West v. Foster et al, No. 2:2007cv00021 - Document 44 (D. Nev. 2009)

Court Description: ORDER denying 36 Motion to Dismiss and Setting Deadlines re: 19 Amended Petition for Writ of Habeas Corpus. Answers due by 6/20/09. Reply to Answers due by 8/19/2009. Signed by Judge Kent J. Dawson on 4/20/09. (Copies have been distributed pursuant to the NEF - ASB)
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West v. Foster et al Doc. 44 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 10 BROOKEY LEE WEST, 11 Petitioner, 12 2:07-cv-00021-KJD-GWF ORDER vs. 13 14 15 SHERYL FOSTER, et al., Respondents. 16 17 This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on 18 the respondents’ motion (#36) to dismiss. In the petition, Brookey Lee West seeks to set 19 aside her 2001 Nevada state conviction, pursuant to a jury verdict, of the first-degree murder 20 of her mother, Christine Smith. The respondents seek the dismissal of Ground 1 as 21 noncognizable in federal habeas corpus. The respondents also contend that the petition is 22 subject to dismissal as a mixed petition on the basis that Grounds 1 and 3 are not exhausted. 23 Discussion 24 Ground 1 – Cognizable Claim 25 In Ground 1, petitioner alleges that she was denied her right to due process in violation 26 of the Fifth, Sixth and Fourteenth Amendments because the evidence was insufficient to 27 prove beyond a reasonable doubt the essential element of the offense that Christine Smith’s 28 death occurred by the criminal agency of another person. Dockets.Justia.com 1 Respondents contend that this claim is not cognizable in federal habeas corpus 2 because a challenge to the absence of corpus delicti allegedly presents only a state law issue 3 rather than a federal constitutional issue. 4 Undeniably, a challenge to the sufficiency of the evidence supporting a conviction 5 presents a cognizable federal habeas claim. It is established law that “the Due Process 6 Clause of the Fourteenth Amendment protects a defendant in a criminal case against 7 conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute 8 the crime with which he is charged.’” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 9 L.Ed.2d 560 (1979)(quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 10 L.Ed.2d 368 (1970)). It thus “is clear that a state prisoner who alleges that the evidence in 11 support of his state conviction cannot be fairly characterized as sufficient to have led a 12 rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional 13 claim.” 443 U.S. at 321, 99 S.Ct. at 2789. Under the Jackson v. Virginia standard, the jury’s 14 verdict will withstand such constitutional scrutiny if, after viewing the evidence in the light most 15 favorable to the prosecution, any rational trier of fact could have found the essential elements 16 of the offense beyond a reasonable doubt. 443 U.S. at 319, 99 S.Ct. at 2789. 17 Critically for the present case, this standard is applied with reference to the substantive 18 elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16, 99 19 S.Ct. at 2792 n.16. As the Supreme Court of Nevada again held on petitioner’s direct appeal, 20 under the corpus delicti rule in Nevada in a murder prosecution, “[t]o prove that a murder has 21 been committed, the State must demonstrate: ‘(1) the fact of death, and (2) that death 22 occurred by criminal agency of another.’” West v. State, 119 Nev. 410, 415-16, 75 P.3d 808, 23 812 (2003)(quoting prior authority). It is difficult to conceive of a more fundamental, or 24 elemental, requirement in a murder prosecution than a requirement that the State prove that 25 a murder in fact was committed, i.e., that the victim died and did so by criminal agency rather 26 than by other causes. The conclusion thus would seem inescapable that a Nevada murder 27 defendant convicted based upon insufficient evidence of this fundamental and elemental 28 requirement has been denied due process of law. -2- 1 The Court is not persuaded that the authorities relied upon by the respondents lead 2 to a different conclusion vis-à-vis the elemental nature of the corpus delicti requirement 3 applied in this case. 4 A number of the decisions concern a distinct state law principle – which is not involved 5 on this claim – that a conviction may not be based solely upon a confession by the defendant 6 without corroborating evidence. Merely because this distinct principle also employs the Latin 7 phrase corpus delicti does not make either this distinct principle or the cited cases apposite 8 or relevant to the issue presented in this case. In this case, the corpus delicti rule at issue is 9 one that requires that the State prove the fundamental and elemental facts that the victim died 10 and did so by criminal agency. The rule addressed in the cited cases, in contrast, instead 11 places a limitation on the manner in which the State may prove the elements of an offense 12 and/or on the admissibility of evidence, by providing that the State may not prove the 13 elements of an offense based solely upon a confession without corroborating evidence. Any 14 decision holding that a violation of such a rule “of corpus delicti” presents only a state law 15 issue without constitutional import has no bearing on the present issue.1 16 17 18 19 20 21 22 23 24 25 26 27 1 In United States ex rel. Hayward v. Johnson, 508 F.2d 322 (3d Cir. 1975), the petitioner contended that his conviction should be reversed because his confession was the only evidence linking him to the crim es of aggravated robbery and conspiracy, in violation of the rule of corpus delicti. The Third Circuit did not hold that this issue did not present a cognizable federal habeas claim , and the panel assum ed arguendo that a cognizable federal claim was presented. The panel suggested, however, citing the Suprem e Court’s Smith case discussed below, that the corpus delicti rule at issue there had never been term ed a constitutional requirem ent. (The panel further cited the Suprem e Court case law predating Jackson v. Virginia and W inship under which a sufficiency challenge could be raised only if there was a com plete absence of evidence supporting a crucial elem ent of the charge.) The actual holding of the Third Circuit was that there in fact was corroboration for the confession. In all events, the case did not involve the requirem ent involved here that the State m ust prove that the victim died and did so by crim inal agency. The case instead involved a distinct rule that an offense m ay not be proved based solely upon a confession without corroborating evidence. 508 F.2d at 330 & n.28. Respondents further point to the Suprem e Court decision cited by the Third Circuit in the case above, Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed.2d 192 (1954). The conviction in Smith was for federal tax evasion, not m urder. The corpus delicti rule discussed in Smith also was a requirem ent that an accused m ay not be convicted based upon his own uncorroborated confession. The Smith Court referred to the genesis of this rule in prosecutions for crim es of violence, but Smith did not address any question as to what constitutes an elem ent of the offense in a state m urder prosecution for purposes of review for sufficiency of the evidence. See 348 U.S. at 152-54, 75 S.Ct. at 197-98. The “corpus delicti” principle 28 (continued...) -3- 1 A number of the decisions either contain no discussion of any corpus delicti rule – of 2 any variety – and/or are based upon a principle that long since has been flatly rejected by 3 Winship and Jackson, i.e. that there is no review for sufficiency of the evidence in federal 4 habeas corpus.2 5 6 The remaining federal district court decisions relied upon do not constitute controlling authority and are not persuasive to this Court, to the extent that they are apposite.3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 (...continued) discussed in Smith has nothing to do with the present issue. Moreover, the Smith case itself contained no discussion of constitutional requirem ents. The fact that the Third Circuit cited Smith regarding constitutional requirem ents does not m ake the Suprem e Court case authority for an issue that it never in fact addressed. In W est v. Johnson, 92 F.3d 1385 (5th Cir. 1996), once again, the petitioner contended that his conviction should be reversed because there was no independent evidence corroborating his confession, in violation of the rule of corpus delicti. W hile the Fifth Circuit held that this requirem ent was not constitutionally m andated by Jackson, the corpus delicti rule applied in the Fifth Circuit’s W est decision is not the sam e corpus delicti rule that is at issue here. See 92 F.3d at 1393-94. W est is not relevant to the issue presented here. The decisions in Autry v. Estelle, 706 F.2d 1394, 1407 (5th Cir. 1983), Evans v. Luebbers, 371 F.3d 438, 442-43 (8th Cir. 2004), and Lucas v. Johnson, 132 F.3d 1069, 1078 (5 th Cir. 1998), sim ilarly involve rules requiring corroboration of a confession by independent evidence. These cases have no application here. To the extent that respondents’ counsel cites unpublished Ninth Circuit case law decided before January 1, 2007, in the reply, counsel has violated Ninth Circuit Rule 36-3 regarding citation of unpublished cases. The case cited in any event is distinguishable on the sam e basis as discussed above. 2 The respondents cite Gemmel v. Buckhoe, 358 F.2d 338 (6 th Cir. 1966), for the proposition that the “corpus delicti rule is a creature of sate [sic] law and does not carry with it im plications of a violation of a federal constitutional right.” #36, at 17, lines 20-21. Gemmel does not state or stand for such a proposition. W hat the 1966 decision in Gemmel does state is that issues as to the sufficiency of the evidence are m atters of state law not involving federal constitutional issues. 358 F.2d at 340. Any such statem ent of the law clearly has been abrogated by W inship and Jackson. The respondents urge in the reply that there is no evidence in Jackson that any of the cases cited in their m otion dism iss have been overruled. The above statem ent of the law in Gemmel in 1966 m ost assuredly is no longer good law. The Court could not find any relevant discussion within Burks v. Egeler, 512 F.2d 221 (6 th Cir. 1975), which is string-cited by the respondents at #36, at 17, lines 19-20. The Court understands that the respondents are represented by a different deputy attorney general at this point. However, string-citing cases that do not in fact support the proposition m ade, and which further clearly have been overtaken by sem inal Suprem e Court authority, at best, has no persuasive value. 3 In Bechler v. Hedgpeth, 2008 W L 833235 (C.D. Cal. , Feb. 7, 2008), the district court extended the Fifth Circuit’s W est decision to a challenge to the sufficiency of the evidence as to a requirem ent of proof that 28 (continued...) -4- 1 The respondents further rely on the principle that a state court’s interpretation of state 2 law is binding upon a federal court in a federal habeas action. This principle in truth does not 3 aid the respondents here. In this case, the Supreme Court of Nevada applied the Jackson 4 v. Virginia constitutional analysis for sufficiency of the evidence to the petitioner’s claim that 5 the State failed to prove that the victim died by criminal agency. See West, 119 Nev. at 415- 6 16, 75 P.3d at 812. The state’s highest court, the final arbiter of Nevada law, therefore 7 treated the corpus delicti requirement as an element of the offense under state law that must 8 be established by constitutionally sufficient evidence. Jackson review applies only to the 9 elements of the offense as defined by state law. 10 Again, the use of the same Latin phrase corpus delicti to describe two quite distinct 11 concepts does not control the analysis. The critical inquiry instead is whether the corpus 12 delicti requirement applied in this case was an element of the offense. Both logic and the 13 manner of the Nevada Supreme Court’s own application of the requirement in this case 14 compels the conclusion that the corpus delicti rule applied in this case was an element of the 15 offense. Accordingly, a claim that the evidence was insufficient to satisfy this elemental 16 requirement indisputably presents a federal due process claim that is cognizable in federal 17 habeas corpus. 18 Ground 1 presents a cognizable claim. 19 //// 20 //// 21 22 23 24 25 3 (...continued) the m urder victim disappeared as a result of a crim inal act. The Bechler court cited W est for the proposition that “[c]orpus delicti rules are rules of state law and are not constitutionally m andated by Jackson.” Slip op., at *19. The unpublished decision contains no analysis as to the difference between the corpus delicti rule at issue in W est and the corpus delicti rule at issue in Bechler and this case. This Court is not persuaded by the respondents’ citation to Bechler given the failure to address the fundam ental distinction between the two rules. Latin phraseology does not override constitutional analysis of the claim actually presented. Bechler in any event is not binding authority in this Court. 26 27 28 The rem aining district court cases that also were cited for the first tim e in the reply are distinguishable on the basis that the corpus delicti rule at issue was a rule requiring independent corroborating evidence when the State relies upon a confession. See Gerlaugh v. Lewis, 898 F.supp. 1388, 1410 (D. Ariz. 1995); Davis v. Palmer, 2007 W L 4178945 (W .D. Mich., Nov. 20, 2007). The cases thus are inapposite. -5- 1 Ground 1 – Exhaustion 2 Respondents further contend that Ground 1 is not exhausted, urging that the petitioner 3 presented only a necessarily state law corpus delicti claim to the Supreme Court of Nevada 4 on direct appeal. 5 Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust her state court 6 remedies on a claim before presenting that claim to the federal courts. To satisfy this 7 exhaustion requirement, the claim must have been fairly presented to the state courts 8 completely through to the highest court available, in this case the Supreme Court of Nevada. 9 E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 10 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific 11 federal constitutional guarantee and must also state the facts that entitle the petitioner to relief 12 on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 13 2000). That is, fair presentation requires that the petitioner present the state courts with both 14 the operative facts and the federal legal theory upon which her claim is based. E.g., Castillo 15 v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the 16 state courts, as a matter of federal-state comity, will have the first opportunity to pass upon 17 and correct alleged violations of federal constitutional guarantees. See,e.g., Coleman v. 18 Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). 19 20 21 22 23 24 25 26 27 28 In this case, the Supreme Court of Nevada clearly cited to, and applied, the governing constitutional standard from Jackson v. Virginia: The corpus delicti rule in Nevada is well established. To prove that a murder has been committed, the State must demonstrate: “(1) the fact of death, and (2) that death occurred by criminal agency of another.”[FN2] At trial, the State bears the burden of establishing the corpus delicti beyond a reasonable doubt, based on direct or circumstantial evidence.[FN3] When reviewing the sufficiency of the evidence, we consider “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”[FN4] West argues that there was less proof of death by criminal agency in her case than -6- in the previous cases in which this court reversed based on insufficient evidence of corpus delicti, namely, Frutiger v. State,[FN5] Hicks v. Sheriff, [FN6] and Azbill v. State.[FN7] 1 2 3 4 FN2. Tabish v. State, 119 Nev. 293, ----, 72 P.3d 584, 596 (2003). 5 FN3. Id. 6 8 FN4. Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). 9 FN5. 111 Nev. 1385, 907 P.2d 158 (1995). 7 10 FN6. 86 Nev. 67, 464 P.2d 462 (1970). 11 FN7. 84 Nev. 345, 440 P.2d 1014 (1968). 12 119 Nev. at 415-16, 75 P.3d at 812 (italics in original; bold emphasis added). 13 The Supreme Court of Nevada clearly was given the opportunity to apply – and in fact 14 did apply – the controlling federal legal principles to the facts bearing upon petitioner’s 15 constitutional claim. 16 17 Ground 1 clearly is exhausted.4 Ground 3 – Exhaustion 18 In Ground 3, petitioner alleges that she was denied her due process right to a fair trial 19 in violation of the Fifth and Fourteenth Amendments because the State’s closing argument 20 contained a number of allegedly improper arguments. 21 22 Respondents contend that petitioner failed to present the claims in Ground 3 as federal claims on direct appeal. 23 24 25 26 27 28 4 The respondents refer back to their argum ent on cognizability and urge that corpus delicti is a state law issue separate and apart from sufficiency of the evidence, such that petitioner could not exhaust the federal claim even by expressly citing to Jackson. #43, at 6. The respondents, once again, are referring to a different principle of law than the one upon which the petitioner’s claim is based. The Suprem e Court of Nevada understood what principle of law the petitioner was invoking, and the state high court applied the controlling federal legal principles to that claim . The respondents’ discussion of a distinct principle of law which shares use of the sam e Latin phrase has no bearing upon whether the claim actually presented by the petitioner and actually decided by the Suprem e Court of Nevada was exhausted. -7- 1 It would appear that petitioner clearly invoked and fairly presented a federal 2 constitutional claim of a denial of a due process right to a fair trial in her opening brief on 3 direct appeal. 4 5 6 7 In the statement of the issues on appeal, petitioner identified the following issue: . . . WHETHER THE STATE’S CLOSING WAS RIDDLED WITH INAPPROPRIATE ARGUMENTS WHICH COMBINED TO DENY WEST HER DUE PROCESS RIGHT TO A FAIR TRIAL. #25-9, Ex. 55, at i. 8 Petitioner then repeated this statement of the issue along with corresponding argument 9 at the beginning of the argument on the multiple underlying subsidiary issues of improper 10 11 12 13 14 15 16 closing argument: WHETHER THE STATE’S CLOSING WAS RIDDLED WITH INAPPROPRIATE ARGUMENTS WHICH COMBINED TO DENY WEST HER DUE PROCESS RIGHT TO A FAIR TRIAL. The State’s closing arguments 1) invited speculation; 2) shifted the burden to the defense; 3) misstated the law and facts and 4) appealed to religious prejudice and/or made a personal attack on opposing counsel. These errors combined to deny West her right to a fair trial. #25-9, Ex. 55, at 36. 17 Furthermore, in the body of the argument on the underlying subsidiary issue regarding 18 burden-shifting, petitioner cited to Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105-06 19 (1990), which cites to federal authorities discussing the right to a fair trial in the context of 20 improper prosecutorial closing argument. 21 General appeals to broad constitutional principles such as due process and the right 22 to a fair trial do not exhaust a specific federal claim. E.g., Castillo, 399 F.3d at 999. However, 23 when the specific federal claim invoked is a due process right to a fair trial, it would appear 24 that a recital that the action complained of violated such a right would fairly present the claim, 25 particularly when accompanied by citation to case law applying related federal law. The 26 respondents suggest that the petitioner’s citation to Ross was not preceded by anything 27 reflecting the articulation of an underlying federal theory. However, as noted, from the very 28 outset of the discussion of the claim on direct appeal, petitioner invoked “her due process -8- 1 right to a fair trial,” defining the very issue on appeal as one of whether that right had been 2 denied. 3 The respondents further seek to parse the underlying subsidiary issues of improper 4 closing argument into separate distinct units that must stand or fall on their own separately 5 vis-à-vis exhaustion. However, petitioner clearly alerted the Supreme Court of Nevada in the 6 opening paragraph of the argument on the issue that she was claiming a denial of her due 7 process right to a fair trial from the combined errors. The respondents’ effort to strip out the 8 subsidiary claims individually for purposes of the exhaustion analysis ignores the clear intent 9 of the opening brief to present the subsidiary claims together in support of a federal 10 11 12 constitutional claim. The respondents further contended initially in the motion to dismiss that, even if the remainder of Ground 3 is exhausted, an allegation within Ground 3(A) is not. 13 In Ground 3(A), petitioner alleges, inter alia, that the State, in its closing argument, 14 improperly invited the jury to speculate as to the cause and manner of the victim’s death. The 15 claim further includes an assertion that “[t]he State also inappropriately invited speculation 16 when arguing the case before the Nevada Supreme Court.”5 In the motion to dismiss, the 17 respondents initially contended: 18 . . . . In the first-amended federal petition, West argues that the State inappropriately invited speculation when arguing the case before the Nevada Supreme Court. . . . . While West did raise the issue of prosecutorial misconduct in her direct appeal, she never argued that the State inappropriately invited speculation on appeal to the state courts. 19 20 21 22 #36, at 20 (emphasis added). 23 Petitioner thereafter responded to the argument as if the respondents were challenging 24 exhaustion of the allegation that the State invited speculation from the jury as opposed to the 25 allegation that the State invited speculation from the Supreme Court of Nevada when arguing 26 the appeal. In the reply, new counsel for the respondents responded along the same lines, 27 28 5 #19, at 28. The allegation clearly refers to oral argum ent, quoting the transcript of the argum ent. -9- 1 as if the allegation in contention originally in the motion to dismiss pertained to an invitation 2 to speculation by the jury as opposed to an invitation, at oral argument on direct appeal, to 3 speculation by the state supreme court. Figuratively, the ships appear to have passed in the 4 night not just once but twice. 5 The claim vis-à-vis inviting speculation from the jury clearly is exhausted. The Court 6 will defer until after the petitioner’s reply to the answer any further consideration of any 7 exhaustion issue as to any claim – if actually asserted – that the State invited speculation 8 from the Supreme Court of Nevada. It is not entirely clear from the amended petition and 9 briefing that petitioner in fact intends to pursue such an allegation as a distinct claim as 10 opposed to a collateral, and apparently irrelevant, argument. If she does intend to pursue the 11 allegation as a claim for reversal of the conviction, the Court would be more inclined at this 12 juncture to simply dismiss such a claim for lack of any colorable merit under 28 U.S.C. § 13 2254(b)(2). The proposition that a defendant is denied a due process right to a fair trial by 14 the State inviting a panel of trained and experienced judges on a state supreme court bench 15 to speculate would appear to be a most dubious one. If petitioner wishes to pursue such a 16 claim, she should present reasoned argument and apposite supporting authority in the reply, 17 and she further must show exhaustion of the claim. In the meantime, the Court is not going 18 to hold up the progress of this over two-year-old case for proceedings on a Rose choice6 on 19 such a collateral point. 20 Subject to the preceding paragraph, the Court holds that Ground 3 is exhausted. 21 IT THEREFORE IS ORDERED that the respondents’ motion (#36) to dismiss is 22 DENIED. 23 IT FURTHER IS ORDERED that, taking into account the complexity of the factual 24 issues on Ground 1, within sixty (60) days of entry of this order, the respondents shall file an 25 answer to the amended petition as per the requirements of the prior scheduling order (#31), 26 at page 1, lines 23-28. 27 28 6 See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). -10- IT FURTHER IS ORDERED that petitioner shall have sixty (60) days from service of 1 2 the answer within which to file a reply. 3 The Court is seeking to allow an adequate time to file both an answer and reply by this 4 order. Extensions of the deadlines established by this order will be considered based 5 only upon scheduling conflicts with cases in higher courts and/or with cases in this 6 Court that were filed prior to this case. Extensions should be sought in the later-filed 7 case. 8 DATED: April 20, 2009 9 10 _________________________________ KENT J. DAWSON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11-