NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LAUSTEVEION DELANO JOHNSON, No. 12-16844
Petitioner - Appellant, D.C. No. 2:08-cv-01363-JCM-RJJ
v.
MEMORANDUM*
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 5, 2013
Seattle, Washington
Before: KOZINSKI, PAEZ, and BERZON, Circuit Judges.
Lausteveion Delano Johnson appeals the district court’s judgment denying
his petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed
Johnson’s petition for failure to exhaust, concluding that Johnson’s state habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition and his untimely appeal of the denial of that petition, among other attempts
at securing post-conviction relief, did not “fairly present” his claims to the Nevada
state courts, and therefore that he still had a state remedy available to him.1 We
conclude that the district court erred with respect to Grounds One, Two, and Four,
and reverse and remand for further proceedings.
“A petitioner fully and fairly presents a claim to the state courts if he
presents the claim (1) to the correct forum; (2) through the proper vehicle; and (3)
by providing the factual and legal basis for the claim.” Scott v. Schriro, 567 F.3d
573, 582 (9th Cir. 2009) (internal citations omitted). Johnson presented Grounds
One, Two, and Four of his amended federal habeas petition to the Nevada courts,
through a habeas petition, the proper vehicle, filed in state district court which he
untimely appealed to the Nevada Supreme Court, the proper forum. The petition
provided the factual and legal bases for these three claims. Therefore, Johnson
fairly presented Grounds One, Two, and Four.
1
In addition to arguing that Johnson’s state habeas petition was procedurally
inadequate, the State argued before the district court that the facts and law that
Johnson presented in his federal petition were not sufficiently similar to those he
presented in his state petition to constitute fair presentation. The district court did
not address this second argument, and, as the State has not raised it on appeal, it is
waived.
2
The Nevada Supreme Court, however, did not review Johnson’s claims,
because Nevada law deprives it of jurisdiction over untimely appeals. Lozada v.
State, 871 P.2d 944, 946 (1994). The late appeal does not mean that Johnson did
not fairly present these claims, but only that these claims are “procedurally barred
under the independent and adequate state ground doctrine, which prohibits federal
habeas review ‘when a state court declined to address a prisoner's federal claims
because the prisoner had failed to meet a state procedural requirement.’” Correll v.
Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998) (quoting Coleman v. Thompson, 501
U.S. 722, 732 (1991)). We therefore agree with Johnson that his untimely appeal
resulted in a procedural default of Grounds One, Two, and Four, and that no
further exhaustion is required.
However, Johnson did not fairly present Ground Three of his federal
petition, as he presented that claim exclusively through an extraordinary writ
petition. See Pitchess v. Davis, 421 U.S. 488, 490 (1975). Johnson argued before
the district court that he can show cause and prejudice under the federal standard.
He can therefore argue cause and prejudice to the Nevada state court, as “Nevada’s
‘cause and prejudice’ analysis and the federal ‘cause and prejudice analysis’ are
nearly identical,” and a finding of cause and prejudice would excuse his state
procedural default. Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004).
3
Because relief remains available from the Nevada state court, Ground Three is
unexhausted.
Johnson’s federal habeas petition is therefore a mixed petition. We remand
to the district court so that it may consider whether to stay and abey Johnson’s
federal petition while he pursues state relief on Ground Three. Rhines v. Weber,
544 U.S. 269, 278 (2005). Should it conclude that Johnson cannot meet the Rhines
test, the district court should offer Johnson the opportunity to amend his federal
habeas petition to dismiss Ground Three. King v. Ryan, 564 F.3d 1133, 1141 (9th
Cir. 2009).
REVERSED AND REMANDED.
4