Fields v. LeGrand et al
Filing
19
ORDERED that Rs' # 12 Motion for leave to file Exhibit 14 under seal is GRANTED. FURTHER ORD Rs' # 9 Motion to dismiss the petition is GRANTED in part, and DENIED in part (as specified herein). FURTHER ORDERED that P shall by 12/17/201 1 either: (1) inform this court in a sworn declaration that he wishes to abandon the unexhausted 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 e xhaust; OR (3) file a motion for a stay and abeyance. FURTHER ORD that if P elects to abandon his unexhausted grounds, Rs' answer to remaining grounds due 30 days from the date P serves his declaration of abandonment. FURTHER ORD that P shall have 30 days following service of Rs' answer in which to file a reply. FURTHER ORD that if P fails to respond to this order within the time permitted, this case may be dismissed. Signed by Judge Larry R. Hicks on 11/16/2011. (Copies have been distributed pursuant to the NEF - DRM)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
MATTHEW ARTHUR FIELDS,
10
Petitioner,
11
vs.
12
ROBERT LEGRAND, et al.,
13
Respondents.
)
)
)
)
)
)
)
)
)
/
3:11-cv-00341-LRH-WGC
ORDER
14
15
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a
16
state prisoner, is proceeding pro se (ECF #6). Before the court is respondents’ motion to dismiss (ECF
17
#9). Petitioner has opposed the motion (ECF #17), and respondents have replied (ECF #18).
18
I. Procedural History and Background
19
In November 2006, the State of Nevada charged petitioner with one count of causing the death
20
of a person by driving a vehicle while under the influence of alcohol, one count of leaving the scene of
21
an accident involving the death of a person, and one count of conspiring to attempt to suborn perjury
22
(exhibits to motion to dismiss, ECF #9, ex. 2).1 Petitioner was convicted pursuant to a guilty plea and
23
sentenced to 6 to 18 years on the first count, a consecutive term of 6 to 15 years on the second count,
24
and a concurrent term of one year on the third count (ex. 17). Petitioner did not file a direct appeal.
25
On April 23, 2008, petitioner filed a state petition for writ of habeas corpus (ex. 18). Following
26
an evidentiary hearing (see ex. 28), the state district court denied the petition (ex. 30). Petitioner
27
1
28
All exhibits referenced in this Order are exhibits to respondents’ motion to dismiss (ECF #9),
which are located at ECF #s 10, 11 and 12.
1
appealed the denial of his state habeas petition to the Nevada Supreme Court (ex. 33). In his appeal,
2
petitioner argued that his counsel rendered ineffective assistance by (1) failing to fully investigate the
3
“305 program”–an alcohol treatment program–and improperly advising him that he would be eligible
4
for the 305 program and that such participation would reduce his sentence; (2) improperly advising him
5
that his sentences would run concurrently; (3) failing to advise the state district court during sentencing
6
that the 305 program would not apply to the sentence, as imposed; (4) failing to object when the State
7
argued that petitioner would only serve half his sentence under the 305 program; and (5) failing to file
8
a direct appeal (ex. 38). On March 17, 2011, the Nevada Supreme Court affirmed the denial of the state
9
habeas petition (ex. 42).
10
11
On May 10, 2011, petitioner initiated this federal petition for writ of habeas corpus (ECF #6).
In his federal petition, petitioner raises the following grounds for relief:
12
(1) Counsel rendered ineffective assistance under the Sixth and Fourteenth Amendments in
13
failing to adequately defend the case by litigating the charges of leaving the scene of an accident
14
involving the death of a person and conspiring to attempt to suborn perjury.
15
(2) Counsel rendered ineffective assistance under the Sixth and Fourteenth Amendments by
16
failing to investigate petitioner’s eligibility for the 305 program and improperly advising him that his
17
sentence would be reduced by participation in the program, failing to obtain records of petitioner’s 2000
18
conviction prior to sentencing, and failing to cross-examine witness Rowe at sentencing.
19
(3) Counsel rendered ineffective assistance under the Sixth and Fourteenth Amendments by
20
improperly advising petitioner that his prison terms would run concurrently, that he would qualify for
21
the 305 program and that such participation would reduce his sentence.
22
(4) Counsel rendered ineffective assistance under the Sixth and Fourteenth Amendments by
23
failing to present mitigating evidence at sentencing, including family members’ testimony, improperly
24
advising the sentencing court that petitioner was eligible for the 305 program, failing to make corrections
25
to the presentence investigation report, and failing to adequately cross-examine witness Rowe at
26
sentencing regarding petitioner’s 2000 conviction.
27
28
(5) Counsel rendered ineffective assistance under the Sixth and Fourteenth Amendment by
failing to perfect a direct appeal raising several issues.
2
1
(6) The Lozada remedy is inadequate as a matter of law.
2
This court denied petitioner’s motion for appointment of counsel on June 21, 2011 (ECF #7).
3
Respondents argue that the petition should be dismissed because it contains several unexhausted claims
4
(ECF #9).
5
II. Discussion
6
A. Exhaustion Standard
7
A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has
8
exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28
9
U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims
10
before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844
11
(1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
12
petitioner has given the highest available state court the opportunity to consider the claim through direct
13
appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004);
14
Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
15
A habeas petitioner must “present the state courts with the same claim he urges upon the federal
16
court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim,
17
not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v.
18
Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve
19
exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims under the
20
United States Constitution” and given the opportunity to correct alleged violations of the prisoner’s
21
federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106
22
(9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to
23
potential litigants: before you bring any claims to federal court, be sure that you first have taken each
24
one to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S.
25
509, 520 (1982)). “[G]eneral appeals to broad constitutional principles, such as due process, equal
26
protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala v. Wood, 195
27
F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw that applies
28
federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)
3
1
(en banc).
2
A claim is not exhausted unless the petitioner has presented to the state court the same operative
3
facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of
4
Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the
5
petitioner presents to the federal court facts or evidence that place the claim in a significantly different
6
posture than it was in the state courts, or where different facts are presented at the federal level to
7
support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v.
8
Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984).
9
10
11
B. Petition in the Instant Case
1. Grounds 2 and 4: petitioner’s claim that counsel was ineffective by failing to crossexamine witness Rowe at sentencing
12
In grounds 2 and 4 of the federal petition, petitioner alleges counsel rendered ineffective
13
assistance under the Sixth and Fourteenth Amendments by failing to cross-examine witness Rowe at
14
sentencing (ECF #6 at 7,13). Respondents correctly argue that petitioner fails to raise this issue in his
15
fast track statement filed on appeal of the denial of his state habeas petition (see ex. 38). Accordingly,
16
petitioner’s claims in grounds 2 and 4 that his counsel was ineffective because he failed to cross-examine
17
witness Rowe at sentencing are unexhausted.
18
19
2. Ground 2: petitioner’s claim that counsel was ineffective by failing to obtain records
from his 2000 misdemeanor conviction
20
In ground 2, petitioner alleges that counsel rendered ineffective assistance under the Sixth and
21
Fourteenth Amendments by failing to obtain records of petitioner’s 2000 conviction prior to sentencing
22
(ECF #6 at 7). Respondents point out that petitioner never raised this claim in the fast track statement
23
filed on appeal of the denial of his state habeas petition (see ex. 38). In his opposition to the motion to
24
dismiss, petitioner argues that he did in fact exhaust this claim and references the evidentiary hearing
25
before the state district court (ECF #17 at 9-10). However, this argument is of no moment because
26
petitioner did not raise this claim on appeal to the Nevada Supreme Court. Accordingly, petitioner’s
27
claim in ground 2 that his counsel was ineffective by failing to obtain records from his 2000
28
misdemeanor conviction is unexhausted.
4
1
2
3. Ground 4: petitioner’s claim that counsel was ineffective by failing to present
mitigating evidence at sentencing
3
In ground 4, petitioner alleges that counsel rendered ineffective assistance under the Sixth and
4
Fourteenth Amendments by failing to present mitigating evidence at sentencing, including family
5
members’ testimony (ECF #6 at 13). Respondents argue that this claim is unexhausted (ECF #9 at 5).
6
In his opposition to the motion to dismiss, petitioner argues that he did in fact exhaust this claim
7
and again references the evidentiary hearing before the state district court (ECF #17 at 10-11). Petitioner
8
also points out that the fast track statement filed on appeal to the state court references that several
9
family members were available to testify at the sentencing hearing but that his counsel made the decision
10
not to call those witnesses (ex. 38 at 5-6). However, that reference appears in the statement of facts
11
section of the fast track statement only; it is not a claim that is raised and discussed in the issues on
12
appeal section of the fast track statement (see generally ex. 38). The mere mention of factual allegations
13
in the statement of facts section of the appellate brief without setting it forth as an issue on appeal did
14
not give the Nevada Supreme Court a fair opportunity to act on the claim before it was presented in the
15
federal habeas petition. O’Sullivan, 526 U.S. at 844. Accordingly, petitioner’s claim set forth in ground
16
4 that counsel was ineffective by failing to present mitigating evidence at sentencing, including family
17
members’ testimony, is unexhausted.
18
19
4. Ground 4: petitioner’s claim that counsel was ineffective by failing to correct the
presentence investigation report
20
In ground 4, petitioner alleges that counsel rendered ineffective assistance by failing to make
21
corrections to the presentence investigation report (ECF #6 at 13). Respondents argue that this claim
22
is unexhausted (ECF #9 at 6).
23
In his opposition to the motion to dismiss, petitioner argues that this claim is in fact exhausted;
24
however, he fails to point to anywhere in his appellate brief to the Nevada Supreme Court to support this
25
argument (see ECF #17 at 11-12). Again, there is a reference to the presentence report in the statement
26
of facts of the fast track statement, but the claim that petitioner’s counsel rendered ineffective assistance
27
by failing to correct the presentence report was not fairly presented as an issue on appeal to the Nevada
28
Supreme Court. Accordingly, petitioner’s claim set forth in ground 4 that counsel was ineffective in
5
1
failing to correct the presentence report is unexhausted.
2
5. Ground 6
3
In ground 6, petitioner alleges that the Lozada remedy is inadequate as a matter of law (ECF #6
4
at 18).2 While petitioner asserts that this claim is exhausted (ECF #17 at 13), he did not raise it in his
5
appeal of the denial of his state habeas petition (see ex. 38). Accordingly, respondents are correct that
6
ground 6 is unexhausted.
7
III. Petitioner’s Options Regarding Unexhausted Claims
8
A federal court may not entertain a habeas petition unless the petitioner has exhausted available
9
and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy, 455 U.S. 509,
10
510 (1982). A “mixed” petition containing both exhausted and unexhausted claims is subject to
11
dismissal. Id. In the instant case, the court finds that the following grounds are unexhausted:
12
petitioner’s claims in grounds 2 and 4 that his counsel was ineffective because he failed to cross-examine
13
witness Rowe at sentencing; petitioner’s claim in ground 2 that his counsel was ineffective because he
14
failed to obtain records from his 2000 misdemeanor conviction; petitioner’s claim in ground 4 that
15
counsel was ineffective because he failed to present mitigating evidence at sentencing, including family
16
members’ testimony; petitioner’s claim in ground 4 that counsel was ineffective because he failed to
17
correct the presentence report; and ground 6. Because the court finds that the petition is a “mixed
18
petition,” containing both exhausted and unexhausted claims, petitioner has these options:
19
1.
He may submit a sworn declaration voluntarily abandoning the unexhausted
claims in his federal habeas petition, and proceed only on the exhausted claims;
2.
He may return to state court to exhaust his unexhausted claims, in which case his
federal habeas petition will be denied without prejudice; or
3.
He may file a motion asking this court to stay and abey his exhausted federal
habeas claims while he returns to state court to exhaust his unexhausted claims.
20
21
22
23
24
25
With respect to the third option, a district court has discretion to stay a petition that it may
validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005).
26
27
28
2
This ground references Lozada v. State, 871 P.2d 944 (Nev. 1994), which holds that if a
petitioner is denied a direct appeal due to ineffective assistance of counsel, that he or she may file a
habeas petition that sets forth the claims he or she would have argued on direct appeal, and that he or
she is entitled to appointed counsel to litigate such habeas petition.
6
1
The Rhines Court stated:
2
[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, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State”).
3
4
5
6
7
Rhines, 544 U.S. at 277.
8
Accordingly, petitioner would be required to show good cause for his failure to exhaust his
9
unexhausted claims in state court, and to present argument as to whether or not his unexhausted claims
10
are plainly meritless. Respondent would then be granted an opportunity to respond, and petitioner to
11
reply.
12
Petitioner’s failure to choose any of the three options listed above, or seek other appropriate relief
13
from this court, will result in his federal habeas petition being dismissed. Petitioner is advised to
14
familiarize himself with the limitations periods for filing federal habeas petitions contained in 28 U.S.C.
15
§ 2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he
16
makes regarding his petition.
17
IV. Conclusion
18
19
20
21
IT IS THEREFORE ORDERED that respondents’ motion for leave to file Exhibit 14 under
seal (ECF #12) is GRANTED.
IT IS FURTHER ORDERED that respondents’ motion to dismiss the petition (ECF #9) is
GRANTED in part, and DENIED in part, as follows:
22
The following grounds set forth in the petition are unexhausted:
23
1. Claims in grounds 2 and 4 that counsel was ineffective because he failed to cross-examine
24
25
26
27
28
witness Rowe at sentencing;
2. Claim in ground 2 that counsel was ineffective because he failed to obtain records from his
2000 misdemeanor conviction;
3. Claim in ground 4 that counsel was ineffective because he failed to present mitigating
evidence at sentencing, including family members’ testimony;
7
1
2
4. Claim in ground 4 that counsel was ineffective because he failed to correct the presentence
report;
3
5. Ground 6.
4
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either: (1) inform
5
this court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds
6
for relief in his federal habeas petition and proceed on the exhausted ground; OR (2) inform this court
7
in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state
8
court to exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking this court
9
to hold his exhausted claim in abeyance while he returns to state court to exhaust his unexhausted
10
claims. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief,
11
respondents may respond to such motion as provided in Local Rule 7-2.
12
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds,
13
respondents shall have thirty (30) days from the date petitioner serves his declaration of abandonment
14
in which to file an answer to petitioner’s remaining grounds for relief. The answer shall contain all
15
substantive and procedural arguments as to all surviving grounds of the petition, and shall comply with
16
Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254.
17
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following service of
18
19
20
21
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.
Dated this 16th day of November, 2011.
22
23
24
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
25
26
27
28
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?