Hermanson v. Baca et al

Filing 43

ORDER that Respondents' motion to dismiss (ECF No. 31 ) is GRANTED IN PART and DENIED IN PART as follows: (1) Ground Three states a cognizable claim but is unexhausted; (2) Grounds 2, 4 and 5 are technically exhausted but procedurally defaulte d; Petitioner will have until 7/3/2019 to advise the court how he would like to proceed with his mixed petition by electing one of the options set forth herein order. Signed by Judge Howard D. McKibben on 6/3/2019. (Copies have been distributed pursuant to the NEF - LH) Modified on 6/3/2019 to link (LH).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES E. HERMANSON,

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Petitioner,
v.
ISIDRO BACA, et al.,
Respondents.
_______________________________

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3:17-cv-00721-HDM-CBC
ORDER

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This counseled habeas matter pursuant to 28 U.S.C. § 2254 comes

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before the court on respondents’ motion to dismiss the petition as

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partially unexhausted and non-cognizable. (ECF No. 31). Petitioner has

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opposed (ECF No. 37), and respondents have replied (ECF No. 41).

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Petitioner challenges his 2013 state court conviction for sexual

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assault of a child under the age of 16. (ECF No. 21 at 2). He has

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filed a second amended petition asserting five grounds for relief.

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Respondents move to dismiss the petition as mixed because, as conceded

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by petitioner, Grounds 2, 4 and 5 are unexhausted. Respondents further

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argue that Ground 3 is not cognizable or, in the alternative, is also

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unexhausted.

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In Ground 3, petitioner asserts that his federal due process

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rights were violated because the state court sentenced him without

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lawful authority to do so. Specifically, he asserts that he was

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sentenced without a presentence investigation report, which was

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impermissible under state law. (ECF No. 21 at 20-21). Respondents

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argue that Ground 3 asserts only a state law violation, which is not
a cognizable federal habeas claim.

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Petitioner frames Ground 3 as a violation of due process arising

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from a state law violation. The fact that petitioner has predicated

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his

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automatically render the claim a non-cognizable state law claim.

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While it is true that a violation of state law will not, standing

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alone, violate due process, it may rise to the level of a due process

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violation if it renders the petitioner’s trial fundamentally unfair.

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See Estelle v. McGuire, 502 U.S. 62, 67 (1991). The question of

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whether the violation in this case rose to the level of a due process

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violation is not a question that should be resolved on a motion to

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dismiss. The motion to dismiss Ground 3 as non-cognizable will

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therefore be denied.

due

process

violation

on

a

state

law

violation

does

not

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The court agrees with respondents, however, that Ground 3 is

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unexhausted. Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner

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first must exhaust state court remedies on a claim before presenting

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that

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requirement, the claim must have been fairly presented to the state

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courts completely through to the highest state court level of review

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available.

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2003)(en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003).

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In the state courts, the petitioner must refer to the specific federal

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constitutional guarantee upon which she relies and must also state the

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facts that entitle her to relief on that federal claim. E.g., Shumway

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v.

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presentation requires that the petitioner present the state courts

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with both the operative facts and the federal legal theory upon which

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the claim is based.

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(9th Cir. 2005). The exhaustion requirement ensures that the state

claim

Payne,

to

the

federal

courts.

To

satisfy

this

exhaustion

E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir.

223

F.3d

983,

987

(9th

Cir.

2000).

That

is,

fair

E.g., Castillo v. McFadden, 399 F.3d 993, 999

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courts, as a matter of federal-state comity, will have the first

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opportunity to pass upon and correct alleged violations of federal

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constitutional guarantees.

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722, 731 (1991).

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See, e.g., Coleman v. Thompson, 501 U.S.

Petitioner asserts that he raised Ground 3 in a motion to correct
40).1

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illegal

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asserted due process several times in the motion, it was never in

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relation to his claim that he was improperly sentenced without a PSI.

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(Id. at 7-10). Petitioner argues that it was clear he was asserting

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a federal due process claim because he invoked his “constitutional

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rights” in the conclusion of the motion. (See id. at 11). But this

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invocation did not fairly present a due process claim, much less a

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federal due process claim, and it certainly did not exhaust the

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specific due process claim in Ground 3. See Hiivala v. Wood, 195 F.3d

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1098, 1106 (9th Cir. 1999) (“[G]eneral appeals to broad constitutional

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

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a fair trial, are insufficient to establish exhaustion” and “to

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‘fairly

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petitioner has] to alert the state courts to the fact that he was

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asserting a claim under the United States Constitution.”).

sentence.

present’

(Pet.

his

Ex.

federal

claim

However,

to

the

although

state

petitioner

courts,

[the

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Moreover, even if the motion had sufficiently alleged Ground 3,

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petitioner did not pursue it through all avenues available because he

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voluntarily dismissed his appeal. (Resp. Ex. 118; Pet. Ex. 45).

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“Generally, a petitioner satisfies the exhaustion requirement if he

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The exhibits cited in this order, comprising the relevant state court
record, are located at ECF Nos. 14-17, 32-34 and 38. Because some of the
exhibits were filed by petitioner and others by respondents, and both start
at number 1, the court refers to the exhibits filed by petitioner (ECF Nos.
14-17 & 38) as Pet. Ex. and the exhibits filed by respondents (ECF Nos. 3234) as Resp. Ex.

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properly pursues a claim (1) throughout the entire direct appellate

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process

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postconviction process available in the state. Whether a claim is

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exhausted through a direct appellate procedure, a postconviction

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procedure, or both, the claim should be raised at all appellate stages

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afforded under state law as of right by that procedure.” Casey v.

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Moore, 386 F.3d 896, 916 (9th Cir. 2004). Although petitioner later

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moved to reinstate his appeal, (Resp. Ex. 126), the Nevada Supreme

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Court declined to allow him to do so. Petitioner has not cited any

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authority to support a conclusion that pursuing his appeal in this

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fashion was sufficient to fairly present his claims to the state’s

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highest courts. In fact, presenting a claim to the state’s highest

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court for “the first and only time in a procedural context in which

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its merits will not be considered unless there are special and

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important reasons therefor . . . does not . . . constitute ‘fair

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presentation.’”

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(internal citations and quotation marks omitted).

of

the

state,

or

Castille

(2)

v.

throughout

Peoples,

489

one

U.S.

entire

346,

judicial

351

(1989)

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Alternatively, petitioner argues that the exhaustion question

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is “premature” because Ground 3 is pending exhaustion by way of a writ

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of prohibition and associated motion for reconsideration that have

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been awaiting decision in state court since early 2018. (Pet. Exs. 46

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& 55). Even if petitioner’s pending motions will eventually exhaust

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this claim, which the court does not conclude, the claim remains

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unexhausted at this time, and the court may not proceed on a mixed

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petition.

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Petitioner’s argument is therefore not persuasive.

As petitioner has not fairly presented the federal due process

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claim

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unexhausted.

asserted

in

Ground

3

to

the

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state

courts,

Ground

3

is

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As to Grounds 2, 4, and 5, petitioner concedes that these grounds

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are unexhausted but asserts that if he were to return to state court

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the petition would be dismissed as procedurally barred.

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asks

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procedurally defaulted.

the

court

to

find

the

grounds

technically

He therefore

exhausted

but

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Although unexhausted, a claim may be subject to anticipatory

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procedural default if “it is clear that the state court would hold the

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claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th

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Cir. 2002). Petitioner asserts he would face several procedural bars

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if he were to return to state court. See, e.g., Nev. Rev. Stat. §§

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34.726 & 34.810. However, a procedural default may be excused by a

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showing of cause and prejudice, or a fundamental miscarriage of

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justice, Murray v. Carrier, 477 U.S. 478, 496 (1986), and Nevada has

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cause and prejudice and fundamental miscarriage of justice exceptions

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to its procedural bars, which are substantially the same as the

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federal

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cause-and-prejudice

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substantially similar federal and state standards, then petitioner

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cannot establish that “it is clear that the state court would hold the

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claim procedurally barred.” For that reason, the courts in this

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district

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anticipatory procedural default unless the petitioner represents that

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he would be unable to establish cause and prejudice in a return to

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state court.

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immediate dismissal as procedurally defaulted, as the petitioner would

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have conceded that he has no grounds for exception to the procedural

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default in federal court.

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standards.

have

If
or

generally

a

petitioner

has

actual-innocence

declined

to

find

a

potentially

argument

a

claim

viable

under

subject

the

to

In such a case, the claim would generally be subject to

A different situation is presented, however, where the Nevada
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state courts do not recognize a potential basis to overcome the

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procedural default arising from the violation of a state procedural

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rule that is recognized under federal law. In Martinez v. Ryan, 566

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U.S. 1 (2012), the Supreme Court held that the absence or inadequate

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assistance of counsel in an initial-review collateral proceeding may

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be relied upon to establish cause excusing the procedural default of

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a claim of ineffective assistance of trial counsel. Id. at 9. The

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Supreme Court of Nevada does not recognize Martinez cause as cause to

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overcome a state procedural bar under Nevada state law. Brown v.

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McDaniel, 331 P.3d 867, 875 (Nev. 2014).

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petitioner who relies upon Martinez—and only Martinez—as a basis for

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overcoming

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successfully

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procedurally barred but that he nonetheless has a potentially viable

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cause-and-prejudice argument under federal law that would not be

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recognized by the state courts when applying the state procedural

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bars.

a

state
argue

procedural
that

the

bar

state

on

an

courts

Thus, a Nevada habeas

unexhausted

claim

would

the

hold

can

claim

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Here, petitioner advances only Martinez as a basis for excusing

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the procedural default of his claims. Further, Grounds 2, 4 and 5 are

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all at least potentially saved under Martinez because they are claims

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of ineffective assistance of trial counsel.

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grant petitioner's request to consider his unexhausted claims as

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technically exhausted but procedurally defaulted. Because the question

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of whether the claims are substantial is intertwined with the merits

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of the claims, the court defers until the merits determination the

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cause and prejudice analysis as to these claims.

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Options on a Mixed Petition

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As such, the court will

A federal court may not entertain a habeas petition unless the
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petitioner has exhausted all available and adequate state court

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remedies for all claims in the petition. Rose v. Lundy, 455 U.S. 509,

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510

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unexhausted claims is subject to dismissal. Id.

(1982).

A

“mixed

petition”

containing

both

exhausted

and

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Because petitioner’s petition is mixed, he has three options:

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1. File a motion to dismiss seeking partial dismissal of only the

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unexhausted claims;

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2. File a motion to dismiss the entire petition without prejudice

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in order to return to state court to exhaust the unexhausted claims;

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and/or

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3. File a motion for other appropriate relief, such as a motion

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for a stay and abeyance asking this Court to hold his exhausted claims

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in abeyance while he returns to state court to exhaust the unexhausted

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claims.

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Conclusion

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In accordance with the foregoing, IT IS THEREFORE ORDERED that

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respondents’ motion to dismiss is GRANTED IN PART and DENIED IN PART

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as follows:

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1.

Ground Three states a cognizable claim but is unexhausted;

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2.

Grounds

2,

4

and

5

are

technically

exhausted

but

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procedurally defaulted. The court will defer consideration

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of whether petitioner can establish cause and prejudice

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pursuant

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disposition.

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procedural

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argument for cause.

to

Martinez
The

until

answer

default

of

and

those

the

time

reply

of

shall

grounds

and

the

merits

address

the

petitioner’s

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IT IS FURTHER ORDERED that within thirty days of the date of this

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order petitioner will advise the court how he would like to proceed
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with his mixed petition by electing one of the options set forth

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above.

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IT IS SO ORDERED.
DATED: This 3rd day of June, 2019.

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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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