Swanson v. LeGrand et al

Filing 11

ORDER- Respondents' motion to dismiss (ECF No. 7) is granted in part as follows: Grounds 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), 2(e), 2(f), 2(g), 2(h), 2(i), and 2 (j) are all dismissed for failure to state a claim for which federal habeas relief may be granted. Grounds 1(d),1(e), and 2(d) are exhausted. Respondents' motion for leave to file exhibits under seal (ECF No. 8) is granted. Answer/response to the remaining grounds in the petition due by 3/27/2017. Reply due 30 days following service of answer. Signed by Judge Miranda M. Du on 1/25/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TREVOR SWANSON,

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Case No. 3:15-cv-00405-MMD-WGC
Petitioner,

ORDER

v.
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ROBERT LeGRAND, et al.,
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Respondents.
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This pro se habeas matter under 28 U.S.C. § 2254 comes before the Court on

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respondents’ motion to dismiss petitioner Trevor Swanson’s petition (ECF No. 7).

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Swanson did not file an opposition or respond to the motion in any way. Respondents

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filed a reply in support of their motion (ECF No. 10).

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I.

PROCEDURAL HISTORY AND BACKGROUND

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On September 4, 2012, Swanson pleaded guilty to one count of second-degree

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murder (exhibit 6 to respondents’ motion to dismiss, ECF No. 7).1 The state district court

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sentenced Swanson to life in prison with the possibility of parole after ten years. (Exh.

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12.) Judgment of conviction was filed on October 18, 2012. (Id.)

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Swanson did not file a direct appeal. The Nevada Supreme Court affirmed the

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denial of his counseled state postconviction petition on July 14, 2015, and remittitur

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issued on August 10, 2015. (Exhs. 77, 78.)

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1Exhibits

referenced in this order are exhibits to respondents’ motion to dismiss,
ECF No. 7, and are all attachments to ECF No. 7.

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On August 7, 2015, Swanson dispatched his federal habeas corpus petition for

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filing. (ECF No. 4.) Respondents argue that the petition should be dismissed because the

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grounds are unexhausted or are barred from federal habeas review. (ECF No. 7.)

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II.

LEGAL STANDARDS AND ANALYSIS

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A.

Exhaustion

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A federal court will not grant a state prisoner’s petition for habeas relief until the

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prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy,

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455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair

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opportunity to act on each of his claims before he presents those claims in a federal

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habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v.

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Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has

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given the highest available state court the opportunity to consider the claim through direct

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appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916

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(9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

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A habeas petitioner must “present the state courts with the same claim he urges

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upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal

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constitutional implications of a claim, not just issues of state law, must have been raised

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in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D.

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Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court must

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be “alerted to the fact that the prisoner [is] asserting claims under the United States

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Constitution” and given the opportunity to correct alleged violations of the prisoner’s

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federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d

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1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple

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and clear instruction to potential litigants: before you bring any claims to federal court, be

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sure that you first have taken each one to state court.” Jiminez v. Rice, 276 F.3d 478, 481

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(9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). “[G]eneral appeals to

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broad constitutional principles, such as due process, equal protection, and the right to a

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fair trial, are insufficient to establish exhaustion.” Hiivala, 195 F.3d at 1106. However,
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citation to state case law that applies federal constitutional principles will suffice. Peterson

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

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A claim is not exhausted unless the petitioner has presented to the state court the

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same operative facts and legal theory upon which his federal habeas claim is based.

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Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The

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exhaustion requirement is not met when the petitioner presents to the federal court facts

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or evidence which place the claim in a significantly different posture than it was in the

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state courts, or where different facts are presented at the federal level to support the same

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theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v.

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Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458

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(D. Nev. 1984).

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B.

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In Tollett v. Henderson, the United States Supreme Court held that “when a

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criminal defendant has solemnly admitted in open court that he is in fact guilty of the

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offense with which he is charged, he may not thereafter raise independent claims relating

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to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”

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411 U.S. 258, 267 (1973). A petitioner may only attack the voluntary and intelligent nature

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of the guilty plea. Id. When a petitioner has entered a guilty plea then subsequently seeks

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to claim his counsel rendered ineffective assistance, such claim is limited to the allegation

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that defense counsel was ineffective in advising the petitioner to plead guilty. Fairbank v.

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Ayers, 650 F.3d 1243, 1254-1255 (9th Cir.2011).

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III.

Tollett v. Henderson and Guilty Plea

INSTANT PETITION

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A.

Ground 1

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Swanson contends that his Fifth, Sixth and Fourteenth Amendment rights to due

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process, equal protection and effective assistance of counsel were violated in several

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ways. He alleges:

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1(a): the court admitted statements made by the petitioner when the Reno Police

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Department ignored Swanson’s request to stop the interview and consult with an attorney;
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1(b): Swanson’s confession was not voluntary because he was in withdrawal after

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at least a five-day alcohol and drugs binge and because he confessed after at least six

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hours of verbal and physical assaults during the custodial interrogation;
1(c): he was only allowed to attend three court appearances during his entire legal

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proceedings and was not allowed to watch the videos of proceedings;

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1(d) plea counsel did not advise Swanson of his right to appeal his conviction;

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1(e) Swanson “asked counsel if we could appeal . . . but counsel did nothing after

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petitioner said he would like to.” (ECF No. 4 at 2-3.)

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Grounds 1(a) through 1(c) all allege constitutional violations that occurred prior to

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Swanson pleading guilty. Accordingly, these three subparts are barred by Tollett. They

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are dismissed for failure to state a claim for which federal habeas relief may be granted.

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Next, respondents argue that grounds 1(d) and 1(e) are unexhausted. (ECF No. 7

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at 4-5.) However, Swanson presented these claims to the Nevada Supreme Court in his

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appeal of the denial of his state postconviction petition. (Exh. 68 at 12-14.)

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Respondents also argue that grounds 1(d) and 1(e) should be dismissed because

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no factual allegations were developed in state court as the state court denied an

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evidentiary hearing. (ECF No. 7 at 7.) However, as discussed immediately above,

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Swanson has raised the same factual allegations to the Nevada Supreme Court that he

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raises in federal grounds 1(d) and 1(e). Respondents’ argument that grounds 1(d) and

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1(e) are subject to dismissal at this time for failure to develop a factual record lacks merit.

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B.

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In ground 2, Swanson contends that his Sixth and Fourteenth Amendment rights

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Ground 2

to effective assistance of counsel were violated as follows:

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2(a): counsel failed to provide an adequate defense;

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2(b): counsel did not appropriately advise petitioner throughout all stages of his

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legal proceedings;
2(c): counsel showed disdain and contempt toward Swanson and his family;

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2(e): counsel made no effort to investigate the actual facts of the case, including

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investigating the victim’s mother, and failed to obtain all police witness statements and

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videos;

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2(f): counsel refused petitioner’s request for a polygraph test;

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2(g): counsel did not challenge or move to suppress Swanson’s confession;

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2(h): counsel refused petitioner’s request to review discovery;

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2(i): counsel withheld records and discovery that might contain exculpatory

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forensic findings;
2(j): counsel abandoned petitioner and/or collaborated with the prosecution to

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convict petitioner. (ECF No. 4 at 5-9.)

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These claims all allege constitutional violations that occurred prior to Swanson

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entering into the guilty plea agreement. Therefore, these claims are foreclosed by Tollett.

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In ground 2(d), Swanson contends that he was scared into pleading guilty because

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his counsel told him if he did not accept the deal he would “help the prosecutor convict

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[Swanson] of first-degree murder and go for the death penalty” and told him “I believe you

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did it and if I could get my hands on you, I’ll kick your ass, I’ll rip off your arms and beat

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you with them.” He argues that he was suffering from lack of sleep and lack of proper

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nutrition for eleven months, and plea counsel overwhelmed him and pressured him into

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signing the plea agreement. (ECF No. 4 at 5, 8.) While respondents argue that ground

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2(d) is unexhausted, Swanson raised these claims to the Nevada Supreme Court in his

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appeal of the denial of his state postconviction petition. (Exh. 68 at 10-11.) Because the

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state district court denied an evidentiary hearing on the state postconviction petition,

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respondents again argue that Swanson has failed to develop a factual basis for federal

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ground 2(d). (ECF No. 7 at 7.) This argument is better addressed in the context of the

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disposition of the merits of the claim, and this Court declines to dismiss ground 2(d) at

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this time.

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IV.

CONCLUSION
It is therefore ordered that respondents’ motion to dismiss (ECF No. 7) is granted

in part as follows:
Grounds 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), 2(e), 2(f), 2(g), 2(h), 2(i), and 2 (j) are all
dismissed for failure to state a claim for which federal habeas relief may be granted.

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Grounds 1(d),1(e), and 2(d) are exhausted.

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It is further ordered that respondents’ motion for leave to file exhibits under seal

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(ECF No. 8) is granted.

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It is further ordered that respondents will have sixty (60) days from the date of entry

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of this order to file an answer to the remaining grounds in the petition. The answer must

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contain all substantive and procedural arguments and must comply with Rule 5 of the

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Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254.

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It is further ordered that petitioner will have thirty (30) days following service of

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respondents’ answer in which to file a reply.
DATED THIS 25th day of January 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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