JAMES C. MAHAN, District Judge.
Before the court for a decision is an application for a writ of habeas corpus filed by Scott Leroy Nichols, a Nevada prisoner. ECF No. 81.
In 1999, Nichols was convicted in Nevada's Fourth Judicial District Court on two counts of drug trafficking and sentenced to two life terms. The Nevada Supreme Court recounted some of the facts of the case as follows:
ECF No. 46-25, p. 2-4
The Nevada Supreme Court affirmed the judgment of the district court on February 7, 2001.
Having retained attorney Andrew M. Leavitt, Nichols filed, on February 1, 2002, a petition for writ of habeas corpus in the Fourth Judicial District Court for Nevada. The court conducted an evidentiary hearing on July 11, 2003. On July 31, 2003, the court entered an order denying the petition, with the clerk issuing a notice of entry of order on August 28, 2003.
Nichols appealed. On September 15, 2004, the Nevada Supreme Court issued an order of affirmance. The remittitur was issued on October 12, 2004.
On November 8, 2004, this court received Nichols' federal petition seeking relief under 28 U.S.C. § 2254. On August 31, 2005, Nichols filed an amended petition. Then, after appointment of counsel, he filed, on January 11, 2008, another amended petition, styled as his "first amended petition for writ of habeas corpus."
Respondents moved to dismiss the petition, arguing that each ground was unexhausted. The court granted the motion, in part, finding ground 2 partially unexhausted and grounds 3-6 wholly unexhausted. Nichols then moved for a stay under Rhines v. Weber, 544 U.S. 269 (2005), so he could return to state court to exhaust such claims. That motion was granted on July 14, 2008.
On August 28, 2008, Nichols filed a petition for writ of habeas corpus in the Fourth Judicial District Court for Nevada. The court denied the petition on June 9, 2009. Nichols appealed. The Nevada Supreme Court affirmed the lower court in an order entered on November 8, 2010. The remittitur was issued on December 3, 2010.
On May 9, 2011, this court granted Nichols' motion and reopened these proceedings and ordered that an amended petition be filed.
On June 23, 2011, he filed the "second amended petition" that is now before the court for decision. On July 7, 2011, Nichols filed a declaration abandoning a portion of ground 2.
On April 13, 2012, respondents filed a motion to dismiss grounds 3 through 6 of the second amended petition on the ground that the claims are procedurally defaulted. Nichols opposed the motion, arguing that he could show cause and prejudice to overcome his procedural defaults. On March 26, 2013, this court denied the motion without prejudice and ordered respondents to file an answer which was to "include substantive arguments on the merits as to each ground in the petition, as well as any procedural defenses which may be applicable." ECF No. 77, p. 7.
In their answer, respondents argue that each of the grounds in Nichols' petition is without merit and that Nichols cannot establish cause and prejudice to excuse the procedural default of grounds 3 through 6. In addition, respondents argue that grounds 2 through 6 are barred by the statute of limitations and that grounds 3 through 6 are not cognizable in a federal habeas proceeding.
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA imposes a one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run from the latest of four possible triggering dates, with the most common being the date on which the petitioner's state court conviction became final (by either the conclusion of direct appellate review or the expiration of time for seeking such review). Id. Statutory tolling of the one-year time limitation occurs while a "properly filed" state postconviction proceeding or other collateral review is pending. 28 U.S.C. § 2244(d)(2).
Respondents concede that Nichols filed his initial petition herein within the one-year filing period under § 2244(d)(1). Respondents argue, however, that the AEDPA statute of limitations expired long before Nichols filed his second and third amended petitions in 2008 and 2011, respectively, and that grounds 2 through 6 do not "relate back" to the amended petition Nichols filed in 2005.
The Supreme Court's decision in Mayle v. Felix, 545 U.S. 644 (2005), significantly limits a habeas petitioner's ability to have newly-added claims "relate back" to the filing of an earlier petition and, therefore, be considered timely under 28 U.S.C. § 2244(d). In Mayle, the Court held that the Ninth Circuit's former relation-back standard under Federal Rule of Civil Procedure 15(c)(2) (now Rule 15(c)(1)(B)),
Here, the court agrees that grounds 2 through 6 do not share a "common core of operative facts" with any of the claims in the amended petition filed in 2005. However, with the exception of ground 5, Nichols raised essentially the same claims in his initial petition — i.e., ground 2 was raised as ground 11 in the initial petition, ground 3 as ground 12, ground 4 as ground 10, and ground 6 as ground 13.
In the Ninth Circuit, an amended pleading supersedes any prior pleadings. See, e.g., King v. Atiyeh, 814 F.2d 565, 567 (9
Respondent responded to the relevant claims in the motion to dismiss they filed April 8, 2005 (ECF No. 8), and therefore are not prejudiced by allowing the petitioner to proceed with those claims. Under these unusual circumstances, the court concludes that grounds 2, 3, 4, and 6 of Nichols' current petition relate back to the date of the initial petition and are therefore timely.
With respect to ground 5, Nichols argues that the claim is timely under the doctrine of equitable tolling. Equitable tolling is appropriate only if the petitioner can show: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 130 S.Ct. 2549, 1085 (2010). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9
In ground 5, Nichols alleges that the trial court's failure inquire into whether an actual conflict existed between him and his attorney denied him is constitutional right to effective assistance of counsel. He identifies the following as extraordinary circumstances that warrant equitable tolling for the claim: (1) the trial court's incorrect advice regarding the remedy for the denial of his motion to dismiss counsel, (2) his trial counsel's actual conflict of interest, (3) ineffective assistance of trial and appellate counsel, and (4) ineffective assistance of post-conviction counsel. Even considered together, these circumstances fail to account for the delay in raising ground 5 that occurred after the conclusion of Nichols' initial state post-conviction proceeding. As such, he is not entitled to equitable tolling. See Spitsyn v. Moore, 345 F.3d 796, 799 (9
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:
501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).
In ruling upon respondents' motion to dismiss, this court determined that grounds 3, 4, and 6 were procedurally defaulted in state court on independent and adequate state grounds, but reserved its decision on whether petitioner could demonstrate cause for the defaults and actual prejudice or that failure to consider the claims will result in a fundamental miscarriage of justice. ECF No. 77, p. 5-7.
In ground 3, Nichols alleges that the trial court violated his constitutional right to present a defense when it rejected his lesser included/related offense instructions. He argues that the claim is not procedurally defaulted because it was not clear that he was entitled to relief on this theory until the Nevada Supreme Court issued Rosas v. State, 147 P.3d 1101 (Nev. 2007), and that the Nevada Supreme Court's reliance on the time interval between Rosas and Nichols' presentation of the claim to the state court did not constitute an adequate and independent basis for denying ground 3. He also claims ineffective assistance of appellate counsel as grounds for failing to comply with state procedural requirements in presenting the claim to the state court.
Be that as it may, the claim fails even if it is not barred by the doctrine of procedural default. As noted by the respondents, there is no settled law that failure to instruct on a lesser included offense in a noncapital case would be constitutional error if there were evidence to support the instruction. See Turner v. Marshall, 63 F.3d 807, 819 (9
In ground 4, Nichols alleges that the trial court violated his constitutional right to present a defense when it excluded Shawna Wilder's written statement from the trial evidence. He argues that he can establish cause for the default because he received ineffective assistance of counsel on direct appeal. The problem with that argument is that a claim of ineffective assistance of counsel as cause to excuse a procedural default must itself be exhausted and not procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Such is not the case here, so Nichols cannot establish cause to excuse the default of ground 4.
Moreover, there is no actual prejudice arising from the alleged violation of federal law. Ground 4 is, in essence, a challenge to an evidentiary ruling under state law. The trial court excluded the written statement based on a finding that it did not appear to be "trustworthy." ECF No. 45-19, Fp. 6-7. On direct appeal, the Nevada Supreme Court concluded that the trial court did not abuse its discretion in excluding the letter and cited to Nev. Rev. Stat. § 51.345, which provides that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
The Nevada Supreme Court's conclusion that the letter was properly excluded under state evidence law is binding on this court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal writ is not available for alleged error in the interpretation or application of state law); Rhoades v. Henry, 638 1027, 1034, n. 5 (9
In ground 6, Nichols alleges that the trial court violated his constitutional right to present a defense when it rejected his proposed instruction as to the proper way for weighing methamphetamine. Here again, Nichols argues that he can establish cause for the default because he received ineffective assistance of counsel on direct appeal. And for the same reason noted above with respect to ground 4, the argument fails.
As for whether Nichols can demonstrate actual prejudice, ground 6 is, like ground 4, a challenge to the trial court's application of Nevada law. At the close of the trial, Nichols proposed the following jury instruction: "When methamphetamine is mixed with liquid which consists of unusable chemicals and/or by-products these additional products should not count towards determining the weight of the contraband." ECF No. 45-21, p. 13. The trial court rejected the instruction stating that it "does not appear to be the law in the State of Nevada." ECF No. 45-19, p. 18.
Nichols contends that the trial court's ruling was contrary to Sheriff v. Seward, 858 P.2d 48, 50 and n.1 (Nev. 1992), where the Nevada Supreme Court noted that "unmarketable substances" should not be included in determining the quantity of a controlled substance. The respondents argue that the ruling was consistent with Nev. Rev. Stat. § 453.3385, the statute under which Nichols was charged, because it allowed for the weight of the specific substance "or any mixture which contains any such controlled substance." Regardless of which party is correct, ground 6 presents an issue of state law that does not provide a basis for federal habeas relief. See Estelle, 502 U.S. at 67-68. Thus, ground 6 is dismissed.
Grounds 1 and 2 were each addressed on the merits by the Nevada Supreme Court. 28 U.S.C. § 2254(d) sets forth the following standard of review under AEDPA for claims that have been adjudicated in state court:
28 U.S.C. § 2254(d).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).
"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court reasoned that the "backward-looking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made," and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id.. . .
In ground 1, Nichols alleges that he was denied his constitutional right to effective assistance of counsel on appeal because appellate counsel failed to argue that there was insufficient evidence to support a finding of guilt for the charged crimes. According to Nichols, the evidence presented at trial failed to establish beyond a reasonable doubt that he was ever in actual or constructive possession of the drugs at issue. More specifically, he contends that there was no evidence that, at any time, he had exclusive access to the hotel room where the drugs were found. He also points to the time gap of several hours between the time he was arrested and the time the police discovered the drugs coupled with the fact that Shawna Wilder and perhaps others had access to the hotel room during that period.
A criminal defendant enjoys the right to the effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 391-97 (1985). The federal court considers claims of ineffective assistance of appellate counsel according to the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433-34 (9
The federal standard used to test whether sufficient evidence supports a state conviction is the "rational factfinder" standard established in Jackson v. Virginia, 443 U.S. 307 (1979). Mikes v. Borg, 947 F.2d 353, 356 (9
In petitioner's first state post-conviction proceeding, the state district court addressed the claim now raised as ground 1 as follows:
ECF No. 47-6, p. 9-10.
On appeal from that decision, the Nevada Supreme Court adjudicated this claims as follows:
ECF No. 47-12, p. 3-4.
Sufficiency of the evidence claims are judged by the elements defined by state law. Jackson, 443 U.S. at 324 n. 16. As noted, Nichols' challenge to the sufficiency of the evidence is premised on a contention that the evidence did not show that he was in actual or constructive possession of the drugs at issue.
The Nevada Supreme Court has explained the doctrine of constructive possession under Nevada law as follows:
Glispey v. Sheriff, Carson City, 510 P.2d 623, 624 (Nev. 1973) (citation omitted). Thus, immediate and exclusive access to the location where the contraband is found is one way to establish constructive possession under Nevada law, but it is not the only way.
Here, a rational factfinder viewing the evidence in the light most favorable to the prosecution could have found, beyond a reasonable doubt, that Nichols, at the time of his arrest, had retained the right to exercise dominion or control over the drugs. The jury was presented with undisputed evidence that, in the few days leading up to his arrest, Nichols had purchased a large quantity of ephedrine, an ingredient used to make methamphetamine. And, as recounted by the state district court in the excerpt above, there was ample evidence that Nichols was involved in the use and manufacture of drugs and that he was occupying the hotel room where the drugs were found.
Because the sufficiency of the evidence claim is without merit, Nichols' appellate counsel cannot be deemed deficient for failing to raise the claim. In addition, Nichols cannot demonstrate that appellate counsel's failure to raise the claim prejudiced him. At a minimum, fairminded jurists could disagree as to the correctness of the Nevada Supreme Court's decision to deny the ineffective assistance of appellate counsel claim.
Based on the foregoing, the Nevada Supreme Court's decision was not contrary to, and did not involve an unreasonable application of clearly established federal law and was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, Nichols is not entitled to habeas relief with respect to ground 1.
In ground 2, Nichols alleges that his constitutional rights were violated because the trial court mishandled a juror's acknowledgment of multiple contacts with a key defense witness. According to Nichols, defense witness Mark Humphries "verbally confronted" juror Ramona Hintz in the courthouse parking lot a day or two prior to his trial testimony and complained about delay in being called as a witness. Nichols further alleges that, following his testimony, Humphries waved at Hintz from an adjacent vehicle, prompting her to write note to the trial judge about the contacts.
Nichols argues that the trial court's inquiry into the matter was incomplete and inadequate. Specifically, Nichols contends that the trial court asked Hintz suggestive leading questions about the matter before defense counsel had an opportunity to question her. In addition, Nichols faults the trial court for not asking whether the contacts had reduced her belief in Humphries' credibility in light of the fact that Hintz had indicated that the contacts had given her a negative impression of him.
In Mattox v. United States, 146 U.S. 140 (1892), the Supreme Court held that "[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox, 146 U.S. at 150. In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court reversed a conviction under Mattox when it was shown that during the trial someone had told the jury foreman that he could profit by acquitting the defendant. Remmer, 347 U.S. at 228. The Court in Remmer held that Mattox's "presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." Id. at 229.
The Supreme Court has also recognized, however, that "it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217 (1982). Thus, the Ninth Circuit has held that, when an unauthorized communication with a juror was "de minimis," "the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution." Caliendo v. Warden of Cal. Men's Colony, 365 F.3d 691, 696 (9
On direct appeal, the Nevada Supreme Court adjudicated the claim now raised as ground 2 as follows:
ECF No. 46-25, p. 12.
Although the Nevada Supreme Court did not cite any U.S. Supreme Court authority, the "harmless beyond a reasonable doubt" standard that it applied was consistent with the holding in Remmer. See United States v. Rutherford, 371 F.3d 634, 641 (9
As for the state court's conclusion that the contacts had no prejudicial effect, the court in Caliendo identified the factors to be considered in making that determination:
Caliendo, 365 F.3d at 697-98 (citation omitted).
In arguing that the Nevada Supreme Court's decision was an unreasonable application of clearly established federal law and based on an unreasonable determination of the facts, Nichols attempts to analogize his case to Caliendo, where the court concluded that the government had not proved harmlessness. In Caliendo, however, "three deliberating jurors chatted amiably and at length with the critical prosecution witness in an uncontrolled setting." Id. at 699. In addition, the "case was close," with Caliendo's first trial ending in hung jury with seven jurors voting to acquit. Id. at 698-99. These important factors serve to distinguish Caliendo from the instant case.
Nichols asserts that Humphries' testimony was "extremely important" because he was the only defense witness to establish that Lisa Nichols was a real person who had been in Wendover at the relevant time. However, the testimony was not nearly critical as the testimony of the witness in Caliendo, which stood at the center of the prosecution's case. Id. While it may have been helpful to the defense, Humphries' testimony was by no means pivotal given that the jury could have accepted it as entirely credible and still had ample evidence upon which to find Nichols guilty. In addition, the contacts between Humphries and Hintz were fleeting chance encounters, with no discussion of the case and little, if any, potential for the contacts to significantly influence Hintz's opinion of Humphries' credibility. The Nevada Supreme Court's decision to reject ground 2 was not an unreasonable application of Supreme Court precedent, nor was it based on an unreasonable determination of the facts. Ground 2 is denied.
For the reasons set forth above, Nichols' petition for habeas relief is denied.
This is a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing Section 2254 Cases requires this court to issue or deny a certificate of appealability (COA). Accordingly, the court has sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating Nichols' petition, the court finds that none of those rulings meets the Slack standard. The court therefore declines to issue a certificate of appealability for its resolution of any procedural issues or any of Nichols' habeas claims.
