Follett v. LeGrand et al

Filing 16

ORDER - Respondents' motion to dismiss (ECF No. 4 ) is GRANTED IN PART AND DENIED IN PART. The court finds Ground 2 of the habeas petition (ECF No. 1 ) to be unexhausted in state court; the court will grant petitioner an opportunity to make an election with respect to that claim. In all other respects, respondents' motion to dismiss is denied. IT IS FURTHER ORDERED that, with respect to Ground 2, which is unexhausted in state court, petitioner must by 1/5/2017 make an electio n to do one of the following: (1) file a notice stating that he wishes to abandon Ground 2 and proceed with this action with regard to his remaining claims, or (2) file a motion for a stay pending exhaustion. Signed by Judge Howard D. McKibben on 11/21/2016. (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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LOREN RAYMOND FOLLETT

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Petitioner,

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vs.

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ROBERT LeGRAND, et al.,

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3:16-cv-00370-HDM-WGC

Respondents.

ORDER

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_________________________________/

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Introduction
In this habeas corpus action, brought by Nevada prisoner Loren Raymond Follett, the

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respondents have filed a motion to dismiss. The court will grant that motion in part and deny it in

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part. The court finds one claim in Follett’s habeas petition to be unexhausted in state court. The

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court will require Follett to make an election regarding that unexhausted claim. In all other respects,

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the court will deny the motion to dismiss.

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Background

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Follett was convicted of sexual assault in Nevada’s Second Judicial District Court, and he

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was sentenced to life in prison with the possibility of parole after ten years. See Judgment of

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Conviction, Exhibit 43 (ECF No. 9-3) (The exhibits referred to in this order were filed by

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respondents and are located in the record at ECF Nos. 7, 8, 9, 10 and 11.). The judgment of

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conviction was entered on March 30, 2012. See id.

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Follett appealed and the Nevada Supreme Court affirmed on May 15, 2013. See Order of
Affirmance, Exhibit 64 (ECF No. 10-4).
Follett filed a petition for writ of habeas corpus in the state district court on April 21, 2014.

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See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 73 (ECF Nos. 10-13, 10-14,

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10-15). The state district court dismissed Follett’s petition in an order filed November 21, 2014.

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See Order Granting Motion to Dismiss, Exhibit 80 (ECF No. 10-22). Follett appealed, and the

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Nevada Supreme Court affirmed on March 17, 2016. See Order of Affirmance, Exhibit 94 (ECF

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No. 11-14).
Follett initiated this federal habeas corpus action on June 23, 2016. In his federal habeas

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petition (ECF No. 1), Follett asserts five claims. In Ground 1, Follett claims that he was denied his

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federal constitutional rights as a result of jury instructions regarding sexual assault. See Petition for

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Writ of Habeas Corpus (ECF No. 1), pp. 6-11. In Ground 2, Follett claims that his federal

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constitutional rights were violated “because the trial court erred in permitting the State to present the

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testimony of an ‘expert’ about matters that were irrelevant, would be confusing to the jury, and

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would not be helpful to the jury’s understanding of any issue in the case.” See id. at 11-19. In

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Ground 3, Follett claims that he was denied his federal constitutional right to effective assistance of

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counsel because his trial counsel “failed to pursue defenses available to petitioner by failing to

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properly investigate the case and interview witnesses who could assist in petitioner’s defense.” See

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id. at 19-22. In Ground 4, Follett claims that he was denied his federal constitutional right to

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effective assistance of counsel because his appellate counsel “failed to pursue defenses available to

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petitioner or even file a reply on direct appeal.” See id. at 22-23. And, finally, Ground 5 is a

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cumulative error claim; Follett claims that his federal constitutional rights were violated as a result of

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the multiple errors described in his petition. See id. at 23-25.

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Respondents filed their motion to dismiss (ECF No. 4) on August 31, 2016. In the motion to

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dismiss, respondents contend that Grounds 2 and 5 are unexhausted in state court. See Motion to

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Dismiss (ECF No. 4), pp. 2-4. Respondents also assert that there exists a possibility of a conflict of

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interest on the part of Follett’s counsel, but they do not seek dismissal or other relief on that basis.

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See id. at 4-5. And, finally, in their motion, respondents point out that Follett’s petition is

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unverified. See id. at 5. Follet filed an opposition to the motion to dismiss on November 2, 2016

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(ECF No. 14). Respondents replied on November 10, 2016 (ECF No. 15).

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Discussion

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

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

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

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

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

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

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

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the operative facts and legal theory upon which the claim is based. See Anderson v. Harless, 459

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U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d 859, 862 (9th

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Cir. 1982).

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Respondents assert in their motion to dismiss that Follett has not exhausted his state-court

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remedies with respect to Ground 2. See Motion to Dismiss (ECF No. 4), pp. 2-4. Ground 2 is

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Follett’s claim that he was denied his federal constitutional rights “because the trial court erred in

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permitting the State to present the testimony of an ‘expert’ about matters that were irrelevant, would

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be confusing to the jury, and would not be helpful to the jury’s understanding of any issue in the

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case.” See Petition for Writ of Habeas Corpus, pp. 11-19.

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Follett raised a claim similar to Ground 2 on his direct appeal. See Appellant’s Opening

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Brief, Exhibit 59, pp. 14-20 (ECF No. 9-19, pp. 19-25). However, there, on his direct appeal,

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Follett’s claim was based completely on state law; he gave no indication that he claimed a federal

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constitutional violation. See id. Follett also raised a claim similar to Ground 2 on the appeal in his

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state habeas action. See Appellant’s Opening Brief, Exhibit 90, pp. 21-29 (ECF No. 11-10, pp. 22-

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30). There again, however, Follett did not claim a federal constitutional violation. See id.; see also

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Appellant’s Reply Brief, Exhibit 93 (ECF No. 11-13). For purposes of the exhaustion requirement

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in a federal habeas action, it is not enough that the petitioner presented to the state court the facts

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necessary to support an unidentified federal claim, or that the petitioner presented to the state court a

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state law claim that is similar to the federal constitutional claim he asserts in federal court. See

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Baldwin v. Reese, 541 U.S. 27, 28 (2004); Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000)

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(mere similarity between state and federal claims is insufficient to establish exhaustion). Ground 2

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is unexhausted in state court.

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Respondents also argue that Ground 5, Follett’s cumulative error claim, is unexhausted in

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state court. The court disagrees. Follett’s cumulative error claim is exhausted so long as he has

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multiple exhausted claims to be considered cumulatively, and that appears to be the case here; there

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is no dispute with respect to the question of exhaustion of Grounds 1, 3 and 4.

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The court will require Follett to make an election regarding Ground 2. With respect to

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Ground 2, Follett must elect to do one of the following: (1) file a notice stating that he wishes to

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abandon Ground 2 and proceed in this action with the litigation of his other claims; or (2) file a

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motion for a stay, under Rhines v. Weber, 544 U.S. 269 (2005), requesting a stay of this action while

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he exhausts his unexhausted claim in state court.

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Follett is warned that, if he does not make this election, as required, within the time allowed,

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the Court will dismiss this entire action, “without prejudice,” pursuant to Rose v. Lundy, 455 U.S.

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509 (1982). Follett is further warned that if this action is dismissed in its entirety, nominally

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“without prejudice,” he may be barred by the statute of limitations from ever initiating any

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subsequent federal habeas corpus action regarding the conviction and sentence that are the subject of

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this case. That is because, unless there is some form of tolling available to Follett that is not now

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apparent to the Court, the limitations period imposed by 28 U.S.C. § 2244(d) has either already run

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out or will likely run out before a new federal habeas action could be initiated. A federal habeas

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corpus petition does not toll the statute of limitations relative to a subsequent federal habeas action.

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See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that “an application for federal habeas

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corpus review is not an ‘application for State post-conviction or other collateral review’ within the

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meaning of 28 U.S.C. § 2244(d)(2)”). If Follett elects to file a motion for a stay, to show that a stay

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is warranted, he must make the showing required under Rhines.

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Potential Conflict of Interest

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The court notes that, as Follett is represented in this case by the same counsel who

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represented him in his state habeas action, there is a potential conflict of interest. However,

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respondents do not argue that there is now an actual conflict of interest, and respondents do not

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request any relief in this regard. Therefore, the court does not further address this issue.

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Verification of Petition

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Respondents point out that Follett’s habeas petition is not verified as required by 28 U.S.C.

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§ 2242 and Rule 2(c)(5) of the Rules Governing Section 2254 Cases in the United States District

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Courts. In response, Follett filed what appears to be a verification of the petition. See Verification,

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attached to Opposition to Motion to Dismiss (ECF No. 14, p. 6) (“I declare under penalty of perjury

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that I am the attorney of record for Petitioner, and that to the best of my knowledge, the foregoing is

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true and correct, and that I am the person authorized to sign this Petition under 28 U.S.C. 2254.”)

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This argument by respondents is, therefore, moot.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 4) is
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GRANTED IN PART AND DENIED IN PART. The court finds Ground 2 of the habeas petition

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(ECF No. 1) to be unexhausted in state court; the court will grant petitioner an opportunity to make

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an election with respect to that claim. In all other respects, respondents’ motion to dismiss is denied.

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IT IS FURTHER ORDERED that, with respect to Ground 2, which is unexhausted in state

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court, petitioner must, within 45 days from the date of this order, make an election; within that time,

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petitioner must do one of the following: (1) file a notice stating that he wishes to abandon Ground 2

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and proceed with this action with regard to his remaining claims, or (2) file a motion for a stay,

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requesting that this case be stayed while he exhausts the unexhausted claim in state court. If

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petitioner does not make that election within the time allowed, the court will dismiss this entire

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action, without prejudice, pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

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Dated this 21st day of November, 2016.

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UNITED STATES DISTRICT JUDGE
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