1 2 3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * * 6 TODD FORSBERG, Case No. 3:19-cv-00037-MMD-CLB
7 Petitioner, ORDER
8 v.
9 WILLIAM GITTERE, et al., 10 Respondents. 11 12 Petitioner Todd Forsberg filed a writ of habeas corpus under 28 U.S.C. § 2254 13 (ECF Nos. 4, 10). Before the Court is Respondents’ motion to dismiss (ECF No. 16 14 (“Motion”)). The Motion seeks to dismiss Ground 3 as unexhausted and/or non- 15 cognizable. (Id. at 6-10.) Forsberg opposes the Motion (ECF No. 26), and Respondents 16 filed a reply (ECF No. 27). As further discussed below, Forsberg’s Motion is granted in 17 part. 18 I. BACKGROUND 19 On April 23, 2009, a jury found Forsberg guilty of first-degree murder. (Ex. 39.)1 20 The state district court sentenced Forsberg to two consecutive terms of life in prison 21 without the possibility of parole. (Ex. 41.) Judgment of the conviction was entered on July 22 2, 2009. (Ex. 42.) 23 The Nevada Supreme Court affirmed Forsberg’s conviction in July 2010 and affirmed 24 the denial of Forsberg’s state post-conviction habeas corpus petition in October 2018. 25 (Exs. 67, 116.) 26 /// 27
28 1Exhibits referenced in this order are exhibits included with Respondents’ Motion 1 Forsberg dispatched his federal habeas petition for filing on or about January 10, 2 2019. (ECF No. 4.) The Court granted his motion for appointment of counsel (ECF Nos. 3 1-2, 5). (ECF No. 3.) Forsberg filed a counseled, amended petition (ECF No. 10 4 (“Amended Petition”)). 5 II. DISCUSSION 6 Respondents have moved to dismiss Ground 3 of the Amended Petition on the 7 basis that it is unexhausted and/or fails to state a claim for which federal habeas relief 8 may be granted. (ECF No. 16.) In Ground 3, Forsberg asserts that insufficient evidence 9 supported his conviction in violation of his Fifth and Fourteenth Amendment due process 10 rights. (ECF No. 10 at 21-22.) 11 a. Exhaustion 12 A federal court will not grant a state prisoner’s petition for habeas relief until the 13 prisoner has exhausted his or her available state remedies for all claims raised. See Rose 14 v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 15 courts a fair opportunity to act on each of his or her claims before he or she presents 16 those claims in a federal habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 17 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains 18 unexhausted until the petitioner has given the highest available state court the opportunity 19 to consider the claim through direct appeal or state collateral review proceedings. See 20 Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthy, 653 F.2d 374, 21 376 (9th Cir. 1981). 22 A habeas petitioner must “present the state courts with the same claim he [or she] 23 urges upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 24 constitutional implications of a claim, not just issues of state law, must have been raised 25 in the state court to achieve exhaustion. See Ybarra v. Sumner, 678 F. Supp. 1480, 1481 26 (D. Nev. 1988) (citing Picard, 404 U.S. at 276). To achieve exhaustion, the state court 27 must be “alerted to the fact that the prisoner[] [is] asserting claims under the United States 28 Constitution” and given the opportunity to correct alleged violations of the prisoner’s 1 federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see Hiivala v. Wood, 195 2 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a 3 simple and clear instruction to potential litigants: before you bring any claims to federal 4 court, be sure that you first have taken each one to state court.” Jiminez v. Rice, 276 F.3d 5 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). “[G]eneral 6 appeals to broad constitutional principles, such as due process, equal protection, and the 7 right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 195 F.3d at 1106. 8 However, citation to state case law that applies federal constitutional principles will 9 suffice. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 10 A claim is not exhausted unless the petitioner has presented to the state court the 11 same operative facts and legal theory upon which his or her federal habeas claim is 12 based. See Bland v. Cal. Dep’t. of Corr., 20 F.3d 1469, 1473 (9th Cir. 1994). The 13 exhaustion requirement is not met when the petitioner presents to the federal court facts 14 or evidence which place the claim in a significantly different posture than it was in the 15 state courts, or where different facts are presented at the federal level to support the same 16 theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 17 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 18 (D. Nev. 1984). 19 b. Ground 3 20 In Forsberg’s Amended Petition, Forsberg argues that insufficient evidence was 21 adduced at trial to support his conviction in violation of his Fifth and Fourteenth 22 Amendment due process rights. (ECF No. 10 at 21-22.) Forsberg contends that the only 23 other person allegedly present at the murder, Karl Czekus, was an uncharged 24 accomplice. (Id.) Thus, Forsberg asserts that Czekus’s testimony needed to be 25 corroborated. (Id.) Forsberg argues that Czekus’s testimony was not sufficiently 26 corroborated, and therefore, the State did not introduce sufficient evidence to convict 27 Forsberg. (Id.) 28 /// 1 When Forsberg appealed his conviction, he argued that insufficient evidence 2 corroborated the testimony of the uncharged accomplice. (Ex. 62.) Forsberg relied on the 3 relevant state statute, NRS § 175.291, and Nevada state caselaw applying that statute. 4 The Nevada Supreme Court rejected the claim based on state caselaw applying NRS § 5 175.291. Forsberg did not raise any constitutional implications of the claim to the state 6 appellate court. Ybarra, 678 F. Supp. at 1481. Accordingly, Ground 3 is unexhausted. 7 III. PETITIONER’S OPTION 8 A federal court may not entertain a habeas petition unless the petitioner has 9 exhausted available and adequate state court remedies with respect to all claims in the 10 petition. See Rose, 455 U.S. at 510. A “mixed” petition containing both exhausted and 11 unexhausted claims is subject to dismissal. Id.
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1 2 3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * * 6 TODD FORSBERG, Case No. 3:19-cv-00037-MMD-CLB
7 Petitioner, ORDER
8 v.
9 WILLIAM GITTERE, et al., 10 Respondents. 11 12 Petitioner Todd Forsberg filed a writ of habeas corpus under 28 U.S.C. § 2254 13 (ECF Nos. 4, 10). Before the Court is Respondents’ motion to dismiss (ECF No. 16 14 (“Motion”)). The Motion seeks to dismiss Ground 3 as unexhausted and/or non- 15 cognizable. (Id. at 6-10.) Forsberg opposes the Motion (ECF No. 26), and Respondents 16 filed a reply (ECF No. 27). As further discussed below, Forsberg’s Motion is granted in 17 part. 18 I. BACKGROUND 19 On April 23, 2009, a jury found Forsberg guilty of first-degree murder. (Ex. 39.)1 20 The state district court sentenced Forsberg to two consecutive terms of life in prison 21 without the possibility of parole. (Ex. 41.) Judgment of the conviction was entered on July 22 2, 2009. (Ex. 42.) 23 The Nevada Supreme Court affirmed Forsberg’s conviction in July 2010 and affirmed 24 the denial of Forsberg’s state post-conviction habeas corpus petition in October 2018. 25 (Exs. 67, 116.) 26 /// 27
28 1Exhibits referenced in this order are exhibits included with Respondents’ Motion 1 Forsberg dispatched his federal habeas petition for filing on or about January 10, 2 2019. (ECF No. 4.) The Court granted his motion for appointment of counsel (ECF Nos. 3 1-2, 5). (ECF No. 3.) Forsberg filed a counseled, amended petition (ECF No. 10 4 (“Amended Petition”)). 5 II. DISCUSSION 6 Respondents have moved to dismiss Ground 3 of the Amended Petition on the 7 basis that it is unexhausted and/or fails to state a claim for which federal habeas relief 8 may be granted. (ECF No. 16.) In Ground 3, Forsberg asserts that insufficient evidence 9 supported his conviction in violation of his Fifth and Fourteenth Amendment due process 10 rights. (ECF No. 10 at 21-22.) 11 a. Exhaustion 12 A federal court will not grant a state prisoner’s petition for habeas relief until the 13 prisoner has exhausted his or her available state remedies for all claims raised. See Rose 14 v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 15 courts a fair opportunity to act on each of his or her claims before he or she presents 16 those claims in a federal habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 17 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains 18 unexhausted until the petitioner has given the highest available state court the opportunity 19 to consider the claim through direct appeal or state collateral review proceedings. See 20 Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthy, 653 F.2d 374, 21 376 (9th Cir. 1981). 22 A habeas petitioner must “present the state courts with the same claim he [or she] 23 urges upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 24 constitutional implications of a claim, not just issues of state law, must have been raised 25 in the state court to achieve exhaustion. See Ybarra v. Sumner, 678 F. Supp. 1480, 1481 26 (D. Nev. 1988) (citing Picard, 404 U.S. at 276). To achieve exhaustion, the state court 27 must be “alerted to the fact that the prisoner[] [is] asserting claims under the United States 28 Constitution” and given the opportunity to correct alleged violations of the prisoner’s 1 federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see Hiivala v. Wood, 195 2 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a 3 simple and clear instruction to potential litigants: before you bring any claims to federal 4 court, be sure that you first have taken each one to state court.” Jiminez v. Rice, 276 F.3d 5 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). “[G]eneral 6 appeals to broad constitutional principles, such as due process, equal protection, and the 7 right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 195 F.3d at 1106. 8 However, citation to state case law that applies federal constitutional principles will 9 suffice. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 10 A claim is not exhausted unless the petitioner has presented to the state court the 11 same operative facts and legal theory upon which his or her federal habeas claim is 12 based. See Bland v. Cal. Dep’t. of Corr., 20 F.3d 1469, 1473 (9th Cir. 1994). The 13 exhaustion requirement is not met when the petitioner presents to the federal court facts 14 or evidence which place the claim in a significantly different posture than it was in the 15 state courts, or where different facts are presented at the federal level to support the same 16 theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 17 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 18 (D. Nev. 1984). 19 b. Ground 3 20 In Forsberg’s Amended Petition, Forsberg argues that insufficient evidence was 21 adduced at trial to support his conviction in violation of his Fifth and Fourteenth 22 Amendment due process rights. (ECF No. 10 at 21-22.) Forsberg contends that the only 23 other person allegedly present at the murder, Karl Czekus, was an uncharged 24 accomplice. (Id.) Thus, Forsberg asserts that Czekus’s testimony needed to be 25 corroborated. (Id.) Forsberg argues that Czekus’s testimony was not sufficiently 26 corroborated, and therefore, the State did not introduce sufficient evidence to convict 27 Forsberg. (Id.) 28 /// 1 When Forsberg appealed his conviction, he argued that insufficient evidence 2 corroborated the testimony of the uncharged accomplice. (Ex. 62.) Forsberg relied on the 3 relevant state statute, NRS § 175.291, and Nevada state caselaw applying that statute. 4 The Nevada Supreme Court rejected the claim based on state caselaw applying NRS § 5 175.291. Forsberg did not raise any constitutional implications of the claim to the state 6 appellate court. Ybarra, 678 F. Supp. at 1481. Accordingly, Ground 3 is unexhausted. 7 III. PETITIONER’S OPTION 8 A federal court may not entertain a habeas petition unless the petitioner has 9 exhausted available and adequate state court remedies with respect to all claims in the 10 petition. See Rose, 455 U.S. at 510. A “mixed” petition containing both exhausted and 11 unexhausted claims is subject to dismissal. Id. In the instant case, the Court finds that 12 Ground 3 is unexhausted. Because the Court finds the petition contains an unexhausted 13 claim, Forsberg has these options:
14 Option 1: Forsberg may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas 15 petition, and proceed only on the exhausted claims; 16 Option 2: Forsberg may return to state court to exhaust his unexhausted 17 claim in which case his federal habeas petition will be denied without prejudice; or 18 Option 3: Forsberg may file a motion asking the Court to stay and abey 19 his exhausted federal habeas claims while he returns to state 20 court to exhaust his unexhausted claim. 21 With respect to Option 3, a district court has discretion to stay a petition that it 22 may validly consider on the merits. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 23 The Rhines Court stated:
24 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present 25 his claims first to the state courts, stay and abeyance is only appropriate 26 when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner 27 had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly 28 1 meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). 2 3 Id. at 277. If Forsberg wants a stay, he must file a motion for stay and abeyance in which 4 he demonstrates good cause for his failure to exhaust his unexhausted claim in state 5 court and present arguments regarding the question of whether or not his unexhausted 6 claim is plainly meritless. Respondents will then be granted an opportunity to respond, 7 and Forsberg can reply. Or Forsberg may file a declaration voluntarily abandoning his 8 unexhausted claim, as described above. 9 Forsberg’s failure to choose any of the three options listed above, or seek other 10 appropriate relief from the Court, will result in his federal habeas petition being dismissed. 11 Forsberg is advised to familiarize himself with the limitation periods for filing federal 12 habeas petitions contained in 28 U.S.C. § 2244(d), as those limitation periods may have 13 a direct and substantial effect on whatever choice Forsberg makes regarding his petition. 14 IV. CONCLUSION 15 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 16) is granted 16 in part. The Court finds Ground 3 is unexhausted. 17 It is further ordered that Petitioner has 30 days to either: (1) inform the Court in a 18 sworn declaration that he wishes to formally and forever abandon the unexhausted 19 ground for relief in his federal habeas petition and proceed on the exhausted grounds; or 20 (2) inform the Court in a sworn declaration that he wishes to dismiss his petition without 21 prejudice in order to return to state court to exhaust his unexhausted claim; or (3) file a 22 motion for a stay and abeyance, asking the Court to hold his exhausted claims in 23 abeyance while he returns to state court to exhaust his unexhausted claim. If Petitioner 24 chooses to file a motion for a stay and abeyance, or seek other appropriate relief, 25 Respondents may respond to such motion as provided in LR 7-2. 26 It is further ordered that if Petitioner elects to abandon his unexhausted ground, 27 Respondents will have 30 days from the date Petitioner serves his declaration of 28 abandonment in which to file an answer to Petitioner’s remaining grounds for relief. 1 || Respondents’ answer must contain all substantive and procedural arguments as to all 2 || surviving grounds of the petition and comply with Rule 5 of the Rules Governing 3 || Proceedings in the United States District Courts under 28 U.S.C. §2254. 4 It is further ordered that Petitioner will have 30 days following service of 5 || Respondents’ answer in which to file a reply. 6 It is further ordered that if Petitioner fails to respond to this order within the time 7 || permitted, this case may be dismissed. 8 DATED THIS 13!" Day of November 2020. 9 ASQ 11 CHIER UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28