White v. Neven et al, No. 2:2009cv00400 - Document 29 (D. Nev. 2010)

Court Description: ORDER Granting 16 Motion to Dismiss, Denying 21 Motion for Declaratory Relief and Denying 27 Motion to Appoint Counsel. Respondents' answer due 7/19/2010 Replies due by 9/2/2010. Signed by Judge Kent J. Dawson on 6/3/10. (Copies have been distributed pursuant to the NEF - ASB)
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White v. Neven et al Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 DENTON R. WHITE, 11 12 13 14 15 ) ) Petitioner, ) ) vs. ) ) DWIGHT NEVEN, et al., ) ) Respondents. ) ____________________________________/ 2:09-cv-00400-KJD-LRL ORDER 16 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 17 § 2254, by a Nevada state prisoner. Before the Court is respondents’ motion to dismiss portions of 18 the petition. (Docket #16). Also before the Court is petitioner’s motion for declaratory relief 19 (Docket #21) and petitioner’s motion for appointment of counsel (Docket #27). 20 I. Procedural History 21 On August 5, 2005, a judgment of conviction was entered, adjudging petitioner guilty 22 of the following: resisting a public officer; discharging a firearm at or into a structure, vehicle, 23 aircraft, or watercraft; attempted robbery with the use of a deadly weapon; first degree kidnapping 24 with the use of a deadly weapon; assault with a deadly weapon; coercion with the use of a deadly 25 26 Dockets.Justia.com 1 weapon; and battery with the use of a deadly weapon. (Exhibit 30).1 Pursuant to the judgment of 2 conviction, petitioner was sentenced as follows: 3 Count I: 6 months in the Clark County Detention Center 4 Count II: 24-60 months in the Nevada Department of Corrections (NDOC), to run concurrent with Count I Count III: 36-96 months, plus an equal and consecutive term of 36-96 months for the use of a deadly weapon Count IV: life with the possibility of parole after 60 months, plus an equal and consecutive term of life with the possibility of parole after 60 months for the use of a deadly weapon Count V: 24-60 months to run concurrent with Count IV Count VI: 24-60 months to run concurrent with Count V, and $1,245.00 in restitution Count VII: 36-96 months to run concurrent with Count VI, with 179 days credit for time served 5 6 7 8 9 10 11 12 13 (Exhibit 30). 14 Petitioner filed his direct appeal on August 29, 2005. (Exhibit 31). On March 27, 15 2007, the Nevada Supreme Court affirmed petitioner’s conviction. (Exhibit 44). Remittitur was 16 issued on May 1, 2007. (Exhibit 45). 17 Petitioner filed a state habeas petition on July 6, 2007. (Exhibit 46). The state district 18 court entered findings of fact, conclusions of law, and order denying the petition on April 1, 2008. 19 (Exhibit 63). Petitioner appealed the denial of his state habeas petition. (Exhibit 60). By order 20 entered November 21, 2008, the Nevada Supreme Court affirmed the denial of the state petition. 21 (Exhibit 66). Remittitur was issued on December 16, 2008. (Exhibit 67). 22 23 24 25 26 1 The exhibits referenced in this order are found in the Court’s record at Docket #17-19. 2 1 On January 28, 2009, petitioner submitted his federal habeas petition to this Court. 2 (Petition, Docket #1-1, at p. 1; Docket #6). The federal petition asserts fifteen grounds for habeas 3 relief, with many grounds having several sub-claims. (Docket #6). 4 II. Discussion 5 A. Petitioner’s Motion for Appointment of Counsel (Docket #27) 6 Petitioner has filed a motion for the appointment of counsel. (Docket #27). There is 7 no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. 8 Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The 9 decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 10 Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), 11 cert. denied, 469 U.S. 838 (1984). However, counsel is appointed if the complexities of the case are 12 such that denial of counsel would amount to a denial of due process, and where the petitioner is a 13 person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 14 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). 15 The petition on file in this action is well-written, organized, and sufficiently clear in 16 presenting the issues that petitioner wishes to bring. The issues in this case are not complex or 17 difficult. It does not appear that counsel is justified in this instance. The motion shall be denied. 18 B. Petitioner’s Motion for Declaratory Relief (Docket #21) 19 On December 22, 2009, petitioner filed a motion for declaratory relief, in which he 20 argues that respondents failed to comply with the Court’s order to file a response to the petition. 21 (Docket #21). By order filed November 16, 2009, the Court granted respondents’ motion for a 22 second extension of time to file the responsive pleading to the petition. (Docket #13). The motion 23 to dismiss was filed on December 14, 2009. (Docket #16). Respondents complied with the orders of 24 this Court, and there is no basis for petitioner’s motion for declaratory relief. As such, the motion is 25 denied. 26 3 1 C. Respondents’ Motion to Dismiss (Docket #16) 2 1. Duplicate Claims 3 a. Ground Eight 4 In Ground Eight, petitioner alleges that the trial court erred by issuing jury 5 instructions 10 and 12. (Docket #6, at p. 54). In Ground Three, petitioner made the same claims 6 regarding jury instructions 10 and 12. (Id., at p. 20). As petitioner has presented the same claims 7 based on the same legal theories and facts, the Court shall dismiss the portion of Ground Eight that 8 concerns jury instructions 10 and 12. 9 b. Ground Nine In Ground Nine, petitioner argues that two separate Brady violations occurred. First, 10 11 that the prosecution failed to provide the defense with fingerprint evidence. Second, that the 12 prosecution failed to provide the defense with transcripts of statements given by Francisco 13 Guadalupe and Denton White. (Docket #6, at p. 58). Petitioner made identical claims in Ground 14 Three. (Docket #6, at pp. 3-5). As such, the entirety of Ground Nine shall be dismissed as 15 duplicative. 16 c. Ground Eleven 17 In Ground Eleven, petitioner alleges that the trial court abused its discretion by 18 allowing “testimony of a [sic] uncharged co-conspirator to be heard through Detective Collins.” 19 (Docket #6, at p. 65). An identical claim was made in Ground Two of the petition. (Id., at pp. 9-11). 20 Also in Ground Eleven, petitioner alleges that the trial court abused its discretion in denying his 21 motion to dismiss the first degree kidnapping charges. (Id., at p. 65). Petitioner makes this same 22 argument in Ground Three of the petition. (Id., at p. 23). The duplicate claims of Ground Eleven 23 shall be dismissed. 24 ///// 25 ///// 26 4 1 d. Ground Twelve 2 In Ground Twelve, petitioner alleges that he was tried in violation of the Double 3 Jeopardy Clause. (Docket #6, at p. 69). The same legal theory and operative facts are presented in 4 Ground Four of the federal petition. (Id., at p. 25). Ground Twelve shall be dismissed in its entirety, 5 as it is a duplicate claim. 6 e. Ground Fourteen 7 In Ground Fourteen, petitioner alleges that his conviction should be overturned due to 8 cumulative error. (Docket #6, at p. 75). Petitioner presents the same claim in Ground Seven of the 9 federal petition. (Id., at p. 52). Ground Fourteen shall be dismissed in its entirety, as it is a duplicate 10 claim. 11 2. Procedurally Barred Claims 12 Respondents contend that Grounds Ten and Eleven of the petition were procedurally 13 14 15 defaulted in state court. a. Procedural Default Principles “Procedural default” refers to the situation where a petitioner in fact presented a claim 16 to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the 17 merits. A federal court will not review a claim for habeas corpus relief if the decision of the state 18 court regarding that claim rested on a state law ground that is independent of the federal question and 19 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 20 21 22 23 The Coleman Court stated the effect of a procedural default, as follows: 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. 24 25 26 5 1 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural 2 default doctrine ensures that the state’s interest in correcting its own mistakes is respected in all 3 federal habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). 4 To demonstrate cause for a procedural default, the petitioner must be able to “show 5 that some objective factor external to the defense impeded” his efforts to comply with the state 6 procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external 7 impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 8 U.S. 467, 497 (1991). Ineffective assistance of counsel may satisfy the cause requirement to 9 overcome a procedural default. Murray, 477 U.S. at 488. However, for ineffective assistance of 10 counsel to satisfy the cause requirement, the independent claim of ineffective assistance of counsel, 11 itself, must first be presented to the state courts. Murray, 477 U.S. at 488-89. In addition, the 12 independent ineffective assistance of counsel claim cannot serve as cause if that claim is 13 procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). 14 15 16 With respect to the prejudice prong of cause and prejudice, the petitioner bears: the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension. 17 White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 18 (1982). If the petitioner fails to show cause, the court need not consider whether the petitioner 19 suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 20 528, 530 n.3 (9th Cir. 1988). 21 b. Claims Procedurally Defaulted in State Court on Independent and Adequate State Grounds 22 Grounds Eight through Fifteen of the federal petition are the same as Grounds One 23 through Eight of the state habeas petition. (Docket #6 and Exhibit 46). With respect to certain of 24 these claims, the Nevada Supreme Court ruled as follows: 25 26 6 1 In his petition, appellant contended that: (1) the district court erred in giving Jury Instructions Nos. 22, 23, 28, and 30; (2) the district court erred in “restructuring” the indictment; and (3) the prosecution committed misconduct by commenting on his post-arrest silence, eliciting testimony of his prior arrest, vouching for the victim’s credibility, attacking the moral credibility of defense witnesses, asking a witness if he received any information pointing to the defendant’s innocence, and improperly characterizing the reasonable doubt jury instruction. These claims could have been raised on direct appeal and appellant failed to demonstrate good cause for his failure to do so. [Footnote 2: NRS 34.810(1)(b)]. Therefore, the district court did not err in denying these claims. 2 3 4 5 6 7 (Exhibit 66, at p. 2). The Ninth Circuit Court of Appeals has held that, at least in non-capital cases, 8 application of the procedural bar at issue in this case -- NRS 34.810 -- is an independent and 9 adequate state ground. Vang v. Nevada, 329 F.3d 1069, 1073-75 (9th Cir. 2003); see also Bargas v. 10 Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). 11 Ground Ten of the federal habeas petition reiterates the allegations of prosecutorial 12 misconduct previously asserted in the state habeas petition. (Docket #6, at pp. 61-64; Exhibit 46, at 13 pp. 9-9b). The entirety of the allegations in Ground Ten of the federal petition were procedurally 14 defaulted in state court and shall be dismissed from this action. 15 In Ground Eleven of the federal habeas petition, petitioner alleges that the trial court 16 abused its discretion by “restructuring” the charge of resisting a public officer with the use a deadly 17 weapon to simply resisting a public officer. (Docket #6, at p.66). In Ground Eleven, petitioner also 18 alleges that the trial court abused its discretion by giving jury instructions 22 and 28. (Docket #6, at 19 p. 66). These claims were procedurally defaulted in state court and shall be dismissed from this 20 action. 21 c. Cause and Prejudice 22 Petitioner has not addressed the issue of procedural default and has not asserted any 23 reason for his failure to properly raise this claim on direct appeal. Neither the petition itself, nor 24 petitioner’s other filings address the procedural default of Ground Five or asserts any argument of 25 cause and prejudice to excuse the procedural default. 26 7 1 This Court finds that the entirety of Ground Ten and portions of Ground Eleven of the 2 federal petition were procedurally defaulted in state court. As such, those portions of the federal 3 petition are barred from review by this Court, and will be dismissed. 4 3. Conclusory Claims 5 In federal habeas petitions, notice pleading is not sufficient. Mere conclusions of 6 violations of federal rights without specifics do not state a basis for habeas corpus relief. Mayle v. 7 Felix, 545 U.S. 644, 649 (2005); O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Jones v. 8 Gomez, 66 F.3d 199, 205 (9th Cir. 1995). Conclusory allegations not supported by specific facts are 9 subject to summary dismissal. Blackledge v. Allison, 431 U.S. 63, 74 (1977). 10 a. Ground Twelve: Sixth and Eighth Amendment Claims 11 In Ground Twelve, petitioner asserts that he was subjected to double jeopardy in 12 violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Petitioner has failed to 13 allege any facts that could lead the court to conclude that his Sixth Amendment rights to a fair trial 14 were violated. This claim is dismissed as conclusory. 15 Also in Ground Twelve, petitioner fails to state a claim for violation of the Eighth 16 Amendment. Petitioner has failed to plead facts to demonstrate that he was subjected to excessive 17 bail, excessive fines, or subjected to cruel and unusual punishment. This claim is dismissed as 18 conclusory. 19 b. Ground Thirteen 20 In Ground Thirteen, petitioner alleges ineffective assistance of pretrial and trial 21 counsel in violation of his Sixth, Thirteenth, and Fourteenth Amendment rights. (Docket #6, at p. 22 71). Petitioner has alleged no facts sufficient to demonstrate a violation of his Thirteenth 23 Amendment rights. The claim will be dismissed as conclusory. 24 ///// 25 ///// 26 8 1 III. Conclusion 2 3 IT IS THEREFORE ORDERED that petitioner’s motion for appointment of counsel (Docket #27) is DENIED. 4 5 IT IS FURTHER ORDERED that petitioner’s motion for declaratory relief (Docket #21) is DENIED. 6 7 IT IS FURTHER ORDERED that respondents’ motion to dismiss (Docket #16) is GRANTED, as follows: 8 9 1. The portion of Ground Eight that concerns jury instructions 10 and 12 is dismissed as duplicative. 10 2. Ground Nine, in its entirety, is dismissed as duplicative. 11 3. As to Ground Eleven, the following portions are dismissed as duplicative: 12 (1) petitioner’s claim that the trial court abused its discretion by allowing testimony of a uncharged 13 co-conspirator to be heard through Detective Collins; and (2) petitioner’s claim that the trial court 14 abused its discretion in denying his motion to dismiss the first degree kidnapping charges. 15 4. Ground Twelve, in its entirety, is dismissed as duplicative. 16 5. Ground Fourteen, in its entirety, is dismissed as duplicative. 17 6. Ground Ten, in its entirety, is dismissed as procedurally defaulted in state court. 18 7. As to Ground Eleven of the federal habeas petition, the following claims are 19 dismissed as procedurally defaulted in state court: (1) petitioner’s claim that the trial court abused its 20 discretion by “restructuring” the charge of resisting a public officer with the use a deadly weapon to 21 simply resisting a public officer; and (2) petitioner’s claim that the trial court abused its discretion by 22 giving jury instructions 22 and 28. 23 24 8. As to Ground Twelve, petitioner’s Sixth Amendment claim is dismissed as conclusory. 25 26 9 1 2 9. As to Ground Twelve, petitioner’s Eight Amendment claim is dismissed as conclusory. 3 4 5 10. As to Ground Thirteen, petitioner’s Thirteenth Amendment claim is dismissed as conclusory. IT IS FURTHER ORDERED that respondents SHALL FILE AN ANSWER to the 6 remaining grounds of the petition within forty-five (45) days from the date of entry of this order. 7 The answer shall include all procedural arguments and arguments on the merits, as to each remaining 8 claim in the petition. No further motions to dismiss will be entertained. In filing the answer, 9 respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the 10 11 12 United States District Courts under 28 U.S.C. §2254. IT IS FURTHER ORDERED that petitioner’s reply to the answer SHALL BE FILED no later than forty-five (45) days after being served with the answer. 13 DATED: June 3, 2010 14 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 10