Towles v. Baca et al

Filing 20

ORDERED that respondents' motion to dismiss (ECF No. 17 ) is GRANTED as follows: The claim in ground 2 that petitioner's sentence is cruel and unusual in violation of the Eighth Amendment is EXHAUSTED. The following grounds are DISMISSED as set forth in this order: grounds 1, 3, 4, 5 and all other claims in ground 2. Respondents shall have thirty 30 days from the date of this order to file an answer to petitioner's remaining ground for relief. Petitioner shall have 30 days following service of respondents' answer in which to file a reply. Signed by Judge Howard D. McKibben on 8/1/2017. (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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DEE V. TOWLES,

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Case No. 3:16-cv-00050-HDM-WGC
Petitioner,

ORDER

v.
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BACA, 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 several grounds in petitioner Dee V. Towles’ petition

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(ECF No. 17).

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I.

Procedural History and Background

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Towles was originally charged with one count of sexual assault and one count of

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lewdness with a child under age 14 (exhibits. 1, 3).1 On February 10, 2009, Towles was

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convicted pursuant to a guilty plea agreement of one count of misdemeanor disturbing

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the peace. Exh. 12. The state district court sentenced Towles to six months in county

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jail. Ex. 11. The sentence was to run consecutively to case no. C70938 wherein he

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was sentenced to two concurrent sentences of life with the possibility of parole and a

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concurrent five-year sentence for lewdness with a minor.

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Judgment of conviction was filed on February 25, 2009. Exh. 12.

Exhs. 10, 11, 12, 13.

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 17, and are found
at ECF No. 18.

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Ultimately, on January 27, 2015, the state district court vacated Towles’ sentence in
this case because it found that the prosecution had violated the terms of the plea
agreement. Exh. 22. The state district court resentenced Towles and imposed the
same sentence – six months consecutive to his sentences in C70938. Exhs. 23, 24.
The Nevada Supreme Court affirmed the amended conviction on August 25, 2015,
and remittitur issued on September 21, 2015. Exhs. 28, 29.
The court received Towles’ federal habeas petition on February 2, 2016 (see ECF
No. 1).

Respondents now argue that several grounds are subject to dismissal as

unexhausted and noncognizable in federal habeas corpus (ECF No. 17).
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II. Legal Standards
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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.
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Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state
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courts a fair opportunity to act on each of his claims before he presents those claims in
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a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also
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Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
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petitioner has given the highest available state court the opportunity to consider the
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claim through direct appeal or state collateral review proceedings. See Casey v. Moore,
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386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.
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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
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(D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court
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must be “alerted to the fact that the prisoner [is] asserting claims under the United
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States Constitution” and given the opportunity to correct alleged violations of the
prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b)
“provides a simple and clear instruction to potential litigants: before you bring any claims
to federal court, be sure that you first have taken each one to state court.” Jiminez v.
Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520
(1982)). “[G]eneral appeals to broad constitutional principles, such as due process,
equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However,
citation to state caselaw that applies federal constitutional principles will suffice.
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc ).
A claim is not exhausted unless the petitioner has presented to the state court the
same operative facts and legal theory upon which his federal habeas claim is based.
Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The
exhaustion requirement is not met when the petitioner presents to the federal court facts
or evidence which place the claim in a significantly different posture than it was in the
state courts, or where different facts are presented at the federal level to support the
same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge
v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455,
458 (D. Nev. 1984).
b. Guilty Plea and Federally Cognizable Claims
In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the United States Supreme
Court held that “when a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” A petitioner may only attack the voluntary and intelligent
character of the guilty plea. Id. When a petitioner has entered a guilty plea then

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subsequently seeks to claim his counsel rendered ineffective assistance, such claim is
limited to the allegation that defense counsel was ineffective in advising petitioner to
plead guilty. Fairbank v. Ayers, 650 F.3d 1243, 1254–1255 (9th Cir.2011) (citing Tollett,
411 U.S. at 266–267, and explaining that because a guilty plea precludes a claim of
constitutional violations prior to the plea, petitioner’s sole avenue for relief is
demonstrating that advice of counsel to plead guilty was deficient); Lambert v. Blodgett,
393 F.3d 943, 979 (9th Cir.2004).

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c. Claims Cognizable in Federal Habeas Corpus
A state prisoner is entitled to federal habeas relief only if he is being held in custody
in violation of the constitution, laws or treaties of the United States.

28 U.S.C. §

2254(a). Unless an issue of federal constitutional or statutory law is implicated by the
facts presented, the claim is not cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). A petitioner may not transform a state-law issue into
a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d
1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation or application of state
law do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir.
2004).
Generally, a challenge to a state evidentiary ruling does not involve a deprivation of
a federal constitutional right, and therefore, is not cognizable in a federal habeas
petition. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a federal writ is not
available for alleged error in the interpretation or application of state law); Rhoades v.
Henry, 638 1027, 1034, n. 5 (9th Cir. 2011) (“[E]videntiary rulings based on state law
cannot form an independent basis for habeas relief.”); Butcher v. Marquez, 758 F.2d
373, 378 (9 th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9 th Cir. 1983).
d. Conclusory Claims
In federal habeas proceedings, notice pleading is not sufficient. Mere conclusions of
violations of federal rights without specifics do not state a basis for federal habeas relief.

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Mayle v. Felix, 545 U.S. 644, 655 (2005). A petition may be summarily dismissed if the
allegations in it are “vague, conclusory, palpably incredible, patently frivolous or false.”
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal citations omitted); see
also Blackledge v. Allison, 431 U.S. 63, 74 (1977).

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III.

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In his appeal of the amended judgment of conviction, Towles presented one claim to
the Nevada Supreme Court:

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forth five grounds for relief in his federal petition.2 Respondents are correct that the only
exhausted claim in the petition is the portion of ground 2 that asserts that his sentence
is excessive in violation of the Eighth Amendment. As discussed below, the remaining
claims are unexhausted; further, they are subject to dismissal as either noncognizable
in federal habeas corpus or vague and conclusory.
In ground 1 Towles claims, without elaboration, that his Fifth Amendment rights were
violated by prosecutorial misconduct, significant judicial error, Brady violations,
Strickland violations, Brecht violations, that there was insufficient evidence to convict
him and that structural defects occurred. (ECF No. 9, p. 3). Ground 1 has not been
presented to the highest state court and is unexhausted. The claims are also vague
and conclusory. Moreover, as Towles may only attack the voluntary and intelligent
character of the guilty plea, a claim of insufficient evidence is barred by Tollett.
Therefore, ground 1 is dismissed as vague, conclusory and noncognizable in federal
habeas corpus.

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that his six-month sentence violated the Eighth

Amendment prohibition against cruel and unusual punishment. Exh. 26. Towles sets

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Instant Petition

Towles contends generally in ground 2 that serious structural defects at both the
original sentencing and the re-sentencing violated fair procedure and his Eighth
Amendment rights. (ECF No. 9, p. 5). This first portion of ground 2 is vague and
conclusory and is dismissed accordingly.

As stated above, Towles also claims in

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The court granted Towles’ motion to amend his petition and construed the amended petition as petitioner’s
filings at ECF Nos. 9 and 10 taken together (see ECF No. 13).

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ground 2 that his sentence shocks the conscience in violation of his Eighth Amendment
rights. Id. This portion of ground 2 is exhausted.
In ground 3 Towles argues that the State violated his Fourth, Fifth and Sixth
Amendment rights and the exclusionary rule by not providing him with proper notice,
that the counts in the amended information were filed outside the legally provided period
of limitations, and that the State improperly admitted evidence. (ECF No. 10, p. 2).
Ground 3 is entirely unexhausted. Towles also mentions the exclusionary rule with no
specific factual allegations.

Finally, the claims of violation of state law are not

cognizable in federal habeas corpus. Estelle, 502 U.S. at 67–68. Ground 3 is therefore
dismissed.
Towles contends in ground 4 that his Fourth and Eighth Amendment rights were
violated because the Justice Court did not have probable cause to believe that he was
the person who committed the alleged acts (ECF No. 10, p. 3).

This claim is

unexhausted and also barred by his subsequent guilty plea. Tollett, 411 U.S. at 267.
Ground 4, accordingly, is dismissed.
Finally, in ground 5 Towles asserts without elaboration that his Fourth and
Fourteenth Amendment rights were violated because improper evidence that was “not
legal” was admitted at the preliminary hearing.

(ECF No. 10, p. 4).

Ground 5 is

unexhausted. Also, as discussed with respect to claims in ground 3, generally, a statelaw evidentiary issue is not cognizable in federal habeas corpus. See Estelle, 502 U.S.
at 67–68. Ground 5 is, therefore, dismissed as noncognizable.
IV.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 17)

is GRANTED as follows:
The claim in ground 2 that petitioner’s sentence is cruel and unusual in violation
of the Eighth Amendment is EXHAUSTED.

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The following grounds are DISMISSED as set forth in this order: grounds 1, 3, 4,
5 and all other claims in ground 2.

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IT IS FURTHER ORDERED that respondents shall have thirty (30) days from
the date of this order to file an answer to petitioner’s remaining ground for relief.3 The
answer shall contain all substantive and procedural arguments as to all surviving
grounds of the petition, and shall comply with Rule 5 of the 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 shall have thirty (30) days following
service of respondents’ answer in which to file a reply.

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Dated: August 1, 2017.
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Howard D. McKibben
Senior U.S. District Judge

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The ground remaining before the court is the subpart of ground 2 that claims that petitioner’s sentence is
excessive and constitutes cruel and unusual punishment in violation of the Eighth Amendment (ECF No. 9,
p. 5).

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