254–1255 (9th Cir. 2011) (citing Tollett, 411 U.S. at 266–67, and explaining that because a guilty

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plea precludes a claim of constitutional violations prior to the plea, petitioner’s sole avenue for

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relief is demonstrating that advice of counsel to plead guilty was deficient); Lambert v. Blodgett,

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393 F.3d 943, 979 (9th Cir.2004).

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c. Claims Cognizable in Federal Habeas Corpus

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A state prisoner is entitled to federal habeas relief only if he or she is being held in custody

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in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Unless

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an issue of federal constitutional or statutory law is implicated by the facts presented, the claim is

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not cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). A

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petitioner may not transform a state-law issue into a federal one merely by asserting a violation of

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due process. Langford v. Day, 110 F.3d 1380, 1381 (9th Cir. 1996). Alleged errors in the

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interpretation or application of state law do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d

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773, 779-80 (9th Cir. 2004).
d. Conclusory Claims

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In federal habeas proceedings, mere conclusions of violations of federal rights without

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specifics do not state a basis for federal habeas relief. Mayle v. Felix, 545 U.S. 644, 655 (2005).

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A petition may be summarily dismissed if the allegations in it are “vague, conclusory, palpably

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incredible, patently frivolous or false.” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)

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(internal citations omitted); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977).

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Lynch’s Petition

III.

Lynch presents six claims in his petition.2
a. Ground Four

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Lynch contends that his first counsel failed to obtain surveillance video in violation of his

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Sixth Amendment right to effective assistance of counsel. ECF No. 6-1, p. 3. Such a claim relates

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to the guilt phase of the prosecution by questioning the evidence available to support a finding of

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guilt. However, Lynch entered a guilty plea. Thus, his claims for ineffective assistance of counsel

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must be limited to challenges regarding the advice of counsel that Lynch plead guilty. Because

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respondents correctly point out that this is not a claim that petitioner did not enter the guilty plea

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agreement knowingly, voluntarily, and intelligently due to his counsel’s ineffective assistance, this

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pre-plea claim is barred under Tollett from federal habeas review. The Court dismisses the claim

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accordingly.

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The court also notes that Lynch did not present this claim to the highest state court, meaning
the claim is also unexhausted.

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The Court previously construed Lynch’s petition and the attached “amended petition” to
be a single petition. See ECF No. 7 (construing ECF No. 6 and ECF No. 6-1 together as the petition
in this matter).
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b. Ground Five

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Lynch also contends that his first counsel was ineffective by advising Lynch to accept the

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plea agreement. ECF No. 6-1, p. 5. He argues counsel lied by advising him he would “end up

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going to prison for 1 to 5 years” otherwise. Id. However, while Lynch presented claims of

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ineffective assistance of counsel to the Nevada Court of Appeals, he did not present the specifics

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of this claim. See Exh. 35. Ground 5 is therefore unexhausted and must be dismissed unless Lynch

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provides a cause to excuse the procedural defect.

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Lynch argues that Ground 5 was not presented to the Nevada Court of Appeals because his

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postconviction counsel refused to do so. In Martinez v. Ryan, the United States Supreme Court

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held that ineffective assistance of state postconviction counsel may in some instances provide

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cause to excuse a procedural default of certain claims. 566 U.S. 1, 14 (2012). However, the

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underlying claim for ineffective assistance of initial counsel must be “a substantial one, which is

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to say that the [petitioner] must demonstrate that the claim has some merit.” Id. Ground 5 does

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not present a “substantial” claim for ineffective assistance of counsel, because Lynch merely cites

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his initial counsel’s advice in conjunction with an alternative estimated sentence based counsel’s

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experience See Devers v. California, 422 F.2d 1263, 1264 (9th Cir. 1970) (“It is, of course, one

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of an attorney’s most valuable functions to persuade his client to take that course which, to the

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attorney, in the light of his experience, appears to be the wisest.”). Because the underlying claim

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is not substantial, Lynch’s postconviction counsel’s refusal to raise the claim in the state petition

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does not provide cause to excuse the unexhausted nature of Ground 5. The Court dismisses Ground

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5 accordingly.
c. Ground Six

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Lynch argues that his state postconviction counsel was ineffective for failing to raise

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certain issues that Lynch requested he raise. ECF No. 6-2, p. 7. There is no freestanding federal

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constitutional right to the effective assistance of state postconviction counsel. Pennsylvania v.

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Finley, 481 U.S. 551, 556-557 (1987). Accordingly, Ground 6 is dismissed as non-cognizable on

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federal habeas review.

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d. Ground Two

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Lynch argues, without elaboration, that the state district court erred in denying his state

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postconviction claims. ECF No. 6. A habeas petition must state facts that point to a real possibility

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of constitutional error. Lynch has not set forth any factual allegations to support this claim.

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Ground 2 is dismissed as conclusory. The Court notes that, to the extent Ground 2 generally

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challenges the denial of Lynch’s state postconviction petition, it is redundant of his claims in

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federal Grounds 1 and 3.
e. Petitioner’s Options Regarding Unexhausted Claim

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

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available and adequate state court remedies with respect to all claims in the petition. Rose v.

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Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both exhausted and unexhausted

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claims is subject to dismissal. Id. In this case, the court concludes that Ground 2 is dismissed as

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conclusory, Grounds 4 and 6 are dismissed as non-cognizable in federal habeas, and Ground 5 is

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unexhausted. Because the court finds that Ground 5 is unexhausted, petitioner has these options:

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He may submit a sworn declaration voluntarily abandoning the unexhausted
claim in his federal habeas petition, and proceed only on the exhausted claims;

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He may return to state court to exhaust his unexhausted claim, in which case
his federal habeas petition will be denied without prejudice; or

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3.
He may file a motion asking this court to stay and abey his exhausted federal
habeas claim while he returns to state court to exhaust his unexhausted claim.

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With respect to the third option, a district court has discretion to stay a petition that it may

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validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). The Rhines Court

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stated:

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[S]tay and abeyance should be available only in limited circumstances. Because
granting a stay effectively excuses a petitioner’s failure to present his claims first
to the state courts, stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits,

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notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State”).

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Rhines, 544 U.S. at 277.
If petitioner wishes to ask for a stay, he must file a motion for stay and abeyance in which

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he demonstrates good cause for his failure to exhaust his unexhausted claim in state court and
presents argument regarding the question of whether his unexhausted claim is plainly meritless.
Respondents would then be granted an opportunity to respond, and petitioner to reply. Or
petitioner may file a declaration voluntarily abandoning his unexhausted claim, as described
above.
Petitioner’s failure to choose any of the three options listed above, or seek other appropriate

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relief from this court, will result in his federal habeas petition being dismissed. Petitioner is
advised to familiarize himself with the limitations periods for filing federal habeas petitions
contained in 28 U.S.C. § 2244(d), as those limitations periods may have a direct and substantial
effect on whatever choice he makes regarding his petition.
IV.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 9) is

GRANTED as follows:
Grounds 2, 4 and 6 are DISMISSED as set forth in this order.
Ground 5 is UNEXHAUSTED.
IT IS FURTHER ORDERED that petitioner shall have 30 days to either: (1) inform
this court in a sworn declaration 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 without 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 claims. 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.

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

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grounds, respondents shall have 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. The answer

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shall contain all substantive and procedural arguments as to all surviving grounds of the petition

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and shall comply with Rule 5 of the Rules Governing Proceedings in the United States District

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Courts under 28 U.S.C. § 2254.

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IT IS FURTHER ORDERED that petitioner shall have 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.

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DATED: December 4, 2018.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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