3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 KRISTIAN WALTERS, Case No. 3:21-cv-00405-MMD-CSD
7 Petitioner, v. ORDER 8
9 PERRY RUSSELL, et al.,
10 Respondents.
11 12 I. SUMMARY 13 In this habeas corpus action brought by Nevada prisoner Kristian Walters, 14 Respondents have filed a motion to dismiss arguing that Walters’ amended petition (ECF 15 No. 10) contains unexhausted grounds for relief. (ECF No. 25 (“Motion”).) Walters did not 16 file a response to the Motion, but the Court’s review of the state court record reveals that 17 Respondents’ arguments are without merit. Thus, the Motion is denied. 18 II. BACKGROUND 19 At a hearing in Nevada’s Second Judicial District Court (Washoe County) in 20 November 2017, Walters entered guilty pleas to the following crimes: (1) obtaining and 21 using the personal identifying information of another, (2) burglary, and (3) obtaining 22 money, property, rent or labor by false pretenses. (ECF No. 17-50.) At the same hearing, 23 the state district court also revoked Walter’s probation on a prior burglary conviction. (Id.) 24 The state district court entered judgments of conviction in February 2018, sentencing 25 Walters to four consecutive terms totaling 148 to 432 months. (ECF Nos. 17-19, 18-7.) 26 27 1 Walters filed a notice of appeal, but subsequently withdrew it. (ECF Nos. 18-8, 18- 2 30.) In September 2018, he filed a petition for writ of habeas corpus in the state district 3 court addressing all four cases. (ECF No. 18-35.) The court dismissed some of his claims 4 in an order entered in October 2019 (ECF No. 18-50) and, after an evidentiary hearing on 5 his remaining claims (ECF Nos. 19-2, 19-4), denied his petition in an order entered in May 6 2020 (ECF No. 19-5). 7 Walters appealed the denial of his petition. (ECF No. 19-9.) The Nevada Court of 8 Appeals affirmed the lower court’s decision in an order issued in May 2021. (ECF No. 19- 9 28.) 10 Walter initiated this federal habeas corpus action on September 8, 2021. (ECF No. 11 6 at 1.) After this Court entered a scheduling order (ECF No. 5), Walters filed an amended 12 petition. (ECF No. 10.) Noting that Walters conceded that his amended petition contained 13 unexhausted claims, the Court gave him the choice of either abandoning the unexhausted 14 claims or filing a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 15 (2005). (ECF No. 11.) 16 Walters filed a motion for stay and abeyance (ECF No. 13), but the Court 17 determined that he did not meet the Rhines standard (ECF No 22). Consequently, the 18 Court dismissed Grounds 4, 5, and 6 of the amended petition at Walters’ request and 19 directed Respondents to file an answer to the remaining claims. (Id.) On June 24, 2022, 20 Respondents filed the motion to dismiss now before the Court. (ECF No. 25.) 21 III. DISCUSSION 22 Respondents argue that the remaining grounds in Walters’ amended petition— 23 Grounds 1, 2, and 3—are partially or wholly unexhausted. All three grounds allege that 24 Walters’ convictions and sentence are unconstitutional due to ineffective assistance of 25 counsel. 26 A state prisoner first must exhaust state court remedies for all claims presented in 27 his federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 1 520 (1982). The exhaustion requirement ensures that the state courts, as a matter of 2 comity, will have the first opportunity to address and correct alleged violations of federal 3 constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A 4 petitioner has exhausted his federal claims when he has fully and fairly presented them 5 to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing 6 O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (“Section 2254(c) requires only that 7 state prisoners give state courts a fair opportunity to act on their claims”). To satisfy the 8 exhaustion requirement, a claim must have been raised through one complete round of 9 either direct appeal or collateral proceedings to the highest state court level of review 10 available. See O'Sullivan, 526 U.S. at 844-45; Peterson v. Lampert, 319 F.3d 1153, 1156 11 (9th Cir. 2003) (en banc). A properly exhausted claim “‘must include reference to a 12 specific federal constitutional guarantee, as well as a statement of the facts that entitle 13 the petitioner to relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 14 152, 162-63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair 15 presentation requires both the operative facts and federal legal theory upon which a claim 16 is based). 17 A. Ground 1 18 In Ground 1, Walters alleges that he was provided ineffective assistance of counsel 19 because the two attorneys representing him in his four cases failed to consult with him 20 and each other about the “possibility of a global resolution to the multiple charges he was 21 facing.” (ECF No. 10 at 3.) Respondents argue that the claim is unexhausted because 22 Walters’ claim on appeal in his state post-conviction proceeding was that counsel were 23 ineffective only for failing to consult with each other and made no reference to failing to 24 consult with him. 25 New facts presented with a habeas claim in federal court that fundamentally alter 26 the legal claim considered by the state court can render the claim unexhausted. See 27 Vasquez v. Hillery, 474 U.S. 254, 260 (1986). Respondents’ argument, however, is not 1 persuasive. Walters’ claim in state court did include allegations that counsel were 2 ineffective in not consulting with him about a global resolution of the charges against him. 3 (ECF Nos. 19-5 at 3-4,19-16 at 27.) Ground 1 is exhausted. 4 B. Ground 2 5 In Ground 2, Walters alleges that he was provided ineffective assistance of counsel 6 because counsel failed to advise or consult with him about a beneficial plea offer that he 7 would have accepted. (ECF No. 10 at 5.) Here again, Respondents argue that Walters 8 has fundamentally altered the claim presented to the state court by including facts that 9 were not presented to the Nevada Court of Appeals. In particular, Respondents claim that 10 Walters is making new factual allegations regarding when the plea offer was relayed to 11 his trial counsel, how he became aware of it, and his conversation with counsel about it 12 being withdrawn. 13 Walters’ state habeas petition and supplemental petition contain essentially the 14 same factual allegations that Walters is now making in this Court with respect to the 15 circumstances surrounding the alleged plea offer. (ECF Nos. 18-29 at 14, 18-35 at 10.) 16 While specific details may not have been included in Walters’ briefs on appeal, his state 17 district court pleadings were presumably part of the record before the Nevada Court of 18 Appeals. This Court concludes that the Nevada Court of Appeals was presented with the 19 operative facts supporting the claim Walters presents as Ground 2 in this Court. Ground 20 2 is exhausted. 21 C.
Free access — add to your briefcase to read the full text and ask questions with AI
3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 KRISTIAN WALTERS, Case No. 3:21-cv-00405-MMD-CSD
7 Petitioner, v. ORDER 8
9 PERRY RUSSELL, et al.,
10 Respondents.
11 12 I. SUMMARY 13 In this habeas corpus action brought by Nevada prisoner Kristian Walters, 14 Respondents have filed a motion to dismiss arguing that Walters’ amended petition (ECF 15 No. 10) contains unexhausted grounds for relief. (ECF No. 25 (“Motion”).) Walters did not 16 file a response to the Motion, but the Court’s review of the state court record reveals that 17 Respondents’ arguments are without merit. Thus, the Motion is denied. 18 II. BACKGROUND 19 At a hearing in Nevada’s Second Judicial District Court (Washoe County) in 20 November 2017, Walters entered guilty pleas to the following crimes: (1) obtaining and 21 using the personal identifying information of another, (2) burglary, and (3) obtaining 22 money, property, rent or labor by false pretenses. (ECF No. 17-50.) At the same hearing, 23 the state district court also revoked Walter’s probation on a prior burglary conviction. (Id.) 24 The state district court entered judgments of conviction in February 2018, sentencing 25 Walters to four consecutive terms totaling 148 to 432 months. (ECF Nos. 17-19, 18-7.) 26 27 1 Walters filed a notice of appeal, but subsequently withdrew it. (ECF Nos. 18-8, 18- 2 30.) In September 2018, he filed a petition for writ of habeas corpus in the state district 3 court addressing all four cases. (ECF No. 18-35.) The court dismissed some of his claims 4 in an order entered in October 2019 (ECF No. 18-50) and, after an evidentiary hearing on 5 his remaining claims (ECF Nos. 19-2, 19-4), denied his petition in an order entered in May 6 2020 (ECF No. 19-5). 7 Walters appealed the denial of his petition. (ECF No. 19-9.) The Nevada Court of 8 Appeals affirmed the lower court’s decision in an order issued in May 2021. (ECF No. 19- 9 28.) 10 Walter initiated this federal habeas corpus action on September 8, 2021. (ECF No. 11 6 at 1.) After this Court entered a scheduling order (ECF No. 5), Walters filed an amended 12 petition. (ECF No. 10.) Noting that Walters conceded that his amended petition contained 13 unexhausted claims, the Court gave him the choice of either abandoning the unexhausted 14 claims or filing a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269 15 (2005). (ECF No. 11.) 16 Walters filed a motion for stay and abeyance (ECF No. 13), but the Court 17 determined that he did not meet the Rhines standard (ECF No 22). Consequently, the 18 Court dismissed Grounds 4, 5, and 6 of the amended petition at Walters’ request and 19 directed Respondents to file an answer to the remaining claims. (Id.) On June 24, 2022, 20 Respondents filed the motion to dismiss now before the Court. (ECF No. 25.) 21 III. DISCUSSION 22 Respondents argue that the remaining grounds in Walters’ amended petition— 23 Grounds 1, 2, and 3—are partially or wholly unexhausted. All three grounds allege that 24 Walters’ convictions and sentence are unconstitutional due to ineffective assistance of 25 counsel. 26 A state prisoner first must exhaust state court remedies for all claims presented in 27 his federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 1 520 (1982). The exhaustion requirement ensures that the state courts, as a matter of 2 comity, will have the first opportunity to address and correct alleged violations of federal 3 constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A 4 petitioner has exhausted his federal claims when he has fully and fairly presented them 5 to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing 6 O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) (“Section 2254(c) requires only that 7 state prisoners give state courts a fair opportunity to act on their claims”). To satisfy the 8 exhaustion requirement, a claim must have been raised through one complete round of 9 either direct appeal or collateral proceedings to the highest state court level of review 10 available. See O'Sullivan, 526 U.S. at 844-45; Peterson v. Lampert, 319 F.3d 1153, 1156 11 (9th Cir. 2003) (en banc). A properly exhausted claim “‘must include reference to a 12 specific federal constitutional guarantee, as well as a statement of the facts that entitle 13 the petitioner to relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 14 152, 162-63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair 15 presentation requires both the operative facts and federal legal theory upon which a claim 16 is based). 17 A. Ground 1 18 In Ground 1, Walters alleges that he was provided ineffective assistance of counsel 19 because the two attorneys representing him in his four cases failed to consult with him 20 and each other about the “possibility of a global resolution to the multiple charges he was 21 facing.” (ECF No. 10 at 3.) Respondents argue that the claim is unexhausted because 22 Walters’ claim on appeal in his state post-conviction proceeding was that counsel were 23 ineffective only for failing to consult with each other and made no reference to failing to 24 consult with him. 25 New facts presented with a habeas claim in federal court that fundamentally alter 26 the legal claim considered by the state court can render the claim unexhausted. See 27 Vasquez v. Hillery, 474 U.S. 254, 260 (1986). Respondents’ argument, however, is not 1 persuasive. Walters’ claim in state court did include allegations that counsel were 2 ineffective in not consulting with him about a global resolution of the charges against him. 3 (ECF Nos. 19-5 at 3-4,19-16 at 27.) Ground 1 is exhausted. 4 B. Ground 2 5 In Ground 2, Walters alleges that he was provided ineffective assistance of counsel 6 because counsel failed to advise or consult with him about a beneficial plea offer that he 7 would have accepted. (ECF No. 10 at 5.) Here again, Respondents argue that Walters 8 has fundamentally altered the claim presented to the state court by including facts that 9 were not presented to the Nevada Court of Appeals. In particular, Respondents claim that 10 Walters is making new factual allegations regarding when the plea offer was relayed to 11 his trial counsel, how he became aware of it, and his conversation with counsel about it 12 being withdrawn. 13 Walters’ state habeas petition and supplemental petition contain essentially the 14 same factual allegations that Walters is now making in this Court with respect to the 15 circumstances surrounding the alleged plea offer. (ECF Nos. 18-29 at 14, 18-35 at 10.) 16 While specific details may not have been included in Walters’ briefs on appeal, his state 17 district court pleadings were presumably part of the record before the Nevada Court of 18 Appeals. This Court concludes that the Nevada Court of Appeals was presented with the 19 operative facts supporting the claim Walters presents as Ground 2 in this Court. Ground 20 2 is exhausted. 21 C. Ground 3 22 In Ground 3, Walters alleges that he was provided ineffective assistance of counsel 23 because counsel “failed to present significant mitigating evidence that would have 24 resulted in a lesser sentence.” (ECF No. 10 at 7.) Respondents argue that Ground 3 25 differs from the claim he presented in state court in three respects. 26 First, Respondents note that Ground 3 faults counsel for not recommending or 27 allowing two doctors, Dr. Lawrence and Dr. Jenkins, to testify about Walters’ mental 1 health and substance abuse problems but Walters’ brief on appeal made no mention of 2 this in arguing counsel should have presented mitigation evidence. They further note that 3 the Nevada Court of Appeals found that “counsel provided a substance abuse evaluation 4 and a psychological evaluation in mitigation at sentencing” (ECF No. 19-28 at 6) but did 5 not have before it a claim that counsel should have had the doctors testify on Walters’ 6 behalf. 7 Respondents fail to observe, however, that Walters’ state habeas petition and 8 supplemental petition both refer to counsel’s failure to present the testimony of Dr. 9 Lawrence and Dr. Jenkins. (ECF Nos. 18-35 at 9, 18-29 at 15-16.) In addition, the 10 allegation was brought up as an issue during counsel’s and Walters’ testimony at the 11 evidentiary hearing on Walters’ state petition. (ECF No. 19-2 at 88, 120-23.) So, the 12 Nevada Court of Appeals did have the allegation before it as part of the record on appeal. 13 Second, Respondents point to an allegation in Ground 3 that counsel should have 14 presented the testimony of law enforcement officers that Walters cooperated with. They 15 contend this is different from Walters’ claim in state court that counsel should have 16 provided information about Walters cooperating with law enforcement. Be that as it may, 17 the marginal difference is not sufficient to render the claim unexhausted. See Vasquez, 18 474 U.S. at 260. 19 Third, Respondents cite to Walters’ allegation in Ground 3 that trial counsel was 20 ineffective for failing to “advise Petitioner’s family that their private statements would 21 cause harm if brought up in his court proceedings.” (ECF No. 25 at 8.) They argue that it 22 is the first time Walters has made such a claim, but they are mistaken. His supplemental 23 petition goes into detail about counsel’s failure to advise family members about providing 24 harmful testimony. (ECF No. 18-39 at 15.) Thus, Walters fairly presented the claim to the 25 state court. 26 Ground 3 is exhausted. 27 1 The Court concludes that, with Grounds 4, 5, and 6 dismissed, all the remaining 2 || claims in Walters’ amended petition have been exhausted in state court. 3 || IV. CONCLUSION 4 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 25) is denied. 5 It is further ordered that Respondents have 60 days from the date of entry of this 6 || order to file an answer to the remaining grounds for relief in the petition. Walters will have 7 || 60 days from the date on which the answer is served on him to file and serve a reply. 8 It is further ordered that Respondents’ motion for extension of time (ECF No. 24) 9 || is granted nunc pro tunc as of June 10, 2022. 10 DATED THIS 31* Day of October 2022. 11 “an ASA 13 CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28