Douglas v. Gittere

• Court: District Court, D. Nevada
• Decided: August 15, 2025
• Docket: 3:21-cv-00431
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 DELBERT DOUGLAS, Case No. 3:21-cv-00431-ART-CSD

5 Petitioner, v. ORDER GRANTING, IN PART, AND 6 DENYING, IN PART, WILLIAM GITTERE, et al., MOTION TO DISMISS 7 Respondents. [ECF No. 61] 8

9 10 This counseled habeas matter comes before the Court on Respondents’ 11 motion to dismiss Petitioner Delbert Douglas’s Third-Amended Petition. (ECF No. 12 61.) Douglas opposed the motion, and Respondents replied. (ECF Nos. 69, 76.) 13 For the reasons stated below, the Court grants the motion, in part, and denies 14 the motion, in part. 15 I. BACKGROUND 16 The Nevada Supreme Court described the facts of this case, as presented 17 at Douglas’s trial, as follows: “Delbert Roy Douglas fathered two children with his 18 daughter, whom he forced to have sex with him when she was 12 and, again, 19 after she turned 18.” (ECF No. 15-6.) A jury found Douglas guilty of sexual assault 20 with a minor under fourteen years of age, sexual assault, and two counts of 21 incest. (ECF No. 15-2.) Douglas was sentenced to life in prison with parole 22 eligibility after 20 years for count 1, life in prison with parole eligibility after 10 23 years for count 2 to run consecutively to count 1, 4 to 10 years for count 3, and 24 life in prison with parole eligibility after 2 years for count 4 to run concurrently 25 with counts 1 and 2. (ECF No. 15-1.) Douglas was also sentenced to lifetime 26 supervision. (ECF No. 15-2.) Douglas appealed, and the Nevada Supreme Court 27 affirmed on May 1, 2014. (ECF No. 15-6.) 28 Douglas filed a state habeas petition on February 2, 2015. (ECF No. 15-7.) 1 The state court denied Douglas postconviction relief on December 3, 2018. (ECF 2 No. 15-13.) Douglas appealed, and the Nevada Court of Appeals affirmed on 3 February 8, 2021. (ECF No. 15-17.) Following unsuccessful petitions for 4 rehearing, remittitur issued on June 21, 2021. (ECF No. 15-21.) 5 Douglas commenced this action on or about September 27, 2021. (ECF No. 6 1.) This Court appointed counsel for Douglas, and counsel filed Douglas’s First- 7 Amended Petition and Second-Amended Petition on December 15, 2021, and 8 November 7, 2022, respectively. (ECF Nos. 14, 30.) On April 28, 2023, this Court 9 granted Douglas’s unopposed motion for a stay and abeyance. (ECF No. 39.) 10 On February 3, 2023, Douglas filed a second state habeas petition. (ECF 11 No. 46-1.) The state court granted the petition, in part, and denied it, in part. 12 (ECF No. 59-31.) Following the granting, in part, of Douglas’s second state habeas 13 petition, on December 27, 2023, the state court entered a Second Amended 14 Judgment of Conviction, vacating count 4, one of the incest counts. (ECF No. 59- 15 33.) 16 This matter was reopened, and Douglas filed his counseled Third-Amended 17 Petition on July 15, 2024. (ECF Nos. 42, 45.) In his Third-Amended Petition, 18 Douglas presents the following grounds for relief:

19 1a. The Nevada Supreme Court’s expansion of NRS 201.180 during his direct appeal violated the fair warning principle of 20 due process. 1b. Nevada’s incest statute was vague because it did not define the 21 unit of prosecution. 2. His convictions for sexual assault and incest violated the 22 prohibition against double jeopardy. 3a. Trial counsel failed to investigate and present evidence refuting 23 the charge that he assaulted the victim in 2008. 3b. Trial counsel failed to severe the charges of sexual assault and 24 incest, which involved antagonistic defenses. 3c. His trial counsel failed to request an instruction on the lesser 25 included offense of sexual seduction. 3d. His trial counsel failed to adequately challenge the warrantless 26 seizure of his DNA. 4a. His appellate counsel was ineffective for failing to present 27 ground 1b during his direct appeal. 4b. His appellate counsel was ineffective for failing to present a 28 claim asserting that the trial court violated his due process 1 5. Cumulative error.

2 (ECF No. 45.) 3 II. DISCUSSION 4 Respondents argue that (1) the Third-Amended Petition is untimely and all 5 the claims that do not relate back to a timely petition must be dismissed, (2) 6 ground 1b is moot, (3) grounds 1a, 1b, 3b, 4, and 5 are unexhausted, or, 7 alternatively, ground 1a is procedurally defaulted, and (4) grounds 1a and 5 do 8 not raise cognizable claims. (ECF No. 61.) This Court will address these 9 arguments in turn. 10 A. Timeliness 11 Respondents contend that Douglas’s Third-Amended Petition is untimely 12 and that grounds 1, 3, 4, and 5 do not relate back to a timely-filed petition. (ECF 13 No. 61.) Douglas rebuts that his Third-Amended Petition is timely because it 14 challenges his confinement under his Second Amended Judgment of Conviction, 15 which was entered on December 27, 2023. (ECF No. 69.) 16 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 17 one-year period of limitations for state prisoners to file a federal habeas petition 18 pursuant to 28 U.S.C. § 2254. The one-year limitation period, i.e., 365 days, 19 begins to run from the latest of four possible triggering dates, with the most 20 common being the date on which the petitioner’s judgment of conviction became 21 final either by the conclusion of direct appellate review or the expiration of the 22 time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). 23 “[T]he statute of limitations must run from the judgment pursuant to which 24 the petitioner is being held.” Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017). 25 When an amended judgment of conviction is entered, it is considered a “new 26 judgment, starting a new one-year statute of limitations.” Id. at 688; see also 27 Gonzalez v. Sherman, 873 F.3d 763, 770 (9th Cir. 2017) (“[T]he amendment [to 28 the judgment of conviction] removed an invalid basis for incarcerating [the 1 petitioner] and provided a new and valid intervening judgment to which he was 2 then being held in custody.”). Here, the state court’s issuance of the Second 3 Amended Judgment of Conviction vacated one of Douglas’s four convictions. (ECF 4 No. 59-33.) This change in Douglas’s convictions and sentence supports a finding 5 that Douglas’s Second Amended Judgment of Conviction was a new, intervening 6 judgment, meaning Douglas is entitled to a new one-year statute of limitations. 7 Douglas’s Second Amended Judgment of Conviction was entered on December 8 27, 2023, making his Third-Amended Petition, which was filed only 7 months 9 later on July 15, 2024, timely. 10 B. Mootness 11 In ground 1b, Douglas alleges that Nevada’s incest statute is 12 unconstitutionally vague because it fails to indicate whether it applies on a per- 13 relationship basis or a per-act basis. (ECF No. 45 at 7–12.) Respondents contend 14 that ground 1b is moot because the state court vacated Douglas’s second incest 15 count. (ECF No. 61 at 20.) 16 Douglas’s Second Amended Judgment of Conviction did vacate one of his 17 two incest convictions. Thus, if this Court were to grant relief on ground 1b, 18 finding that Nevada’s incest statue failed to dictate whether counts of incest are 19 dictated by the number of victims or the number of acts, Douglas would 20 potentially not be entitled to further relief than he has already received, i.e. 21 vacation of his second incest conviction. However, this does not warrant a finding 22 that ground 1b is moot. Although a federal court may, in an appropriate case, 23 order the petitioner’s release, either conditionally or otherwise, it lacks the power 24 in habeas to revise a challenged state court judgment in order to correct 25 constitutional errors. See Fay v. Noia, 372 U.S. 391, 430–31 (1963), abrogated 26 on other grounds by Coleman v. Thompson, 501 U.S. 722 (1991), overruled in part 27 on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977). Rather, other than 28 granting the writ of habeas corpus and imposing time limits in which the state 1 must either release the petitioner or correct the problem, the precise remedy is 2 generally left to the state. See Smith v. Goguen, 415 U.S. 566 (1974) (explaining 3 that a petitioner in custody under an unconstitutional statute is generally entitled 4 to an unconditional writ with prejudice to retrial on the same charged offense). 5 Here, Douglas argues that if he had “known he faced a single count of incest, 6 counsel could have argued that the 2008 incident was consensual, conceding 7 guilt on one count of incest but possibly securing a not guilty verdict on Count 8 2, charging the 2008 sexual assault incident.” (ECF No. 69 at 48 n.10.) Given 9 that (1) Douglas reasonably alleges that he is entitled to a further remedy than 10 just the vacation of his second incest conviction and (2) it is up to the state court 11 how to fashion any remedy stemming from this Court’s potential finding that 12 Nevada’s incest statute is unconstitutionally vague, this Court does not find that 13 ground 1b is moot. See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“[A] case 14 becomes moot only when it is impossible for a court to grant any effectual relief 15 whatsoever to the prevailing party.” (internal quotation marks omitted)). 16 C. Exhaustion and Procedural Default 17 Respondents argue that grounds 1a, 1b, 3b, 4, and 5 are unexhausted. 18 (ECF No. 61.) Alternatively, Respondents argue that if this Court finds that 19 ground 1a is exhausted, then they argue that it is procedurally defaulted. (Id. at 20 17.) Douglas contends that (1) grounds 1a, 1b, 4, and 5 are exhausted and (2) 21 ground 3b is technically exhausted and that he can demonstrate cause and 22 prejudice to overcome any procedural default. (ECF No. 69 at 24, 35.) 23 a. Exhaustion legal standard 24 A state prisoner first must exhaust state court remedies on a habeas claim 25 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 26 exhaustion requirement ensures that the state courts, as a matter of comity, will 27 have the first opportunity to address and correct alleged violations of federal 28 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 1 “A petitioner has exhausted his federal claims when he has fully and fairly 2 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 3 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 4 2254(c) requires only that state prisoners give state courts a fair opportunity to 5 act on their claims.”)). 6 A petitioner must present the substance of his claim to the state courts, 7 and the claim presented to the state courts must be the substantial equivalent of 8 the claim presented to the federal court. Picard v. Connor, 404 U.S. 270, 278 9 (1971). The state courts have been afforded a sufficient opportunity to hear an 10 issue when the petitioner has presented the state court with the issue’s factual 11 and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also 12 Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and fair presentation 13 additionally requires a petitioner to present the substance of his claim to the state 14 courts, including a reference to a federal constitutional guarantee and a 15 statement of facts that entitle the petitioner to relief.”). A petitioner may 16 reformulate his claims so long as the substance of his argument remains the 17 same. Picard, 404 U.S. at 277–78. 18 b. Procedural default legal standard 19 Federal courts are barred from considering a state prisoner’s habeas claim 20 if the state courts denied his claim pursuant to an independent and adequate 21 state procedural rule. Edwards v. Carpenter, 529 U.S. 446, 454–55 (2000). “The 22 Ninth Circuit has elaborated that a state rule must be clear, consistently applied, 23 and well-established at the time of the petitioner’s purported default.” Collier v. 24 Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005) (internal quotation marks omitted). 25 “If a state procedural rule is not well-established before a petitioner supposedly 26 breaks the rule, then the rule cannot prevent federal review of the petitioner’s 27 federal claims.” Id. 28 When a prisoner “procedurally defaults” a federal claim, judicial review is 1 barred unless he can show either: (1) “cause for the default and actual prejudice 2 as a result of the alleged violation of federal law,” or (2) “that failure to consider 3 the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 4 at 750. To demonstrate cause, a petitioner must show that some external and 5 objective factor impeded his efforts to comply with the state’s procedural rule. 6 Maples v. Thomas, 565 U.S. 266, 280–81 (2012). Ignorance or inadvertence does 7 not constitute cause. Murray v. Carrier, 477 U.S. 478, 486–87 (1986). To show 8 prejudice, a petitioner bears the burden of showing not merely that the error 9 created a possibility of prejudice, but that the error worked to his actual and 10 substantial disadvantage, infecting the entire proceeding with constitutional 11 error. Id. at 494; Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019). 12 c. Ground 1a 13 In ground 1a, Douglas alleges that he was convicted under an 14 unconstitutionally vague state statute because the Nevada Supreme Court 15 expanded its incest statute during his direct appeal proceedings in violation of 16 fair warning principles of due process. (ECF No. 45 at 7–11.) Respondents 17 contend that while Douglas alluded to a similar claim in his initial postconviction 18 appeal, he added substantial legal nuance and factual allegations that render 19 ground 1a unexhausted. (ECF No. 61 at 14.) This Court disagrees. 20 During his direct appeal proceedings, the Nevada Supreme Court held “that 21 incest condemns sex between close relatives without regard to whether the 22 intercourse was consensual.” (ECF No. 15-6 at 3.) During his first state habeas 23 proceedings, Douglas alleged that this holding “supersed[ed] and/or eliminat[ed] 24 [his] federally protected rights, retroactively, and without ‘fair notice,’ in violation 25 of . . . due process.” (ECF No. 15-10 at 3.) Douglas explained that “there can be 26 no doubt that a deprivation of the right of ‘fair warning’ can result not only from 27 vague statutory language, but also from (an) unforeseeable and retroactive 28 judicial doctrine.” (Id. at 4.) Then, in his counseled opening brief on the appeal of 1 the denial of his first state habeas petition, Douglas “argued that he could not 2 have been aware that his conduct was prohibited because [the Nevada Supreme 3 Court] had not ruled on his case (an issue of first impression – whether a 4 conviction for Incest and Sexual Assault are redundant and/or violate the Double 5 Jeopardy clause of the First Amendment of the United States Constitution) until 6 his direct appeal,” meaning he “could not have understood the meaning of the 7 statutes at issue until after his direct appeal was decided, thus subjecting him to 8 criminal liability on vague statutes he could not have retroactively understood 9 beforehand.” (ECF No. 15-14 at 34.) 10 Although ground 1a in Douglas’s Third Amended Petition may have added 11 support as compared to the claim he presented to the state courts—e.g., citing to 12 similar statutes and interpretations from other jurisdictions and examining 13 legislative history and statutory context—this Court finds that this additional 14 support does not fundamentally alter the claim. Rather, the underlying substance 15 of the claim remained the same: a deprivation of fair notice of prohibited conduct 16 resulting from the Nevada Supreme Court’s interpretation of Nevada’s incest 17 statute on direct appeal. The Court finds that ground 1a is exhausted. 18 Turning to Respondents’ argument that ground 1a is procedurally 19 defaulted, the Nevada Supreme Court denied relief on this claim because Douglas 20 could have raised it on direct appeal. (ECF No. 15-17 at 17.) Nevada law prohibits 21 state prisoners from seeking postconviction relief in a petition for writ of habeas 22 corpus where the grounds for the petition could have been raised in a direct 23 appeal. NRS 34.810(1)(b)(2). The Ninth Circuit has found this statute to be an 24 independent and adequate state procedural rule as applied to non-capital 25 cases. Vang v. Nevada, 329 F.3d 1069, 1073–74 (9th Cir. 2003). However, when 26 “the state court applie[s] the state’s procedural rule . . . in an erroneous and 27 arbitrary manner,” that “procedural rule does not bar federal habeas review.” 28 Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011). Here, it was not until 1 Douglas’s direct appeal proceedings that the basis for ground 1a was developed, 2 meaning it was impossible for Douglas to have presented ground 1a on direct 3 appeal. Accordingly, the Nevada Supreme Court applied its procedural bar in an 4 erroneous and arbitrary manner, so this Court is not barred from considering 5 ground 1a. 6 d. Ground 1b 7 In ground 1b, Douglas alleges that he was denied his constitutional right 8 to due process and a fair trial under the Fifth and Fourteenth Amendments due 9 to Nevada’s unconstitutionally vague incest statute because it failed to indicate 10 whether it applies on a per-relationship basis or a per-act basis. (ECF No. 45 at 11 7–12.) Respondents argue that this ground is unexhausted because “Douglas did 12 not make any mention of this aspect of the statute’s alleged vagueness in his 13 state habeas proceedings.” (ECF No. 61 at 14.) 14 In his opening brief on appeal of the denial of his first state habeas petition, 15 Douglas argued that he was “subject[ ] to criminal liability on vague statutes.” 16 (ECF No. 15-14 at 34.) However, this argument regarded the Nevada Supreme 17 Court’s retroactive interpretation of its incest statute during direct appeal, as is 18 discussed in ground 1a. Douglas’s attempt to create ground 1b out of merely 19 ground 1a’s inclusion of the term “vague statute” is a stretch. Indeed, the 20 inclusion of ground 1b is more than just a simple reformation of the claim from 21 Douglas’s state court proceedings; rather, it is the generating of a new claim that 22 the state courts did not have the opportunity to evaluate. The Court finds that 23 ground 1b is unexhausted. 24 e. Ground 3b 25 In ground 3b, Douglas alleges that his trial counsel was ineffective for 26 failing to sever the charges of sexual assault and incest, which involved 27 antagonistic defenses. (ECF No. 45 at 17.)Douglas acknowledges that ground 3b 28 is unexhausted, but he contends that it is technically exhausted as it would be 1 procedurally defaulted if presented in state court as both untimely and 2 successive. (ECF No. 69 at 35.) Douglas then contends that he can excuse this 3 procedural default by showing cause and prejudice pursuant to Martinez v. Ryan, 4 566 U.S. 1 (2012). (Id.) 5 A claim may be considered procedurally defaulted if “it is clear that the 6 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 7 F.3d 371, 376 (9th Cir. 2002). Douglas would face several procedural bars if he 8 were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. Nevada 9 has cause and prejudice and fundamental miscarriage of justice exceptions to its 10 procedural bars, which are substantially the same as the federal standards. If a 11 petitioner has a potentially viable cause-and-prejudice or actual-innocence 12 argument under the substantially similar federal and state standards, then that 13 petitioner cannot establish that “it is clear that the state court would hold the 14 claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 15 courts in this district have generally declined to find a claim subject to 16 anticipatory procedural default unless the petitioner represents that he would be 17 unable to establish cause and prejudice in a return to state court. In such a case, 18 the claim would generally be subject to immediate dismissal as procedurally 19 defaulted, as the petitioner would have conceded that he has no grounds for 20 exception to the procedural default in federal court. 21 A different situation is presented, however, where the Nevada state courts 22 do not recognize a potential basis to overcome the procedural default arising from 23 the violation of a state procedural rule that is recognized under federal law. In 24 Martinez v. Ryan, the Supreme Court held that the absence or inadequate 25 assistance of counsel in an initial-review collateral proceeding may be relied upon 26 to establish cause excusing the procedural default of a claim of ineffective 27 assistance of trial counsel. 566 U.S. 1, 9 (2012). The Nevada Supreme Court does 28 not recognize Martinez as cause to overcome a state procedural bar under Nevada 1 state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada 2 habeas petitioner who relies upon Martinez—and only Martinez—as a basis for 3 overcoming a state procedural bar on an unexhausted claim can successfully 4 argue that the state courts would hold the claim procedurally barred but that he 5 nonetheless has a potentially viable cause-and-prejudice argument under federal 6 law that would not be recognized by the state courts when applying the state 7 procedural bars. 8 Here, Douglas advances only Martinez as a basis for excusing the 9 anticipatory default of ground 3b. (See ECF No. 69 at 35–38.) As such, this Court 10 finds ground 3b to be technically exhausted but procedurally defaulted. Because 11 the analysis of cause and prejudice to overcome the procedural default of ground 12 3b is necessarily intertwined with its merits, this Court defers a determination of 13 whether Douglas can overcome the procedural default until the time of merits 14 determination.1 15 f. Ground 4 16 In ground 4a, Douglas alleges that his appellate counsel was ineffective for 17 failing to present the claim in ground 1b in his direct appeal. (ECF No. 45 at 24.) 18 The Court finds that ground 4a is unexhausted for the same reasons discussed 19 previously regarding ground 1b being unexhausted. 20 In ground 4b, Douglas alleges that his appellate counsel was ineffective for 21 failing to present a claim asserting that the trial court violated his due process 22 rights when it refused to excuse the entire jury venire. (Id. at 25.) In his opening 23 brief on appeal of the denial of his first state habeas petition, Douglas argued 24 that his appellate counsel “was ineffective for failing to raise issues regarding 25 unlawful arrest, defective information, warrantless and unconstitutional seizure 26

27 1 Respondents contend that if this Court defers ruling on the claim until after briefing, it should permit Respondents to address Douglas’s arguments on cause 28 and prejudice in a surreply. The Court finds that this request is reasonable. 1 of DNA, conflict of interest of trial counsel, lack of jurisdiction of the district court, 2 double jeopardy, jury instruction errors, prosecutorial misconduct for vouching 3 for witnesses, and mis-joinder of the 2002 and 2008 counts, and errors during 4 jury selection.” (ECF No. 15-14 at 32 (emphasis added).) Douglas cited to grounds 5 11 and 15 of his state habeas petition and to the appendix to support this ground. 6 (Id.) Douglas’s opening appellate brief’s incorporation of his state habeas petition, 7 which was included in his appendix and gives more detail on the alleged errors 8 during jury selection, comprises a fair presentation of the claim for purposes of 9 exhaustion. Ground 4b is exhausted. 10 g. Ground 5 11 In ground 5, Douglas alleges cumulative error. (ECF No. 45 at 30.) 12 Respondents argue that this ground is unexhausted because Douglas never 13 “presented a cumulative error claim that encompassed all of the legal and factual 14 allegations presented.” (ECF No. 61 at 16.) Douglas raised a cumulative error 15 claim during his postconviction appeal proceedings, but not during his direct 16 appeal proceedings. (See ECF Nos. 15-17 at 16, 15-3, 15-6.) Therefore, this Court 17 finds ground 5 is exhausted to the extent that it alleges cumulative error from 18 grounds 3a, 3c, 3d, and 4b. 19 D. Cognizable claims 20 Respondents contend that grounds 1a and 5 do not raise cognizable claims 21 under the Federal Constitution. (ECF No. 61 at 18–19.) This Court disagrees. 22 AEDPA “places limitations on a federal court’s power to grant a state 23 prisoner’s federal habeas petition.” Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 24 2014) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). When conducting 25 habeas review, a federal court is limited to deciding whether a conviction violates 26 the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 27 Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Unless an issue of federal 28 constitutional or statutory law is implicated by the facts presented, the claim is 1 not cognizable in federal habeas. McGuire, 502 U.S. at 68. 2 Federal habeas relief is unavailable “for errors of state law.” Lewis v. 3 Jeffers, 497 U.S. 764, 780 (1990). A petitioner may not transform a state-law 4 issue into a federal one merely by asserting a violation of due process. Langford 5 v. Day, 110 F.3d 1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation 6 or application of state law do not warrant habeas relief. Hubbart v. Knapp, 379 7 F.3d 773, 779–80 (9th Cir. 2004). A petitioner “cannot, merely by injecting a 8 federal question into an action that asserts it is plainly a state law claim, 9 transform the action into one arising under federal law.” Caterpillar v. Williams, 10 482 U.S. 386, 399 (1987); accord Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 11 1999) (holding that federal habeas courts lack jurisdiction “to review state court 12 applications of state procedural rules”). 13 Here, as a reminder, in ground 1a, Douglas alleges that he was convicted 14 under an unconstitutionally vague state statute because the Nevada Supreme 15 Court expanded its incest statute during his direct appeal proceedings in 16 violation of fair warning principles of due process. (ECF No. 45 at 7–11.) 17 Respondents contend that this ground is not cognizable because “Douglas 18 focuses on how the Nevada Supreme Court interpreted the statute in his case,” 19 making this a claim of state law error. (ECF No. 61 at 18.) The Supreme Court 20 has explicitly recognized the existence of a claim that an unexpected 21 interpretation of a statute can violate an individual’s due process rights to fair 22 notice. See Bouie v. City of Columbia, 378 U.S. 347, 350, 354 (1964) (determining 23 that the South Carolina court’s construction of a statute was unexpected and 24 indefensible because it was at odds with the statute’s plain language and had no 25 support in prior South Carolina decisions); see also United States v. Lanier, 520 26 U.S. 259, 266 (1997) (stating that “due process bars courts from applying a novel 27 construction of a criminal statute to conduct that neither the statute nor any 28 prior judicial decision has fairly disclosed to be within its scope”). This Court 1 finds that ground 1a is cognizable. 2 Turning to ground 5, Douglas’s cumulative error claim (ECF No. 45 at 30), 3 this Court follows the Court of Appeals for the Ninth Circuit, which has concluded 4 that “[t]he Supreme Court has clearly established that the combined effect of 5 multiple . . . errors [can] violate[ ] due process.” Parle v. Runnels, 505 F.3d 922, 6 927 (9th Cir. 2007). Accordingly, the Court finds also ground 5 to be cognizable. 7 III. MIXED PETITION 8 A federal court may not entertain a habeas petition unless the petitioner 9 has exhausted all available and adequate state court remedies for all claims in 10 the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed petition” 11 containing both exhausted and unexhausted claims is subject to dismissal. Id. 12 Because Douglas’s Third-Amended Petition is mixed, he has three options: (1) file 13 a motion to dismiss seeking partial dismissal of grounds 1b and 4a; (2) file a 14 motion to dismiss the entire petition without prejudice in order to return to state 15 court to exhaust grounds 1b and 4a; and/or (3) file a motion for other appropriate 16 relief. 17 IV. CONCLUSION 18 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 61) is 19 granted, in part, and denied, in part, as follows: (1) the Third-Amended Petition 20 is timely, (2) ground 1b is not moot, (3) ground 1a is exhausted, cognizable, and 21 not procedurally barred from being considered, (4) grounds 1b and 4a are 22 unexhausted, (5) ground 3b is technically exhausted but procedurally defaulted, 23 and this Court defers consideration of cause and prejudice under Martinez until 24 after the filing of an answer and reply, (6) ground 4b is exhausted, and (7) ground 25 5 is cognizable and exhausted to the extent that it alleges cumulative error from 26 grounds 3a, 3c, 3d, and 4b. 27 It is further ordered that Respondents will have 15 days following the filing 28 of the reply to file a surreply to address only Douglas’s arguments regarding cause 1 || and prejudice to overcome the procedural default of ground 3b. 2 It is further ordered that Douglas has 30 days from the date of this Order 3 || to inform the Court how he wishes to proceed with his mixed petition as outlined 4 || in this Order. If Douglas chooses to file a motion for a stay and abeyance or seek 5 || other appropriate relief, the Respondents may respond according to Local Rule 6 || 7-2. 7 DATED THIS 15th day of August 2025. 8 9 An plod iden 10 ANNE R. TRAUM 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28