FILED
NOT FOR PUBLICATION
NOV 09 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE DEON HAWES, No. 14-15805
Petitioner - Appellant, D.C. No. 3:10-cv-00655-RCJ-VPC
v.
MEMORANDUM*
JACK PALMER and NEVADA
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted October 21, 2015
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.
Petitioner Lance Hawes appeals the district court’s dismissal of his pro se
petition for federal habeas relief from a state court conviction. In the district court,
the state moved to dismiss Hawes’s petition as unexhausted, and Hawes requested
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a stay to return to the state court to effectuate exhaustion. The district court denied
Hawes’s request and required him to abandon his unexhausted claims or suffer a
dismissal of the entire petition. Hawes, with explicit protest, abandoned the
unexhausted claims. Afterward, the district court addressed the remaining claims
on the merits. On appeal, through his appointed counsel, Hawes argues that the
district court abused its discretion by denying the stay and requiring Hawes to
dismiss his claims. He also requests that this court grant a certificate of
appealability on one uncertified issue: that Hawes’s counsel on direct appeal to the
Nevada Supreme Court was ineffective for failing to raise a Confrontation Clause
claim.
We agree that the district court abused its discretion by requiring Hawes to
dismiss his claims because the district court failed to consider whether Hawes had
a remedy available in state court. As the government notes in its answering brief
and Hawes acknowledged at oral argument, Nevada’s procedural rules would bar
any new state petition. See Nevada Revised Statutes §§ 34.726, 34.800, 34.810.
Therefore, the district court should have treated the unexhausted claims as
exhausted for federal habeas purposes, and then analyzed whether petitioner had
established cause and prejudice to overcome the state procedural bar. See Casey v.
Moore, 386 F.3d 896, 920–22 (9th Cir. 2004) (“Because at the time [the petitioner]
2
filed for habeas relief in the federal district court no further state remedies were
available to him, his claims are exhausted.”). Instead of conducting that analysis,
the district court required the petitioner to dismiss the claims under the erroneous
assumption that he still had viable state court remedies. Accordingly, on remand,
the district court should reinstate Hawes’s dismissed claims and consider whether
Hawes can show cause and prejudice to overcome the procedural default of any
claims that were not properly presented to the state’s highest court.1
We do not address Hawes’s uncertified issue because it differs from the
claim considered by the district court. The district court addressed whether
Hawes’s counsel was ineffective for failing to raise a hearsay challenge on direct
appeal. Here, Hawes asks us to consider whether counsel was ineffective for
failing to raise a Confrontation Clause challenge on direct appeal. On remand, the
district court should consider, in the first instance, whether Hawes’s pro se petition
properly presented this claim and, if so, its merit.
REVERSED AND REMANDED.
1
At oral argument, Hawes’s appointed counsel suggested that some of the
dismissed claims had, in fact, been presented to the state’s highest court. On
remand, Hawes should be permitted to clarify which claims, if any, were properly
presented. Those claims, of course, would not be procedurally defaulted and
Hawes would not need to show cause or prejudice in order to have those claims
addressed on the merits.
3