Trusty v. Baker
Filing
24
ORDER granting Respondents' 13 Motion to Dismiss. The petition is dismissed with prejudice. Petitioner is denied a certificate of appealability. The Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 11/18/2013. (Copies have been distributed pursuant to the NEF - KR)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
***
11
MARC RUSSELL TRUSTY,
Case No. 3:13-cv-00034-MMD-WGC
12
Petitioner,
13
14
ORDER
v.
WARDEN RENEE BAKER, et al.,
15
Respondents.
16
17
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28
18
U.S.C. § 2254, by a Nevada state prisoner. Pending before the Court is respondents’
19
motion to dismiss. (Dkt. no. 13.)
20
I.
PROCEDURAL HISTORY
21
On January 14, 2009, the State of Nevada charged petitioner by way of criminal
22
indictment with four counts of robbery with the use of a firearm. (Exhibit 2.)1 Petitioner
23
elected to plead guilty to three of the four robbery counts, and the State agreed to
24
dismiss the pending criminal charges in four other cases. (Exhibit 18.) On July 22, 2009,
25
the state district court entered a judgment of conviction sentencing petitioner to three
26
consecutive terms of imprisonment of 30 to 75 months on each of the three counts, with
27
28
1
The exhibits referenced in this order are found in the Court’s record at dkt. nos.
14-18.
1
an additional three equal and consecutive terms of imprisonment for the use of a deadly
2
weapon. (Exhibit 22.)
3
Petitioner appealed his convictions to the Nevada Supreme Court. (Exhibit 23.) In
4
his direct appeal brief (fast track statement), he raised two claims: (1) the district court
5
abused its discretion by sentencing petitioner to consecutive prison terms; and (2) the
6
district court failed to adequately canvass petitioner concerning the maximum
7
punishment he could receive under the plea deal. (Exhibit 37.) On January 7, 2010, the
8
Nevada Supreme Court affirmed petitioner’s convictions. (Exhibit 39.) In its order of
9
affirmance, the Nevada Supreme Court expressly declined to consider petitioner’s claim
10
concerning the adequacy of the district court’s plea canvass because he had not
11
previously raised the claim and the alleged error did not clearly appear on record.
12
(Exhibit 39, at p. 2.)
13
On August 9, 2010, petitioner filed a post-conviction habeas petition in the state
14
district court. (Exhibit 51.) The state district court dismissed a number of petitioner’s
15
claims by order filed April 1, 2011. (Exhibit 61.) The state district court conducted an
16
evidentiary hearing on the remaining claims. (Exhibits 79 & 83.) The state district court
17
denied the petition by written order filed April 3, 2012. (Exhibit 93.)
18
Petitioner appealed the denial of his post-conviction state habeas petition.
19
(Exhibit 85.) In his appellate brief (fast track statement), petitioner raised the following
20
claims: (1) the use of news footage in identifying petitioner violated his due process
21
rights; (2) trial counsel was ineffective for failing to challenge the identification of
22
petitioner through pretrial motion practice; (3) trial counsel was ineffective for failing to
23
stop the plea hearing when petitioner incorrectly states the maximum sentences; and
24
(4) trial counsel was ineffective at sentencing for failing to object to the State’s reference
25
to unrelated crimes. (Exhibit 104.) On December 2, 2012, the Nevada Supreme Court
26
affirmed the denial of petitioner’s state habeas petition. (Exhibit 108.)
27
///
28
///
2
1
Petitioner dispatched his federal habeas corpus petition to this Court on January
2
17, 2013. (Dkt. no. 6, at p. 1.) In the federal petition, petitioner raises the following
3
claims:
Claim 1: Trial counsel was ineffective for failing to investigate an alibi
witness or otherwise pursue a false identification defense.
4
5
Claim 2: The district court failed to adequately canvass petitioner
concerning the maximum punishment he could receive under the plea
deal in violation of NRS 174.035 and petitioner’s constitutional rights.
6
7
8
Claim 3: The State failed to turn over discovery material, including
surveillance video and witness interview transcripts, in violation of
petitioner’s constitutional rights.
9
(Dkt. no. 6.) Respondents filed the instant motion to dismiss the petition. (Dkt. no. 13).
10
Petitioner filed an opposition. (Dkt. no. 22.) Respondents filed a reply brief. (Dkt. no.
11
23.)
12
II.
DISCUSSION
13
A.
Exhaustion
14
A federal court will not grant a state prisoner's petition for habeas relief until the
15
prisoner has exhausted his available state remedies for all claims raised. Rose v.
16
Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state
17
courts a fair opportunity to act on each of his claims before he presents those claims in
18
a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also
19
Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
20
petitioner has given the highest available state court the opportunity to consider the
21
claim through direct appeal or state collateral review proceedings. See Casey v. Moore,
22
386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.
23
1981).
24
A habeas petitioner must “present the state courts with the same claim he urges
25
upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). To satisfy
26
exhaustion, each of petitioner’s claims must have been previously presented to the
27
Nevada Supreme Court, with references to a specific constitutional guarantee, as well
28
as a statement of facts that entitle petitioner to relief. Koerner v. Grigas, 328 F.3d 1039,
3
1
1046 (9th Cir. 2002). The federal constitutional implications of a claim, not just issues of
2
state law, must have been raised in the state court to achieve exhaustion. Ybarra v.
3
Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To
4
achieve exhaustion, the state court must be “alerted to the fact that the prisoner [is]
5
asserting claims under the United States Constitution” and given the opportunity to
6
correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S.
7
364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well
8
settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to potential
9
litigants: before you bring any claims to federal court, be sure that you first have taken
10
each one to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting
11
Rose v. Lundy, 455 U.S. 509, 520 (1982)).
12
A claim is not exhausted unless the petitioner has presented to the state court
13
the same operative facts and legal theory upon which his federal habeas claim is based.
14
Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The
15
exhaustion requirement is not met when the petitioner presents to the federal court facts
16
or evidence which place the claim in a significantly different posture than it was in the
17
state courts, or where different facts are presented at the federal level to support the
18
same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v.
19
Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458
20
(D. Nev. 1984).
21
In Ground 3 of the federal petition, petitioner asserts that the State failed to turn
22
over discovery material, including surveillance video footage and witness interview
23
transcripts, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). (Dkt. no. 6, at p.
24
7.) Petitioner raised a similar claim in his pro per post-conviction habeas petition filed in
25
state district court. (Exhibit 51, at p. 11.) However, the claim was not presented to the
26
Nevada Supreme Court in petitioner’s appellate brief (fast track statement). (Exhibit
27
104.) Ground 3 of the federal petition has never been presented to Nevada’s highest
28
court and therefore the claim is unexhausted. See Castillo v. McFadden, 399 F.3d 993,
4
1
1000 (9th Cir. 2005) (noting that the state high court “was not required to review the
2
parties’ trial court pleadings,” and that the petitioner must have presented his federal
3
claims “within the four corners of his appellate briefing” in order to properly exhaust the
4
claims).
5
B.
Procedural Default
6
In Ground 2 of the federal petition, petitioner asserts that the state district court
7
failed to adequately canvass him concerning the maximum punishment he could receive
8
under the plea agreement. (Dkt. no. 6, at p. 5.) Respondents contend that Ground 2 of
9
the federal petition is procedurally barred.
10
“Procedural default” refers to the situation where a petitioner in fact presented a
11
claim to the state courts but the state courts disposed of the claim on procedural
12
grounds, instead of on the merits. A federal court will not review a claim for habeas
13
corpus relief if the decision of the state court regarding that claim rested on a state law
14
ground that is independent of the federal question and adequate to support the
15
judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court
16
stated the effect of a procedural default, as follows:
17
18
19
20
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 demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.
21
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The
22
procedural default doctrine ensures that the state’s interest in correcting its own
23
mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d
24
1039, 1046 (9th Cir. 2003). To demonstrate cause for a procedural default, the petitioner
25
must be able to “show that some objective factor external to the defense impeded” his
26
efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis
27
added). For cause to exist, the external impediment must have prevented the petitioner
28
from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991).
5
1
Ground 2 of the federal petition asserts that the state district court failed to
2
adequately canvass petitioner concerning the maximum punishment he could receive
3
under the plea agreement. (Dkt. no. 6, at p. 5.) Petitioner raised a similar claim on direct
4
appeal. (Exhibit 37, at pp. 4-5.) The Nevada Supreme Court declined to consider the
5
claim because petitioner raised the claim in a procedurally deficient manner. (Exhibit 39,
6
at p. 2.) In declining to consider the claim, the Nevada Supreme Court ruled: “Trusty
7
does not claim that he previously raised a challenge to the validity of his plea in the
8
district court and the alleged error does not clearly appear on the record, therefore we
9
decline to consider his contention.” (Exhibit 39, at p. 2) (citing Bryant v. State, 102 Nev.
10
268, 272, 721 P.2d 364, 368 (1986)). The Nevada Supreme Court’s refusal to consider
11
petitioner’s claim rested on a state law procedural ground that is independent of the
12
federal question and adequate to support the judgment. See Coleman v. Thompson,
13
501 U.S. at 730-31. Petitioner has failed to demonstrate cause and prejudice to excuse
14
the procedural default. Ground 2 of the petition was procedurally defaulted in state
15
court, therefore, the claim is barred from review by this Court.
16
C.
Tollett Bar
17
In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the United States Supreme
18
Court held that “when a criminal defendant has solemnly admitted in open court that he
19
is in fact guilty of the offense with which he is charged, he may not thereafter raise
20
independent claims relating to the deprivation of constitutional rights that occurred prior
21
to the entry of the guilty plea.” Instead, [h]e may only attack the voluntary and intelligent
22
character of the guilty plea . . . .” Id.; see also Menna v. New York, 423 U.S. 61, 63, n.2
23
(1975) (discussing purpose and scope of Tollett bar). The Ninth Circuit has applied the
24
Tollett rule to both independent constitutional claims and claims of ineffective assistance
25
of counsel. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curium)
26
(holding that defendant’s pre-plea ineffective assistance of counsel claim, and
27
underlying speedy trial claim, were barred by Tollett; see also United States v. Jackson,
28
F.3d 1141, 1144 (9th Cir. 2012) (citing Tollett and Bohn with approval).
6
1
Ground 1 of the federal petition asserts that counsel was ineffective for failing to
2
investigate and pursue a potential defense. (Dkt. no. 6, at p. 3.) Ground 3 of the federal
3
petition asserts that the State failed to turn over discovery material. (Dkt. no. 6, at p. 7.)
4
Under Tollett, petitioner cannot raise Grounds 1 and 3 of the federal petition, which are
5
independent constitutional claims of events that occurred prior to entry of the guilty plea.
6
Because petitioner seeks to collaterally attack his factual guilt in Grounds 1 and 3, but
7
has already admitted that guilt through the plea agreement, Tollett bars consideration of
8
those claims in his federal habeas corpus proceeding.
9
III.
CERTIFICATE OF APPEALABILITY
10
In order to proceed with any appeal, petitioner must receive a certificate of
11
appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v.
12
Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236
13
F.3d 550, 551-52 (9th Cir. 2001). District courts are required to rule on the certificate of
14
appealability in the order disposing of a proceeding adversely to the petitioner or
15
movant, rather than waiting for a notice of appeal and request for certificate of
16
appealability to be filed. Rule 11(a) of the Rules Governing Section 2254 and 2255
17
Cases. Generally, a petitioner must make “a substantial showing of the denial of a
18
constitutional right” to warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2);
19
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The petitioner must demonstrate that
20
reasonable jurists would find the district court's assessment of the constitutional claims
21
debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold
22
inquiry, the petitioner has the burden of demonstrating that the issues are debatable
23
among jurists of reason; that a court could resolve the issues differently; or that the
24
questions are adequate to deserve encouragement to proceed further. Id. In this case,
25
no reasonable jurist would find this Court’s dismissal of the petition debatable or wrong.
26
The Court therefore denies petitioner a certificate of appealability.
27
///
28
///
7
1
2
3
IV.
CONCLUSION
It is therefore ordered that respondents’ motion to dismiss (dkt. no. 13) is
granted.
4
It is further ordered that the petition is dismissed with prejudice.
5
It is further ordered that petitioner is denied a certificate of appealability.
6
It is further ordered that the Clerk shall enter judgment accordingly.
7
DATED THIS 18th day of November 2013.
8
9
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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?