Stanley v. Whorton et al
Filing
38
ORDERED that grounds one and three are DISMISSED. The Court finds these grounds were procedurally defaulted in the state court. FURTHER ORD the 10 Petition f WHC is DENIED. FURTHER ORD clerk shall ENTER JUDGMENT ACCORDINGLY. FURTHER ORD P is DENIED A CERTIFICATE OF APPEALABILITY. Signed by Judge Larry R. Hicks on 3/25/2009. (Copies have been distributed pursuant to the NEF - DRM)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The exhibits cited in this order in the form "Exhibit ___," are those filed by respondents in support of their answer to the habeas petition and are located in the record at docket #17-22.
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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
OSCAR ART STANLEY,
) ) Petitioner, ) ) vs. ) ) GLEN WHORTON, et al., ) ) Respondents. ) ) ____________________________________)
3:06-cv-00126-LRH-VPC ORDER
This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, by Oscar Stanley, a Nevada prisoner. The action comes before the court with respect to its merits. The Court will deny the petition. I. Facts and Procedural Background An amended criminal complaint was filed against the petitioner in the Justice Court of Las Vegas Township on December 13, 2001, charging the petitioner with robbery (count I), larceny from the person (count II), grand larceny auto (count III), burglary (count IV), attempted murder with the use of a deadly weapon (count V), battery with a deadly weapon with substantial bodily harm (count VI), mayhem (count VII), burglary (count VIII), robbery (count IX), attempted robbery (count X), and attempted grand larceny auto (count XI). Exhibit 3.1 A preliminary hearing was held on December 18, 2001. Exhibit 4. At the hearing, the state gave oral notice of its intent to seek a large violent habitual criminal enhancement. Id. The justice court found sufficient evidence to support
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the amended complaint. Id. Petitioner entered a not guilty plea on January 3, 2002. Exhibit 6. An information was filed in the District Court for Clark County on December 31, 2001, charging the petitioner with the same crimes but adding in count X, attempted robbery of a victim sixty-five years of age or older. Exhibit 5. Counsel for petitioner then moved to strike the duplicitous counts and to suppress the petitioner's confession. Exhibits 13 and 14. The trial court denied these motions at a March 1, 2002 hearing. Exhibit 17. A jury trial was held between March 4, 2002, and March 12, 2002. Exhibits 18-26. The jury convicted petitioner as charged of counts I, II, VI, VII, IX, and X. Exhibit 28. The jury also convicted petitioner of two counts of unlawful taking of a vehicle without the consent of the owner, lesser included offenses of counts III and XI. Id. Petitioner was acquitted on counts IV, V, and VII, the burglary counts and the attempted murder count. Id. Defense counsel then moved to dismiss counts III and XI, arguing those counts merged into counts I and X. Exhibit 29. Counsel also moved to strike "the victim sixty-five years of age or older" language from count X. Exhibit 30. The state district court dismissed counts III and XI. Exhibit 32. The court then sentenced the petitioner to life without the possibility of parole for counts I and IX, as a habitual felon, to 48 months imprisonment with parole eligibility in 12 months for count II, to 180 months in prison with parole eligibility after 72 months for count VI, and to 120 months in prison with parole eligibility in 48 months for both counts VII and X. Id. The sentences are to be served consecutively. Id. A judgment of conviction was entered on June 4, 2002. Exhibit 33. Petitioner appealed, arguing (1) his rights to due process and a fair trial were violated when the trial court denied his motion to suppress his statement and when the court responded incorrectly to a jury question, (2) his rights to due process and a fair trial were violated when the court denied defense counsel's request to ask the jury its pre-submitted voir dire questions, when the court permitted the state to use a peremptory challenge in violation of Batson, and when the trial court dismissed a black juror who arrived fifteen minutes late on the day of jury selection, and (3) his right to be protected from double jeopardy was violated when the court permitted the jury's verdict of guilty on both battery with substantial bodily harm and mayhem, or that there was insufficient 2
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evidence to support the conviction of mayhem. Exhibits 34 and 35. On November 4, 2003, the Nevada Supreme Court affirmed in part and reversed in part, finding that the conviction of battery with the use of a deadly weapon with substantial bodily harm should be reversed, as this conviction was redundant to the mayhem conviction. Exhibit 38. Remittitur issued on December 2, 2003. Exhibit 39. On January 16, 2004, the state district court entered an amended judgment of conviction, striking the conviction for battery with a deadly weapon with substantial bodily harm. Exhibit 40. Petitioner then filed a state habeas corpus petition on April 19, 2004, alleging nine grounds for relief. Exhibit 41. The state district court held an evidentiary hearing on the petition, and denied the petition. Exhibits 46 and 48. Petitioner appealed, and the Nevada Supreme Court affirmed the lower court's denial of the petition. Exhibit 49. Remittitur issued on January 3, 2006. Exhibit 50. Petitioner mailed his federal habeas corpus petition on March 2, 2006 (docket #10). Respondents have answered petitioner's claims (docket #16), petitioner has filed a traverse (docket #27) and respondents have filed a reply (docket #30). II. Federal Habeas Corpus Standards The Antiterrorism and Effective Death Penalty Act ("AEDPA"), provides the legal standard for the Court's consideration of this habeas petition: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. §2254(d). The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). A state court decision is 3
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contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "`if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases'" or "`if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.'" Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694). A state court decision is an unreasonable application of clearly established Supreme Court precedent "`if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The unreasonable application clause "requires the state court decision to be more than incorrect or erroneous"; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). See also Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004). In determining whether a state court decision is contrary to, or an unreasonable application of, federal law, this Court looks to a state court's last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Plumlee v. Masto, 512 F.3d 1204, 1209-10 (9th Cir. 2008) (en banc). Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). III. Discussion A. Ground One
In his first ground for relief petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when the state improperly gave notice of its intent to seek habitual felon adjudication, pursuant to NRS 207.012, following the preliminary hearing. Petitioner also contends that the state was estopped from imposing or seeking habitual felon adjudication once he was acquitted of the charge of attempted murder. Petitioner states that due to ineffective assistance of trial counsel and appellate counsel this issue was not raised at trial and sentencing or on appeal. At the end of the preliminary hearing held on December 18, 2001, the state gave the 4
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petitioner and his attorney oral notice of its intent to seek habitual felon adjudication. Exhibit 4, T 66. The state noted that the petitioner had a prior 1981 robbery conviction from Illinois, and a 1994 armed robbery conviction from Illinois. Id. Defense counsel objected. Id. The state explained that it was just putting the defense on notice that they intended to seek habitual criminal status. Id. The amended information contained the following language: Defendant Oscar A. Stanley...is placed on notice that, in accordance with the authorization of NRS 207.012, punishment imposed pursuant to the above-stated violent habitual criminal statute will be urged upon the Court if said Defendant is found guilty on the primary offenses of Robbery and Attempt Murder With Use of a Deadly Weapon, for which the Defendant is presently charged. Exhibit 11. Petitioner was convicted of the two robbery counts he was charged with, was acquitted of the attempted murder charge, and was sentenced as a habitual felon. Exhibit 33. Petitioner argued at the evidentiary hearing in the state court the oral notice of the state's intent to seek habitual felon status was improper, and the state could not sentence him as a habitual criminal as he was acquitted of the attempted murder charge. Exhibit 46. Petitioner's contention is essentially that the language in the information of the state's intent to seek habitual felon status was a condition precedent or a contractual agreement, as the notice stated that if petitioner is found guilty of robbery and attempted murder then punishment would be imposed according to the violent habitual offender statue. Respondents argue that this claim was procedurally defaulted in the state court. 1. Procedural Default
Generally, in order for a federal court to review a habeas corpus claim, the claim must be both exhausted and not procedurally barred. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). Procedural default refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds rather than denying the claim on the merits. A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court stated the effect of a procedural default as follows: 5
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In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural default doctrine ensures that the state's interest in correcting its own mistakes is respected in all federal habeas cases. See Koerner, 328 F.3d at 1046. 2. Procedural Default in the State Court
Respondents argues that this ground for relief was procedurally defaulted in the state court. On appeal, the Nevada Supreme Court addressed petitioner's claim that trial counsel was ineffective for failing to object to the inadequate notice of the state's intent to seek habitual felon adjudication. Exhibit 49. The court also denied petitioner's claim that appellate counsel was ineffective for failing to raise errors in his adjudication as a habitual felon on the merits. Id. However, the court also stated that to the extent the petitioner raised any of his issues "independently from his ineffective assistance of counsel claims" that the court found those claims waived as they should have been raised on direct appeal. Id. at 2, n.2 (citing NRS 34.810(1)(b)). The court found that petitioner had not demonstrated good cause for his failure to raise any such claims on appeal. Id. The instant claim does not contend that trial counsel or appellate counsel was ineffective, and instead argues that the habitual felon adjudication is illegal or improper due to the state's improper oral notice and the state's failure to abide by the condition precedent or agreement made in the notice given in the amended information. It appears that this claim was procedurally defaulted in the state court. To the extent that it can be argued that the Nevada Supreme Court's decision was silent on this claim, as it did not specifically address this claim, then this Court would look to the last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Plumlee v. Masto, 512 F.3d 1204, 1209-10 (9th Cir. 2008) (en banc). The state district court also denied this claim, stating that the petitioner failed to show good cause why he did not present his due process violation claims on direct appeal. Exhibit 48. The state district court found the claim was waived. Id. 6
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Therefore, it appears that this claim was procedurally defaulted in the state court, as both the state district court and the Nevada Supreme Court found the claim was waived as it should have been raised on direct appeal. 3. The Procedural Default Was an Independent and Adequate State Law Ground for the Nevada Supreme Court's Disposition of Petitioner's Claims
For the procedural default doctrine to apply, "a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). See also Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). NRS 34.810 has been held to be an independent and adequate state procedural rule that will bar federal review. See Vang v. Nevada, 329 F.3d 1069, 1074-75 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999). This court finds that the Nevada Supreme Court's and the state district court's determination that ground one was procedurally barred under NRS 34.810 was an independent and adequate ground for the court's denial of the state habeas petition. 4. Cause and Prejudice or Fundamental Miscarriage of Justice
To overcome a procedural default, a petitioner must establish either (1) "cause for the default and prejudice attributable thereto," or (2) "that failure to consider [his defaulted] claim[s] will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted). Cause to excuse a procedural default exists if a petitioner can demonstrate that some objective factor external to the defense impeded the petitioner's efforts to comply with the state procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). The prejudice that is required as part of the showing of cause and prejudice to overcome a procedural default is "actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). Petitioner argues, in his traverse, that trial counsel and appellate counsel were ineffective for failing to raise this claim on appeal. Ineffective assistance of counsel may satisfy the cause requirement to overcome procedural default only if the independent claim of ineffective assistance of counsel itself has been exhausted in state court. Murray, 477 U.S. at 488-89. 7
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Petitioner has exhausted the individual claims of ineffective assistance of trial counsel and appellate counsel in the state courts. Exhibits 41 and 49. Therefore petitioner can rely on these claims to support his allegation of cause in an attempt to overcome the state procedural bar. However, to establish prejudice based on the deficient assistance of appellate counsel, petitioner must show that the omitted issue would have a reasonable probability of success on appeal. Smith v. Robbins, 52 U.S. 259, 285 (2000); Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). Petitioner has not shown that the omitted claims had a reasonable probability of success on the merits, as there is not a reasonable probability that had these claims been raised on direct appeal that the outcome of the appeal would have been different. Nevada Revised Statute 207.012 states: 1. A person who: (a) Has been convicted in this State of a felony listed in subsection 2; and (b) Before the commission of that felony, was twice convicted of any crime which under the laws of the situs of the crime or of this State would be a felony listed in subsection 2, whether the prior convictions occurred in this State or elsewhere, is a habitual felon and shall be punished for a category A felony by imprisonment in the state prison: (1) For life without the possibility of parole; (2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or (3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served. 2. The district attorney shall include a count under this section in any information...if each prior conviction and the alleged offense committed by the accused constitutes a violation [of this section.] 3. The trial judge may not dismiss a count under this section that is included in an indictment or information. Pursuant to the statute, the trial court must sentence a petitioner to one of the listed terms of imprisonment if the petitioner was convicted of an enumerated felony, and has two prior enumerated felonies. Petitioner was convicted of two counts of robbery, which is a felony listed in subsection 2 of the statute. NRS 200.380; NRS 207.012 2. Furthermore, the state listed petitioner's two prior 8
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felonies as robbery and armed robbery, which also satisfy the statute. Id. There is no indication that the notice the state gave was improper. In Nevada, a criminal defendant is entitled to "reasonable notice" of the state's intent to seek habitual criminal or felon adjudication as a matter of constitutional due process. See Parkerson v. State, 678 P.2d 1155 (Nev. 1984) (citing Oyler v. Boles, 386 U.S. 448 (1962)). Even if the oral notice was somehow improper, which it does not appear to be, the notice given in the amended information was proper. The state is not required to prove the prior convictions at the time of the notice; the state only need to prove the prior convictions at the time of sentencing. Furthermore, although the notice stated that if the petitioner was convicted of robbery and attempted murder that a habitual criminal sentence would be sought, this was not a binding contractual agreement or condition precedent. The state merely listed in its notice that the petitioner was eligible for violent habitual criminal sentences for both the robbery charges and the attempted murder charge. Petitioner's conviction of two counts of robbery was sufficient for a habitual criminal sentence under NRS 207.012. Petitioner has not met the standard for a showing of ineffective assistance of trial counsel or appellate counsel as cause for procedural default. This claim will be dismissed as it has been procedurally defaulted. B. Ground Two
In his second ground for relief the petitioner contends that his Fifth, Sixth, and Fourteenth Amendment rights to effective assistance of counsel and due process of law were violated when trial counsel failed to challenge the habitual criminal notice and the subsequent adjudication as a habitual criminal. In order to prove ineffective assistance of counsel, petitioner must show (1) that counsel acted deficiently, in that his attorney made errors so serious that his actions were outside the scope of professionally competent assistance and (2) the deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an `objective standard of reasonableness,' . . . `under prevailing professional norms.'" Rompilla v. 9
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Beard, 545 U.S. 374, 380 (2005) (quotations omitted). If the state court has already rejected an ineffective assistance claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable application of the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The Nevada Supreme Court, in affirming the district court's denial of petitioner's second claim for relief, stated: First, appellant claimed that his counsel was ineffective for failing to object to inadequate notice of a possible habitual criminal adjudication. Specifically, appellant argued that the State should not have been allowed to seek a habitual criminal sentence since he was acquitted of the charge of attempted murder, and the State had specified verbally that it would only seek habitual criminal sentencing if appellant was convicted of robbery and attempted murder. Appellant has failed to demonstrate that counsel's performance was ineffective. Appellant was found guilty of two counts of robbery, which was sufficient to adjudicate appellant a habitual felon pursuant to NRS 207.012(2). Appellant was specifically noticed of the State's intent to seek habitual felon adjudication during his preliminary hearing and per amended information on February 5, 2002. The district court, in its discretion, adjudicated appellant a habitual felon. Therefore, appellant failed to demonstrate that counsel's performance was deficient, and the district court did not err in denying this claim. Exhibit 49. The Nevada Supreme Court's determination was not an objectively unreasonable application of Strickland. As was discussed in relation to ground one, the state's notice of intent to seek habitual criminal adjudication was sufficient, as petitioner is only entitled to reasonable notice. Parkerson, 678 P.2d at 1156. The state gave the petitioner both oral and written notice. Moreover, the notice did not create some type of condition precedent, i.e., that petitioner had to be convicted of both attempted murder and robbery. Under NRS 207.012, petitioner can be sentenced as a violent habitual criminal (habitual felon) if he was convicted of one of the enumerated felonies, and has two prior felony convictions. Petitioner was convicted of two counts of robbery, and had two prior felony convictions that qualified under the statute. Although petitioner was acquitted of the attempted murder charge, he still qualified to be adjudicated as a violent habitual criminal by virtue of being convicted of the robbery counts. Petitioner has not shown that trial counsel was ineffective for failing to challenge the state's 10
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notice of intent to seek violent habitual criminal adjudication or the trial court's adjudication of the petitioner as a habitual criminal even though he was acquitted of the attempted murder charge. The Court will deny ground two. C. Ground Three
In ground three the petitioner alleges that his Fifth and Fourteenth Amendment rights to due process were violated when the state failed to present two certified judgments of convictions and instead only presented one certified copy of a judgment of conviction. Two certified copies of prior convictions are required in order to adjudicate a criminal defendant as a habitual criminal. See NRS 207.016 (5) (stating for the "purposes of NRS 207.010, 207.012 and 207.014, a certified copy of a felony conviction is prima facie evidence of conviction of a prior felony"). Respondents argue that this claim was also procedurally defaulted in the state court. 1. Procedural Default in the State Court
On appeal, the Nevada Supreme Court addressed the claim that counsel was ineffective for failing to object to the state's failure to present two certified copies of judgments of convictions at sentencing, as is required for habitual felon sentencing. Exhibit 49. The court also stated that to the extent the petitioner raised this issue "independently from his ineffective assistance of counsel claims" that the court found those claims waived as they should have been raised on direct appeal. Id. at 2, n. 2 (citing NRS 34.810(1)(b)). The court also found that petitioner had not demonstrated good cause for his failure to raise any such claims on appeal. Id. The instant claim does not contend that trial counsel or appellate counsel was ineffective for failing to challenge the state's failure to provide two certified copies of judgments of convictions. It appears that this claim was procedurally defaulted in the state court. To the extent that it can be argued that the Nevada Supreme Court's decision was silent on this claim, as it did not specifically address this claim, then this Court would look to the last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Plumlee v. Masto, 512 F.3d 1204, 1209-10 (9th Cir. 2008) (en banc). The state district court also denied this claim, stating that the petitioner failed to show good cause why he did not present his due process violation claims on direct appeal. Exhibit 48. The state district court found the claim was waived. Id. 11
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Therefore, it appears that this claim was procedurally defaulted in the state court, as both the state district court and the Nevada Supreme Court found the claim was waived as it should have been raised on direct appeal. 2. The Procedural Default Was an Independent and Adequate State Law Ground for the Nevada Supreme Court's Disposition of Petitioner's Claims
For the procedural default doctrine to apply, "a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). See also Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). NRS 34.810 has been held to be an independent and adequate state procedural rule that will bar federal review. See Vang v. Nevada, 329 F.3d 1069, 1074-75 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999). This court finds that the Nevada Supreme Court's and the state district court's determination that ground one was procedurally barred under NRS 34.810 was an independent and adequate ground for the court's denial of the state habeas petition. 4. Cause and Prejudice or Fundamental Miscarriage of Justice
To overcome a procedural default, a petitioner must establish either (1) "cause for the default and prejudice attributable thereto," or (2) "that failure to consider [his defaulted] claim[s] will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted). Cause to excuse a procedural default exists if a petitioner can demonstrate that some objective factor external to the defense impeded the petitioner's efforts to comply with the state procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). The prejudice that is required as part of the showing of cause and prejudice to overcome a procedural default is "actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). Petitioner does not state any arguments relating to cause and prejudice, therefore the Court will dismiss ground three, as it was procedurally defaulted. To the extent it could be argued that petitioner claims that trial counsel was ineffective for failing to argue this claim on appeal, petitioner may have shown cause and prejudice. Ineffective 12
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assistance of counsel may satisfy the cause requirement to overcome procedural default only if the independent claim of ineffective assistance of counsel itself has been exhausted in state court. Murray, 477 U.S. at 488-89. Petitioner has exhausted the individual claim of ineffective assistance of trial counsel in the state courts. Exhibits 41 and 49. Therefore petitioner can rely on this claim to support his allegation of cause in an attempt to overcome the state procedural bar. However, petitioner has not shown that trial counsel was ineffective for failing to challenge the state's failure to present two certified copies of judgments of convictions. The state district court addressed this claim at the evidentiary hearing. Exhibit 46. Trial counsel testified that she did not object to the prior convictions because she received two certified and stamped judgments of convictions. Id. at 16. Counsel noted that they were self-authenticating. Id. Petitioner seemed to be arguing that one document was a "judgement of conviction" while the other was a commitment order to the department of corrections and therefore did not count as a prior conviction because it was not a "judgment of conviction." Id. at 17-18. The trial court rejected this argument. Id. ; Exhibit 48. On appeal the Nevada Supreme Court affirmed the denial of this claim, stating that the claim was belied by the record. Exhibit 49. The court noted that during sentencing the state presented certified copies of both prior convictions. Id. The Nevada Supreme Court's determination that this claim was without merit is not objectively unreasonable. A state court's factual determination may not be overturned unless this court cannot "reasonably conclude that the finding is supported by the record. Cook v. Schriro, 516 U.S. 802, 816 (9th Cir. 2008); Miller-El v. Cockrell, 537 U.S. 32 (2003) (stating "[f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary" and a decision made by a state court based upon a factual determination "will not be overturned...unless objectively unreasonable in light of the evidence presented in the state-court proceeding"). The documents presented at sentencing included a 1981 certified statement of conviction/disposition for robbery. Exhibit 41. The other document was a certified statement of conviction/disposition for armed robbery in 1994. Id. The 1994 conviction also showed a 13
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commitment order. Id. Both convictions noted that the petitioner was represented by counsel. Id. There is no indication that counsel should have objected to the 1994 conviction. Petitioner has not met the standard for a showing of ineffective assistance of trial counsel as cause for procedural default. This claim will be dismissed as it has been procedurally defaulted. D. Ground Four
In ground four the petitioner alleges that trial counsel was ineffective when counsel failed to investigate the prior convictions and did not contest the state's offer of proof at sentencing. This claim was discussed above, in conjunction with ground three, and this Court concluded that there was no indication that trial counsel was deficient for failing to investigate or object to the judgments of convictions that the state offered at sentencing. The Court will deny ground four. E. Ground Five
In ground five petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights to effective assistance of counsel and due process were violated when trial counsel failed to present a defense to the crimes charged. Petitioner asserts that there was existing evidence that he had a mental illness, organic brain damage, and an I.Q. verging on mental retardation, yet counsel did not investigate this defense or contact witnesses. Petitioner's claim is belied by the record. At the evidentiary hearing trial counsel testified that she received documents relating to petitioner's mental illness, mental health, and mental retardation. Exhibit 46, T 26. Furthermore, counsel stated that Dr. Paglini examined petitioner. Id. Counsel determined that she could not put forth a defense based upon petitioner's mental health because they could not show that the petitioner lacked the capacity to form intent for the crimes. Id. Moreover, counsel noted that Dr. Paglini, a mental health expert, would not have testified in the petitioner's favor. Id. at T 27. Petitioner was also evaluated for competency by two different psychologists. Id. at T 31. Both psychologists stated that the petitioner was competent. Id. The state noted that the petitioner was only convicted of the general intent crimes that he was charged with, and not the specific intent crimes. Id. at T 33. The state district court ruled that trial counsel did explore a mental health defense or some type of diminished capacity defense. Id. at 33. 14
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However, the results of the investigation would not support the theory of defense, therefore counsel did not call these witnesses at trial. Id. The court also stated that defense counsel made a tactical decision to not enter the expert witness's report at trial, as it did not support the defense theory. Id. The court also addressed petitioner's claim that counsel failed to interview witnesses. Id. at T 45. Petitioner stated that counsel failed to interview other witnesses about his mental health history. Id. Defense counsel testified that she attempted to contact every hospital and mental health facility, and some of the witnesses could not be contacted. Id. Defense counsel was able to contact some of the facilities, and received documents from them, but concluded that none of the documents or potential witnesses would be of assistance at trial. Id. at 46. The court concluded that the evidence counsel did find after investigating showed that there was not a mental health defense. Id. at 51. The Nevada Supreme Court affirmed the lower court's denial of this claim, stating: Third, appellant claimed that counsel was ineffective for failing to investigate, prepare and present a defense to the charges. Specifically, appellant claimed that counsel did not present any witnesses. Appellant failed to demonstrate that his counsel's performance was deficient or that he was prejudiced and the outcome would have been different with further investigation and presentation of witnesses. Counsel stated during the trial that she had tried to contact five witnesses supplied by appellant. Of those that could be contacted, counsel testified at the evidentiary hearing that she made a tactical decision not to present the witnesses because they would not have been beneficial to appellant's case. Appellant failed to state how any of these witnesses would have aided his defense. Counsel did present a defense; however, options were limited because of the strength of the State's case. Appellant failed to demonstrate that counsel's performance was ineffective, and we conclude that the district court did not err in denying this claim. Fourth, appellant claimed that counsel was ineffective for failing to present appellant's defense theory that his criminal behavior was excusable because he had a mental illness and was a drug addict. Specifically, appellant argued that counsel withdrew the originally noticed mental health expert witness and failed to contact mental health professionals from appellant's past. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. This court has rejected the doctrine of partial responsibility or diminished capacity. [fn 8: Ogden v. State, 96 Nev. 258, 262, 607 P.2d 576, 578 (1980); see also Fox v. State, 73 Nev. 241, 244-5, 316 P.2d 924, 926 (1957).] Appellant was correct that one mental health expert witness was originally notice; however, the expert's testimony was withdrawn because, after examining appellant, he stated that he could not testify in support of a mental health defense. Counsel testified during the evidentiary hearing that if she had put the expert on the stand, she felt it was probably that the jury would have 15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 49.
determined that appellant was capable of forming intent. Even withstanding the fact that no mental health expert testified, counsel was able to convince the jury that appellant was not guilty on all of the specific intent crimes. The report that the expert wrote, and one from a past medical health provider, were supplied to the court prior to sentencing. Thus, appellant failed to demonstrate that counsel's performance was ineffective or that he was prejudiced by the lack of testimony by the mental health expert. Accordingly, the district court did not err in denying this claim.
Petitioner has not shown that the Nevada Supreme Court's determination was objectively unreasonable. Counsel testified at the evidentiary hearing that she investigated a mental health defense. Counsel contacted witnesses, received documents, and had the petitioner psychologically evaluated by three doctors. The witnesses and documents did not support a mental health defense. There is no indication that trial counsel performed deficiently under Strickland. Furthermore, the United States Supreme Court has noted that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland v. Washington, 466 U.S. 668, 690-91 (1984). "Whether counsel's actions constituted a `tactical' decision is a question of fact, and...[a court] must decide whether the state court made an unreasonable determination of the facts in light of the evidence before it." Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2008) (citing Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc); Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004)). There is no indication that the state court unreasonably determined that counsel's decision was tactical, in light of the evidence at the evidentiary hearing. The Court will deny ground five. F. Ground Six
In his sixth claim petitioner alleges his Fifth, Sixth, and Fourteenth Amendment rights to effective assistance of counsel, a fair trial, and due process of law were violated when trial counsel failed to give an opening statement and conceded petitioner's guilt. At the evidentiary hearing defense counsel testified that Mr. Avants, petitioner's other counsel at trial, did make a brief opening statement. Exhibit 46 at T 54. Defense counsel stated that Mr. Avants did what they thought was necessary for an opening statement, in that he told the jury to 16
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be open minded and listen carefully to what was said. Id. The state noted that opening statements are not evidence to be considered by the jury. Id. at 55. The Nevada Supreme Court affirmed the denial of this claim, stating that the claim was belied by the record. Exhibit 49. The court noted that counsel did give an opening statement, albeit brief. Id. The court also stated that petitioner failed to specify what counsel should have additionally included in the opening statement, such that there would be a reasonable probability of a different outcome. Id. Moreover, the Nevada Supreme Court affirmed the denial of petitioner's claim that counsel conceded his guilt. Id. The court stated: Ninth, appellant claimed that counsel was ineffective in conceding his guilt to the jury. Appellant failed to demonstrate that counsel's performance was deficient. Counsel did not concede guilt, however, the State's case was strong. Appellant committed several different crimes within a timeframe [sic] of approximately seven hours. Two of the victims were familiar with appellant prior to the crimes. All of the victims identified appellant. Appellant dropped his wallet containing his identification at the scene of one of the crimes. Appellant left incriminating evidence at one of the scenes, on which his fingerprints had been recovered. Appellant gave a voluntary statements implicating himself in all of the crimes. Counsel gave an extensive closing argument in which she identified all of the counts and the elements that the State had to prove. The jury's verdict was consistent with counsel's argument in that they found appellant not guilty on three of the counts. Appellant failed to demonstrate that counsel's performance was deficient, and the district court did not err in denying this claim. Id. The Nevada Supreme Court's affirmance of this claim was not objectively unreasonable. Petitioner's claim is belied by the record. Defense counsel Avants did make a brief opening statement at trial. Exhibit 20, T 15-16. Petitioner did not allege what else defense counsel could have said during opening statements that would have changed the outcome of trial. Furthermore, there is no indication that defense counsel conceded petitioner's guilt at trial. Petitioner has not shown that trial counsel acted deficiently. The Court will deny ground six. G. Ground Seven
In ground seven petitioner argues that his Fifth, Sixth, and Fourteenth Amendment rights to effective assistance of counsel, a fair trial, and due process were violated when trial counsel (a) allowed prejudicial pictures to be introduced to the jury at trial and (b) had a conflict of interest with petitioner such that effective representation was precluded. 17
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1.
Counsel's Failure to Preclude Photographs at Trial
Petitioner contends that Dr. Lovett testified at trial to victim Baptist's burn injuries. Petitioner argues that the use of the enlarged photographic depictions of the victim's burn injuries was unnecessary, prejudiced the jury and counsel improperly allowed the photographs to be entered into evidence. At trial Dr. Lovett testified he saw and treated victim Baptiste on October 25, 2001. Exhibit 20, T 20. The victim told the doctor that someone had poured gasoline on her and lit her on fire. Id. at T 21. The state then showed the doctor four photographs of the victim that the burn unit had taken. Id. at T 23-24. The state moved to admit the photographs into evidence, and the trial court granted the motion, but stated that defense counsel "reserves the right to make a record in the matter." Id. at T 24-25. The court also allowed the state to publish the photographs to jury by showing the photographs using a projector and screen. Id. at 25. Dr. Lovett then testified to the injuries that were depicted in each of the four photographs. Id. at T 25-32. At the evidentiary hearing defense counsel testified that she objected to the admission of the photographs prior to trial. Exhibit 46, at T 51. Counsel stated that most of the photographs were not allowed to be submitted at trial. Id. The court stated that this was typical, that the court would not allow extra photographs that show blood and gore that would excite the jury. Id. at 52. The Nevada Supreme Court concluded that petitioner failed to show that counsel was ineffective in this regard. The court stated: Tenth, appellant claimed that counsel was ineffective for failing to object to photo images of one of the victim's burn injuries, which prejudiced the jury. Appellant failed to demonstrate that counsel's performance was deficient. Several photographs were not admitted due to counsel's urging, and only four were admitted. We conclude that the photographs assisted the jury in understanding the nature and quality of the burns inflicted due to fire and were useful to the victim's physician to demonstrate the extent and permanence of the victim's injuries. [fn 11: See Wesley v. State, 112 Nev. 503, 512-13, 916 P.2d 793, 800 (1996); see also Thomas v. State, 114 Nev. 1127, 1141, 967 P.2d 1111, 1121 (1998).] Appellant failed to demonstrate that the admission of the photographs of the victim's injuries prejudiced the jury as to make the jury's verdict unreliable. Therefore, we conclude that the district court did not err in denying this claim. Exhibit 49. Claims of error from an allegedly erroneous admission of photographs will not normally state 18
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a federal claim, however, a claim of violation of due process may arise from the introduction of gruesome photographs of the victim. See Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985); Batchelor v. Cupp, 693 F.2d 859 (9th Cir. 1982). A federal court will not reverse a state court's admission of photographs unless the admission of evidence so infects the trial with unfairness as to render the verdict a denial of due process. See Romana v. Oklahoma, 512 U.S. 1, 12 (1994); Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). See also Butcher, 758 F.2d at 373; Batchelor, 693 F.2d at 865. Admission of photographs at trial rests largely within the discretion of the trial court. 758 F.2d at 865. In the instant case, this Court cannot say that the introduction of the photographs so infected the trial with unfairness as to render the verdict a denial of due process. The state district court only allowed four photographs depicting the victim's injuries at trial. These photographs were used by Dr. Lovett to explain to the jury the extent of the victim's injuries. The Nevada Supreme Court determined that these photographs did not prejudice the jury and thus make the verdict unreliable. The factual findings of the state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to this portion of ground seven. 2. Conflict of Interest with Counsel
In this portion of ground seven petitioner alleges that he was denied his rights to effective assistance of counsel, a fair trial, and due process, due to a conflict of interest with counsel. Petitioner states that there were hostilities on the part of defense counsel, and the complete lack of preparing a defense clearly demonstrates the hostility and conflict. At arraignment petitioner asked the court about how he could get a new attorney as counsel told him that she would not be able to be his attorney after a duration of time. Exhibit 6, T 4. Counsel told the court that she was asking for medical leave, and would be out, but represented that the public defender's office was ready, willing and able to continue to represent the petitioner. Id. at 19
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T 5. Counsel told the court that she was staying on the case until her medical leave, and that she would be overseeing the case and would be available to assist. Id. Moreover, another attorney from the public defender's office would be brought on the case. Id. Petitioner then filed a motion to dismiss counsel and to have new counsel appointed. Exhibit 7. The state district court denied this motion. Exhibit 12. Petitioner filed a second motion to dismiss counsel. Exhibit 15. The state district court held a hearing on March 1, 2002, to hear argument on several motions, including petitioner's motion to dismiss counsel. Exhibit 17. At the hearing petitioner told the court that he was considering having new counsel appointed because there was a conflict of interest. Id. at T 19-20. Defense counsel stated that the issue was that originally there were a few witnesses the state had noted it might call at trial that the public defender's office had previously represented. Id. at T 20. The state had since determined that it was not going to call those witnesses at trial. Id. The petitioner also told the court that he had given defense counsel information about witnesses to contact who could testify on his behalf. Id. at T 22. Petitioner argued that only one witness was contacted. Id. Defense counsel told the court that they had contacted all of the people that petitioner had asked him to. Id. Counsel also stated that he had received documents and copies of everything were provided to the petitioner. Id. Counsel stated that he also advised the petitioner that the attorneys had done a thorough investigation, and that strategy was up to the attorneys. Id. Counsel believed that the witnesses and information they recieved would not be beneficial to the case. Id. The court told petitioner that legal strategy was up to the attorney, and what strategy to use was within counsel's discretion. Id. at T 23. The court stated that it could not allow petitioner to change attorneys just because he did not agree with his lawyers' strategy. Id. at T 24. The court denied petitioner's motion. Id. at T 27. The state district court addressed this issue at the evidentiary hearing. Exhibit 46 at T 52. Defense counsel told the court that she did tell the court before trial that either she was going to represent the defendant or he was going to represent himself, but that he could not have it both ways. Id. Counsel also testified she never stated that she did not want to be petitioner's counsel. Id. at 54. Counsel did tell the petitioner at the time of the preliminary hearing that she might be having surgery 20
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and might not be able to represent him during trial. Id. Counsel also noted that while the petitioner moved to dismiss counsel twice, the state district court denied those motions, therefore she had to stay on the case. Id. The Nevada Supreme Court determined that this claim was without merit. Exhibit 49. The court stated: Eleventh, appellant claimed that counsel was ineffective for failing to remove herself as counsel. Specifically, appellant claimed that counsel was not interested in representing appellant as exhibited by counsel stating that she would not be present for trial because of an intended medical leave. Appellant failed to demonstrate that counsel's performance was deficient, or that the outcome of the trial would have been different if he had different counsel. Counsel stated that she was taking medical leave, however, that someone from the public defender's team, who understood the case, would substitute. Furthermore, counsel was present at the trial, as the medical leave was postponed. Counsel testified at the evidentiary hearing that she never said that she was not interested in representing appellant. Appellant failed to demonstrate that counsel's performance was ineffective, and the district court did not err in denying this claim. Id. The Nevada Supreme Court's determination is not objectively unreasonable. Petitioner must show that trial counsel labored under an actual conflict, or that counsel was actively representing conflicting interests and the conflict actually affected the adequacy of his representation. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Petitioner cannot show that counsel was representing conflicting interests. However, to compel a criminal defendant to undergo trial with an attorney "with whom he has become embroiled in irreconcilable conflict is to deprive...[a criminal defendant] of the effective assistance of counsel." Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (citing Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970)). In some cases the summary denial of a criminal defendant's motion for new counsel, without further inquiry into the grounds of the motion, violates the Sixth Amendment. Id. Essentially, a state trial court "has no discretion to ignore an indigent defendant's timely motion to relieve an appointed attorney." Id. "However, not every conflict or disagreement between...[a] defendant and counsel implicates Sixth Amendment rights." Id. at 1027 (citing Morris v. Slappy, 481 U.S. 1, 13-14 (1983) (holding the Sixth Amendment does not guarantee a meaningful relationship between a defendant and counsel)). 21
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There is no indication that petitioner and defense counsel were embroiled in an irreconcilable conflict. The state court held a hearing on this issue prior to trial, and addressed the issue again at the evidentiary hearing. The state courts found that no irreconcilable conflict existed. The factual findings of the state courts are presumed correct. 28 U.S.C. § 2254(e)(1). The Nevada Supreme Court's determination is not an objectively unreasonable application of federal law. The Court will deny ground seven. H. Ground Eight
Petitioner's eighth ground for relief is a claim of cumulative error. The Court will address this claim at the end of this order, as the Court cannot determine whether there was cumulative error until every other claim in the petition is addressed first. I. Ground Nine
In ground nine petitioner contends that he was denied his rights to effective assistance of appellate counsel due to appellate counsel's failure to (1) challenge his habitual felon enhancement on appeal, and (2) to raise prosecutorial misconduct that occurred at trial. The Nevada Supreme Court affirmed the denial of this claim on appeal, stating the following: Appellant claimed that his appellate counsel was ineffective for failing to raise errors in his adjudication as a habitual felon. Appellant failed to demonstrate that the omitted issue had a reasonable probability of success on appeal. As discussed above, appellant's adjudication as a habitual felon was proper. Thus, the district court did not err in denying this claim. Exhibit 49. Claims of ineffective assistance of appellate counsel are reviewed according to the standard announced in Strickland." Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). A petitioner must show that counsel unreasonably failed to discover nonfrivolous issues and there was a reasonable probability that but for counsel's failures, he would have prevailed on his appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000). The Nevada Supreme Court's determination was not objectively unreasonable. This Court discussed petitioner's adjudication as a habitual felon in grounds one, two, and three. The Court concluded that the state's notice of intent to seek a habitual felon adjudication was proper. Moreover, it appears that the state provided the requisite prior convictions for the habitual felon 22
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status, therefore petitioner's adjudication as a habitual felon was proper. Appellate counsel was not ineffective for failing to raise this claim on direct appeal, and there is no reasonable probability that this claim would have prevailed on appeal. Petitioner also claims that appellate counsel failed to argue instances of prosecutorial misconduct on appeal. However, petitioner does not provide any factual support for this claim, as he does not list any of the alleged instances of prosecutorial misconduct. Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970). Petitioner has not shown that appellate counsel was ineffective for failing to argue on appeal that the prosecutor engaged in misconduct, nor has he shown that there was a reasonable probability that this issue would have prevailed on appeal. The Court will deny ground nine. J. Ground Ten
In his tenth ground for relief petitioner alleges that he was deprived of his rights to equal protection, a fair trial, due process, and his right against self-incrimination when the trial court denied his motion to suppress his statement. Petitioner argues that his statement to police was not freely, voluntarily and knowingly given, in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Petitioner raised this claim in his direct appeal. The Nevada Supreme Court summarily concluded that this claim was without merit, stating: Having reviewed Stanley's other arguments regarding the district court's denial of his motion to suppress a statement he made to police and the district court's practice of limiting counsel to only ask follow-up questions during voir dire, we conclude they are without merit. Exhibit 38 at 8, n. 18.
24 At the preliminary hearing officer Wilson testified that after the petitioner was arrested, he 25 26 that he had a right to remain silent and the right to have an attorney represent him. Id. at T 51. 27 28
2
read the petitioner Miranda2 warnings from his memory. Exhibit 4, T 50-51. Petitioner was told
Miranda v. Arizona, 384 U.S. 436 (1996). 23
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Wilson stated that the petitioner told him that he understood his rights, and decided to waive his rights and speak to the officers. Id. The officer did not tape the waiver of rights, nor did he have the petitioner sign a waiver of rights form. Id. at T 52. Officer Wilson also testified that the petitioner was calm, awake, and did not appear disoriented. Id. at T 53. Wilson told the court that later during the interview the petitioner appeared tired, but at the beginning of the interview he was very alert. Id. Detective Herring also testified at the preliminary hearing. Id. at T 56. When Herring spoke with petitioner he knew that the petitioner had been read his Miranda rights by another officer. Id. Herring did not re-read the petitioner his Miranda rights. Id. Herring tape recorded the interview with the petitioner. Id. at T 57. Petitioner told the detective that he took a wallet from victim Billy Barba. Id. Furthermore, petitioner admitted to pulling Barba out of his car and taking his vehicle. Id. at T 57-58. Petitioner then told the officer that at the Budget Inn he punched the clerk in the eye, physically struggled with the clerk, took money from the cash register and fled the hotel. Id. at T 5859. Petitioner also told the police officer that he attempted to take an elderly man's car, but the man would not give it to him. Id. Petitioner next told Detective Herring that the High Hat Motel was holding his clothing and personal items, and he became upset. Id. at T 60. The petitioner sprayed gasoline on the woman behind the counter, lit a match and set the woman on fire. Id. Herring testified that during the interview the petitioner told him that he had been up "for awhile" and was tired. Id. at T 61. The officer stated that petitioner told him he had been using drugs for four days. Id. at T 65. Herring had encountered people that were under the influence of drugs prior to this case, and the petitioner did not appear to be under the influence, he just appeared tired. Id. After the preliminary hearing, defense counsel moved to suppress the petitioner's confession. Exhibit 14. Defense counsel argued that there is no evidence that the police gave petitioner the proper Miranda warnings, or that the petitioner freely and voluntarily waived those rights. Id. The trial court denied the motion after hearing argument from counsel. Exhibit 17. The written transcript of petitioner's post-arrest interview with police states the following: Q: I hear ya. Okay. Uhm, I think that's about it. Do you remember when, 24
1 2
uh...when you first came in here you were talking to Officer Wilson around the corner over there? A: Yeah. I --
3 Q: He, uh...he read ya your Miranda Rights, remember that? 4 A: Yeah. He -5 Q: You remember him doin' that? 6 A: Yeah. 7 Q: You understood them, Right? 8 A: Yeah. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attached at Exhibit 14. At trial Officer Wilson testified that he gave the petitioner Miranda warnings after he transported him to the jail. Exhibit 21, T 27. Officer Wilson stated that upon arrest and transport the petitioner was not answering questions, but once they reached the jail, the petitioner initiated a conversation with him. Id. Once petitioner told him his name, the officer read him his Miranda rights. Id. at T 28. Officer Wilson recited the rights from memory. Id. Wilson told the jury that he stated that the petitioner had the right to remain silent, that anything he said could be used against him, that the had the right to an attorney prior to questioning, and this if he could not afford an attorney, one would be appointed. Id. at T 29. The petitioner indicated that he understood those rights. Id. The petitioner then told him that would speak with the police officers. Id. The Nevada Supreme Court's summary rejection of this claim was not objectively unreasonable. Petitioner was in custody, as he had been arrested, and therefore police were required to give the petitioner Miranda warnings. Thompson v. Keohane, 516 U.S. 99, 101 (1995). Officer Wilson testified at the preliminary hearing and at trial that he read petitioner his Miranda rights, and that the petitioner waived those rights. Although a defendant's waiver of Miranda warnings must be knowing, voluntary, and intelligent, a Miranda waiver does not have to be express, and can instead be implied. United States v. Younger, 398 F.3d 1179, 1185-86 (9th Cir. 2005) (citations omitted). Although there is no written record of petitioner's waiver, petitioner told Detective Herring, after his interview, that he had been read his Miranda rights by Officer Wilson, and he understood those 25
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rights. Moreover, he told the officers that he wanted to cooperate with them, and began to speak with the officers. While the waiver may not have been express, there is no indication that the waiver was involuntary or unknowing. Petitioner also has not shown that any part of his statements, oral statements or taped, would have been suppressed due to intoxication. "A confession is voluntary if it is `the product of a rational intellect and a free will'" regardless of whether "`a confession is the production of...a drug[alcohol-] induced state.'" Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (citing Townsend v. Sain, 372 U.S. 293 (1963)). The Medeiros court stated that the petitioner in that case was unable to overcome the fact that his first statement to police was voluntary, because although the petitioner was intoxicated, he was not incapacitated. Id. The court noted that the petitioner could drive, obey officer orders and cooperate with the officers. Id. In the instant case the petitioner told the officers that he had been under the influence of drugs for four days prior to the commission of the crimes. Petitioner also told the officers that he had not slept. Officer Wilson stated that when he first talked to petitioner he was calm, awake, and oriented. Detective Herring testified that while the petitioner appeared tired, he did not appear under the influence of drugs. Similar to Medeiros, petitioner has not shown that his statement should have been suppressed due to his alleged intoxication. Petitioner has not shown that the Nevada Supreme Court's rejection of this claim was an unreasonable application of United States Supreme Court precedent. The Court will deny ground ten. K. Ground Eleven
In ground eleven petitioner contends that his Fifth and Fourteenth Amendm
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