Dewey v. Myles

Filing 47

ORDER granting in part and denying in part 41 Motion to Dismiss. Petitioner shall have 30 days to file notice of abandonment of all unexhausted claims, or a motion for stay to allow her to exhaust unexhausted claims. Please see attached for additional details/deadlines. Signed by Judge Larry R. Hicks on 10/28/15. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

SHELLI ROSE DEWEY,

10

Petitioner,

11

vs.

12

CAROLYN MYLES, et al.,

13

3:13-cv-00317-LRH-WGC

Respondents.
_______________________________/

ORDER

14
15

Introduction

16

This action is a petition for writ of habeas corpus by Nevada prisoner Shelli Rose Dewey,

17

who was convicted in 2006 in Nevada’s Fourth Judicial District Court, in Elko County, of second

18

degree murder with use of a deadly weapon. The respondents have filed a motion to dismiss. The

19

court will grant that motion in part and deny it in part. The court grants the motion only to the extent

20

that it determines that four of Dewey’s claims (Claims 5A, 5B, 5C and 5D) are unexhausted in state

21

court, and directs Dewey to make an election regarding those claims.

22

Background

23
24
25
26

In its decision on Dewey’s direct appeal, the Nevada Supreme Court described the factual
background of this case, as follows:
In the early morning hours of September 12, 2004, Elko Police answered a
hysterical “911” call from appellant Shelli Rose Dewey reporting that her husband,
Steven, had been stabbed. During the call, Dewey commented three times that she
did not know who stabbed Steven.

1
2
3
4
5
6
7

At the scene, Dewey appeared to be intoxicated and was marginally
intelligible. Dewey told the police that her husband had been stabbed. The police
looked inside the Deweys’ pickup truck as well as the surrounding area for a weapon
but could not locate one.
Several witnesses reported that Dewey and Steven had been drinking and
creating a disturbance a few hours before the stabbing. At some point, the bartender
asked the couple to leave. About thirty minutes thereafter, a witness reported seeing
them arguing in the parking lot. Another witness also reported hearing a loud
argument, followed by hysterical crying. This witness investigated the “ruckus” and
saw Dewey draped over Steven, who was lying on his back next to or in close
proximity to the couple’s truck. According to this witness, Dewey was in obvious
distress, frantically saying, “Please don’t die! Please don’t die on me!”

8
*

*

*

9
10

Ultimately, the State charged Dewey with open murder with the use of a
deadly weapon.

11
12

*

*

*

At trial, the jury convicted Dewey of one count of second-degree murder with
the use of a deadly weapon.

13
14

Dewey v. State, 123 Nev. 483, 485-87, 169 P.3d 1149, 1150-51 (2007) (a copy of the opinion is in

15

the record at Exhibit 72).1 Dewey was sentenced to life in prison with the possibility of parole after

16

ten years for the murder, and a consecutive term of life in prison with the possibility of parole after

17

ten years for use of a deadly weapon. See Judgment of Conviction, Exhibit 67.

18

The Nevada Supreme Court affirmed Dewey’s judgment of conviction on November 1, 2007.

19

Dewey v. State, supra. The court denied Dewey’s petition for rehearing on November 30, 2007.

20

Order Denying Rehearing, Exhibit 74. The remittitur issued on December 28, 2007. Remittitur,

21

Exhibit 75.

22

Dewey filed a petition for writ of habeas corpus in state court on October 18, 2008. Petition

23

for Writ of Habeas Corpus (Post-Conviction), Exhibit 77. The state district court held a six-day

24

evidentiary hearing in December 2010 and January 2011, see Transcripts of Evidentiary Hearing,

25
26

1

The exhibits referred to in this order were filed by Dewey, and are found in the record at ECF
Nos. 17-28, and 46.
2

1

Exhibits 86-91, and denied the petition on June 28, 2011. Decision, Exhibit 97; Notice of Entry of

2

Order, Exhibit 98. Dewey filed a motion to alter, amend or reconsider. Motion to Alter or Amend

3

Judgment or in the Alternative, Motion for Reconsideration, Exhibit 99. The court ruled on that

4

motion on October 17, 2011, issuing an addendum to its June 28, 2011, order, further explaining its

5

denial of certain claims. Addendum, Exhibit 104; Notice of Entry of Addendum, Exhibit 105.

6

Dewey appealed, and the Nevada Supreme Court affirmed the denial of Dewey’s state habeas

7

petition on April 10, 2013. Order of Affirmance, Exhibit 112. The Nevada Supreme Court denied

8

Dewey’s petition for rehearing on June 12, 2013. Order Denying Rehearing, Exhibit 114. The

9

remittitur issued on July 8, 2013. Remittitur, Exhibit 115.

10
11
12

Dewey filed her initial, nominally pro se, federal habeas corpus petition, initiating this action,
on June 13, 2013 (ECF No. 1). The court appointed counsel for Dewey (ECF No. 4).
With counsel, Dewey filed a first amended habeas petition on November 7, 2014 (ECF

13

No. 16). The court reads Dewey’s first amended petition, which is the operative petition in the case,

14

to include the following claims:

15
16
17
18
19
20
21
22
23
24
25

Claim 1: Dewey’s “confession was taken in violation of her Fifth, Sixth and
Fourteenth Amendment rights to silence, to the assistance of counsel, and to due
process under the United States Constitution.”
Claim 2A: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective “for failing to present evidence from an audio expert as to
whether [Dewey] invoked her right to counsel.”
Claim 2B: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective for failing “to present a battered women’s syndrome defense
to the murder charge.”
Claim 2C: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective for failing “to investigate and present an expert witness on
linguistics to testify that [she] had not waived her right to an attorney.”
Claim 2D: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective “for failing to provide the defense crime scene analyst with all
the available evidence and failing to properly question the analyst at trial.”
Claim 2E: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective “for failing to seek a spoliation instruction.”

26

3

1

Claim 2F: Dewey’s federal constitutional rights were violated because her trial
counsel was ineffective “for failing to present testimony from R. Goldie.”

2
Claim 3: Dewey’s “Fourteenth Amendment right to due process was violated when
she was convicted without sufficient evidence.”

3
4

Claim 4A: Dewey’s federal constitutional rights were violated because “Instruction
No. 13 regarding second degree murder reduced the State’s burden of proof of the
malice element.”

5
6

Claim 4B: : Dewey’s federal constitutional rights were violated because “Instruction
No. 19 defining deadly weapon unconstitutionally relieved the State of its burden to
prove an element of the deadly weapon enhancement.”

7
8

Claim 5A: Dewey’s federal constitutional rights were violated because her appellate
counsel was ineffective for failing to raise the entire legal and factual basis of the
claim in Claim 1.

9
10

Claim 5B: Dewey’s federal constitutional rights were violated because her appellate
counsel was ineffective for failing to raise the entire legal and factual basis of the
claim in Claim 3.

11
12

Claim 5C: Dewey’s federal constitutional rights were violated because her appellate
counsel was ineffective for failing to raise the entire legal and factual basis of the
claim in Claim 4A.

13
14

Claim 5D: Dewey’s federal constitutional rights were violated because her appellate
counsel was ineffective for failing to raise the entire legal and factual basis of the
claim in Claim 4B.

15
16

Claim 6: Dewey’s federal constitutional rights were violated because “cumulative
error rendered [her] trial and verdict inherently unreliable.”

17
18

See First Amended Petition for Writ of Habeas Corpus (ECF No. 16), pp. 18-57.

19

Respondents filed the motion to dismiss on May 28, 2015 (ECF No. 41). In the motion to

20

dismiss, respondents assert: that Claims 2A, 2B, 2E and 5 are barred by the statute of limitations;

21

that Claims 1, 2A, 2B, 2D, 2E, 5A, 5B, 5C, 5D and 6 are unexhausted in state court; and that Claims

22

4A and 4B are not cognizable in this federal habeas corpus action. See Motion to Dismiss, pp. 3-16.

23

Dewey filed an opposition to the motion to dismiss on August 10, 2015 (ECF No. 45). Respondents

24

did not file a reply in support of their motion.

25

///

26

///

4

1

Discussion

2

Statute of Limitations

3

The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, included a

4

one-year statute of limitations for federal habeas petitions filed by prisoners challenging state-court

5

convictions or sentences:

6
7
8

(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of -(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

9
10
11
12
13

(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or

14
15

(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

16
17
18

28 U.S.C. 2244(d)(1).
The AEDPA statute of limitations is tolled during the time that a properly filed application

19

for state post-conviction or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2).

20

In addition, a habeas petitioner is entitled to equitable tolling of the AEDPA statute of limitations if

21

the petitioner shows: “‘(1) that he has been pursuing his rights diligently, and (2) that some

22

extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560

23

U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), and Ramirez v.

24

Yates, 571 F.3d 993, 997 (9th Cir.2009)).

25
26

In this case, Dewey’s direct appeal concluded on November 30, 2007, when the Nevada
Supreme Court denied her petition for rehearing. See Order Denying Rehearing, Exhibit 74.

5

1

Adding the ninety days within which Dewey could have filed a petition for a writ of certiorari to the

2

United States Supreme Court (see Supreme Court Rule 13), the date on which Dewey’s conviction

3

became final, for purposes of the AEDPA statute of limitations, was February 28, 2008. See Wixom

4

v. Washington, 264 F.3d 894, 897 (9th Cir.2001). The limitations period for Dewey’s federal habeas

5

petition began to run on that date.

6

On October 18, 2008, after 233 days had run against the one-year limitations period, Dewey

7

filed her state habeas petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit

8

77. The state habeas action was concluded on July 8, 2013. See Remittitur, Exhibit 115. At that

9

point the limitations clock again began to run, with 132 days remaining.

10
11

Meanwhile, on June 13, 2013, Dewey initiated this action by filing her initial petition for writ
of habeas corpus (ECF No. 1). Dewey’s original petition was timely filed.

12

Dewey did not file her first amended petition (ECF No. 16) until November 7, 2014. That

13

petition was filed 512 days after the statutory tolling ended on July 8, 2013, and after a total of 745

14

days had elapsed out without statutory tolling. Dewey makes no suggestion that there is any basis

15

for equitable tolling relative to the first amended petition. The first amended petition was clearly

16

filed well beyond the one-year AEDPA limitations period.

17

Therefore, the issue of the timeliness of the claims in Dewey’s first amended petition turns

18

upon whether those claims “relate back” to claims in her original petition, such that they are

19

considered to have been first asserted on the filing date of the original petition. Claims in an

20

amended habeas petition relate back to an earlier petition, under Federal Rule of Civil Procedure

21

15(c), if they arise out of “a common ‘core of operative facts’ uniting the original and newly asserted

22

claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). “An amended habeas petition ... does not relate

23

back ... when it asserts a new ground for relief supported by facts that differ in both time and type

24

from those the original pleading set forth.” Id. at 650.

25

///

26

///

6

1

Claim 2A

2

In Claim 2A of her first amended petition, Dewey claims that her federal constitutional rights

3

were violated because her trial counsel was ineffective “for failing to present evidence from an audio

4

expert as to whether [Dewey] invoked her right to counsel.” First Amended Petition, pp. 29-36.

5

Respondents argue that Claim 2A does not relate back to the similar claim in Dewey’s

6

original petition -- Ground VI in the original petition -- because, in the amended petition, Dewey has

7

added specific factual allegations regarding the effects of a head injury suffered by one of her trial

8

attorneys and regarding her trial attorneys’ failure to provide the audio expert with the original

9

recording of Dewey’s first interview by the police. See Motion to Dismiss, pp. 6-7.

10

The court finds that, despite the more detailed presentation in the first amended petition, the

11

claim as asserted in Claim 2A arises from the same core of operative facts as the claim in Ground VI

12

of Dewey’s original petition. See Original Habeas Petition (ECF No. 1), pp. 12-13, 68-73. Claim

13

2A relates back to the original petition, and is not barred by the statute of limitations.

14
15

Claim 2B
In Claim 2B of her first amended petition, Dewey claims that her federal constitutional rights

16

were violated because her trial counsel was ineffective for failing “to present a battered womens’

17

syndrome defense to the murder charge.” First Amended Petition, pp. 36-43.

18

Dewey asserted a similar claim in Ground III of her original petition. See Original Habeas

19

Petition, pp. 9-10, 44-54. Respondents argue that Ground III of the original petition was different

20

because it focused on trial counsel’s alleged failure to call an expert witness on the subject of

21

battered woman syndrome, as opposed to the first amended petition, which also details counsel’s

22

alleged failure to investigate lay witnesses that could have provided testimony supporting the

23

proposition that Dewey suffered from battered woman syndrome. See Motion to Dismiss, pp. 7-8.

24

However, Ground III of Dewey’s original petition was not limited to asserting that trial

25

counsel failed to call an expert witness on the subject of battered woman syndrome; in Ground III of

26

the original petition, Dewey alleged:

7

1
2

Trial counsel was prejudicially ineffective in failing to investigate and present
evidence through a forensic psychologist that Petitioner was a battered woman at the
hands of the victim, and otherwise did not have the psychological profile consistent
with one who would murder another.

3
4

Original Habeas Petition , p. 10 (emphasis added); see also id. at 44-54. Claim 2B arises from the

5

same core of operative facts as Ground III of Dewey’s original petition. Claim 2B relates back to the

6

original petition, and is not barred by the statute of limitations.

7
8
9
10
11

Claim 2E
In Claim 2E of her first amended petition, Dewey claims that her federal constitutional rights
were violated because her trial counsel was ineffective “for failing to seek a spoliation instruction.”
First Amended Petition, pp. 46-49.
In Ground IV of her original petition, Dewey similarly claimed: “Trial counsel was

12

prejudicially ineffective in failing to seek a spoliation of evidence instruction at trial.” Original

13

Habeas Petition, p. 11; see also id. at 54-63. Here again, however, respondents argue that added

14

detail in the claim as presented in Dewey’s first amended petition prevent it from relating back to the

15

original petition. See Motion to Dismiss, pp. 8-9.

16

The court finds that Claim 2E arises from the same core of operative facts as Ground IV of

17

Dewey’s original petition. Claim 2E relates back to the original petition, and is not barred by the

18

statute of limitations.

19
20

Claims 5A, 5B, 5C and 5D
In Claims 5A, 5B, 5C and 5D, Dewey claims that her federal constitutional rights were

21

violated because her appellate counsel was ineffective for failing to raise the entire legal and factual

22

bases of the claims in Claims 1, 3, 4A and 4B, respectively. See First Amended Petition, pp. 55-56.

23

In their motion to dismiss, respondents point out that Dewey’s original petition did not

24

include any claim of ineffective assistance of appellate counsel. See Motion to Dismiss, p. 9;

25

Petition for Writ of Habeas Corpus (ECF No. 1). What respondents do not acknowledge is that the

26

original petition did include, as Grounds X, XIII, XIV and XV, claims similar to Claims 1, 3, 4A and

8

1

4B in the first amended petition, which are the substantive claims underlying the claims of

2

ineffective assistance of appellate counsel. See id. at 17, 20-22, 86-90, 98-110.
In her opposition to the motion to dismiss, Dewey cites Nguyen v. Curry, 736 F.3d 1287,

3
4

1296-97 (9th Cir. 2013). In Nguyen, the petitioner’s “appellate-counsel IAC claim was not included

5

in the original petition at all,” but the petitioner had included in the original petition the double-

6

jeopardy claim that his appellate counsel was faulted for not raising on appeal. See id. The Court of

7

Appeals ruled that the claim of ineffective assistance of appellate counsel related back to the

8

assertion of the substantive double-jeopardy claim in the original petition. See id. Respondents did

9

not file a reply in support of their motion to dismiss, and, therefore, did not respond to Dewey’s

10

citation of Nguyen.
Nguyen is on point. Claims 5A, 5B, 5C and 5D arise from the same core of operative facts as

11
12

Grounds X, XIII, XIV and XV in Dewey’s original petition. Claims 5A, 5B, 5C and 5D relate back

13

to the filing of the original petition, and are not barred by the statute of limitations.

14

Exhaustion

15

A federal court may not grant habeas corpus relief on a claim not exhausted in state court.

16

28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is

17

intended to allow state courts the initial opportunity to correct constitutional deprivations. See

18

Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the

19

claim to the highest state court, and must give that court the opportunity to address and resolve it.

20

See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1,

21

10 (1992). A claim is fairly presented to the state’s highest court if, before that court, the petitioner

22

describes the operative facts and legal theory upon which the claim is based. See Anderson v.

23

Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d

24

859, 862 (9th Cir. 1982).

25

///

26

///

9

1
2

Claim 1
In Claim 1, Dewey claims that her “confession was taken in violation of her Fifth, Sixth and

3

Fourteenth Amendment rights to silence, to the assistance of counsel, and to due process under the

4

United States Constitution.” First Amended Petition, pp. 18-26.

5

Respondents argue in their motion to dismiss that Dewey did not exhaust this claim on her

6

direct appeal, at least to the extent she now asserts a violation of her Sixth Amendment right to

7

counsel. See Motion to Dismiss, p. 11.

8

This court finds that Dewey’s Sixth Amendment right to counsel claim was exhausted on her

9

direct appeal. See Appellant’s Opening Brief, Exhibit 68, p. 17 (“Appellant’s admission/confession

10

was taken in violation of her Fifth and Sixth Amendment rights.” (emphasis added)); id. at 18

11

(noting that the police officers testified that they did not hear Dewey request an attorney, but arguing

12

that she “was hard to understand,” “mumbling at points in the interview,” and “somewhat withdrawn

13

and not loud”); see also Dewey, 123 Nev. at 487-89, 169 P.3d at 1152-53 (Nevada Supreme Court

14

ruled that “substantial evidence support[ed] the district court’s determination that Dewey did not

15

invoke her right to counsel during the first interview.”); Casey v. Moore, 386 V.3d 896, 916 n. 18

16

(“[A] claim is exhausted if the state’s hightest court expressly addresses the claim, whether or not it

17

was fairly presented.”).

18
19

Claim 2A
In Claim 2A, Dewey claims that her federal constitutional rights were violated because her

20

trial counsel was ineffective “for failing to present evidence from an audio expert as to whether

21

[Dewey] invoked her right to counsel.” First Amended Petition, pp. 29-36.

22

Respondents argue that Claim 2A is unexhausted because Dewey includes in the claim

23

certain specific factual allegations that were not asserted in state court in Dewey’s state habeas

24

action. See Motion to Dismiss, p. 12.

25
26

The court determines that Claim 2A is exhausted. The new factual allegations do not
fundamentally alter the claim. See Appellant’s Opening Brief, Exhibit 108, pp. 48-56; see also

10

1

Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir.2014) (en banc) (a claim is unexhausted if new

2

factual allegations fundamentally alter the claim considered by the state courts).

3

In so ruling, however, the court expresses no opinion as to what evidence will ultimately be

4

admissible in support of the claim. See Cullen v. Pinholster, 563 U.S. 170, ___, 131 S.Ct. 1388,

5

1398 (2011) (holding that federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the

6

record that was before the state court that adjudicated the claim on the merits).

7

Claim 2B

8
9
10

In Claim 2B, Dewey claims that her federal constitutional rights were violated because her
trial counsel was ineffective for failing “to present a battered women’s syndrome defense to the
murder charge.” First Amended Petition, pp. 36-43.

11

Here again, respondents argue that Dewey’s addition of many new factual allegations in

12

support of this claim -- in particular, allegations regarding lay witnesses who could have testified

13

about Dewey’s husband’s severe abuse of her -- render this claim unexhausted. See Motion to

14

Dismiss, p. 13.

15
16

The court determines that Claim 2B is exhausted; the new factual allegations do not
fundamentally alter the claim. See Appellant’s Opening Brief, Exhibit 108, pp. 29-36.

17
18

Again, however, the court expresses no opinion as to what evidence will ultimately be
admissible in support of the claim. See Pinholster, 131 S.Ct. at 1398.

19

Claim 2D

20

In Claim 2D, Dewey claims that her federal constitutional rights were violated because her

21

trial counsel was ineffective “for failing to provide the defense crime scene analyst with all the

22

available evidence and failing to properly question the analyst at trial.” First Amended Petition, pp.

23

45-46.

24

Respondents argue that “[w]hile counsel presented a similar claim in his state habeas

25

appeal..., the allegations of the claim are now different.” Motion to Dismiss, p. 13. Therefore,

26

according to respondents, the claim is unexhausted. Id. at 13-14.

11

1
2
3
4

The court disagrees. The new factual allegations do not fundamentally alter the claim. See
Appellant’s Opening Brief, Exhibit 108, pp. 21-29. Claim 2D is exhausted.
However, the court expresses no opinion as to what evidence will ultimately be admissible in
support of the claim. See Pinholster, 131 S.Ct. at 1398.

5

Claim 2E

6

In Claim 2E, Dewey claims that her federal constitutional rights were violated because her

7

trial counsel was ineffective “for failing to seek a spoliation instruction.” First Amended Petition,

8

pp. 46-49.

9

Respondents argue that, although Dewey presented a similar claim on the appeal in her state

10

habeas action, she now raises “issues with respect to spoliation that are different than the claim [she]

11

raised in [her] state habeas appeal.” See Motion to Dismiss, p. 14.

12
13
14

The new factual allegations, however, do not fundamentally alter the claim. See Appellant’s
Opening Brief, Exhibit 108, pp. 36-43. Claim 2E is exhausted.
However, the court expresses no opinion as to what evidence will ultimately be admissible in

15

support of the claim. See Pinholster, 131 S.Ct. at 1398.

16

Claims 5A, 5B, 5C and 5D

17

In Claims 5A, 5B, 5C and 5D, Dewey claims that her federal constitutional rights were

18

violated because her appellate counsel was ineffective for failing to raise the entire legal and factual

19

bases of the claims in Claims 1, 3, 4A and 4B, respectively. See First Amended Petition, pp. 55-56.

20

Respondents point out in their motion to dismiss that Dewey concedes in her first amended

21

petition that these claims are unexhausted. See Motion to Dismiss, pp. 14-15.2 Dewey also concedes

22

in her response to the motion to dismiss that these claims are unexhausted. Opposition to Motion to

23

Dismiss, p. 11.

24
25
26

2

In arguing that Claims 5A, 5B, 5C and 5D are unexhausted, respondents argue in passing that
there Claims 1, 3 and 4 are unexhausted in certain respects. See Motion to Dismiss, pp. 14-15. The
court rejects that argument, and determines that Claims 1, 3 and 4 are exhausted.
12

1

Dewey raised no claim of ineffective assistance of appellate counsel on the appeal in her state

2

habeas action. See Appellant’s Opening Brief, Exhibit 108. Claims 5A, 5B, 5C and 5D are

3

unexhausted in state court.

4
5

Claim 6
In Claim 6, Dewey claims that her federal constitutional rights were violated because

6

“cumulative error rendered [her] trial and verdict inherently unreliable.” First Amended Petition,

7

pp. 56-57.

8

Respondents argue that Claim 6 is unexhausted. See Motion to Dismiss, p. 15.

9

As a cumulative error claim, Claim 6 is exhausted, and survives the motion to dismiss, to the

10

extent that Dewey’s other claims are exhausted and otherwise procedurally viable.

11

Cognizability of Claims 4A and 4B

12

In Claim 4A, Dewey claims that her federal constitutional rights were violated because

13

“Instruction No. 13 regarding second degree murder reduced the State’s burden of proof of the

14

malice element,” and in Claim 4B she claims that her federal constitutional rights were violated

15

because “Instruction No. 19 defining deadly weapon unconstitutionally relieved the State of its

16

burden to prove an element of the deadly weapon enhancement.” First Amended Petition, pp. 52-54.

17
18
19

Respondents argue that Claims 4A and 4B are not cognizable in this federal habeas corpus
action. See Motion to Dismiss, pp. 15-16. Respondents’ argument in this regard is meritless.
Federal habeas corpus relief is available for violations of the Constitution or laws or treaties

20

of the United States. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In

21

conducting habeas review, a federal court is limited to deciding whether a conviction violated the

22

Constitution, laws, or treaties of the United States.”). In Claims 4A and 4B, Dewey plainly asserts

23

violations of her federal constitutional rights. See First Amended Petition, p. 52 (“The jury

24

instructions provided during petitioner’s trial improperly reduced the burden of proof and violated

25

petitioner’s due process rights, in violation of the Fifth and Fourteenth Amendments of the U.S.

26

Constitution.”). Claims 4A and 4B are cognizable in this federal habeas corpus action.

13

1

Dewey’s Election with Regard to Her Unexhausted Claims

2

As is discussed above, the court finds Claims 5A, 5B, 5C and 5D of Dewey’s first amended

3

habeas petition to be unexhausted in state court. With respect to these unexhausted claims, Dewey

4

must make an election. Dewey must either file a notice of abandonment of the unexhausted claims,

5

indicating that she elects to abandon the unexhausted claims and proceed with the litigation of her

6

remaining exhausted claims, or, alternatively, file a motion for stay, requesting a stay of these

7

proceedings while she exhaust the unexhausted claims in state court. If Dewey elects to file a

8

motion for stay, she must make a showing that a stay is warranted, as prescribed in the Supreme

9

Court case of Rhines v. Weber, 544 U.S. 269 (2005). If Dewey does not, within the time allowed,

10

file a notice of abandonment of all her unexhausted claims, or a motion for a stay, her entire first

11

amended habeas petition will be dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

12

IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 41) is

13

GRANTED IN PART AND DENIED IN PART. The motion to dismiss is granted to the extent

14

that the court finds Claims 5A, 5B, 5C and 5D to be unexhausted in state court, and directs petitioner

15

to make an election regarding those claims. In all other respects, the motion to dismiss is denied.

16

IT IS FURTHER ORDERED that petitioner shall have 30 days from the entry of this order

17

to file a notice of abandonment of all her unexhausted claims, or a motion for a stay to allow her to

18

exhaust the unexhausted claims in state court.

19

IT IS FURTHER ORDERED that, if petitioner files a notice of abandonment of her

20

unexhausted claims, respondents shall file an answer, responding to petitioner’s remaining exhausted

21

claims, within 60 days after the notice of abandonment is filed, and, thereafter, petitioner shall file a

22

reply within 60 days after the answer is filed.

23

IT IS FURTHER ORDERED that, if petitioner files a motion for a stay to allow exhaustion

24

of her unexhausted claims in state court, respondents shall thereafter have 30 days to file a response

25

to that motion, and petitioner shall have 20 days, following respondents’ response to the motion, to

26

file a reply.

14

1

IT IS FURTHER ORDERED that, if petitioner does not, within the time allowed, file a

2

notice of abandonment of all her unexhausted claims, or a motion for a stay to allow exhaustion of

3

her unexhausted claims in state court, petitioner’s entire first amended habeas petition will be

4

dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

5
Dated this 28th day of October, 2015
6
7
8

LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

15