Opinion
Case No. 3:15-cv-00454-HDM-WGC
07-25-2017
KRISTOPHER MICHAEL ZIMMERMAN, Petitioner, v. ISIDRO BACA, et al., Respondents.
ORDER
Before the court are the first amended petition for writ of habeas corpus (ECF No. 15), respondents' motion to dismiss (ECF No. 23), petitioner's opposition (ECF No. 29), and respondents' reply (ECF No. 30). The court is persuaded that ground 1 is not addressable in federal habeas corpus, and it grants the motion to dismiss in part on that issue alone.
In the state district court, petitioner was charged with one count of sexual assault. Petitioner's Ex. 7 (ECF No. 16-7). Petitioner moved to dismiss on three grounds. First, he argued that no court had jurisdiction over him because he committed the crime while he was a juvenile but was not identified and charged until after he had turned 21 and thus was outside of the juvenile court's jurisdiction. Second, he argued that the application of Nev. Rev. Stat. § 62B.330(3)(e)(2) was an ex post facto violation. Third, he argued that the delay between identification of him as the assailant and the filing of charges was a due process violation. Petitioner's Ex. 10 (ECF No. 16-10). The state district court denied the motion to dismiss. Petitioner's Ex. 12 (ECF No. 16-12). Petitioner then agreed to plead guilty to attempted sexual assault. Petitioner's Ex. 15 (ECF No. 16-15). Petitioner, the prosecution, and the judge agreed that petitioner would be able to appeal the issues that were raised on direct appeal. Petitioner's Ex. 17 (ECF No. 16-17).
Nev. Rev. Stat. § 62B.330(3)(e)(2) provides that a person who is 16 or 17, who commits a category A or B felony, which includes sexual assault, and who is not identified as the perpetrator until after he turns 21, is not within the jurisdiction of the juvenile court. Instead, that person is tried as an adult.
Petitioner, represented by different counsel, did appeal. He raised the first two issues, jurisdiction and ex post facto violation, but he did not raise the third issue, excessive delay before being charged. Petitioner's Ex. 28 (ECF No. 17-7). Before briefing had concluded, the Nevada Supreme Court answered both of these questions in favor of the prosecution. State v. Barren, 279 P.3d 182 (Nev. 2012). Petitioner tried to consolidate his appeal with a rehearing in Barren. Petitioner's Ex. 30 (ECF No. 17-9). The Nevada Supreme Court denied that request. Petitioner's Ex. 31 (ECF No. 17-10). Petitioner then argued in his own appeal that Barren was incorrect. Petitioner's Ex. 32 (ECF No. 17-11). The Nevada Supreme Court declined to revisit Barren and affirmed the judgment of conviction. Ex. 33 (ECF No. 17-12).
Petitioner's ex post facto argument relied upon an assumption that the period of limitation for sexual assault already had expired. Petitioner assumed incorrectly. No period of limitation existed, let alone expired, because the victim filed a report with police during what would have been the period of limitation. See Nev. Rev. Stat. § 171.083(1). --------
Petitioner then filed a post-conviction habeas corpus petition in the state district court. Petitioner's Ex. 36 (ECF No. 17-15). The state district court denied the petition. Petitioner's Ex. 42 (ECF No. 17-21). Petitioner appealed, and the Nevada Supreme Court affirmed. Petitioner's Ex. 54 (ECF No. 18-3).
Petitioner then commenced this action. The court appointed counsel, who filed the first amended petition. Respondents then filed their motion to dismiss.
Respondents first argue that ground 1 is not addressable in federal habeas corpus. Ground 1 is a claim that the state court that presided over his case lacked jurisdiction. The Nevada Supreme Court found under state law that the state district court did have jurisdiction. Petitioner's Ex. 33, at 1-3 (ECF No. 17-12, at 2-4). "Whether the court lacked jurisdiction is a matter of state law that has been resolved against [petitioner] in state court. This court is bound by a state court's interpretation of state law." Jones v. Attorney General of California, 280 Fed. Appx. 646, 647 (9th Cir. 2008) (citing Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004)). Ground 1 is not addressable in federal habeas corpus.
Respondents next argue that petitioner has not exhausted his available state-court remedies for grounds 1 and 3. Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).
"[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).
The exhaustion of ground 1 is moot because the court has found that ground 1 is not addressable in federal habeas corpus, but ground 1 is exhausted. Petitioner did state on direct appeal that a prosecution where the state court lacks jurisdiction is a violation of the Fourteenth Amendment. Petitioner's Ex. 28, at 9 (ECF No. 17-7, at 10).
Ground 3 is a claim that the five years between identification of petitioner as the assailant and arrest violates due process. This was one of the issues in petitioner's motion to dismiss the charges against him. Petitioner's Ex. 10, at 15-23 (ECF No. 16-10, at 16-24). Petitioner retained the ability to raise this issue on direct appeal, but he failed to do so. Petitioner raised the issue again in ground 1 of the state post-conviction petition. Ex. 36, at 8-13 (ECF No. 17-15, at 9-14). In the appeal from the denial of that petition, petitioner presented two issues. The headings were:
1. Trial and appellate counsel were ineffective for failing to move the court to dismiss Mr. Zimmerman's case for an excessive pre-indictment delay in violation of Mr. Zimmerman's 5th & 14th Amendments and Nevada constitutional rights.Ex. 47, at 7, 13 (ECF No. 17-26, at 8, 14). The headings were exactly the same. However, the arguments were not. Issue 1 on appeal from the denial of the state post-conviction petition actually was a constitutional claim that the pre-arrest delay was excessive. Despite the error in the heading, petitioner did present to the Nevada Supreme Court and the Nevada Court of Appeals the issue that he now presents in ground 3. Ground 3 is exhausted.
2. Trial and appellate counsel were ineffective for failing to move the court to dismiss Mr. Zimmerman's case for an excessive pre-indictment delay in violation of Mr. Zimmerman's 5th & 14th Amendments and Nevada constitutional rights.
Next, respondents argue that petitioner's guilty plea has barred this court from considering grounds 2, 3, and 4.
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [McMann v. Richardson, 397 U.S. 759 (1970)].Tollett v. Henderson, 411 U.S. 258, 267 (1973). Ground 2 is a claim that the application of Nev. Rev. Stat. § 62B.330(3)(e)(2) was an ex post facto violation. Ground 3 is a claim that the five years between identification of petitioner as the assailant and arrest violates due process. Ground 4 is a claim that appellate counsel provided ineffective assistance because he did not raise on appeal the issue now alleged in ground 3. Grounds 2 and 3 are not barred by Henderson because the plea was conditioned on petitioner being able to raise those issues on direct appeal. Petitioner then could raise the claims in federal habeas corpus. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975). See also Journigan v. Duffy, 552 F.2d 283 (9th Cir. 1977). Ground 4 is a claim of a constitutional violation that occurred after petitioner entered his guilty plea. Henderson does not apply to this claim.
Respondents have filed a motion for waiver of compliance with LR IA 10-3 (ECF No. 28). The court grants this motion.
Petitioner has filed a motion for leave to file surreply (ECF No. 31), and respondents have filed a motion for leave to file response to surreply (ECF No. 33). The proposed pleadings contain arguments that the court's rulings on grounds 2, 3, and 4 have made moot.
IT IS THEREFORE ORDERED that respondents' motion to dismiss (ECF No. 23) is GRANTED in part. Ground 1 is DISMISSED from this action.
IT IS FURTHER ORDERED that respondents' motion for waiver of compliance with LR IA 10-3 (ECF No. 28) is GRANTED.
IT IS FURTHER ORDERED that petitioner's motion for leave to file surreply (ECF No. 31) and respondents' motion for leave to file response to surreply (ECF No. 33) are DENIED as moot.
IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the date of entry of this order to file and serve an answer, which shall comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner shall have forty-five (45) days from the date on which the answer is served to file a reply.
DATED: July 25, 2017.
/s/_________
HOWARD D. MCKIBBEN
United States District Judge