Brewer v. Reubart

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 CORY O’NEAL BREWER, Case No. 3:20-cv-00396-MMD-CLB 7 Petitioner, ORDER v. [8] WILLIAM GITTERE,1 et al., [9] Respondents. [11] 12 I. SUMMARY 13 This is a habeas corpus action brought under 28 U.S.C. § 2254 by Petitioner Cory 14 O’Neal Brewer, a Nevada prisoner proceeding pro se. Before the Court is Respondents’ 15 Motion to Dismiss (ECF No. 47 (“Motion”)) the First Amended Petition for Writ of Habeas 16 Corpus (ECF No. 39).2 For the reasons discussed below, the Court will grant in part and 17 deny in part the Motion. 18 II. BACKGROUND 19 Brewer challenges a conviction and sentence imposed by the Second Judicial 20 District Court for Washoe County, Nevada. (ECF No. 21-13.) In November 2016, Brewer 21 pled nolo contendere to second-degree murder. (ECF No. 21-10 at 5-6, 15.) The charge 22 alleged that Brewer had “willfully and unlawfully and with malice aforethought” killed his 23 fiancée “by means of blunt force trauma.” (Id. at 5-6.) In December 2016, the district court [25] 1According to the state corrections department’s inmate locator page, Brewer is 26 incarcerated at Ely State Prison. The department’s website reflects that William Reubart is the warden of that facility. https://doc.nv.gov/Facilities/ESP_Facility/. The Court will 27 therefore direct the Clerk of Court to substitute William Reubart for Respondent William Gittere under Federal Rule of Civil Procedure 25(d). [28] 2Brewer opposes the Motion (ECF No. 54), and Respondents have replied (ECF 2 21-13.) 3 Brewer did not pursue a direct appeal. Instead, in May 2017, he filed a state 4 habeas petition. (ECF No. 21-19.) Following the appointment of counsel, Brewer filed a 5 supplemental petition. (ECF Nos. 22-6, 22-11.) The district court denied relief, and Brewer 6 appealed. (ECF Nos. 22-39, 23-7.) Although counsel was initially appointed to represent 7 Brewer, he waived the appointment and briefed the appeal pro se. (ECF Nos. 23-14, 238 17.) The Nevada Court of Appeals affirmed the denial of relief in March 2020, and the 9 remittitur issued on April 13, 2020. (ECF Nos. 23-24, 23-25.) 10 On June 29, 2020, Brewer initiated this federal habeas action pro se. (ECF No. 1.) 11 The Court subsequently granted Brewer’s request to file a memorandum of points and 12 authorities in support of his petition. (ECF No. 3.) Brewer filed the memorandum on 13 September 18, 2020 (ECF No. 13), and the Court indicated that it would “treat[ ] that 14 memorandum as a supplement to, and part of, Brewer’s habeas petition.”3 (ECF No. 15 15 at 1.) Respondents then moved to dismiss. (ECF No. 20.) In response, Brewer sought 16 leave to amend his original petition. (ECF No. 32.) On July 12, 2021, the Court granted 17 leave to amend and directed the Clerk of Court to file the First Amended Petition. (ECF 18 Nos. 38, 39.) 19 Respondents now move to dismiss the First Amended Petition, arguing that 20 several grounds for relief (i) do not relate back to the original petition and are therefore 21 untimely, (ii) fail to state cognizable claims, or (iii) are unexhausted or duplicative. (ECF 22 No. 47.) 23 III. DISCUSSION 24 A. Relation Back 25 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year 26 statute of limitations on the filing of federal habeas corpus petitions. See 28 U.S.C. § 27 28 3The Court refers to both the original petition and the memorandum of points and 2 became final by conclusion of direct review, or the expiration of the time for seeking direct 3 review. See 28 U.S.C. § 2244 (d)(1)(A). A new claim in an amended petition that is filed 4 after the expiration of AEDPA’s one-year limitation period will be timely only if the new 5 claim relates back to a claim in a timely filed pleading under Federal Rule of Civil 6 Procedure 15(c). Under Rule 15(c), a claim relates back if the claim arises out of “the 7 same conduct, transaction, or occurrence” as a claim in the timely pleading. Mayle v. 8 Felix, 545 U.S. 644, 655 (2005). 9 For habeas petitions, “relation back depends on the existence of a common core 10 of operative facts uniting the original and newly asserted claims.” Id. at 659 . New claims 11 in an amended habeas petition do not arise out of “the same conduct, transaction, or 12 occurrence” as prior claims merely because they challenge the same trial, conviction, or 13 sentence. Id. at 661 ; Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008) (“It is not 14 enough that the new argument pertains to the same trial, conviction, or sentence”). 15 Rather, to properly relate back, a new claim must arise from the same collection of facts 16 alleged in the earlier petition. See Mayle, 545 U.S. at 661 ; Schneider v. McDaniel, 674 17 F.3d 1144, 1151 (9th Cir. 2012) (holding that one shared fact in two divergent legal 18 theories was “not sufficient to conclude that they arise out of a common core of operative 19 facts”). An amended habeas petition “does not relate back (and thereby escape AEDPA’s 20 one-year time limit) when it asserts a new ground for relief supported by facts that differ 21 in both time and type” from those alleged in the timely petition. Mayle, 545 U.S. at 650 . 22 Although Brewer’s original petition was timely, he filed the First Amended Petition 23 approximately five months after the expiration of the AEDPA limitation period.4 (ECF Nos. [24] 4Because Brewer did not file a direct appeal, the one-year limitation period began 25 to run on January 20, 2017—the expiration date for seeking direct review. See 28 U.S.C. § 2244 (d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). By the time Brewer filed 26 his state habeas petition on May 3, 2017, 103 days of the limitation period had lapsed. (ECF No. 21-19.) The limitation period was tolled while Brewer pursued state habeas 27 relief, 28 U.S.C. § 2244 (d)(2), and began to run again on April 13, 2020, when the remittitur issued on his appeal. (ECF No. 23-25.) At that point, Brewer had 262 days— 28 that is, until December 31, 2020—to file a timely federal habeas petition. Brewer 2 to the original petition. Respondents argue that several grounds in the First Amended 3 Petition do not relate back. (ECF No. 47 at 8-10.) The Court now considers Respondents’ 4 arguments. 5 1. Ground 1(A)(4) 6 In Ground 1(A)(4), Brewer alleges his trial counsel provided ineffective assistance 7 by failing to advance an innocent explanation for the victim’s fractured ribs—namely, that 8 Brewer cracked the victim’s ribs while performing CPR on her after a drug overdose. (ECF 9 No. 39 at 13.) This ground relates back to the original petition. There, Brewer alleged that 10 (i) trial counsel failed to adequately pursue the defense that he had “tried to revive the 11 victim” following a drug overdose, and (ii) the victim’s cracked ribs were in an “area” that 12 would “usually” fracture “from someone doing CPR.” (ECF Nos. 13 at 10, 16 at 16.) 13 Because Ground 1(A)(4) shares a common core of operative facts with these allegations, 14 it relates back and is timely. 15 2. Ground 1(A)(5) 16 Ground 1(A)(5) alleges that Brewer’s trial counsel was ineffective for failing to 17 notice that the coroner’s report did not include “a definite cause of death” for the victim. 18 (ECF No. 39 at 13.) According to Brewer, the report “speculated” that asphyxia was the 19 cause of death, but it did not offer “conclusive” proof. (Id.) In the original petition, Brewer 20 claimed there was “no evidence” that “strangulation” was the “cause of death” because 21 the coroner’s findings were consistent with “slapping [an] unconscious person” to bring 22 her “out [of a] state of unconsciousness.” (ECF No. 16 at 16-17.) The original petition also 23 asserted that Brewer’s trial counsel failed to determine whether the State was “providing 24 adequate reports/data as to whether a murder took place.” (Id. at 6.) Ground 1(A)(5) thus 25 rests on facts alleged in the original petition—the coroner’s failure to prove that 26 strangulation caused the victim to die, and counsel’s failure to ascertain whether the [27] submitted his original petition (including the supplemental memorandum) by September 28 2020, but he submitted his First Amended Petition on May 20, 2021—well outside the 2 Ground 1(A)(5) relates back to the original petition and is timely. 3 3. Ground 1(B)(1) 4 In Ground 1(B)(1), Brewer alleges that his trial counsel was ineffective for failing 5 to understand his “factual or legal claims of innocence.” (ECF No. 39 at 12.) Brewer’s 6 “claims of innocence” rested on his assertion that the victim died from a drug overdose 7 rather than strangulation or “kidney bruising.” (Id. at 12-13.) This ground relates back to 8 the original petition. There, Brewer asserted that counsel encouraged him to plead nolo 9 contendere “without understanding the factual and legal claims of innocence”— 10 specifically, Brewer’s theory that the victim died from “a lethal overdose of drugs.” (ECF 11 No. 13 at 13.) Brewer similarly alleged that counsel “did not consider [his] legal claims of 12 innocence” and was “not prepared to proceed to trial.” (Id. at 9.) Ground 1(B)(1) arises 13 from facts alleged in the original petition and is therefore timely.5 14 4. Ground 1(B)(2) 15 Ground 1(B)(2) alleges that Brewer’s trial counsel was ineffective because he 16 failed to hire an expert to establish that the petechiae in the victim’s eyes did not prove 17 strangulation. (ECF No. 39 at 13.) According to Brewer, an expert could have testified 18 that “slapp[ing] [someone] pretty hard” can cause petechiae to form in the eyes. (Id.) Such 19 testimony would allegedly have bolstered Brewer’s assertion that he merely tried to revive 20 the victim following a drug overdose. (Id.) Brewer included the factual underpinnings of 21 this claim in his original petition, alleging that trial counsel (i) failed to hire “an outside 22 expert” to evaluate the coroner’s findings, and (ii) did not consider the possibility that 23 Brewer had tried “to slap [the] victim to wake [her] up” after a drug overdose, “causing 24 petechiae of the eye (not due to strangulation of the [ ] victim).” (ECF No. 13 at 11.) [26] 27 5The Court rejects Respondents’ argument that Ground 1(B)(1) is conclusory. (ECF No. 47 at 12.) As noted above, Brewer specifically alleges his trial counsel rendered 28 ineffective assistance by failing to understand that he was innocent because the victim 2 1(B)(2) arises from facts alleged in the original petition and is therefore timely. 3 5. Ground 1(B)(3) 4 Ground 1(B)(3) asserts that Brewer’s trial counsel was ineffective for failing to 5 investigate the prosecution’s expert, who “had made bad reports in the past.” (ECF No. 6 39 at 14.) This ground does not relate back. Nowhere in the original petition did Brewer 7 allege that the prosecution’s expert had issued “bad reports in the past.” Nor did Brewer 8 allege that counsel was ineffective for failing to investigate this expert. Although Brewer 9 contends that this claim is timely because he raised it “in the state habeas and state 10 appeal,” that is irrelevant to the relation-back inquiry. (ECF No. 54 at 6.) A claim in an 11 amended petition is timely only if it relates back to a timely filed federal petition. See 12 Schneider, 674 F.3d at 1150-51. Because Ground 1(B)(3) does not arise from a common 13 core of facts alleged in the original federal petition, it does not relate back and must be 14 dismissed as untimely. 15 6. Ground 1(B)(4) 16 In Ground 1(B)(4), Brewer claims that his trial counsel was ineffective for failing to 17 seek a “hearing to determine if [his nolo contendere] plea was in fact voluntarily given.” 18 (ECF No. 39 at 14.) Brewer concedes that Ground 1(B)(4) does not relate back to his 19 original petition, and he “agree[s] to dismissing this issue.” (ECF No. 54 at 7.) The Court 20 agrees that Ground 1(B)(4) does not relate back and thus dismisses it as untimely. 21 7. Ground 2(B)(3) 22 Ground 2(B)(3) alleges that the prosecution planned to accuse Brewer of 23 “domestic violence” based on a “report[ ] dealing with a different individual named Bryan 24 Bryant.” (ECF No. 39 at 19.) Brewer claims that his trial counsel rendered ineffective 25 assistance by deciding not “to stop the prosecutor from using this information . . . against 26 him.” (Id.) The original petition did not mention the prosecution’s alleged plan to falsely 27 accuse Brewer of domestic violence. Brewer nonetheless contends that Ground 2(B)(3) 28 is timely because he properly “raise[d] these issues in all of the state proceedings.” (ECF 2 escape AEDPA’s one-year time limit unless it relates back to a timely filed federal petition. 3 Ground 2(B)(3) is dismissed as untimely because it “asserts a new ground for relief 4 supported by facts that differ in both time and type” from those alleged in the original 5 federal petition. Mayle, 545 U.S. at 650 . 6 B. Cognizability 7 A state prisoner is entitled to federal habeas relief only if he is being held in custody 8 in violation of the constitution, laws, or treaties of the United States. See 28 U.S.C. 9 § 2254(a). Rule 2(c) of the Rules Governing Section 2254 Cases in the United States 10 District Courts requires a federal habeas petition to specify all grounds for relief and “state 11 the facts supporting each ground.” Claims based on conclusory allegations are not a 12 sufficient basis for federal habeas relief. See Mayle, 545 U.S. at 655-56 (acknowledging 13 that notice pleading is insufficient to satisfy the specific pleading requirement for federal 14 habeas petitions). Unless an issue of federal constitutional or statutory law is implicated 15 by the facts presented, the claim is not cognizable under federal habeas corpus. See 16 Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also Black’s Law Dictionary (11th ed. 17 2019) (defining “cognizable” as “[c]apable of being known or recognized”). 18 Respondents argue that several grounds must be dismissed because they do not 19 state cognizable claims for relief. (ECF No. 47 at 10-13.) The Court considers these 20 arguments below. 21 1. Ground 2(C) 22 In Ground 2(C), Brewer alleges that his state habeas counsel provided ineffective 23 assistance by (i) failing to cite “supportive case law,” (ii) filing a “meritless” supplemental 24 habeas petition, and (iii) failing to ensure that Brewer properly exhausted his federal 25 claims. (ECF No. 39 at 23-25.) Respondents correctly contend that this ground is not 26 cognizable in federal habeas. (ECF No. 47 at 12-13.) “[T]here is no federal constitutional 27 right to the assistance of counsel in connection with state collateral relief proceedings, 28 even where those proceedings constitute the first tier of review for an ineffective 2 rev’d on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). Because Brewer had no 3 Sixth Amendment right to counsel for his state habeas proceedings, he cannot bring a 4 federal habeas claim based on the ineffective assistance he allegedly received during 5 those proceedings. See 28 U.S.C. § 2254 (i) (“The ineffectiveness or incompetence of 6 counsel during Federal or State collateral post-conviction proceedings shall not be a 7 ground for relief in a proceeding arising under section 2254.”). Thus, the Court dismisses 8 Ground 2(C). 9 2. Grounds 3(A), 3(C), and 3(D) 10 In Grounds 3(A) and 3(D), Brewer appears to allege that his conviction is invalid 11 because the Nevada Legislature violated the principle of separation of powers embodied 12 in the federal constitution. (ECF No. 39 at 26-28, 34.) Specifically, Brewer contends that 13 three Nevada Supreme Court justices received “legislative powers” allowing them to 14 “legislate from the bench” and participate in “the legislation of law.” (Id. at 34.) Grounds 15 3(A) and 3(D) are not cognizable because “the doctrine of separation of powers embodied 16 in the [f]ederal [c]onstitution is not mandatory on the States.” Whalen v. United States, [17] 445 U.S. 684 , 689 n.4 (1980) (citation omitted); accord Chromiak v. Field, 406 F.2d 502 , 18 505 (9th Cir. 1969) (“The federal constitutional doctrine of separation of judicial and 19 executive powers applies only to the operation of the federal government and is not 20 binding upon the states”). The Court therefore dismisses Grounds 3(A) and 3(D).6 21 Ground 3(C) also fails to state a cognizable claim. Brewer alleges that the Nevada 22 Revised Statutes are “constitutionally void” because “new statutes” are enacted “without 23 any enacting clauses.” (ECF No. 39 at 30-31.) According to Brewer, the Nevada 24 Legislature passes laws in this manner to “hide mistakes [it] made when [it] repealed the 25 official statutes of Nevada” in 1957. (Id.) This argument is frivolous. “The Supreme Court [26] 6Brewer also alleges in Ground 3(A) that Nevada law allows “assigned attorneys,” 27 “prosecuting attorneys,” and “the courts” to “get the defendants to waive rights they violate so that they can hide behind these waivers.” (ECF No. 39 at 27.) These vague allegations 28 are insufficient to state a cognizable claim. 2 presented here regarding the alleged lack of enacting clauses in the Nevada Revised 3 Statutes in numerous opinions, which were not published apparently due to the 4 nonprecedential value of an opinion on such a patently meritless challenge.” Helfrich v. 5 Nevada, Case No. 2:16-cv-00312-RFB-NJK, 2018 WL 1321015 , at *2 & n.2 (D. Nev. Mar. 6 13, 2018) (collecting cases). As one such opinion explained, “[t]he Nevada Revised 7 Statutes merely ‘constitute the official codified version of [the] Statutes of Nevada and 8 may be cited as prima facie evidence of the law.’ NRS § 220.170(3). The Nevada Revised 9 Statutes consist of enacted laws which have been classified, codified, and annotated by 10 the Legislative Counsel. See NRS § 220.120. The actual laws of Nevada are contained 11 in the Statutes of Nevada. Thus, the fact that the Nevada Revised Statutes do not contain 12 enacting clauses does not render the statutes unconstitutional.” Langford v. State, 437 13 P.3d 1054 (Table), 2019 WL 1440980 , at *4 (Nev. Mar. 29, 2019). The Court dismisses 14 Ground 3(C) because it fails to state a cognizable claim. 15 3. Ground 3(B) 16 In Ground 3(B), Brewer alleges that his due process rights were violated because 17 he “did not receive his preliminary hearing within 15 days” of his arraignment as required 18 by Nevada law. (ECF No. 39 at 28-29.) This delay, in turn, allegedly deprived him of his 19 right to a trial within 60 days of his arraignment. (Id.) Respondents correctly argue that 20 this claim is barred by Tollett v. Henderson, 411 U.S. 267 (1973), because it rests on 21 events that took place before Brewer pled nolo contendere to second-degree murder. 22 (ECF No. 47 at 11.) 23 “When a criminal defendant has solemnly admitted in open court that he is in fact 24 guilty of the offense with which he is charged, he may not thereafter raise independent 25 claims relating to the deprivation of constitutional rights that occurred prior to the entry of 26 the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea 27 by showing that the advice he received from counsel was not” “within the range of 28 competence demanded of attorneys in criminal cases.” Id. at 266-67. Thus, “claims of 2 the action, or inaction, of counsel prevents petitioner from making an informed choice 3 whether to plead.” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017). Tollett applies to 4 pleas of nolo contendere. See Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir. 1992). 5 Ground 3(B) rests entirely on pre-plea events—the state district court’s failure to 6 hold a preliminary hearing within 15 days of Brewer’s arraignment, and the subsequent 7 violation of his right to a trial within 60 days of arraignment. Although Brewer appears to 8 allege that his trial counsel was partly responsible for these continuances, he does not 9 explain how the delays “prevent[ed] [him] from making an informed choice whether to 10 plead.” (ECF No. 39 at 29-30.) Mahrt, 849 F.3d at 1170 . Accordingly, the Court dismisses 11 Ground 3(B) as non-cognizable. See Stott v. Wickham, Case No. 3:17-cv-00081-MMD12 VPC, 2018 WL 3758583 , at *2 (D. Nev. Aug. 8, 2018) (finding that the claim was barred 13 by Tollett because it was “difficult to conceive how counsel’s continuances of the 14 preliminary hearing without Petitioner’s consent could have prevented Petitioner from 15 making an informed choice whether to plead”). 16 C. Exhaustion 17 A state prisoner first must exhaust state court remedies on a habeas claim before 18 presenting that claim to the federal courts. See 28 U.S.C. § 2254 (b)(1)(A). This 19 exhaustion requirement ensures that the state courts, as a matter of comity, will have the 20 first opportunity to address and correct alleged violations of federal constitutional 21 guarantees. See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has 22 exhausted his federal claims when he has fully and fairly presented them to the state 23 courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. 24 Boerckel, 526 U.S. 838, 844-45 (1999)) (“Section 2254(c) requires only that state 25 prisoners give state courts a fair opportunity to act on their claims”). To satisfy the 26 exhaustion requirement, a claim must have been raised through one complete round of 27 either direct appeal or collateral proceedings to the highest state court level of review 28 available. See O’Sullivan, 526 U.S. at 844-45 ; Peterson v. Lampert, 319 F.3d 1153 , 1156 2 specific federal constitutional guarantee, as well as a statement of the facts that entitle 3 the petitioner to relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 4 152, 162-63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair 5 presentation requires both the operative facts and federal legal theory upon which a claim 6 is based). 7 Respondents contend that several grounds in the First Amended Petition are 8 unexhausted. (ECF No. 47 at 13-18.) The Court considers these grounds below. 9 1. Ground 1(A)(6) 10 In Ground 1(A)(6), Brewer claims his trial counsel was ineffective for failing to 11 develop an appropriate response to the coroner’s finding that “there was 1000 cc of blood 12 [ ] in the [victim’s] stomach.” (ECF No. 39 at 13.) Brewer appears to contend that his 13 counsel could have rebutted this finding by pointing to a different expert report, which 14 found “no significant injuries around the [victim’s] stomach.” (Id.) Ground 1(A)(6) is 15 unexhausted because Brewer did not fairly present it to the Nevada Court of Appeals. To 16 be sure, Brewer claimed on appeal that “the autopsy report” failed to establish that the 17 victim died from “hemorrhaging in her abdomen and brain.” (ECF No. 23-17 at 23-24.) 18 But he did not argue that his counsel rendered ineffective assistance by failing to 19 recognize or respond to this fact. (Id.) Because Brewer did not fairly present Ground 20 1(A)(6) to the Nevada Court of Appeals, it is unexhausted. 21 2. Ground 1(B)(1) 22 As noted above, Ground 1(B)(1) alleges that Brewer’s trial counsel was ineffective 23 for failing to understand his “factual or legal claims of innocence”—namely, the theory 24 that the victim died from a drug overdose rather than strangulation or “kidney bruising.” 25 (ECF No. 39 at 12-13.) On appeal from the denial of his state habeas petitions, Brewer 26 argued that his trial counsel provided ineffective assistance by “not car[ing] about any 27 factual legal claims of [his] innocence.” (ECF No. 23-17 at 8.) Brewer specified that he 28 was innocent because the victim “had high doses of drugs in her system that were way 2 counsel for failing to take adequate steps to pursue this theory. (Id. at 22-23.) Accordingly, 3 Ground 1(B)(1) is exhausted because Brewer fairly presented it to the Nevada Court of 4 Appeals. 5 3. Ground 1(B)(2) 6 As explained above, Ground 1(B)(2) asserts that trial counsel was ineffective 7 because he failed to hire an expert to establish that the petechiae in the victim’s eyes did 8 not prove strangulation. (ECF No. 39 at 13.) Such an expert, according to Brewer, could 9 have testified that “slapp[ing] [someone] pretty hard” can cause petechiae to form in the 10 eyes. (Id.) Brewer contends that, had counsel pursued this theory, he could have put on 11 the defense that Brewer simply made a failed to attempt to revive the victim following a 12 fatal drug overdose. (Id.) 13 Ground 1(B)(2) is unexhausted because Brewer failed to fairly present it to the 14 Nevada Court of Appeals. On appeal, Brewer challenged the coroner’s finding that 15 asphyxia was the cause of death, contending that “slapping someone in the facial area 16 could have caused” “scarring in the eye.” (ECF No. 23-17 at 22.) But Brewer did not fairly 17 present the claim in Ground 1(B)(2)—namely, that his trial counsel was ineffective for 18 failing to hire an expert who could show that petechiae in the eyes can result from slapping 19 someone in the face. See Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (“As 20 a general matter, each unrelated alleged instance [ ] of counsel’s ineffectiveness is a 21 separate claim for purposes of exhaustion”) (internal quotation marks and citation 22 omitted). 23 Brewer argues that he exhausted Ground 1(B)(2) because, in his brief to the 24 Nevada Court of Appeals, he stated that he would “submit earlier arguments made on the 25 record for the court’s viewing.” (ECF No. 23-17 at 6.) In effect, Brewer attempted to 26 incorporate by reference all of the arguments he had made in his state habeas petitions. 27 (Id.) This was insufficient to exhaust Ground 1(B)(2), because Nevada law does not 28 permit incorporation by reference on appeal. Nev. R. App. P. 28(e)(2); see also Maresca 2 authority and cogent argument; issues not so presented need not be addressed by this 3 court”). “Submitting a new claim to the state’s highest court in a procedural context in 4 which its merits will not be considered absent special circumstances does not constitute 5 fair presentation.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. 6 Peoples, 489 U.S. 346, 351 (1989)). Thus, Brewer’s attempt at incorporation by reference 7 did not exhaust Ground 1(B)(2). 8 4. Ground 2(A)(4) 9 In Ground 2(A)(4), Brewer alleges that his trial counsel rendered ineffective 10 assistance by failing to obtain “medical records of the victim.” (ECF No. 39 at 16.) This 11 claim is unexhausted because Brewer never presented it to the Nevada Court of Appeals. 12 Brewer contends that he exhausted this claim by raising it in his state habeas petitions. 13 (ECF No. 54 at 21.) To satisfy the exhaustion requirement through a postconviction 14 procedure, however, a petitioner must raise his claims “at all appellate stages afforded 15 under state law as of right by that procedure.” Casey v. Moore, 386 F.3d 896, 916 (9th 16 Cir. 2004) (internal quotation marks, citations, and emphasis omitted). Because Brewer 17 did not raise Ground 2(A)(4) on appeal, it is unexhausted. 18 5. Ground 2(A)(5) 19 Ground 2(A)(5) alleges that Brewer’s trial counsel was ineffective for failing to 20 review the police records in his case. (ECF No. 39 at 16.) Brewer did not raise this 21 argument in the Nevada Court of Appeals. Accordingly, Ground 2(A)(5) is unexhausted. 22 D. Duplicative Claims 23 1. Ground 2(B)(4) 24 In Ground 2(B)(4), Brewer claims that his trial counsel provided ineffective 25 assistance by (i) “refusing to familiarize himself with the forensics” and (ii) failing to hire a 26 forensic expert to challenge “the State’s side of the facts.” (ECF No. 39 at 20.) As 27 Respondents point out, Ground 2(B)(4) is duplicative of Grounds 2(A)(3) and 2(A)(6), in 28 which Brewer alleges that his trial counsel was ineffective for (i) “fail[ing] to secure an 2 16.) Accordingly, the Court dismisses Ground 2(B)(4) as duplicative. 3 2. Ground 2(B)(5) 4 Ground 2(B)(5) asserts that Brewer’s trial counsel was ineffective because he (i) 5 failed to file a motion for discovery and (ii) did not request a “preliminary hearing within 6 the timeframes given by the statutes.” (Id. at 22.) Respondents correctly argue that 7 Ground 2(B)(5) is duplicative of Grounds 2(A)(1) and 2(A)(2), in which Brewer alleges that 8 his trial counsel provided ineffective assistance by (i) “not filing a discovery motion” and 9 (ii) “allow[ing] the State and the [court] to postpone his preliminary examination without 10 his consent.” (Id. at 15.) Thus, the Court dismisses Ground 2(B)(5) as duplicative. 11 E. Mixed Petition 12 A federal court may not entertain a habeas petition unless the petitioner has 13 exhausted available and adequate state court remedies with respect to all claims in the 14 petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both 15 exhausted and unexhausted claims is subject to dismissal. Id. Here, as explained above, 16 Grounds 1(A)(6), 1(B)(2), 2(A)(4), and 2(A)(5) are unexhausted. Because the First 17 Amended Petition contains unexhausted claims, Brewer has three options: 18 1. He may submit a sworn declaration voluntarily abandoning the unexhausted 19 claims in his federal habeas petition, and proceed only on the exhausted 20 claims; 21 2. He may return to state court to exhaust his unexhausted claims, in which case 22 his federal habeas petition will be denied without prejudice; or 23 3. He may file a motion asking this Court to stay and abey his exhausted federal 24 habeas claims while he returns to state court to exhaust his unexhausted 25 claims. 26 With respect to the third option, a district court has discretion to stay a petition that it may 27 validly consider on the merits. See Rhines v. Weber, 544 U.S. 269, 276 (2005). The 28 Rhines Court stated: Because granting a stay effectively excuses a petitioner’s failure to present 2 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 3 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 4 if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254 (b)(2) (“An application for a writ of habeas 5 corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). [7] Id. at 277 . 8 If Brewer wishes to ask for a stay, he must file a motion for stay and abeyance in 9 which he demonstrates good cause for his failure to exhaust his unexhausted claims in 10 state court and presents argument regarding the question of whether his unexhausted 11 claims are plainly meritless. Respondents would then be granted an opportunity to 12 respond, and Brewer to reply. Or Brewer may file a declaration voluntarily abandoning his 13 unexhausted claims, as described above. 14 Brewer’s failure to choose any of the three options listed above, or seek other 15 appropriate relief from this Court, will result in his federal habeas petition being dismissed. 16 Brewer is advised to familiarize himself with the limitations periods for filing federal 17 habeas petitions contained in 28 U.S.C. § 2244 (d), as those limitations periods may have 18 a direct and substantial effect on whatever choice he makes regarding his petition. 19 IV. CONCLUSION 20 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 47) is 21 granted in part and denied in part as follows: 22 1. Grounds 1(B)(3), 1(B)(4), and 2(B)(3) are dismissed as untimely. 23 2. Grounds 2(C), 3(A), 3(B), 3(C), and 3(D) are dismissed as non-cognizable. 24 3. Grounds 1(A)(6), 1(B)(2), 2(A)(4), and 2(A)(5) are unexhausted. 25 4. Grounds 2(B)(4) and 2(B)(5) are dismissed as duplicative. 26 It is further ordered that, with respect to his unexhausted claims, Brewer shall have 27 30 days to either: (i) inform this Court in a sworn declaration that he wishes to formally 28 and forever abandon the unexhausted grounds for relief in his federal habeas petition and 1 || proceed on the exhausted grounds; or (ii) inform this Court in a sworn declaration that he 2 || wishes to dismiss this petition without prejudice in order to return to state court to exhaust 3 || his unexhausted claims;’ or (iii) file a motion for a stay and abeyance, asking this Court 4 || to hold his exhausted claims in abeyance while he returns to state court to exhaust his 5 || unexhausted claims. If Brewer chooses to file a motion for a stay and abeyance, or seek 6 || other appropriate relief, Respondents may respond to such motion as provided in LR 77 || 2. 8 It is further ordered that if Brewer elects to abandon his unexhausted grounds, 9 || Respondents will have 30 days from the date Brewer serves his declaration of 10 || abandonment in which to file an answer to Brewer's remaining grounds for relief. 11 Itis further ordered that Brewer will have 30 days following service of Respondents’ 12 || answer in which to file a reply. 13 It is further ordered that if Brewer fails to respond to this order within the time 14 || permitted, this case may be dismissed under Rose v. Lundy. 15 The Clerk of Court is directed to substitute William Reubart for Respondent William 16 || Gittere. 17 DATED THIS 2" Day of September 2022. 18 □□ ASA MIRANDA M. DU 20 CHIEF UNITED STATES DISTRICT JUDGE [26] 27 “In offering this option, the Court makes no assurances as to whether any future petition filed in this Court would be timely under 28 U.S.C. § 2244 (d). The pendency of 28 || this proceeding has not tolled the statutory filing period. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 16