Thomas v. Beneditti et al

Filing 37

ORDERED that Rs' # 32 Motion to dismiss is GRANTED. Ground 2 is DISMISSED with prejudice as procedurally defaulted. This action is DISMISSED without prejudice for P's failure to exhaust his available remedies in the state courts. Clerk shall enter judgment accordingly. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Howard D. McKibben on 12/15/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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EDDIE JAMES THOMAS, JR.,

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Petitioner,

Case No. 3:09-CV-00455-HDM-(WGC)
ORDER

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vs.

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JAMES BENEDETTI, et al.,

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Respondents.

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Before the court are the fourth amended petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 (#27), respondents’

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motion to dismiss and exhibits (#32), and petitioner’s response

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(#34).

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relief have not been exhausted in state court, and the court finds

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that the remaining ground for relief is procedurally defaulted.

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The court grants the motion (#32) and dismisses the action.

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The court finds that four of petitioner’s five grounds for

In the Eighth Judicial District Court of the State of Nevada,

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petitioner was charged with five counts of statutory sexual

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seduction, all upon the same victim.

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prosecution moved to admit evidence of other crimes:

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report from Texas, in which the victim in the current case said

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that she and petitioner had sexual intercourse, and a 1995

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conviction in the Eighth Judicial District Court for sexual assault

Ex. 1.

Before trial, the
An arrest

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upon a different victim.

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evidentiary hearing and granted the motion.

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admission of this evidence is the basis of at least three of the

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five grounds in the fourth amended petition (#27).

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to trial, and he was found guilty and convicted of all five counts.

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Ex. 18.

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affirmed.

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Ex. 2.

The trial court held an
Ex. 4, 5.

The

Petitioner went

Petitioner appealed, and the Nevada Supreme Court
Ex. 24.

While his direct appeal was pending, petitioner filed a habeas
corpus petition in the state district court.

Ex. 20.

After the

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Nevada Supreme Court affirmed the judgment of conviction,

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petitioner filed another habeas corpus petition.

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state district court denied the petition.

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appealed, and the Nevada Supreme Court affirmed.

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Petitioner then commenced this action.

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Ex. 26.

Ex. 28, 29.

The

Petitioner

Ex. 31.

Respondents contend that all five grounds of the fourth

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amended petition (#27) are unexhausted.

With respect to ground 2,

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respondents argue in the alternative that it is procedurally

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defaulted.

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the court will address the grounds out of numerical order.

Because the court agrees with the alternative argument,

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Before a federal court may consider a petition for a writ of

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habeas corpus, the petitioner must exhaust the remedies available

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in state court.

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relief, a petitioner must fairly present that ground to the state’s

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highest court, describing the operative facts and legal theory, and

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give that court the opportunity to address and resolve the ground.

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See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam);

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Anderson v. Harless, 459 U.S. 4, 6 (1982).

28 U.S.C. § 2254(b).

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To exhaust a ground for

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“[A] petitioner for habeas corpus relief under 28 U.S.C. §

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2254 exhausts available state remedies only if he characterized the

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claims he raised in state proceedings specifically as federal

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claims.

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specific provisions of the federal constitution or statutes or

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cited to federal case law.”

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(9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th

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Cir. 2001).

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constitutional principles will also suffice.

In short, the petitioner must have either referenced

Lyons v. Crawford, 232 F.3d 666, 670

Citation to state case law that applies federal
Peterson v. Lampert,

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319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

“The mere

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similarity between a claim of state and federal error is

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insufficient to establish exhaustion.

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broad constitutional principles, such as due process, equal

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protection, and the right to a fair trial, are insufficient to

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establish exhaustion.”

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Cir. 1999) (citations omitted).

Moreover, general appeals to

Hiivala v. Wood, 195 F.3d 1098, 1106 (9th

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Ground 1 is a claim that the 5th and 6th Amendments were

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violated because the trial court did not give the jury a limiting

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instruction before the introduction of evidence of other crimes.1

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Petitioner admits that he did not raise this issue either on direct

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appeal or in his state-court habeas corpus petitions.

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Amended Petition (#27), p. 4.

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issue was that state law, Nev. Rev. Stat. § 48.045, was violated in

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admitting evidence of other crimes; petitioner did not raise as an

Fourth

On direct appeal, petitioner’s sole

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The trial court gave the limiting instruction to the jury
after the close of evidence, along with the other instructions.
Ex. 12, Instruction 10.
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issue the timing of the limiting instruction.

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Court even noted:

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The Nevada Supreme

We note that the district court did not provide the jury with
a limiting instruction prior to the introduction of the
evidence, informing them that the evidence could not be
considered to show criminal predisposition but only for the
limited purposes allowable under NRS 48.045(2), because
defense counsel objected to the State’s proffered instruction
and expressly requested, for tactical reasons, that the
district court not provide such an instruction at that time.
And Thomas does not allege on appeal that the jury was not
properly instructed prior to deliberations.

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Ex. 24, pp. 2-3 (#32) (emphasis in original; footnote omitted).

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See also Ex. 10, pp. 109-10 (#32) (discussion at trial about

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proffered instruction).

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Ground 1 is not exhausted.

Ground 3 is a claim that the 6th and 14th Amendments were

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violated because of error by the trial court or misconduct of the

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prosecutor in allowing perjured statements by the victim the Texas

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arrest report to be admitted into evidence.

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note that petitioner did not raise this claim on direct appeal or

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in his state habeas corpus petition.

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3 is unexhausted.

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Respondents correctly

See Ex. 22, 26 (#32).

Ground

Ground 4 is a claim that the 5th and 6th Amendments were

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violated because the trial court did not accept a proposed jury

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instruction on “whether or not to believe a witness.”

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Respondents correctly note that petitioner did not raise this claim

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on direct appeal or in his state habeas corpus petition.

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22, 26 (#32).

See Ex. 13.

See Ex.

Ground 4 is unexhausted.

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Ground 5 is a claim that the 5th and 6th Amendments were

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violated because of error by the trial court or misconduct by the

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prosecutor in admitting perjured testimony of the victim that was

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inconsistent with her prior statements to a North Las Vegas police
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officer.

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this claim on direct appeal or in his state habeas corpus petition.

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See Ex. 22, 26 (#32).

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Respondents correctly note that petitioner did not raise

Ground 5 is unexhausted.

Petitioner does not dispute respondents’ arguments.

Instead,

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he argues that his state-court habeas corpus petition was defective

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or improper because he prepared it while he was not in possession

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of the trial transcripts.

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court that petitioner has exhausted his grounds for relief.

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anything, it is an argument that the state-law bars against

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untimely and successive petitions should be waived, should

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petitioner return to state court.2

This argument does not persuade the
If

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Ground 2 is a claim that the 5th and 6th Amendments were

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violated because the trial court admitted evidence of other crimes.

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On direct appeal, petitioner’s sole issue was that state law, Nev.

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Rev. Stat. § 48.045, was violated in admitting evidence of other

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crimes.

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any provision of federal law.

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the issue solely as a question of state law.

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Consequently, petitioner did not exhaust this issue on direct

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appeal.

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petition that petitioner filed in state court, he alleged:

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See Ex. 22, pp. 5-12 (#32).

Petitioner did not refer to

The Nevada Supreme Court addressed

See Lyons, 232 F.3d at 670.

See Ex. 24, pp. 1-2.

In the second habeas corpus

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Petitioner was denied due process and the right to
present a defense to criminal charges when the trial judge
allowed State’s Motion: Admit Evidence of Other Crimes,
admissible evidence proffered by the defense to not allow a
Evidentiary hearing.
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The prosecutor violated by holding a illegal Evidentiary
Hearing for [the victim]. Sufficient proof of the prior

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This court makes no prediction whether the state courts would
accept the argument.
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offense, including admissions by the petitioner. Courts
cannot hold Evidentiary Hearing base on non-conviction
testimonies. Was not Trial or convicted of Texas crime,
therefore cannot use or bring in Texas cases. Hear argument
on Judgement of Conviction. . . .

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Ex. 26, pp. 3-4 (#32).

Although these allegations are difficult to

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understand, by construing them very liberally the court assumes

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that petitioner is raising the same issue of federal law that he

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raises in ground 2.

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allegations as such, and the response argued that allegations were

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barred by Nev. Rev. Stat. § 34.810 because petitioner should have

The response to the state petition treated the

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raised them on direct appeal.

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presented his issues of federal law to the state courts fairly

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enough to be recognized, and ground 2 is exhausted.

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Ex. 27, pp. 3-4.

Petitioner

The court still cannot consider ground 2 on its merits because

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it is procedurally defaulted.

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state habeas corpus petition, the Nevada Supreme Court held:

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On appeal from the denial of the

To the extent that appellant raised any claims independently
from his claim of ineffective assistance of counsel, those
claims were waived as they could have been raised on direct
appeal, and appellant failed to demonstrate good cause for his
failure to do so. NRS 34.810(1)(b).
Ex. 31, p. 2 n.1 (#32).

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A federal court will not review a claim for habeas corpus

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relief if the decision of the state court regarding that claim

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rested on a state-law ground that is independent of the federal

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question and adequate to support the judgment.

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Thompson, 501 U.S. 722, 730-31 (1991).

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Coleman v.

In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent
and adequate state procedural rule, federal habeas review
of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or

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demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.

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Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).

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The ground for dismissal upon which the Nevada Supreme Court relied

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in this case is an adequate and independent state rule.

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Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003).

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Vang v.

Petitioner does not argue that cause and prejudice exist to

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excuse this procedural default.

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consider cause or prejudice.

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27 (9th Cir. 2004).

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Consequently, the court will not

Casey v. Moore, 386 F.3d 896, 921 n.

defaulted.

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The court dismisses ground 2 as procedurally

With the dismissal of ground 2, the rest of the fourth amended

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petition (#27) is wholly unexhausted, and the court will dismiss

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this action.

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procedural default of a subsequent petition pursuant to 28 U.S.C.

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§ 2254.

The court makes no finding about the timeliness or

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Reasonable jurists would not find the court’s conclusions to

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be debatable or wrong, and the court will not issue a certificate

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of appealability.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss

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(#32) is GRANTED.

Ground 2 is DISMISSED with prejudice as

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procedurally defaulted.

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for petitioner’s failure to exhaust his available remedies in the

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state courts.

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accordingly.

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///

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///

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///

This action is DISMISSED without prejudice

The clerk of the court shall enter judgment

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IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
DATED: December 15, 2011.

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______________________________________
HOWARD D. MCKIBBEN
United States District Judge

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