-CWH Brady v. Williams, No. 2:2011cv00846 - Document 30 (D. Nev. 2012)
Court Description: ORDER Granting in part and Denying in part 19 Respondent's Motion to Dismiss for Lack of Jurisdiction. IT IS FURTHER ORDERED that respondents SHALL FILE AN ANSWER to the federal petition within thirty (30) days from the entry of this order. I T IS FURTHER ORDERED that petitioner SHALL FILE A REPLY to the answer no later than thirty (30) days after being served with the answer. Brian E. Williams answer due 10/11/2012. Signed by Judge James C. Mahan on 09/11/2012. (Copies have been distributed pursuant to the NEF - AC)
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-CWH Brady v. Williams Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 RON BRADY, JR., ) ) Petitioner, ) ) vs. ) ) WARDEN BRIAN WILLIAMS, et al., ) ) Respondents. ) ____________________________________/ 2:11-cv-00846-JCM-PAL ORDER 15 This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a 16 17 Nevada state prisoner represented by counsel. Before the court is respondents’ motion to dismiss the 18 petition. (ECF No. 19). 19 I. Procedural History On March 5, 2007, following grand jury proceedings, the state obtained an indictment against 20 21 petitioner for three counts of solicitation to commit murder. (Exhibit 5).1 Petitioner filed a pretrial 22 state habeas petition challenging hearsay evidence introduced to the grand jury, withholding of 23 exculpatory evidence by the state, and failure of the state to preserve evidence. (Exhibit 13). The 24 state district court denied the petition. (Exhibits 15 & 16). 25 26 1 The exhibits referenced in this order are found in the court’s record at ECF Nos. 4, 5-12, and 20-27. Dockets.Justia.com 1 Petitioner filed two motions to compel the production of exculpatory documents and other 2 discovery material. (Exhibits 17, 24, 26, 27). The court ordered the parties to continue to exchange 3 discovery pursuant to statute, and granted in part the second motion to compel. (Exhibits 20 & 36). 4 Petitioner also filed two motions to suppress. (Exhibits 25 & 39). The state district court denied 5 both motions. (Exhibits 36 & 38). 6 Following a five-day jury trial, on February 5, 2008, the jury found petitioner guilty on all 7 three counts of solicitation to commit murder. (Exhibits 50-55). Petitioner moved for a mistrial, or 8 in the alternative, a new trial. (Exhibit 67). The court held a hearing and denied the motion as to 9 witness Theresa Fragola. (Exhibit 73). The court continued the hearing on the second issue raised in 10 the motion for a mistrial regarding a juror. (Exhibit 76). On July 24, 2008, the court filed a written 11 order denying petitioner’s motion for a mistrial, or in the alternative, a new trial. (Exhibit 77). 12 Prior to sentencing, petitioner filed an application for a writ of prohibition, or in the 13 alternative for mandamus, with the Nevada Supreme Court. (Exhibits 79 & 80). The Nevada 14 Supreme Court found its intervention by way of extraordinary writ was not warranted and denied the 15 petition. (Exhibit 82). 16 On August 19, 2008, the state district court sentenced petitioner as follows: count 1, 48-150 17 months; count 2, 45-150 months, to run concurrent to count I; and on count 3, 45-150 months, to run 18 consecutive to counts 1 and 2. (Exhibit 1). The court filed the judgment of conviction on September 19 2, 2008. (Exhibit 83). 20 Petitioner filed a direct appeal. (Exhibit 85). On March 1, 2010, the Nevada Supreme Court 21 affirmed petitioner’s conviction. (Exhibit 112). Petitioner filed a motion for rehearing, which the 22 Nevada Supreme Court denied. (Exhibit 113). 23 24 Petitioner did not file a state post-conviction habeas petition. On May 24, 2011, petitioner, represented by counsel, filed his federal habeas petition. (ECF No. 1). Respondents move to dismiss 25 26 2 1 the petition. (ECF No. 19). Petitioner, by way of counsel, has filed an opposition (ECF No. 28),2 2 and respondents have filed a reply (ECF No. 29). 3 II. Discussion 4 A. Ground I of Federal Petition 5 In the first ground of the federal petition, petitioner alleges: The State of Nevada violated the Petitioner’s Federally Protected Rights to Due Process under the 4th, 5th, and 14th Amendments of the United States Constitution. Nevada’s wiretap statutes, on their face or as applied, violate the Petitioner’s constitution rights to due process and equal protection. 6 7 8 9 (ECF No. 1, at p. 2-3). Petitioner contends is that “the State illegally intercepted his wire 10 communications without judicial authority as required under Nevada’s wiretap statutes (modeled 11 after the federal statutes).” (Id., at p. 4). Petitioner contends that “the application of this improper 12 standard of intercept in Nevada violates the Nevada statutes which prohibits intercepts without the 13 express permission of both parties.” (Id.). Petitioner argues that the Nevada Supreme Court erred in 14 its analysis of Nevada’s wiretapping statutes. (Id.). Petitioner asserts that this violated Nevada’s 15 “best evidence” rule. (Id.). 16 In the instant case, ground I of the federal petition is a Fourth Amendment claim involving 17 the application of Nevada’s wiretapping statute to his criminal case. Although petitioner alleges that 18 the Nevada Supreme Court’s ruling on his Fourth Amendment wiretap argument constitutes due 19 process and equal protection violation, there are no facts plead to indicate either a federal due 20 process or a federal equal protection violation occurred. A habeas petitioner may not transform a 21 state law issue into a federal one merely by asserting a due process violation. Langford v. Day, 110 22 23 24 25 26 2 Petitioner’s opposition states: “This Opposition is made and based upon the Points and Authorities attached hereto.” (ECF No. 28, at p. 1). This court’s record reflects that no points and authorities were attached to petitioner’s opposition. This court further notes that the petition itself (ECF No. 1) was accompanied by points and authorities (ECF No. 1-2), which the court has considered in ruling on the instant motion to dismiss. 3 1 F.3d 1380, 1389 (9th Cir. 1996). Petitioner’s claim, no matter the verbiage employed by his counsel, 2 is a claim that the state violated his Fourth Amendment rights by employing certain wiretapping and 3 telephone interception methods to obtain evidence leading to his conviction of multiple counts of 4 solicitation to commit murder. 5 Where a state has provided a defendant with a full and fair opportunity to litigate a Fourth 6 Amendment claim, “a state prisoner may not be granted federal habeas corpus relief on the ground 7 that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. 8 Powell, 428 U.S. 465, 495 (1976); see also Kuhlmann v. Wilson, 477 U.S. 436, 446-47 (1986). The 9 Supreme Court has determined that excluding Fourth Amendment claims from habeas corpus review 10 created no danger that the courts would deny a safeguard against compelling an innocent man to 11 suffer an unconstitutional loss of liberty because a convicted defendant seeking review of a Fourth 12 Amendment claim on collateral review is “usually asking society to redetermine an issue that has no 13 bearing on the basic justice of his incarceration.” Kuhlmann, 477 U.S. at 447. 14 The rule in Stone addresses “the application of the rule as limited to cases in which there has 15 been both . . . a showing that the state court does not provide the petitioner with an opportunity to 16 fully and fairly litigate its Fourth Amendment claims and a Fourth Amendment violation.” Woolery 17 v. Arave, 8 F.3d 1325, 1326 (9th Cir. 1993 (internal quotations omitted). “[T]he issue of whether the 18 state correctly applied the law of search and seizure is apparently totally irrelevant as long as the 19 state procedures were fair.” Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977). There has been a fair 20 opportunity to present Fourth Amendment claims to the state court where a motion is filed 21 challenging the same before the state trial court, the moving party receives a hearing and factual 22 finding by the state trial court, and there is a state court appellate review of the same. Moormann v. 23 Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005). 24 25 In the instant case, Nevada law provides a mechanism for challenging searches on Fourth Amendment grounds. See NRS 179.085. Petitioner filed a motion to suppress the unrecorded, 26 4 1 monitored intercepted telephone calls and the alleged “confession” made during the statements. 2 (Exhibit 39). On the first day of trial, the state district court held a hearing regarding the alleged 3 confession and the circumstances surrounding it. (Exhibit 48). The court denied the motion to 4 suppress. (Id.). The parties also submitted the issue of admission of the telephone calls obtained 5 through wiretaps. The court ordered that the calls would be admitted. (Id.). On direct appeal, 6 petitioner alleged that his constitutional rights were violated because investigating officers violated 7 the letter and spirit of the Nevada wire interception statutes, based on the actions of investigating 8 officers regarding the unrecorded telephone calls and failure to present the recorded telephone calls 9 to the grand jury. (Exhibit 99, at pp. 9-28). The Nevada Supreme Court addressed petitioner’s 10 claims and rejected them. (Exhibit 112). It is clear from the record that petitioner was given a full 11 and fair opportunity to litigate his Fourth Amendment claim before the state courts. See Terrovona 12 v. Kinchloe, 912 F.2d 1176 (9th Cir. 1990); Abell v. Raines, 640 F.2d 1085 (9th Cir. 1981). Because 13 petitioner had the opportunity to fully and fairly litigate the Fourth Amendment claim that he now 14 presents in his federal habeas petition, this court is precluded from reviewing ground I of the federal 15 petition, and it will be dismissed. 16 B. Ground II of Federal Petition 17 Petitioner presents ground II as follows: 18 19 20 The State of Nevada violated the Petitioner’s 5th and 15th Amendment Rights by purposefully and intentionally violating the Petitioner’s Due Process Rights under the United States Constitution, delineated in Brady v. Maryland, 373 U.S. 83 and Napue v. Illinois, 360 U.S. 264 (1959). 21 (ECF No. 1, at p. 6). The suppression by prosecution of evidence favorable to an accused violates 22 due process where the evidence is material either to guilt or punishment, irrespective of the good 23 faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 87 (1963). The knowing use of false or 24 perjured testimony against a defendant to obtain a conviction is unconstitutional. Napue v. Illinois, 25 26 5 1 360 U.S. 264 (1959). Petitioner alleges both Brady and Napue violations occurred in state court. 2 Respondents argue that petitioner failed to exhaust his Brady/Napue claims. 3 A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has 4 exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 5 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his 6 claims before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 7 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains 8 unexhausted until the petitioner has given the highest available state court the opportunity to 9 consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 10 11 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). A habeas petitioner must “present the state courts with the same claim he urges upon the 12 federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications 13 of a claim, not just issues of state law, must have been raised in the state court to achieve exhaustion. 14 Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To 15 achieve exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims 16 under the United States Constitution” and given the opportunity to correct alleged violations of the 17 prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 18 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear 19 instruction to potential litigants: before you bring any claims to federal court, be sure that you first 20 have taken each one to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose 21 v. Lundy, 455 U.S. 509, 520 (1982)). A claim is not exhausted unless the petitioner has presented to 22 the state court the same operative facts and legal theory upon which his federal habeas claim is 23 based. Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). 24 25 In the instant case, the points and authorities to the petition, at pp. 56-86, raises several arguments regarding Brady/Napue claims. Petitioner’s points and authorities to his federal petition 26 6 1 at pp. 56-81 is almost identical, word-for-word, to his opening brief on direct appeal to the Nevada 2 Supreme Court, at pp. 36-51. (Exhibit 99). This court finds that petitioner’s Brady/Napue claims, 3 including the facts and legal theories, were presented to the Nevada Supreme Court in his opening 4 brief. (Exhibit 99). The court denies respondents’ motion to dismiss ground II of the federal 5 petition, in which petitioner makes Brady/Napue claims. 6 III. Conclusion 7 8 9 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 19) is GRANTED IN PART AND DENIED IN PART, as follows: 1. Ground 1 of the federal habeas petition is DISMISSED WITH PREJUDICE. 10 2. Ground 2 of the federal habeas petition SHALL PROCEED. 11 IT IS FURTHER ORDERED that respondents SHALL FILE AN ANSWER to the federal 12 petition within thirty (30) days from the entry of this order. The answer shall include substantive 13 arguments on the merits as to each surviving claim in the petition. No further motions to dismiss 14 will be entertained. In filing the answer, respondents shall comply with the requirements of Rule 5 15 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. 16 17 18 IT IS FURTHER ORDERED that petitioner SHALL FILE A REPLY to the answer no later than thirty (30) days after being served with the answer. Dated this ______ day of September, 2012. September 11, 2012. 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 7
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