Sullivan v. Benedetti

• Decision Date: 17 March 2016
• Docket Number: 3:09-cv-00264-HDM-WGC
• Citation: Sullivan v. Benedetti, 3:09-cv-00264-HDM-WGC (D. Nev. Mar 17, 2016)
• Parties: KEITH WILLIAM SULLIVAN, Petitioner, v. JAMES BENEDETTI, et al., Respondents.
• Court: U.S. District Court — District of Nevada

KEITH WILLIAM SULLIVAN, Petitioner, v. JAMES BENEDETTI, et al., Respondents.

3:09-cv-00264-HDM-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 17, 2016

ORDER

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner.Before the court is the petitioner's third amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(Doc. #47).Respondents have answered the petition (Doc. #51), and petitioner has filed a response (Doc. #54).

I.Procedural History

In June 2006, petitioner was charged in three separate criminal actions with possession of a stolen motor vehicle in violation of Nev. Rev. Stat. § 205.273. (Exs. 5 & 8-9).¹The first case involved a Mitsubishi, the second involved a ChevroletTahoe, and the third involved a Ford Econoline van.Before the informations were filed, petitioner's attorney negotiated a plea deal to resolve all three cases.(Exs. 4, 6-7 & 10-12).Pursuant to the plea agreements, petitioner agreed to plead guilty to Category B violations of § 205.273, which criminalized possession of a stolen vehicle in excess of $2,500.00.Petitioner also agreed to waive the preliminary hearing, and the state agreed not to pursue a habitual offender enhancement that would have been available based on petitioner's criminal history.(Exs. 4, 6-7 & 10-12).Petitioner entered his change of plea on June 28, 2006.(Ex. 13).On August 16, 2006, petitioner was sentenced to 48-120 months in the Mitsubishi case, a consecutive 48-120 months in the Chevrolet case, and a consecutive 16-72 months in the Ford van case.(Ex. 15).Judgments of conviction were entered in each case that same date.(Exs. 16-18).

Petitioner appealed the convictions.(Ex. 19 & 28).The Nevada Supreme Court affirmed in part, vacated in part, and remanded for a recalculation of the restitution award in the Ford van case.(Ex. 32).On February 22, 2007, an amended judgment of conviction was entered in the Ford van case.(Ex. 36).

Petitioner filed a petition for writ of habeas corpus in the state court on March 14, 2007; the petition was later supplemented on June 1, 2007, and December 14, 2007.(Exs. 38, 45 & 49).The state court denied the petition in its entirety without conducting an evidentiary hearing.(Ex. 52).Petitioner appealed to the Nevada Supreme Court, which on April 21, 2009, affirmed the denial.(Exs. 54-55, 62 & 68).Remittitur issued on May 19, 2009.(Ex. 69).

On May 18, 2009, petitioner filed a federal habeas petition, initiating this action.(Doc. #1).Petitioner filed an amended petition on June 30, 2009.(Doc. #8).Respondents moved to dismiss, arguing that some of petitioner's grounds for relief were unexhausted.(Doc. #11).Petitioner acknowledged that some grounds were unexhausted and requested a stay and abeyance so he could exhaust those claims.(Doc. #17).The court granted the motion to dismiss and the motion to stay.(Doc. #21).

On May 18, 2010, petitioner filed his second state habeas petition with the state district court.(Ex. 75).Counsel was appointed and the petition was later supplemented.(Exs. 77-78).Petitioner's claims relied, in part, on an assertion that the Ford van was worth less than $2,500.00, and therefore petitioner should have been sentenced as a Class C felony instead of Class B.The district court conducted an evidentiary hearing.Trial counsel testified, as did an expert as to the value of the Ford van.(Ex. 93).Ultimately, the court denied the second habeas petition on the merits, and petitioner appealed to the Nevada Supreme Court.(Exs. 94, 96 & 107).On July 26, 2012, the Nevada Supreme Court concluded that the district court erred by not dismissing the petition as untimely and successive and thus procedurally barred.(Ex. 112).In the alternative, the Nevada Supreme Court held separately and independently that the district court's ruling on the merits was correct.Id.Remittitur issued on August 21, 2012.(Ex. 113).

On September 28, 2012, petitioner filed his second amended petition in this court.(Doc. #28).Following the court's ruling on the respondents' motion to dismiss the second amended petition(Doc. #46), petitioner filed his third amended petition(Doc. #47).

The third amended petition asserts four grounds for relief, which are entitled: (1) Ground One; (2) Ground Three; (3) Ground Four; and (4) Amended Ground Three.Respondents assert procedural and merits-based defenses to all grounds, arguing that some of the claims are untimely, all of the claims are unexhausted, and any claims the court determines are exhausted are either procedurally defaulted or without merit.²

II.Standards

A.Timeliness

The Antiterrorism and Effective Death Penalty Act ("AEDPA") amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions.With respect to the statute of limitations, the habeas corpus statute provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment tofiling an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitations under this subsection.

28 U.S.C. § 2244(d).An untimely successive petition is not "properly filed" and thus does not toll the statute of limitations of § 2254(d).Banjo v. Ayers, 614 F.3d 964, 968-69(9th Cir.2010).In addition, "an application for federal habeas corpus review is not an 'application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)" and therefore the limitation period is not tolled "during the pendency of [a] federal habeas petition."Duncan v. Walker, 533 U.S. 167, 181-82(2001).

B.Exhaustion

The court may consider only those claims for which the petitioner has fully exhausted his state court remedies.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 habeaspetition.O'Sullivan v. Boerckel, 526 U.S. 838, 844(1999);see alsoDuncan 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.SeeCasey 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)(citingPicard, 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, 513 U.S. at 365;seeHiivala 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. Rice, 276 F.3d 478, 481(9th Cir.2001)(quotingRose, 455 U.S. at 520)."[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(citations omitted).However, citation to state case law that applies federal constitutional principles will suffice.Peterson v. Lampert, 319F.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. Calif. Dept. Of Corr., 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.SeeNevius 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).

C.Merits

28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits of the petition in this case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an

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