2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 * * *
5 CAM EASH, Case No. 3:19-cv-00488-MMD-CLB
6 Petitioner, ORDER
7 v.
8 WILLIAM GITTERE, et al., 9 Respondents. 10 11 12 I. Introduction 13 This habeas corpus action was initiated under 28 U.S.C. § 2254, on August 14, 14 2019, by Cam Eash, an individual incarcerated at Nevada’s Ely State Prison. 15 Respondents have filed a motion to dismiss (the “Motion”) (ECF No. 15), arguing that 16 certain of Eash’s claims are unexhausted in state court and that certain of his claims are 17 not cognizable in this federal habeas action. The Court will grant the Motion in part and 18 deny it in part, will dismiss two of Eash’s claims, and will set a schedule for Respondents 19 to file an answer responding to his remaining two claims. 20 II. Background 21 After Eash was charged in a justice court and waived a preliminary examination, 22 he was charged on October 6, 2015, by Information, in Nevada’s Second Judicial District 23 Court, with: possession of a stolen motor vehicle; eluding or failing to stop on the signal 24 of a peace officer and endangering other persons or property; possession of a firearm by 25 a prohibited person; robbery with a deadly weapon; and grand larceny of a motor vehicle. 26 (See ECF No. 16-3 (Waiver of Preliminary Examination); ECF No. 16-4 (Information).) 27 /// 28 /// 1 On January 14, 2016, Eash entered into a plea agreement and pled guilty to 2 eluding or failing to stop on the signal of a peace officer, endangering other persons or 3 property, and robbery with a deadly weapon. (See ECF No. 16-17 (Guilty Plea 4 Memorandum); ECF No. 16-18 (Transcript of Proceedings, January 14, 2016).) 5 On March 8, 2016, Eash was sentenced to: 28 to 72 months in prison for eluding 6 or failing to stop on the signal of a peace officer and endangering other persons or 7 property; and 72 to 180 months in prison for the robbery with a deadly weapon; and 12 to 8 30 months in prison for use of the deadly weapon. (See ECF No. 16-20 (Judgment of 9 Conviction).) The three prison sentences were to run consecutively. (See id.) The 10 judgment of conviction was entered on March 14, 2016. (See id.) 11 Eash appealed. (See ECF No. 16-24 (Notice of Appeal); ECF No. 16-30 (Fast 12 Track Statement).) The Nevada Court of Appeals affirmed the judgment of conviction on 13 September 21, 2016. (See ECF No. 16-35 (Order of Affirmance).) 14 Eash then filed a petition for writ of habeas corpus in the state district court on 15 October 4, 2016. (See ECF No. 16-36 (Petition for Writ of Habeas Corpus).) The court 16 held an evidentiary hearing. (See ECF No. 17-5 (Transcript of Proceedings, April 14, 17 2017); ECF No. 17-17 (Transcript of Proceedings, February 16, 2018).) The court denied 18 Eash’s petition in a written order filed on March 14, 2018. (See ECF No. 17-19 (Findings 19 of Fact, Conclusions of Law and Order).) Eash appealed. (See ECF No. 17-18 (Notice of 20 Appeal); ECF No. 17-29 (Appellant’s Informal Brief).) The Nevada Court of Appeals 21 affirmed the judgment of the state district court on January 17, 2019. (See ECF No. 17- 22 35 (Order of Affirmance).) 23 This Court received Eash’s pro se habeas petition (the “Petition”), initiating this 24 federal habeas corpus action, on August 14, 2019. (See ECF No. 6.) The Court reads the 25 Petition to assert the following claims:
26 Ground 1A: The trial court “abused its sentencing discretion by basing its sentence in part on the so-called ‘victim-impact’ statement of 27 Officer Anthony Marconato.”
28 1 Ground 1B: “The supposed victim in the robbery has contacted [Eash’s] family to say he wants to testify that he was threatened by Sparks 2 police into making a false statement.”
3 Ground 2A: Eash’s federal constitutional rights were violated as a result of ineffective assistance of counsel, because, before he pled guilty, 4 his trial counsel inaccurately advised him about the sentence he could receive. 5 Ground 2B: Eash’s federal constitutional rights were violated as a 6 result of ineffective assistance of counsel, because Eash’s trial counsel first told Eash she had a statement from the robbery victim saying police 7 threatened him with arrest unless he made a statement against Eash, then, at a later date, trial counsel told Eash she did not have such a statement 8 and the robbery victim would testify against Eash. 9 (See id.) 10 On January 16, 2020, Respondents filed the Motion (ECF No. 15) and supporting 11 exhibits (ECF Nos. 16, 17). Eash did not respond to the Motion. 12 III. Analysis 13 A. Grounds 1A and 1B 14 Ground 1A is Eash’s claim that the trial court “abused its sentencing discretion by 15 basing its sentence in part on the so-called ‘victim-impact’ statement of Officer Anthony 16 Marconato.” (ECF No. 6 at 6-11.) Ground 1B is Eash’s claim that “[t]he supposed victim 17 in the robbery has contacted [Eash’s] family to say he wants to testify that he was 18 threatened by Sparks police into making a false statement.” (Id. at 12.) Respondents 19 contend that the claims in Grounds 1A and 1B are not cognizable in a federal habeas 20 corpus action. (See ECF No. 15 at 7-9.) The Court agrees. 21 Neither Ground 1A nor Ground 1B includes any claim of a violation of federal law. 22 Ground 1A is a claim that the trial court abused its discretion under state law. (See ECF 23 No. 6 at 6-11.) Ground 1B is a claim that a witness would now retract his testimony and 24 testify differently. (See id. at 12.) Federal habeas corpus relief is available only for 25 violations of federal law. See 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does 26 not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (citations omitted); see 27 also Lewis v. Jeffers, 497 U.S. 764, 780 (1990). 28 /// 1 As Grounds 1A and 1B contain no allegation of a violation of federal law, they are 2 not cognizable in this federal habeas corpus action. The Court will, therefore, grant the 3 Motion with respect to Grounds 1A and 1B and will dismiss those claims. 4 B. Grounds 2A and 2B 5 Grounds 2A and 2B are claims that Eash’s federal constitutional rights were 6 violated on account of ineffective assistance of his trial counsel. (See ECF No. 6 at 13.) 7 In Ground 2A, before Eash pled guilty, Eash claims trial counsel inaccurately advised him 8 about the sentence he could receive. (See id.) In Ground 2B, Eash claims his trial counsel 9 first told Eash she had a statement from the robbery victim saying police threatened him 10 with arrest unless he made a statement against Eash; then, at a later date, trial counsel 11 told Eash she did not have such a statement and the robbery victim would testify against 12 Eash. (Id.) Respondents contend in the Motion that the claim in Ground 2B is 13 unexhausted in state court. (See ECF No. 15 at 5-6.) The Court disagrees. 14 A federal court may not grant habeas corpus relief on a claim not exhausted in 15 state court. 28 U.S.C. § 2254(b). The exhaustion requirement is based on the policy of 16 federal-state comity, and is intended to allow state courts the initial opportunity to correct 17 constitutional violations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a 18 claim, a petitioner must fairly present the claim to the highest available state court and 19 must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 20 U.S.
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2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 * * *
5 CAM EASH, Case No. 3:19-cv-00488-MMD-CLB
6 Petitioner, ORDER
7 v.
8 WILLIAM GITTERE, et al., 9 Respondents. 10 11 12 I. Introduction 13 This habeas corpus action was initiated under 28 U.S.C. § 2254, on August 14, 14 2019, by Cam Eash, an individual incarcerated at Nevada’s Ely State Prison. 15 Respondents have filed a motion to dismiss (the “Motion”) (ECF No. 15), arguing that 16 certain of Eash’s claims are unexhausted in state court and that certain of his claims are 17 not cognizable in this federal habeas action. The Court will grant the Motion in part and 18 deny it in part, will dismiss two of Eash’s claims, and will set a schedule for Respondents 19 to file an answer responding to his remaining two claims. 20 II. Background 21 After Eash was charged in a justice court and waived a preliminary examination, 22 he was charged on October 6, 2015, by Information, in Nevada’s Second Judicial District 23 Court, with: possession of a stolen motor vehicle; eluding or failing to stop on the signal 24 of a peace officer and endangering other persons or property; possession of a firearm by 25 a prohibited person; robbery with a deadly weapon; and grand larceny of a motor vehicle. 26 (See ECF No. 16-3 (Waiver of Preliminary Examination); ECF No. 16-4 (Information).) 27 /// 28 /// 1 On January 14, 2016, Eash entered into a plea agreement and pled guilty to 2 eluding or failing to stop on the signal of a peace officer, endangering other persons or 3 property, and robbery with a deadly weapon. (See ECF No. 16-17 (Guilty Plea 4 Memorandum); ECF No. 16-18 (Transcript of Proceedings, January 14, 2016).) 5 On March 8, 2016, Eash was sentenced to: 28 to 72 months in prison for eluding 6 or failing to stop on the signal of a peace officer and endangering other persons or 7 property; and 72 to 180 months in prison for the robbery with a deadly weapon; and 12 to 8 30 months in prison for use of the deadly weapon. (See ECF No. 16-20 (Judgment of 9 Conviction).) The three prison sentences were to run consecutively. (See id.) The 10 judgment of conviction was entered on March 14, 2016. (See id.) 11 Eash appealed. (See ECF No. 16-24 (Notice of Appeal); ECF No. 16-30 (Fast 12 Track Statement).) The Nevada Court of Appeals affirmed the judgment of conviction on 13 September 21, 2016. (See ECF No. 16-35 (Order of Affirmance).) 14 Eash then filed a petition for writ of habeas corpus in the state district court on 15 October 4, 2016. (See ECF No. 16-36 (Petition for Writ of Habeas Corpus).) The court 16 held an evidentiary hearing. (See ECF No. 17-5 (Transcript of Proceedings, April 14, 17 2017); ECF No. 17-17 (Transcript of Proceedings, February 16, 2018).) The court denied 18 Eash’s petition in a written order filed on March 14, 2018. (See ECF No. 17-19 (Findings 19 of Fact, Conclusions of Law and Order).) Eash appealed. (See ECF No. 17-18 (Notice of 20 Appeal); ECF No. 17-29 (Appellant’s Informal Brief).) The Nevada Court of Appeals 21 affirmed the judgment of the state district court on January 17, 2019. (See ECF No. 17- 22 35 (Order of Affirmance).) 23 This Court received Eash’s pro se habeas petition (the “Petition”), initiating this 24 federal habeas corpus action, on August 14, 2019. (See ECF No. 6.) The Court reads the 25 Petition to assert the following claims:
26 Ground 1A: The trial court “abused its sentencing discretion by basing its sentence in part on the so-called ‘victim-impact’ statement of 27 Officer Anthony Marconato.”
28 1 Ground 1B: “The supposed victim in the robbery has contacted [Eash’s] family to say he wants to testify that he was threatened by Sparks 2 police into making a false statement.”
3 Ground 2A: Eash’s federal constitutional rights were violated as a result of ineffective assistance of counsel, because, before he pled guilty, 4 his trial counsel inaccurately advised him about the sentence he could receive. 5 Ground 2B: Eash’s federal constitutional rights were violated as a 6 result of ineffective assistance of counsel, because Eash’s trial counsel first told Eash she had a statement from the robbery victim saying police 7 threatened him with arrest unless he made a statement against Eash, then, at a later date, trial counsel told Eash she did not have such a statement 8 and the robbery victim would testify against Eash. 9 (See id.) 10 On January 16, 2020, Respondents filed the Motion (ECF No. 15) and supporting 11 exhibits (ECF Nos. 16, 17). Eash did not respond to the Motion. 12 III. Analysis 13 A. Grounds 1A and 1B 14 Ground 1A is Eash’s claim that the trial court “abused its sentencing discretion by 15 basing its sentence in part on the so-called ‘victim-impact’ statement of Officer Anthony 16 Marconato.” (ECF No. 6 at 6-11.) Ground 1B is Eash’s claim that “[t]he supposed victim 17 in the robbery has contacted [Eash’s] family to say he wants to testify that he was 18 threatened by Sparks police into making a false statement.” (Id. at 12.) Respondents 19 contend that the claims in Grounds 1A and 1B are not cognizable in a federal habeas 20 corpus action. (See ECF No. 15 at 7-9.) The Court agrees. 21 Neither Ground 1A nor Ground 1B includes any claim of a violation of federal law. 22 Ground 1A is a claim that the trial court abused its discretion under state law. (See ECF 23 No. 6 at 6-11.) Ground 1B is a claim that a witness would now retract his testimony and 24 testify differently. (See id. at 12.) Federal habeas corpus relief is available only for 25 violations of federal law. See 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does 26 not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (citations omitted); see 27 also Lewis v. Jeffers, 497 U.S. 764, 780 (1990). 28 /// 1 As Grounds 1A and 1B contain no allegation of a violation of federal law, they are 2 not cognizable in this federal habeas corpus action. The Court will, therefore, grant the 3 Motion with respect to Grounds 1A and 1B and will dismiss those claims. 4 B. Grounds 2A and 2B 5 Grounds 2A and 2B are claims that Eash’s federal constitutional rights were 6 violated on account of ineffective assistance of his trial counsel. (See ECF No. 6 at 13.) 7 In Ground 2A, before Eash pled guilty, Eash claims trial counsel inaccurately advised him 8 about the sentence he could receive. (See id.) In Ground 2B, Eash claims his trial counsel 9 first told Eash she had a statement from the robbery victim saying police threatened him 10 with arrest unless he made a statement against Eash; then, at a later date, trial counsel 11 told Eash she did not have such a statement and the robbery victim would testify against 12 Eash. (Id.) Respondents contend in the Motion that the claim in Ground 2B is 13 unexhausted in state court. (See ECF No. 15 at 5-6.) The Court disagrees. 14 A federal court may not grant habeas corpus relief on a claim not exhausted in 15 state court. 28 U.S.C. § 2254(b). The exhaustion requirement is based on the policy of 16 federal-state comity, and is intended to allow state courts the initial opportunity to correct 17 constitutional violations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a 18 claim, a petitioner must fairly present the claim to the highest available state court and 19 must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 20 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). A 21 claim is fairly presented to the state court if, before that court, the petitioner describes the 22 operative facts and legal theory upon which the claim is based. See Anderson v. Harless, 23 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d 24 859, 862 (9th Cir. 1982). 25 Eash asserted a claim like that in Ground 2B in his state habeas petition. (See 26 ECF No. 16-36 at 9.) And, on his appeal in that case, Eash’s pro se brief can reasonably 27 be read to appeal the denial of that claim. (See ECF No. 17-29 at 4-7.) In fact, the Nevada 28 Court of Appeals recognized that Eash’s brief could be read in that manner and denied 1 || the claim on its merits. (See ECF No. 17-35 at 4 n.3.) Ground 2B is therefore exhausted 2 || in state court. 3 Respondents make no argument for dismissal of Ground 2A. 4 The Court will, therefore, deny the Motion with respect to Grounds 2A and 2B and 5 || will set a schedule for Respondents to file an answer responding to those claims. 6 || IV. Conclusion 7 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 15) is 8 || granted in part and denied in part. Grounds 1A and 1B of the Petition for Writ of Habeas 9 || Corpus are dismissed; in all other respects, the Motion to Dismiss is denied. 10 It is further ordered that Respondents will have 90 days from the date of this order 11 || to file an Answer, responding to the remaining claims in the Petition for Writ of Habeas 12 || Corpus, which are Grounds 2A and 2B, as construed in this order. 13 It is further ordered that, in all other respects, the schedule for further proceedings 14 || set forth in the order entered on September 10, 2019 (ECF No. 5) will remain in effect. 15 || Petitioner will have 60 days after the filing of Respondents’ Answer to file a Reply. 16 17 DATED THIS 7" day of May 2020. athe M. DU 19 CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28