2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 DONTE WOODS, Case No. 2:23-cv-00991-ART-NJK
5 Petitioner, ORDER
6 v.
7 RONALD OLIVER, et al.,
8 Respondents.
9 10 I. Summary 11 In this habeas corpus action, the petitioner, Donte Woods, who is 12 represented by appointed counsel, filed an amended petition for writ of habeas 13 corpus on March 8, 2024. (ECF No. 22.) Respondents filed a motion to dismiss 14 on September 6, 2024. (ECF No. 29.) The Court will deny the motion to dismiss 15 and will set a schedule for the respondents to file their answer. 16 II. Background 17 On May 26, 2017, Woods was convicted, pursuant to a jury verdict, in 18 Nevada’s Eighth Judicial District Court (Clark County), of attempted murder with 19 use of a deadly weapon; battery with use of a deadly weapon resulting in 20 substantial bodily harm; discharging a firearm at or into an occupied structure, 21 vehicle or watercraft; attempted invasion of the home with use of a deadly 22 weapon; and attempted burglary while in possession of a firearm. (ECF No. 16- 23 33 (jury verdict); ECF No. 16-38 (judgment of conviction).) He was sentenced to 24 an aggregate of ten to forty years in prison. (ECF No. 16-38.) 25 Woods’s convictions resulted from a shooting in Las Vegas on the night of 26 April 19, 2016. An individual named Tyrone Golden was shot several times; “[t]he 27 State’s primary evidence against Woods was Golden’s identification of Woods as 28 one of the assailants in a pretrial photographic lineup and at trial.” (ECF No. 17- 1 20 at 1 (order of affirmance of the Nevada Supreme Court on direct appeal); see 2 also ECF No. 22 at 5–10 (statement of facts in Woods’s amended petition).) 3 Woods appealed and the Nevada Supreme Court affirmed his conviction on 4 September 21, 2018. (ECF No. 17-3 (opening brief on appeal); 17-20 (order of 5 affirmance).) 6 On April 25, 2018, with his direct appeal pending, Woods filed a pro se 7 state post-conviction petition for a writ of habeas corpus. (ECF No. 17-5.) The 8 state district court denied the petition on August 13, 2018. (ECF No. 17-14.) 9 Woods appealed. (ECF Nos. 67, 68, 69.) On March 19, 2020, the Nevada Court of 10 Appeals affirmed in part and reversed and remanded in part. (ECF No. 17-39.) 11 The court remanded for the state district court to hold an evidentiary hearing 12 regarding Woods’s claim that his trial counsel was ineffective for not presenting 13 an alibi defense. (Id.) The state district court held the evidentiary hearing on 14 March 11, 2022. (ECF No. 18-15.) In an order filed on April 26, 2022, the state 15 district court again denied Woods’s claim that his trial counsel was ineffective. 16 (ECF No. 18-16.) Woods appealed. (ECF No. 18-24 (opening brief on appeal).) The 17 Nevada Court of Appeals affirmed on February 14, 2023. (ECF No. 18-31.) 18 This Court received Woods’s pro se federal petition for writ of habeas corpus 19 for filing on June 27, 2023. (ECF Nos. 2-1, 6.) The Court granted Woods’s motion 20 for appointment of counsel and appointed counsel (ECF No. 5); with counsel, 21 Woods filed an amended habeas petition on March 8, 2024. (ECF No. 22.) Woods’s 22 amended petition asserts three claims:
23 1. “Mr. Woods’ federal constitutional rights under the Fifth and Fourteenth Amendments were violated by the fact that there was 24 insufficient evidence to support the convictions.”
25 2. “Mr. Woods’ federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated by his trial counsel’s 26 failure to adequately investigate and present his alibi defense.” 27 /// 28 /// 1 3. “Mr. Woods’ federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated by cumulative error 2 sufficient to overturn the convictions.” 3 (Id.) 4 Respondents filed their motion to dismiss on September 6, 2024, arguing 5 that Claims 1 and 3 are unexhausted in state court and that Claim 3 is not 6 cognizable. (ECF No. 29.) That motion is fully briefed and before the Court. (See 7 ECF No. 31 (Woods’s opposition); ECF No. 33 (Respondents’ reply).) 8 III. Discussion 9 A. Exhaustion – Legal Standards 10 A federal court generally cannot grant a state prisoner’s petition for writ of 11 habeas corpus unless the petitioner has exhausted available state-court 12 remedies. 28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509 (1982). This 13 means that a petitioner must give the state courts a fair opportunity to act on 14 each of his claims before he presents the claims in a federal habeas petition. See 15 O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A claim remains unexhausted 16 until the petitioner has given the highest available state court the opportunity to 17 consider the claim through direct appeal or state collateral review proceedings. 18 See Casey v. Byford, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 19 653 F.2d 374, 376 (9th Cir. 1981). The petitioner must “present the state courts 20 with the same claim he urges upon the federal court.” Picard v. Connor, 404 U.S. 21 270, 276 (1971). A claim is not exhausted unless the petitioner has presented to 22 the state court the same operative facts and legal theory upon which the federal 23 habeas claim is based. See Bland v. California Dept. of Corrections, 20 F.3d 1469, 24 1473 (9th Cir. 1994). 25 “A claim has not been fairly presented in state court if new factual 26 allegations either ‘fundamentally alter the legal claim already considered by the 27 state courts,’ [Vasquez v. Hillery, 474 U.S. 254, 260 (1986)], or ‘place the case in 28 a significantly different and stronger evidentiary posture than it was when the 1 state courts considered it.’ [Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)]; 2 accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988).” Dickens v. Ryan, 3 740 F.3d 1302, 1318 (9th Cir. 2014). On the other hand, new allegations that 4 “[do] not fundamentally alter the legal claim already considered by the state 5 courts” will not render a claim unexhausted. Vasquez, 474 U.S. at 260; see also 6 Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994). 7 B. Claim 1 8 In Claim 1, Woods claims that his federal constitutional rights were violated 9 because there was insufficient evidence presented at trial to support his 10 convictions. (ECF No. 22 at 13–19.) Woods asserted such a claim on his direct 11 appeal. (ECF No. 17-3 at 19–23.) 12 Respondents recognize that Woods claimed insufficiency of evidence on his 13 direct appeal, but they argue that “Ground 1 contains a new argument with new 14 factual allegations regarding his conspiratorial liability that were not fairly 15 presented in Woods’ direct appeal before the Nevada Supreme Court.” (ECF No.
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2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 DONTE WOODS, Case No. 2:23-cv-00991-ART-NJK
5 Petitioner, ORDER
6 v.
7 RONALD OLIVER, et al.,
8 Respondents.
9 10 I. Summary 11 In this habeas corpus action, the petitioner, Donte Woods, who is 12 represented by appointed counsel, filed an amended petition for writ of habeas 13 corpus on March 8, 2024. (ECF No. 22.) Respondents filed a motion to dismiss 14 on September 6, 2024. (ECF No. 29.) The Court will deny the motion to dismiss 15 and will set a schedule for the respondents to file their answer. 16 II. Background 17 On May 26, 2017, Woods was convicted, pursuant to a jury verdict, in 18 Nevada’s Eighth Judicial District Court (Clark County), of attempted murder with 19 use of a deadly weapon; battery with use of a deadly weapon resulting in 20 substantial bodily harm; discharging a firearm at or into an occupied structure, 21 vehicle or watercraft; attempted invasion of the home with use of a deadly 22 weapon; and attempted burglary while in possession of a firearm. (ECF No. 16- 23 33 (jury verdict); ECF No. 16-38 (judgment of conviction).) He was sentenced to 24 an aggregate of ten to forty years in prison. (ECF No. 16-38.) 25 Woods’s convictions resulted from a shooting in Las Vegas on the night of 26 April 19, 2016. An individual named Tyrone Golden was shot several times; “[t]he 27 State’s primary evidence against Woods was Golden’s identification of Woods as 28 one of the assailants in a pretrial photographic lineup and at trial.” (ECF No. 17- 1 20 at 1 (order of affirmance of the Nevada Supreme Court on direct appeal); see 2 also ECF No. 22 at 5–10 (statement of facts in Woods’s amended petition).) 3 Woods appealed and the Nevada Supreme Court affirmed his conviction on 4 September 21, 2018. (ECF No. 17-3 (opening brief on appeal); 17-20 (order of 5 affirmance).) 6 On April 25, 2018, with his direct appeal pending, Woods filed a pro se 7 state post-conviction petition for a writ of habeas corpus. (ECF No. 17-5.) The 8 state district court denied the petition on August 13, 2018. (ECF No. 17-14.) 9 Woods appealed. (ECF Nos. 67, 68, 69.) On March 19, 2020, the Nevada Court of 10 Appeals affirmed in part and reversed and remanded in part. (ECF No. 17-39.) 11 The court remanded for the state district court to hold an evidentiary hearing 12 regarding Woods’s claim that his trial counsel was ineffective for not presenting 13 an alibi defense. (Id.) The state district court held the evidentiary hearing on 14 March 11, 2022. (ECF No. 18-15.) In an order filed on April 26, 2022, the state 15 district court again denied Woods’s claim that his trial counsel was ineffective. 16 (ECF No. 18-16.) Woods appealed. (ECF No. 18-24 (opening brief on appeal).) The 17 Nevada Court of Appeals affirmed on February 14, 2023. (ECF No. 18-31.) 18 This Court received Woods’s pro se federal petition for writ of habeas corpus 19 for filing on June 27, 2023. (ECF Nos. 2-1, 6.) The Court granted Woods’s motion 20 for appointment of counsel and appointed counsel (ECF No. 5); with counsel, 21 Woods filed an amended habeas petition on March 8, 2024. (ECF No. 22.) Woods’s 22 amended petition asserts three claims:
23 1. “Mr. Woods’ federal constitutional rights under the Fifth and Fourteenth Amendments were violated by the fact that there was 24 insufficient evidence to support the convictions.”
25 2. “Mr. Woods’ federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated by his trial counsel’s 26 failure to adequately investigate and present his alibi defense.” 27 /// 28 /// 1 3. “Mr. Woods’ federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments were violated by cumulative error 2 sufficient to overturn the convictions.” 3 (Id.) 4 Respondents filed their motion to dismiss on September 6, 2024, arguing 5 that Claims 1 and 3 are unexhausted in state court and that Claim 3 is not 6 cognizable. (ECF No. 29.) That motion is fully briefed and before the Court. (See 7 ECF No. 31 (Woods’s opposition); ECF No. 33 (Respondents’ reply).) 8 III. Discussion 9 A. Exhaustion – Legal Standards 10 A federal court generally cannot grant a state prisoner’s petition for writ of 11 habeas corpus unless the petitioner has exhausted available state-court 12 remedies. 28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509 (1982). This 13 means that a petitioner must give the state courts a fair opportunity to act on 14 each of his claims before he presents the claims in a federal habeas petition. See 15 O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A claim remains unexhausted 16 until the petitioner has given the highest available state court the opportunity to 17 consider the claim through direct appeal or state collateral review proceedings. 18 See Casey v. Byford, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 19 653 F.2d 374, 376 (9th Cir. 1981). The petitioner must “present the state courts 20 with the same claim he urges upon the federal court.” Picard v. Connor, 404 U.S. 21 270, 276 (1971). A claim is not exhausted unless the petitioner has presented to 22 the state court the same operative facts and legal theory upon which the federal 23 habeas claim is based. See Bland v. California Dept. of Corrections, 20 F.3d 1469, 24 1473 (9th Cir. 1994). 25 “A claim has not been fairly presented in state court if new factual 26 allegations either ‘fundamentally alter the legal claim already considered by the 27 state courts,’ [Vasquez v. Hillery, 474 U.S. 254, 260 (1986)], or ‘place the case in 28 a significantly different and stronger evidentiary posture than it was when the 1 state courts considered it.’ [Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)]; 2 accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988).” Dickens v. Ryan, 3 740 F.3d 1302, 1318 (9th Cir. 2014). On the other hand, new allegations that 4 “[do] not fundamentally alter the legal claim already considered by the state 5 courts” will not render a claim unexhausted. Vasquez, 474 U.S. at 260; see also 6 Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994). 7 B. Claim 1 8 In Claim 1, Woods claims that his federal constitutional rights were violated 9 because there was insufficient evidence presented at trial to support his 10 convictions. (ECF No. 22 at 13–19.) Woods asserted such a claim on his direct 11 appeal. (ECF No. 17-3 at 19–23.) 12 Respondents recognize that Woods claimed insufficiency of evidence on his 13 direct appeal, but they argue that “Ground 1 contains a new argument with new 14 factual allegations regarding his conspiratorial liability that were not fairly 15 presented in Woods’ direct appeal before the Nevada Supreme Court.” (ECF No. 16 29 at 7.) Specifically, Respondents argue that in Claim 1 “Woods makes the new 17 factual allegation that the photo identification of Woods by Golden was tainted 18 by the officer administering it because the officer told Golden to write that he was 19 100% certain despite Golden allegedly never making that statement.” (Id.) 20 An insufficiency of the evidence claim is necessarily based on the evidence 21 presented at trial. In making the argument Respondents refer to, Woods cites 22 only trial testimony. See ECF No. 22 at 17, lines 4–7 (citing trial testimony at ECF 23 No. 16-32, p. 43). Woods does not base Claim 1 on any facts not before the state 24 courts. And, to the extent that Claim 1 might be read as adding a new argument 25 not asserted in the claim on his direct appeal, that argument does not 26 fundamentally alter the claim. 27 Claim 1 is exhausted. The Court will deny Respondents’ motion to dismiss 28 with respect to Claim 1. 1 C. Claim 3 2 In Claim 3, Woods claims that his federal constitutional rights were violated 3 on account of cumulative error. (ECF No. 22 at 30–31.) 4 Respondents argue that Woods did not present this cumulative error claim 5 in state court, and that it is therefore unexhausted. (ECF No. 29 at 7–8.) The 6 Court, however, cannot at this point properly determine whether there are 7 multiple constitutional errors to be considered cumulatively; what the nature of 8 the cumulative error claim is; whether the cumulative error claim, as it would be 9 applied in this case, was—or could have been—exhausted in state court; or 10 whether the cumulative effect of any error that might be found by this Court 11 should be assessed. In short, Respondents’ argument that this claim is 12 unexhausted will be better addressed in conjunction with the merits of Woods’s 13 claims. 14 Respondents also argue that Woods’s cumulative error claim is not 15 cognizable in this federal habeas action. (ECF No. 29 at 9–10.) This argument, 16 too, will be better addressed in conjunction with the merits of Woods’s claims. 17 Therefore, the Court will deny the motion to dismiss with respect to Claim 18 3, without prejudice to Respondents asserting their exhaustion and cognizability 19 defenses in their answer. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// IV. Conclusion 2 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 29) is 3 || denied. 4 It is further ordered that Respondents will have 60 days from the date this 5 || order is entered to file an answer. In all other respects, the schedule for further 6 || proceedings set forth in the order entered September 19, 2023 (ECF No. 13) will 7 || remain in effect. 8 9 Dated this 3™¢ day of March 2025. 10 Ana jlosed den 12 ANNE R. TRAUM 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28