Howard v. Dzurenda

Opinion

DISTRICT OF NEVADA

* * * REGINALD C. HOWARD, Case No. 2:19-cv-00500-GMN-BNW

Petitioner, ORDER

v. JAMES DZURENDA, et al., Respondents. Before the court is respondents’ motion to dismiss Reginald C. Howard’s pro se 28 U.S.C. § 2254 habeas corpus petition on the basis that the all of the grounds are unexhausted and some are conclusory (ECF No. 21). As discussed below, the motion is granted in part. I. Background & Procedural History In July 2015, a jury convicted Howard of burglary (exhibit 43).1 The state district court adjudicated him a habitual criminal and sentenced him to 10 years to life, consecutive to a sentence previously imposed in a different case. Exh. 47. Judgment of conviction was entered on December 2, 2015. Exh. 50. The Nevada Court of Appeals affirmed Howard’s conviction in 2017 and affirmed the denial of his state postconviction habeas corpus petition in 2018. Exhs. 70, 91. Howard dispatched his federal habeas corpus petition for filing in March 2019 (ECF No. 4). Soon after, he filed an amended petition (ECF No. 10). Respondents now move to dismiss the petition as unexhausted and conclusory (ECF No. 21). Howard opposed, and respondents replied (ECF Nos. 32, 33). II. Legal Standards & Analysis a. Exhaustion A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). A habeas petitioner must “present the state courts with the same claim he urges upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims under the United States Constitution” and given the opportunity to correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Jiminez v. (1982)). “[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 195 F.3d at 1106. However, citation to state case law that applies federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). A claim is not exhausted unless the petitioner has presented to the state court the same operative facts and legal theory upon which his federal habeas claim is based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the petitioner presents to the federal court facts or evidence which place the claim in a significantly different posture than it was in the state courts, or where different facts are presented at the federal level to support the same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984). Ground 1, and 4 through 10 First, respondents argue that Howard never raised grounds 1 and 4 through 10 in state court on either direct appeal or state postconviction review (ECF No. 21, p. 7). As ground 1 Howard asserts that his appellate counsel rendered ineffective assistance in violation of the Fifth, Sixth and Fourteenth Amendments when counsel failed to challenge the victim’s identification of Howard as a suggestive show-up (ECF No. 10, pp. 3-6). The Nevada Court of Appeals affirmed the denial of this claim on appeal of the denial of Howard’s state postconviction petition. Exh. 91. It is, therefore, exhausted. Howard claims in grounds 4 through 10 that stand-by trial counsel and appellate counsel were ineffective in violation of his Fifth, Sixth, and Fourteenth Amendment rights: Ground 4: appellate counsel failed to raise a claim challenging the trial court’s Ground 5: appellate counsel failed to raise a claim challenging the prosecution’s failure to preserve and present certain evidence at trial (id. at 20-21); Ground 6: appellate counsel failed to raise a claim that she, in her capacity as stand-by trial counsel, interfered with Howard’s ability to represent himself at trial, and created a conflict of interest by providing exhibits to the prosecutor without Howard’s approval (id. at 23-26); Ground 7: stand-by trial counsel failed to secure 911 calls (id. at 28-29); Ground 8: stand-by trial counsel failed to file a motion for new trial (id. at 31-32); Ground 9: appellate counsel failed to challenge the court’s evidentiary ruling restricting Howard’s ability to cross-examine officers about statements Howard made when stopped by police (id. at 34-35); Ground 10: appellate counsel failed to challenge the court’s habitual criminal adjudication (id. at 37). Howard did not raise federal grounds 4 – 10 to the highest state court. See exhs. 88, 91. Accordingly, grounds 4 – 10 are unexhausted. Grounds 2 and 3 Respondents next argue that grounds 2 and 3 are not exhausted (ECF No. 21, p. 7). They contend that Howard raised the underlying, substantive claims but did not raise them as claims of ineffective assistance of counsel. Id. In ground 2 Howard asserts that his appellate counsel was ineffective in violation of the Fifth, Sixth and Fourteenth Amendments for failing to support the appellate claim challenging the trial court’s denial of Howard’s motion for mistrial with relevant authority (ECF No. 10, pp. 8-11). In ground 3 he claims his appellate counsel was ineffective in violation of the Fifth, Sixth and Fourteenth Amendments for failing to support the appellate claim challenging the trial court’s denial of Howard’s motion for continuance with relevant authority. Id. at 13-15. Howard fairly presented grounds 2 and 3 to the Nevada Court of Appeals in his appeal of the denial of his state postconviction petition. The court concludes that grounds 2 and 3 are exhausted. See exhs. 88, 91. Grounds 12 and 14 Respondents next argue that grounds 12 and 14 are unexhausted as federal claims because they were raised on direct appeal as matters of state law only (ECF No. 21, p. 8). In ground 12 Howard claims the trial court violated his Fifth, Sixth and Fourteenth Amendment rights when it allowed him to represent himself (ECF No. 10, p. 41). Howard explicitly relied on Faretta v. California, 422 U.S. 806, 807 (1975) and the Sixth and Fourteenth Amendment when he argued this claim on direct appeal. Exh. 63, pp. 12-14. Ground 12 was presented as a federal constitutional claim, and it is therefore exhausted. In federal ground 14 Howard argues that there was insufficient evidence to support his burglary conviction in violation of his Fifth, Sixth, and Fourteenth Amendment rights (ECF No. 10, p. 45). Respondents are correct that Howard did not make any specific references to federal constitutional rights when he presented his sufficiency of the evidence claim on direct appeal. See exh. 63, pp. 18-19. However, in denying this claim, the Nevada Court of Appeals relied on state authority that specifically refers to the Fourteenth Amendment and federal due process. Exh. 70, p. 5, citing Higgs v. State, 222 P.3d 648, 651 (Nev. 2010); Rose v. State, 163 P.3d 408, 414 (Nev. 2007). Thus, the state court considered the federal constitutional implications of the claim. Accordingly, ground 14 is exhausted. b. Conclusory Claims In federal habeas proceedings, notice pleading is not sufficient. Mere conclusions of violations of federal rights without specifics do not state a basis for federal habeas relief. Mayle v. Felix, 545 U.S. 644, 655 (2005). A petition may be patently frivolous or false.” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal citations omitted); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977). Respondents argue that grounds 11 through 15 are merely conclusory and should be dismissed (ECF No. 21, pp. 9-10). Undoubtedly, these claims are not a model of proper pleading and do not include specific factual allegations. Howard set forth ground 11 as follows:

5th, 6th and 14th U.S. Batson Challenge/Direct Appeal Petitioner objected to the removal of black prospective jurors. Appellate counsel raises on direct appeal (see opening brief) (ECF No. 10, p. 39). Grounds 12, 13, 14, and 15 are similarly terse, with no factual allegations. Id. at 41, 43, 45, 47. However, at the conclusion of the amended petition, Howard requests that all exhibits submitted with his original petition be incorporated into his amended petition because he is on copywork restriction due to low funds in his inmate account. Id. at 49. As Howard referenced in his amended petition, he presented federal grounds 11, 12, and 14 to the Nevada Court of Appeals in his direct appeal. See exh. 63. Having reviewed the original and amended petitions as well as Howard’s direct appeal, which he attempted to incorporate into his amended petition, the court declines to dismiss the following federal grounds: Ground 11: trial court allegedly violated Howard’s Fifth, Sixth and Fourteenth Amendment rights when it failed to grant his Batson challenge during jury selection (ECF No. 10, p. 39); Ground 12: trial court allegedly violated Howard’s Fifth, Sixth and Fourteenth Amendment rights when it allowed him to represent himself (id. at 41); and Ground 14: Howard contends that there was insufficient evidence to support his burglary conviction in violation of his Fifth, Sixth, and Fourteenth Amendment rights (id. at 45). Regarding grounds 13 and 15, this court reads ground 13 as duplicative of ground 3 and ground 15 as duplicative of ground 2 (see ECF No. 10, pp. 8-16, 43, 45). Accordingly, grounds 13 and 15 are dismissed on that basis. III. Petitioner’s Options Regarding Unexhausted Claims A federal court may not entertain a habeas petition unless the petitioner has exhausted available and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the court dismisses grounds 13 and 15. The court further concludes that grounds 4 through 10 are unexhausted. Because the court finds that the petition contains unexhausted claims, petitioner has these options:

1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only on the exhausted claims; 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without prejudice;2 or

3. He may file a motion asking this court to stay and abey his exhausted federal habeas claims while he returns to state court to exhaust his unexhausted claims.

With respect to the third option, a district court has discretion to stay a petition that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). The Rhines Court stated: [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate 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 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 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”). 544 U.S. at 277. If petitioner wishes to ask for a stay, he must file a motion for stay and abeyance in which he demonstrates good cause for his failure to exhaust his unexhausted claims in state court and presents argument regarding the question of whether or not his unexhausted claims are plainly meritless. Respondents would then be granted an opportunity to respond, and petitioner to reply. Or petitioner may file a declaration voluntarily abandoning his unexhausted claims, as described above. Petitioner’s failure to choose any of the three options listed above, or seek other appropriate relief from this court, will result in his federal habeas petition being dismissed. Petitioner is advised to familiarize himself with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he makes regarding his petition. IV. Conclusion IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 21) is GRANTED in part as follows: Grounds 13 and 15 are DISMISSED. Grounds 4, 5, 6, 7, 8, 9, and 10 are UNEXHAUSTED. IT IS FURTHER ORDERED that petitioner shall have 30 days to either: (1) inform this court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust his unexhausted grounds; OR (3) file a motion for a stay and abeyance, asking this court to hold his exhausted grounds in abeyance while he returns to state court to exhaust his seek other appropriate relief, respondents may respond to such motion as provided in Local Rule 7-2. IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds, respondents shall have 30 days from the date petitioner serves his declaration of abandonment in which to file an answer to petitioner’s remaining grounds for relief. The answer shall contain all substantive and procedural arguments as to all surviving grounds of the petition and shall comply with Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. IT IS FURTHER ORDERED that petitioner shall have 30 days following service of respondents’ answer in which to file a reply. IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. IT IS FURTHER ORDERED that respondents’ motion for leave to file petitioner’s pre-sentence investigation reports under seal (ECF No. 29) is GRANTED. DATED: 14 May 2020.

UNITED STATES DISTRICT JUDGE