Contreras v. State of Nevada et al

Filing 20

ORDER granting in part ECF No. 12 Motion to Dismiss. Due-process claim in ground 4, and ground 5(b) are dismissed. Clerk shall send petitioner habeas corpus form with instructions (mailed 6/30/16). Amended petition due within 30 days. Signed by Judge Larry R. Hicks on 6/29/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTONIO PIMENTEL CONTRERAS,

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Petitioner,

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vs.

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STATE OF NEVADA, et al.,

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Case No. 3:15-cv-00061-LRH-VPC

Respondents.

ORDER

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Before the court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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(ECF No. 6) and respondents’ motion to dismiss (ECF No. 12). The court finds that petitioner has

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not named the correct respondent and that petitioner has not exhausted his state-court remedies for

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two of his grounds. The court grants the motion in part.

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Pursuant to a plea agreement, petitioner was convicted in state district court of level-three

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trafficking in a controlled substance. Ex. 49 (ECF No. 14-23). Petitioner did not appeal the

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judgment.

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Petitioner filed a proper-person post-conviction habeas corpus petition in state district court.

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Ex. 51 (ECF No. 15). The state district court appointed counsel, who filed a supplement to the

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petition. Ex. 71 (ECF No. 15-20). After an evidentiary hearing, the state district court denied the

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petition. Ex. 104 (ECF No. 17-3). Petitioner appealed, and the Nevada Supreme Court affirmed.

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Ex. 120 (ECF No. 17-19).

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Petitioner then commenced this action.
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Respondents first argue that petitioner has named the incorrect respondent. The correct

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respondent is the warden of the prison where petitioner is held. Petitioner will need to file an

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amended petition in which he names the correct respondent.

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Respondents next argue that two grounds for relief are not completely exhausted. Before a

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federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the

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remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner

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must fairly present that ground to the state’s highest court, describing the operative facts and legal

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theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry,

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513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

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“[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state

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remedies only if he characterized the claims he raised in state proceedings specifically as federal

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claims. In short, the petitioner must have either referenced specific provisions of the federal

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constitution or statutes or cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.

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2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that

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applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158

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(9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal error is

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insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles,

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such as due process, equal protection, and the right to a fair trial, are insufficient to establish

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exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

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In ground 4, petitioner invokes the Fifth Amendment’s guarantee of due process and the

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Sixth Amendment’s right to effective assistance of counsel. He alleges, in full, “Counsel was

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ineffective [as] representative for Mr. Contreras who had been untimely arraigned by the court

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(arraignment delay) prejudiced the defense.” ECF No. 6, at 9. Respondents argue that petitioner

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has not presented any due-process claim to the Nevada Supreme Court on this issue. Respondents

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are correct. However, the allegations of the ground support only a claim of ineffective assistance of

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counsel. The due-process claim is unexhausted, but it also is without merit. Instead of requiring

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petitioner to decide what to do with the due-process claim, the court will dismiss it. See 28 U.S.C. §

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2254(b)(2).
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In ground 5, petitioner invokes the Fifth, Sixth, and Fourteenth Amendments. Based upon

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the fast-track statement in the appeal from the denial of the state post-conviction petition, Ex. 112

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(ECF No. 17-11), and the decision of the Nevada Supreme Court in that appeal, Ex. 120 (ECF No.

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17-19), there appear to be three separate claims in ground 5. Petitioner alleges, with the court’s

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designation of those claims:

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[a] The guilty plea was not knowingly and voluntary as it was based upon misrepresentation
by counsel/promise of counsel that was erroneous; [b] the credit for time served credited by
the court was wrong and [c] Mr. Contreras (Contreras) was denied his right to appeal by
counsel’s conduct.

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ECF No. 6, at 11. Petitioner presented what are now grounds 5[a] and 5[c] to the Nevada Supreme

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Court on appeal from the denial of the state habeas corpus petition. Ex. 112, at 15-17 (ECF No. 17-

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11, at 16-18). The Nevada Supreme Court ruled on the merits of those claims. Ex. 120, at 3-4 (ECF

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No. 17-19, at 4-5) (paragraphs starting “Fourth” and “Fifth”). Respondents argue that ground 5[b]

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is unexhausted because petitioner never presented the claim to the Nevada Supreme Court as an

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issue of federal law. Petitioner did argue in his fast-track statement that the state district court

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calculated the credits for time served in pre-sentence detention incorrectly, but he argued the issue

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solely as a matter of state law, not federal law. Ex. 112, at 17-18 (ECF No. 17-11, at 18-19). The

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Nevada Supreme Court treated the argument as a claim of ineffective assistance of counsel. Ex.

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120, at 4-5 (ECF No. 17-19, at 5-6). Respondents are correct that the federal-law issue as presented

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in ground 5[b] is unexhausted. However, ground 5[b] also is without merit. Nev. Rev. Stat.

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§ 176.055 allows a person to receive credit against his sentence for the time that he spent in pre-

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sentence confinement. Although § 176.055 is written in discretionary terms, it creates an

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entitlement to credit for time served. Kuykendall v. State, 926 P.2d 781 (Nev. 1996). A person

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receives pre-sentence credits for the time spent in detention prior to the sentencing hearing; time

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spent in detention after sentencing but before entry of the judgment of conviction is time served

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pursuant to the judgment of conviction. See Nev. Rev. Stat. § 176.335(3). Petitioner has received

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all the pre-sentence credits to which he is entitled. If he were to receive pre-sentence credits for the

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days spent between the sentencing hearing and the entry of the judgment of conviction, those days

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would be counted twice impermissibly. Instead of requiring petitioner to decide what to do with

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ground 5[b], the court will dismiss it. See 28 U.S.C. § 2254(b)(2).

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Respondents next argue that grounds 3, 4, and 5 are conclusory and therefore not cognizable

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in this action. The court already has dismissed the due-process claim in ground 4 and ground 5[b],

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the claim that the trial court incorrectly calculated the credits for time spent in pre-sentence

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detention. The remaining claims, although presented conclusorily in this court, also were presented

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with detail to the Nevada Supreme Court. This court will be able to determine whether the Nevada

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Supreme Court’s decisions on these claims were contrary to, or an unreasonable application of,

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clearly established federal law, even if petitioner’s allegations are sparse. See 28 U.S.C.

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§ 2254(d)(1).
Finally, respondents argue that ground 5[b], regarding the calculation of credits for time

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spent in pre-sentence detention, is barred because it is solely a claim of state law. The court already

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has dismissed this claim because, even if it did allege a violation of federal law, it was unexhausted

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and also without merit. See 28 U.S.C. § 2254(b)(2).

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Petitioner will need to file an amended petition, in which he does two things. First,

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petitioner must name as respondent the warden of the prison where he is held. Second, petitioner

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must eliminate the claims that the court has found to be without merit. In the case of ground 4,

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petitioner must not allege a violation of the Due Process Clause of the Fifth Amendment. In the

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case of ground 5, petitioner must not allege the part of the ground that the court has described as

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ground 5[b]. The amended petition will replace the original petition completely. Therefore,

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petitioner will need to re-allege all of his other grounds that have not been dismissed, without

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reference back to the original petition, or those grounds will be waived.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (#12) is GRANTED in

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part. The due-process claim in ground 4, and ground 5[b], as described above, are DISMISSED

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from this action.

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IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner shall have

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thirty (30) days from the date that this order is entered in which to file an amended petition to
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correct the noted deficiencies. Neither the foregoing deadline nor any extension thereof signifies or

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will signify any implied finding of a basis for tolling during the time period established. Petitioner

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at all times remains responsible for calculating the running of the federal limitation period under 28

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U.S.C. § 2244(d)(1) and timely asserting claims. Failure to comply with this order will result in the

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dismissal of this action.

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IT IS FURTHER ORDERED that petitioner shall clearly title the amended petition as such

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by placing the word “AMENDED” immediately above “Petition for a Writ of Habeas Corpus

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Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and petitioner shall place the case number,

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3:15-cv-00061-LRH-VPC, above the word “AMENDED.”

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DATED this 29th day of June, 2016.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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