Opinion
3:14-cv-00410-RCJ-WGC
06-25-2015
MICHAEL JOHN MOE, Petitioner, v. BRIAN E. WILLIAMS, SR., et al., Respondents.
ORDER
Introduction
In this habeas corpus action, the respondents have filed a motion to dismiss. The court will grant that motion to dismiss in part and deny it in part. The court finds several claims in the habeas petition in this case to be unexhausted in state court. The court will require the petitioner, Michael John Moe, to make an election regarding his unexhausted claims.
Background
On May 22, 2009, Moe was convicted, in Nevada's Second Judicial District Court, pursuant to a jury verdict, of one count of burglary. See Judgment, Exhibit 39. (The exhibits referred to in this order were filed by respondents, and are located in the record at ECF Nos. 8, 9, 10, 11, 12, and 13.) The burglary involved Moe entering a sporting goods store and shoplifting items from that store. Moe was adjudicated an habitual criminal and sentenced to 10 to 25 years in prison. See id.
Moe appealed. On appeal he raised two claims, neither of which included any assertion that his federal constitutional rights had been violated. See Fast Track Statement, Exhibit 53. The Nevada Supreme Court affirmed Moe's judgment of conviction on November 5, 2009. See Order of Affirmance, Exhibit 55.
On April 21, 2010, Moe filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 60. After counsel was appointed for him, Moe filed a supplemental petition on August 7, 2011. See Supplemental Petition for Writ of Habeas Corpus, Exhibit 88. Moe subsequently amended his petition. See Motion for Leave to Amend, Exhibit 109; Order Granting Motion for Leave to Amend, Exhibit 117. On January 8, 2013, the state district court held an evidentiary hearing. See Transcript of Proceedings, January 8, 2013, Exhibit 121. The state district court denied Moe's petition in a written order on April 8, 2013. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 124. Moe appealed. On appeal he asserted only claims of ineffective assistance of trial counsel. See Fast Track Statement, Exhibit 132. On September 18, 2013, the Nevada Supreme Court affirmed the denial of Moe's petition. See Order of Affirmance, Exhibit 138.
This court received Moe's pro se federal habeas corpus petition on August 6, 2014. See Petition for Writ of Habeas Corpus (ECF No. 4). Moe's federal habeas petition includes 44 grounds for relief, some with several subparts. See id.
On February 17, 2015, respondents filed a motion to dismiss, contending that all Moe's claims are unexhausted in state court. See Motion to Dismiss (ECF No. 7). Respondents also contend that all Moe's claims are conclusory and that some of his claims are not cognizable in a federal habeas action. See id. Moe filed an opposition to the motion to dismiss on June 8, 2015 (ECF No. 18), and respondents filed a reply on June 17, 2015 (ECF No. 19).
Discussion
A federal court may not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is intended to allow state courts the initial opportunity to correct constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the claim to the highest state court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). A claim is fairly presented to the state's highest court if, before that court, the petitioner describes the operative facts and legal theory upon which the claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).
The question of Moe' exhaustion of claims in state court is controlled by the claims that Moe asserted on his direct appeal (see Fast Track Statement, Exhibit 53) and on the appeal in his state habeas action (see Fast Track Statement, Exhibit 132).
Ground 1
In Ground 1 of his habeas corpus petition, Moe claims that his federal constitutional rights were violated because law enforcement obtained statements from him without giving him a Miranda warning, and without obtaining a voluntary, knowing and intelligent waiver of his constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 4). Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 1 is unexhausted.
Ground 2
In Ground 2, Moe claims that his federal constitutional rights were violated "due to trial court's error in admitting into evidence a statement by arresting officer which was filled with lies and fabrications." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 2 is unexhausted.
Ground 3
In Ground 3, Moe claims that his federal constitutional rights were violated because "[t]he sentence of imprisonment of 10 to 25 years in Nevada State Prison for a burglary offense, which had $0.00 loss, was an excessive, disproportionate, and cruel and unusual sentence." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 3 is unexhausted.
Ground 4
In Ground 4, Moe claims that his federal constitutional rights were violated because the State failed to prove, beyond a reasonable doubt, that he committed burglary. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 4 is unexhausted.
Ground 5
In Ground 5, Moe claims that his federal constitutional rights were violated because Nevada law permitted him to be convicted of burglary based solely on the "fabricated and uncorroborated testimony" of the arresting officer. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 5 is unexhausted.
Ground 6
In Ground 6, Moe claims that his federal constitutional right to confront and cross-examine the witnesses against him was violated because "the trial court allowed trial to proceed without the State's witness, Burl Sutter." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 6 is unexhausted.
Ground 7
In Ground 7, Moe claims that his federal constitutional rights were violated, on account of ineffective assistance of his appellate counsel, because his appellate counsel failed to raise certain issues on his direct appeal. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 7 is unexhausted.
Ground 8
In Ground 8, Moe claims that his federal constitutional rights were violated because the trial court denied a challenge for cause regarding a potential juror. See Petition for Writ of Habeas Corpus. On his direct appeal, Moe made a claim regarding the trial court's denial of the challenge to the prospective juror. See Fast Track Statement, Exhibit 53, pp. 4-8. However, Moe did not claim that his federal constitutional rights were violated. See id. Therefore, Moe did not exhaust this claim. See Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.2000) ("[T]he petitioner must make the federal basis [of the claim] explicit either by citing federal law or the decisions of federal courts, even if the federal basis of a claim is 'self-evident,' or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds."), as amended by 247 F.3d 904 (9th Cir.2001). Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 8 is unexhausted.
Ground 9
In Ground 9, Moe claims that his federal constitutional rights were violated because of the Nevada Supreme Court's unwillingness to conduct a fair and adequate appellate review. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 9 is unexhausted.
Ground 10
In Ground 10, Moe claims that his federal constitutional rights were violated because "the state court and district attorney ... sentenced and asked for habitual criminal status by using 3 misdemeanor convictions and 1 felony conviction that was uncounseled." See Petition for Writ of Habeas Corpus. On his direct appeal, Moe made a claim regarding his sentencing as an habitual criminal, but he did not there challenge the sentencing on the basis that any of his prior convictions were "uncounseled," and, at any rate, he did not claim that his federal constitutional rights were violated. See Fast Track Statement, Exhibit 53, pp. 8-11. Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 10 is unexhausted.
Ground 11
In Ground 11, Moe claims that his federal constitutional rights were violated "due to the trial court's abuse of discretion in denying a meaningful opportunity to present his defense by allowing less than 16 mins. for a defense." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. Nor did Moe present this federal constitutional claim to the Nevada Supreme Court on the appeal in his state habeas action. Ground 11 is unexhausted
Ground 12
In Ground 12, Moe claims that his federal constitutional rights were violated "because trial court admitted a statement 'not' made by petitioner which was the result of Officer Robertson lying to court, which was either by his own doing or brought about by a request by prosecuting attorney." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 12 is unexhausted.
Ground 13
In Ground 13, Moe claims that his federal constitutional rights were violated because "[t]he state court ... enhanced the petitioner's burglary charge to habitual criminal status because of a Nevada law that allows for enhancement of a behavior or crime, which a person may have no control over because of medical reasons and not criminal reasons." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 13 is unexhausted.
Ground 14
In Ground 14, Moe claims that his federal constitutional rights were violated because of the State's failure to properly preserve evidence. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 14 is unexhausted.
Ground 15
In Ground 15, Moe claims that his federal constitutional rights were violated, as a result of ineffective assistance of his appellate counsel. See Petition for Writ of Habeas Corpus. Moe claims that his appellate counsel had a conflict of interest, and, as a result, did not raise, on Moe's direct appeal, any claims of ineffective assistance of trial counsel. Moe did not assert this claim before the Nevada Supreme Court. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 15 is unexhausted.
Ground 16
In Ground 16, Moe claims that his federal constitutional rights were violated "due to the State's introduction of evidence of Burl Sutter's GPS box, even though Burl Sutter was never available for cross-examination." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 16 is unexhausted.
Ground 17
In Ground 17, Moe claims that "[t]he GPS device and video games were admitted into evidence in violation of the Fourth Amendment of the United States Constitution's prohibition against unreasonable searches and seizures. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 17 is unexhausted.
Ground 18
In Ground 18, Moe claims that he "is in custody in violation of his right to due process of law under the Fifth and Fourteenth Amendments of the U.S. Constitution as the result of vindictive prosecution, when an habitual criminal adjudication was sought by the prosecution, after trial was complete and petitioner exercised his right to trial by jury." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 18 is unexhausted.
Ground 19
In Ground 19, Moe claims he "is in custody in violation of his right to due process of law under the Fifth and Fourteenth Amendments of the U.S. Constitution when the trial court abused its discretion in adjudicating petitioner an habitual criminal." See Petition for Writ of Habeas Corpus. Moe asserts that the trial court abused its discretion because his prior convictions were "stale and remote," because one of his prior convictions was the result of a jury trial conducted without him present, because all the prior convictions were for non-violent property crimes, and because "the present offense had $0 loss." See id. On his direct appeal, Moe made a similar claim. See Fast Track Statement, Exhibit 53, pp. 8-11. However, Moe did not claim that his federal constitutional rights were violated. See id. Therefore, Moe did not exhaust this claim on his direct appeal. See Lyons, 232 F.3d at 670 ("[T]he petitioner must make the federal basis [of the claim] explicit either by citing federal law or the decisions of federal courts, even if the federal basis of a claim is 'self-evident,' or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds."), as amended by 247 F.3d 904. Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 19 is unexhausted.
Ground 20
In Ground 20, Moe claims he "was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel when counsel failed to conduct any pretrial investigation on State's witnesses, and witnesses Petitioner requested to be investigated and called for trial." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failure to investigate witnesses Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, pp. 5-9. To this extent, the claim in Ground 20 is exhausted. In all other respects, Ground 20 is unexhausted.
Ground 21
In Ground 21, Moe claims that his federal constitutional rights were violated "due to the failure of the Washoe County public defender's office to provide him with resources necessary for his defense." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 21 is unexhausted.
Ground 22
In Ground 22, Moe claims that his federal constitutional rights were violated "because the trial court was biased, prejudicial, and abused it's discretion and misconducted himself during motion hearings, trial, and during sentencing." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on his direct appeal. See Fast Track Statement, Exhibit 53. And, Moe did not assert this claim on the appeal in his state habeas action. See Fast Track Statement, Exhibit 132. Ground 22 is unexhausted.
Ground 23
In Ground 23, Moe claims that his federal constitutional rights were violated because of prosecutorial misconduct. See Petition for Writ of Habeas Corpus. Ground 23 has 16 subparts, designated A through P. See id. Moe did not assert any claim of prosecutorial misconduct on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 23 is unexhausted.
Ground 24(2)
In Ground 24(2) (Ground 24 includes 31 subparts, numbered 2 through 32; there is no Ground 24(1)), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of his trial counsel's failure to call at least 5 witnesses petitioner told him to call. See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to prepare, encourage, and subpoena Pam Metzger to testify. See Fast Track Statement, Exhibit 132, pp. 12-14. To this extent, the claim in Ground 24(2) is exhausted. In all other respects, Ground 24(2) is unexhausted.
Ground 24(3)
In Ground 24(3), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of his trial counsel's failure "to call and allow petitioner to testify in motion to suppress hearing and at trial." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to encourage Moe to testify at trial. See Fast Track Statement, Exhibit 132, pp. 10-12. To this extent, the claim in Ground 24(3) is exhausted. In all other respects, Ground 24(3) is unexhausted.
Ground 24(4)
In Ground 24(4), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of his trial counsel's failure "to object to prosecutorial misconduct, judicial misconduct." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(4) is unexhausted.
Ground 24(5)
In Ground 24(5), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of his trial counsel's failure "to object to speculative testimony by Scott Catron and Jeffrey Duncan, along with speculative testimony by Officer Robertson." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(5) is unexhausted.
Ground 24(6)
In Ground 24(6), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of his trial counsel's failure "to object to the prosecutor's constant leading in questions asked." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(6) is unexhausted.
Ground 24(7)
In Ground 24(7), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of trial counsel's failure "to object to prosecutorial abuse and misconduct during voir dire questioning, opening statement, during trial, and during closing arguments." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(7) is unexhausted.
Ground 24(8)
In Ground 24(8), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of trial counsel's failure "to instruct trial court to give jury instruction #11, prior to the start, or during jury trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(8) is unexhausted.
Ground 24(9)
In Ground 24(9), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel on account of trial counsel's failure "to investigate any of State's witnesses along with lying about availability of petitioner's witnesses." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to investigate witnesses Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, pp. 5-9. To this extent, the claim in Ground 24(9) is exhausted. In all other respects, Ground 24(9) is unexhausted.
Ground 24(10)
In Ground 24(10), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel misrepresented petitioner at and during preliminary hearing." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(10) is unexhausted.
Ground 24(11)
In Ground 24(11), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel offered fabricated and forged evidence to court at preliminary hearing." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(11) is unexhausted.
Ground 24(12)
In Ground 24(12), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel attempted at [every] meeting and through letters to coerce me, petitioner, into taking a deal." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(12) is unexhausted.
Ground 24(13)
In Ground 24(13), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed, to the point of abuse, to follow and carry out [jury instruction number 11] during trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(13) is unexhausted.
Ground 24(14)
In Ground 24(14), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to ask for a lesser included offense in jury instruction." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(14) is unexhausted.
Ground 24(15)
In Ground 24(15), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel purposely violated [HIPAA] during sentencing." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(15) is unexhausted.
Ground 24(16)
In Ground 24(16), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to present evidence at motion to suppress hearing, at trial, and during sentencing." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to offer at trial, as evidence, "the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown." See Fast Track Statement, Exhibit 132, p. 14. To this extent, the claim in Ground 24(16) is exhausted. In all other respects, Ground 24(16) is unexhausted.
Ground 24(17)
In Ground 24(17), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel attempted ... to coerce petitioner into not filing an appeal on this case." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(17) is unexhausted.
Ground 24(18)
In Ground 24(18), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to the exclusion of the State's witness Burl Sutter during trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(18) is unexhausted.
Ground 24(19)
In Ground 24(19), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel was psychologically unfit to be a lawyer and represent me during trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(19) is unexhausted.
Ground 24(20)
In Ground 24(20), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to inadmissible evidence during trial and during sentencing." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(20) is unexhausted.
Ground 24(21)
In Ground 24(21), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to adequately review and investigate defendant's case." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to "investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe." See Fast Track Statement, Exhibit 132, pp. 20-21. To this extent, the claim in Ground 24(21) is exhausted. In all other respects, Ground 24(21) is unexhausted.
Ground 24(22)
In Ground 24(22), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to present evidence and to object to evidence during sentencing that would of made habitual sentence improper sentence." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe." See Fast Track Statement, Exhibit 132, pp. 20-21. Also, on that appeal, Moe claimed that his trial counsel was ineffective for failing to offer evidence at the sentencing that one of his prior convictions was the result of a trial at which he was not present. See id. at 21. In these respects, the claim in Ground 24(22) is exhausted. In all other respects, Ground 24(22) is unexhausted.
Ground 24(23)
In Ground 24(23), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to improper statements by prosecuting attorney during voir dire questioning, trial, and sentencing." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe." See Fast Track Statement, Exhibit 132, pp. 20-21. To that extent, the claim in Ground 24(23) is exhausted. In all other respects, Ground 24(23) is unexhausted.
Ground 24(24)
In Ground 24(24), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to improper commentary by prosecuting attorney during opening statements, and during closing arguments, and during sentencing." See Petition for Writ of Habeas Corpus.
Here again, the court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe." See Fast Track Statement, Exhibit 132, pp. 20-21. To that extent, the claim in Ground 24(24) is exhausted. In all other respects, Ground 24(24) is unexhausted.
Ground 24(25)
In Ground 24(25), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to testimony that was the result of an absent Miranda rights warning." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(25) is unexhausted.
Ground 24(26)
In Ground 24(26), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to judicial misconduct and judicial abuse of discretion during motion to suppress hearing, trial, and during sentencing." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel was ineffective for failing to object "when the court ordered there were sixteen minutes left to finish the jury trial after the State's case." See Fast Track Statement, Exhibit 132, pp. 9-10. To that extent, the claim in Ground 24(26) is exhausted. In all other respects, Ground 24(26) is unexhausted.
Ground 24(27)
In Ground 24(27), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to adequately cross-examine State's witnesses." See Petition for Writ of Habeas Corpus. Moe bases this claim on his counsel's alleged failure to adequately cross-examine Officer Robertson. See id. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(27) is unexhausted.
Ground 24(28)
In Ground 24(28), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed in calling Evo Novak as defense witness [and Novak] testified in State's favor." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(28) is unexhausted.
Ground 24(29)
In Ground 24(29), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed in having Evo Novak investigate petitioner's case and testify, since Evo Novak is [an] ex-cop." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(29) is unexhausted.
Ground 24(30)
In Ground 24(30), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to adequately prepare for direct-examination and cross-examination." See Petition for Writ of Habeas Corpus. As supporting facts for this claim, Moe states:
[Trial counsel] was not ready for anything in this case and since his only position is really a go-between for the court and D.A. to get a satisfactory deal, it was obvious [trial counsel] was going to be a joke at trial. For the court to say "[trial counsel] did a good job" was appropriate to the go-between behavior [trial counsel] did exhibit during this whole process. Was also appropriate for a conviction I was not guilty of.Id. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(30) is unexhausted.
Ground 24(31)
In Ground 24(31), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to object to legality of the search of petitioner's person." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 24(31) is unexhausted.
Ground 24(32)
In Ground 24(32), Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because "[t]rial counsel failed to call impeachment witnesses and failed to offer impeachment evidence to impeach the complaining witnesses." See Petition for Writ of Habeas Corpus.
The court finds that Moe exhausted this claim, in part, on the appeal in his state habeas action. On that appeal, Moe claimed that his trial counsel "should have played the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report," and should have cross-examined Donnelly, Duncan, and Catron. See Fast Track Statement, Exhibit 132, pp. 5-9. To that extent, the claim in Ground 24(32) is exhausted. In all other respects, Ground 24(32) is unexhausted.
Ground 25
In Ground 25, Moe claims that his federal constitutional rights were violated as a result of cumulative error. See Petition for Writ of Habeas Corpus. This claim is exhausted to the extent of Moe's other exhausted claims.
Ground 26
In Ground 26, Moe claims that NRS 171.1965 is unconstitutional. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 26 is unexhausted.
Ground 27
In Ground 27, Moe claims that his federal constitutional rights were violated "due to the failure to provide him a pre liminary hearing as provided by law." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 27 is unexhausted.
Ground 28
In Ground 28, Moe claims that his federal constitutional rights were violated "due to the fact that jury instructions #3, #5, #7, #8, #10, #11, #13, #16, #17, #18, and #19 should of been given to the jury prior to beginning of the trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 28 is unexhausted.
Ground 29
In Ground 29, Moe claims that his federal constitutional rights were violated "because jury instruction #22 erroneously states 'burglary is complete when a building is entered with the specific intent to commit larceny therein,['] also erroneously states 'larceny is the unlawful stealing.'" See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 29 is unexhausted.
Ground 30
In Ground 30, Moe claims that his federal constitutional rights were violated "because the burglary statute in Nevada is unconstitutional on its face, by inappropriately defining burglary beyond [its] definition found in appropriate dictionaries." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 30 is unexhausted.
Ground 31
In Ground 31, Moe claims that his federal constitutional rights were violated "due to the lack of a complete and adequate record, which prevented petitioner an effective confrontation of the State's witnesses and rendered an inappropriate appellate review of his conviction and sentence fundamentally unfair." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 31 is unexhausted.
Ground 32
In Ground 32, Moe claims that his "sentencing as an habitual criminal was unconstitutional because it denied him his due process rights, equal protection of laws, and twice put petitioner in jeopardy of life or limb, by sentencing [him] to second sentence for crimes [he] had already served a punishment." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 32 is unexhausted.
Ground 33
In Ground 33, Moe claims that his federal constitutional rights were violated because, in sentencing him, the trial court considered crimes committed outside its jurisdiction. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 33 is unexhausted.
Ground 34
In Ground 34, Moe claims that his federal constitutional rights were violated because of "[t]he trial court's refusal to grant petitioner's motion to suppress and trial court's prejudicial and biased ruling on [photos] and GPS device during trial." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 34 is unexhausted.
Ground 35
In Ground 35, Moe claims that his federal constitutional rights were violated because of repeated use of the word "shoplifting" during trial by the prosecutor, defense counsel, and witnesses. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 35 is unexhausted.
Ground 36
In Ground 36, Moe claims that his federal constitutional rights were violated because of "[t]he trial court's minimizing prosecutor misconduct on video tape comment." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 36 is unexhausted.
Ground 37
In Ground 37, Moe claims that his federal constitutional rights were violated "due to ... [an] effort by trial court, district attorney, and trial counsel to keep this trial one day only." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 37 is unexhausted.
Ground 38
In Ground 38, Moe claims that his "sentence to a term of 10 to 25 years was an excessive, disproportionate sentence that constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution and his right to equal protection of the law under the Fifth and Fourteenth Amendments." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 38 is unexhausted.
Ground 39
In Ground 39, Moe claims that his federal constitutional rights were violated "because trial counsel failed to point out that $0.00 loss failed to meet the larceny threshold of less than $250 for petit larceny, or more that $250 for grand larceny." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 39 is unexhausted.
Ground 40
In Ground 40, Moe claims that his federal constitutional rights were violated "due to trial counsel's failure to instruct trial court to instruct or give instructions on a lesser crime." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 40 is unexhausted.
Ground 41
In Ground 41, Moe claims that his federal constitutional rights were violated "because jury instruction #9 is unconstitutional and allowed the trial court to proceed with trial without the availability of Burl Sutter." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 41 is unexhausted.
Ground 42
In Ground 42, Moe claims that his federal constitutional rights were violated "because of prosecutorial misconduct introducing evidence that is of a Brady violation, along with a ... judicial abuse of discretion, when trial court admitted Brady violation evidence during trial in order to achieve a biased and prejudicial verdict against petitioner." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 42 is unexhausted.
Ground 43
In Ground 43, Moe claims that his federal constitutional rights were violated "due to trial court's abuse of discretion sentencing petitioner to habitual criminal status due to past conviction[s] that are remote in time, all non-violent offenses, and trivial in nature; also, the sentence was a reflection of petitioner exercising petitioner's right to trial by jury." See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. On his direct appeal, Moe did argue that the imposition of an habitual criminal sentence was an abuse of discretion; however, Moe did not claim a federal constitutional violation. See Fast Track Statement, Exhibit 53. Ground 43 is unexhausted.
Ground 44
In Ground 44, Moe claims that he was denied his federal constitutional right to effective assistance of his trial counsel because his counsel was ineffective in his state post-conviction proceedings. See Petition for Writ of Habeas Corpus. Moe did not assert this claim on either his direct appeal or his appeal in his state habeas action. See Fast Track Statement, Exhibit 53; Fast Track Statement, Exhibit 132. Ground 44 is unexhausted.
Summary Regarding Exhaustion of Claims
The court, therefore, finds that Moe's habeas corpus petition is mixed, in that it contains both exhausted and unexhausted claims. The following claims in Moe's habeas petition are exhausted:
Ground 20 (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);The following claims in Moe's habeas petition are unexhausted: Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 (except to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron), 21, 22, 23, 24(2) (except to the extent based on trial counsel's alleged failure to call Pam Metzger to testify), 24(3) (except to the extent based on trial counsel's alleged failure to encourage Moe to testify at trial), 24(4), 24(5), 24(6), 24(7), 24(8), 24(9) (except to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron), 24(10), 24(11), 24(12), 24(13), 24(14), 24(15), 24(16) (except to the extent based on trial counsel's alleged failure to offer at trial, as evidence, "the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown"), 24(17), 24(18), 24(19), 24(20), 24(21) (except to the extent based on trial counsel's alleged failure to "investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(22) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe," and to offer evidence that one of his prior convictions was the result of a trial at which he was not present), 24(23) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(24) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(25), 24(26) (except to the extent based on trial counsel's alleged failure to object "when the court ordered there were sixteen minutes left to finish the jury trial after the State's case"), 24(27), 24(28), 24(29), 24(30), 24(31), Ground 24(32) (except to the extent based on trial counsel's alleged failure to play "the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report," and to cross-examine Donnelly, Duncan, and Catron), 25 (except to the extent of Moe's exhausted claims), 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44.
Ground 24(2) (to the extent based on trial counsel's alleged failure to call Pam Metzger to testify);
Ground 24(3) (to the extent based on trial counsel's alleged failure to encourage Moe to testify at trial);
Ground 24(9) (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);
Ground 24(16) (to the extent based on trial counsel's alleged failure to offer at trial, as evidence, "the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown");
Ground 24(21) (to the extent based on trial counsel's alleged failure to "investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(22) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe," and to offer evidence that one of his prior convictions was the result of a trial at which he was not present);
Ground 24(23) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(24) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(26) (to the extent based on trial counsel's alleged failure to object "when the court ordered there were sixteen minutes left to finish the jury trial after the State's case");
Ground 24(32) (to the extent based on trial counsel's alleged failure to play "the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report," and to cross-examine Donnelly, Duncan, and Catron); and
Ground 25 (to the extent of Moe's other exhausted claims)
Respondents' Other Arguments
Respondents argue in their motion to dismiss that all Moe's claims are conclusory, and that some of Moe's claims are not cognizable in this federal habeas corpus action. See Motion to Dismiss, pp. 6-8, 20-36. The court finds that these arguments will be better addressed in conjunction with consideration of the merits of Moe's claims. Therefore, if and when respondents are called upon to answer Moe's claims with respect to their merits, respondents may assert these arguments in their answer, and the court will consider them at that time.
Moe's Election
The court will require Moe to make an election with respect to his unexhausted claims. With respect to his unexhausted claims, Moe must elect one of the following: (1) file a declaration stating that he wishes to abandon his unexhausted claims, and proceed, in this action, with the litigation of his exhausted claims; (2) file a motion for a stay, under Rhines v. Weber, 544 U.S. 269 (2005), requesting a stay of this action while he exhausts his unexhausted claims in state court; or (3) voluntarily dismiss this entire action, without prejudice. The court will set a schedule for Moe to make that election.
Moe is warned that, if he does not make his election, as required, within the time allowed, the court will dismiss his entire petition, "without prejudice," pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
Moe is further warned that if his action is dismissed in its entirety "without prejudice," either because he elects such dismissal or because he does not make an election within the time allowed, he may be barred by the statute of limitations from ever initiating any subsequent federal habeas corpus action. That is because -- unless there is some form of tolling available to Moe that is not now apparent to the court from the record -- the limitations period imposed by 28 U.S.C. § 2244(d) has likely run out during the pendency of this action. A federal habeas corpus petition does not toll the statute of limitations relative to a subsequent federal habeas action. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that "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).").
If Moe elects to file a motion for stay, he must make a showing in such motion that a stay is warranted under Rhines. In Rhines, the Supreme Court circumscribed the discretion of federal district courts to impose stays to facilitate habeas petitioners' exhaustion of claims in state court. 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 applicationRhines, 544 U.S. at 277-78. In short, in a motion for stay, Jones must show (1) that there was good cause for his failure to exhaust his unexhausted claims, (2) that his unexhausted claims are not plainly meritless, and (3) that he has not engaged in intentionally dilatory litigation tactics.
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").
* * *
[I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition.
IT IS THEREFORE ORDERED that respondents' Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. 8) is GRANTED IN PART AND DENIED IN PART. The court finds the following claims in petitioner's habeas petition to be exhausted:
Ground 20 (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);The court finds the following claims in petitioner's habeas petition to be unexhausted:
Ground 24(2) (to the extent based on trial counsel's alleged failure to call Pam Metzger to testify);
Ground 24(3) (to the extent based on trial counsel's alleged failure to encourage Moe to testify at trial);
Ground 24(9) (to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron);
Ground 24(16) (to the extent based on trial counsel's alleged failure to offer at trial, as evidence, "the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown");
Ground 24(21) (to the extent based on trial counsel's alleged failure to "investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(22) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe," and to offer evidence that one of his prior convictions was the result of a trial at which he was not present);
Ground 24(23) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(24) (to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe");
Ground 24(26) (to the extent based on trial counsel's alleged failure to object "when the court ordered there were sixteen minutes left to finish the jury trial after the State's case");
Ground 24(32) (to the extent based on trial counsel's alleged failure to play "the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report," and to cross-examine Donnelly, Duncan, and Catron); and
Ground 25 (to the extent of Moe's other exhausted claims)
Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 (except to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron), 21, 22, 23, 24(2) (except to the extent based on trial counsel's alleged failure to call Pam Metzger to testify), 24(3) (except to the extent based on trial counsel's alleged failure to encourage Moe to testify at trial), 24(4), 24(5), 24(6), 24(7), 24(8), 24(9) (except to the extent based on trial counsel's alleged failure to investigate witnesses Donnelly, Duncan and Catron), 24(10), 24(11), 24(12), 24(13), 24(14), 24(15), 24(16) (except to the extent based on trial counsel's alleged failure to offer at trial, as evidence, "the advertisement flyer showing sale jackets from Cabela's store and [the receipt from] Metzger's gambling tournament at Boomtown"), 24(17), 24(18), 24(19), 24(20), 24(21) (except to the extent based on trial counsel's alleged failure to "investigate the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(22) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe," and to offer evidence that one of his prior convictions was the result of a trial at which he was not present), 24(23) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(24) (except to the extent based on trial counsel's alleged failure to object to "the prosecutor's hearsay remarks regarding Game Stop contacting Cabela's about Pam Metger selling videotapes stolen by Moe"), 24(25), 24(26) (except to the extent based on trial counsel's alleged failure to object "when the court ordered there were sixteen minutes left to finish the jury trial after the State's case"), 24(27), 24(28), 24(29), 24(30), 24(31), Ground 24(32) (except to the extent based on trial counsel's alleged failure to play "the videotape from Cabela's security office to impeach Officer David Robertson's supplemental report," and to cross-examine Donnelly, Duncan, and Catron), 25 (except to the extent of Moe's exhausted claims), 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44.The court will require the petitioner to make an election regarding his unexhausted claims. In all other respects, respondents' motion to dismiss is denied.
IT IS FURTHER ORDERED that, with respect to the unexhausted claims in his habeas petition, petitioner must, no later than July 31, 2015, make an election. By that date, petitioner must do one of the following: (1) file a declaration stating that he wishes to abandon all the claims found by this court to be unexhausted, (2) file a motion for a stay, requesting that this case be stayed while he exhausts his unexhausted claims, or (3) file a declaration stating that he wishes to voluntarily dismiss his entire habeas petition in this case without prejudice. If petitioner does not make that election within the time allowed, the court will dismiss his entire habeas petition, without prejudice, pursuant to Rose v. Lundy, 455 U.S. 509 (1982).
Dated this 25th day of June, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE