Sevrence v. Russell et al

Filing 46

ORDERED Respondents' motion to dismiss (ECF No. 12 ) is granted. This petition is dismissed for the reasons specified herein. The Clerk of Court is directed to enter judgment accordingly and close this case. It is further ordered that a certificate of appealability is denied. Signed by Chief Judge Miranda M. Du on 4/28/2021. (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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EDWIN SEVRENCE,

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Petitioner,
v.

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Case No. 3:20-cv-00336-MMD-WGC
ORDER

PERRY RUSSELL, et al.,

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Respondents.

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I.

SUMMARY

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This is a federal habeas proceeding under 28 U.S.C. § 2254 in which Petitioner

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Edwin Sevrence challenges his Nevada state convictions for sexual assault on a child

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and lewdness with a child under the age of 14. On November 13, 2020, Respondents

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filed a motion to dismiss Sevrence’s habeas petition arguing that two of the petition’s

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three claims are moot and unexhausted and the third is not cognizable in a federal habeas

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proceeding. (ECF No. 12 (“Motion”).) Despite having over five months to respond,

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Sevrence has not filed an opposition to the Motion. Finding Respondents’ arguments

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meritorious, the Court will grant the Motion.

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II.

BACKGROUND

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In 2005, Sevrence was convicted of one count of lewdness with a child under the

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age of 14 and one count of sexual assault on a child. (ECF No. 14-10.) He appealed his

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conviction and the Nevada Supreme Court reversed Sevrence’s conviction and remanded

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it for a new trial due to a juror issue. (ECF No. 15-17.)

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After a retrial in 2009, Sevrence was again convicted of lewdness with a child under

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the age of 14 and sexual assault on a child. (ECF No. 25-10.) He was sentenced

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consecutive life sentences with parole eligibility after 20 years on the sexual assault count

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and 10 years on the lewdness count. (Id.) On appeal, the Nevada Supreme Court affirmed

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his judgment of conviction. (ECF No. 27-5.) Remittitur issued on June 6, 2011. (ECF No.

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27-7.)

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On May 4, 2012, Sevrence filed a state habeas petition. (ECF No. 28-12.) After

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going through several post-conviction counsel, he eventually proceeded pro se. (ECF No.

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40-14 at 2-3.) The state district court denied his state habeas petition. (ECF No. 40-2.)

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On appeal, the Nevada Supreme Court affirmed the denial of his petition. (ECF No. 40-

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14.) Remittitur issued on March 2, 2020. (ECF No. 40-15.)

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On June 8, 2020, this Court received Sevrence’s federal petition seeking relief

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under 28 U.S.C. § 2254. (ECF No. 1.) After Sevrence paid the filing fee, the Court ordered

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the Clerk to file the petition on January 24, 2020. (ECF No. 5.)

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II.

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DISCUSSION
A. Mootness

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Respondents argue Ground 1 and Ground 2 are moot because Sevrence is in

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custody under the second judgment of conviction but both grounds are premised on the

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conduct of trial counsel in his first trial, who was not involved in the second trial.

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The Court agrees that Ground 2 is based entirely on the alleged shortcomings of

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counsel in his first trial. (ECF No. 6 at 5.) In the absence of any response from Sevrence

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demonstrating otherwise, Ground 2 is dismissed as moot. See Local Rule 7-2(d) (“The

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failure of an opposing party to file points and authorities in response to any motion . . .

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constitutes a consent to the granting of the motion.”)

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Ground 1, however, does contain an allegation that Sevrence’s counsel for his

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second trial provided ineffective assistance by not petitioning the state trial court for a

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psychological exam of the alleged victim. (ECF No. 6 at 3.) Thus, the ground is not moot

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to the extent it relies upon that allegation.

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B. 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 habeas petitioner must “present the state

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courts with the same claim he urges upon the federal court.” Picard v. Connor, 404 U.S.

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270, 276 (1971). A claim is not exhausted unless the petitioner has presented to the state

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court the same operative facts and legal theory upon which his federal habeas claim is

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

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Respondents argue Ground 1 is unexhausted because the ineffective assistance

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of counsel claim he presented to the Nevada courts was based on different factual

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allegations than those presented to this Court. Specifically, Respondents note that

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Sevrence raised a claim that counsel was ineffective for failing to have an investigator

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interview the victim, but never presented a claim based on counsel’s alleged failure to

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seek a court order for a psychological exam.

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The state court record before the Court supports Respondents’ argument –it does

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not appear Sevrence fairly presented Ground 2 to the Nevada courts. And, again,

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Sevrence has filed no response demonstrating otherwise. Thus, Ground 2 is dismissed.1

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C. Cognizability

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Respondents argue that Ground 3 is not cognizable as a federal habeas claim

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because it presents a state law issue. Violations of state law are not addressable in

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federal habeas corpus. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Estelle v.

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McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

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Nevada’s procedural rules regarding timeliness (NRS § 34.726) and
successive petitions (NRS § 34.810) would now bar Ground 2, the claim is technically
exhausted but procedurally defaulted. See Woodford v. Ngo, 548 U.S. 81 92-93 (2006).

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In Ground 3, Sevrence alleges irregularities with respect to the charging document

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filed in his case captioned as an “information superseding indictment.” (ECF No. 6 at 7.)

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This document was filed by the State on July 15, 2009, during Sevrence’s second trial,

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without objection from defense counsel. (ECF Nos. 19-1 at 65-66; 40-12). It was

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apparently done to re-number the charges contained in the original indictment entered

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before Sevrence’s first judgment of conviction was reversed. (Id.)

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Sevrence alleges in Ground 3 that Nevada law does not countenance such a

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charging document. He contends that the reversal of his first judgment conviction required

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the State to take the case back to the grand jury.

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Respondents correctly argue that a habeas petitioner may not “transform a state-

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law issue into a federal one merely by asserting a violation of due process.” See Langford

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v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). In addition, an “[i]ndictment by grand jury is

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not part of the due process guarantees of the Fourteenth Amendment that apply to state

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criminal defendants.” Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993). Because it

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does not advance a cognizable basis for federal habeas relief, Ground 3 is dismissed.

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III.

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CONCLUSION
It is therefore ordered that Respondents’ motion to dismiss (ECF No. 12) is

granted. This petition is dismissed for the reasons discussed above.

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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It is further ordered that a certificate of appealability is denied as reasonable jurists

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would not find dismissal for the reasons cited to be debatable or wrong.
DATED THIS 28th Day of April 2021.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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