Opinion
2:20-cv-00761-APG-VCF
10-08-2020
JOHN R. WHITTINGTON, Petitioner, v. BRIAN WILLIAMS SR., et al., Respondents.
AARON D. FORD Attorney General GEORDAN GOEBEL (Bar. No. 13132) Deputy Attorney General State of Nevada Office of the Attorney General Attorneys for Respondents
AARON D. FORD Attorney General GEORDAN GOEBEL (Bar. No. 13132) Deputy Attorney General State of Nevada Office of the Attorney General Attorneys for Respondents
MOTION TO DISMISS
Respondents move to dismiss John Whittington's (Whittington) petition for writ of habeas corpus. ECF No. 7. This motion is made pursuant to the following memorandum of points and authorities, together with all other pleadings, papers, and exhibits on file herein.
WHITTINGTON'S CLAIMS AND PROCEDURAL HISTORY
Whittington seeks federal habeas relief from a Nevada judgment of conviction following guilty verdicts in the Eighth Judicial District Court (Nevada v. Whittington, C-15-305649-1.2) Following a two-day trial, a jury found him guilty of extortion and coercion with immediate threat of physical force. Exhibit 33.
Exhibits filed contemporaneously with this motion.
On November 18, 2015, the trial court entered a judgment of conviction, sentencing Whittington to 96-240 months on the extortion charge and a consecutive sentence of 96-240 months on the coercion charge. Exhibit 37. Whittington filed a direct appeal. Exhibit 39. On June 22, 2016, the Nevada Court of Appeals affirmed his conviction. Exhibit 58.
On February 21, 2017, Whittington filed a state petition for writ of habeas corpus, seeking post-conviction relief. Exhibit 62. Whittington's petition was denied, and he appealed. Exhibits 71, 73. The Nevada Supreme Court affirmed the denial of Whittington's petition. Exhibit 82.
Whittington's federal petition alleges two claims for relief under the Fifth, Sixth, and Fourteenth Amendments of United States Constitution: Ground 1 - the state court erred by denying his motion to strike the jury panel based on a juror's comments, which purportedly prejudiced his right to remain silent, and Ground 2 - appellate counsel was ineffective for failing to appeal the denial of his motion to strike the jury panel. ECF No. 7.
As is set forth below, this Court should dismiss this petition because Whittington's Ground 1 claim is admittedly unexhausted, making his petition a mixed petition.
ARGUMENT
I. Whittington's Ground 1 is Unexhausted.
Whittington's Ground 1 claim alleges that the state court erred by denying his motion to strike the jury panel based on a juror's comments. ECF No. 7 at 3. Whittington admits he did not present this claim to the Nevada state courts in the direct appeal of his conviction. ECF No. 7 at 4. The law is clear that Whittington's failure to present this claim first to the Nevada State Courts bars this claim in his federal petition.
A federal court may not grant a federal habeas corpus petition unless the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a matter of comity designed to afford state courts the first opportunity to remedy a constitutional violation. Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002). Simply put, Whittington must fairly present his claims to the Nevada appellate courts before raising his claims in a federal habeas proceeding, thereby giving the Nevada courts the first opportunity to consider and correct any asserted constitutional defect. Lounsbury v. Thompson, 374 F.3d 785, 787-88 (9th Cir. 2004).
To satisfy principles of fair presentation, Whittington must first present each claim to the Nevada appellate courts with references to specific federal constitutional guarantees, as well as a statement of facts that entitle him to relief on each claim. Castillo v.McFadden, 399 F.3d 993, 999 (9th Cir. 2005); Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2002). Mere similarities between the claims in Whittington's petition and claims Whittington presented to the Nevada appellate courts are insufficient to establish exhaustion. Vang, 329 F.3d at 1075 (9th Cir. 2003).
II. Whittington Failed to Fairly Present Ground 1 to the Nevada Appellate Courts.
Whittington admits that he did not raise his Ground 1 claim in his direct appeal but blames his attorney for failing to raise the issue. ECF No. 7 at 4. Regardless of Whittington's rationale for failing to present this issue in his state court appeals, since Whittington failed to raise this issue in his direct appeal, he prevented the state courts from reaching the merits of this claim.
This claim being unexhausted is undisputed.
III. As Ground 1 is Unexhausted, Whittington Presents an Improper Mixed Petition.
A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has exhausted available and adequate state court remedies with respect to each of the claims contained in the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both exhausted and unexhausted claims is subject to dismissal. Id. Whittington presents a mixed petition to this Court for its review. Accordingly, Whittington's federal habeas petition cannot move forward in its current form. Id. at 510.
CONCLUSION
Whittington failed to present his Ground 1 claim to the Nevada state courts. As a result, his Ground 1 claim is unexhausted. Accordingly, Respondents respectfully request this Court dismiss Whittington's petition for writ of habeas corpus.
RESPECTFULLY SUBMITTED this 8th day of October, 2020.
CERTIFICATE OF SERVICE
I certify that I am an employee of the Office of the Attorney General, State of Nevada, and that on this 8th day of October, 2020, I served a copy of the foregoing MOTION TO DISMISS, to be served, by U.S. District Court CM/ECF Electronic Filing, on the following:
John R. Whittington #1044442High Desert State Prison
P.O. Box 650
Indian Springs, NV 89070
HDSPLawLibrary@doc.nv.gov