KENT J. DAWSON, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Michael Sonner, a Nevada prisoner sentenced to death. ECF No. 96.
In an opinion affirming Sonner's conviction and sentence, the Nevada Supreme Court recounted the factual background of this case:
Sonner v. State, 930 P.2d 707, 710-11 (Nev. 1996). In a subsequent opinion, issued after a rehearing and still affirming the conviction and sentence, the Nevada Supreme Court set forth further background information regarding Sonner's trial and sentencing:
Sonner v. State, 322, 955 P.2d 673, 674 (Nev. 1998)
After the Nevada Supreme Court affirmed his conviction and sentence, Sonner's petition for a writ of certiorari to the United States Supreme Court was denied on October 5, 1998. Sonner v. Nevada, 525 U.S. 886 (1998).
On January 8, 1999, Sonner filed a petition for a writ of habeas corpus in the state district court. On September 29, 1999, the state district court denied that petition, and on June 9, 2000, the Nevada Supreme Court dismissed Sonner's appeal. The Nevada Supreme Court issued its remittitur on July 6, 2000.
Sonner initiated this federal habeas corpus action on September 11, 2000, by submitting his initial federal petition to the court and paying the filing fee. ECF Nos. 1 and 2. On October 19, 2000, the court granted Sonner's motion to proceed in forma pauperis and his motion for appointment of counsel, and directed the clerk to file his petition. ECF Nos. 3-5. Counsel undertook representation on April 23, 2001. ECF No. 12.
Discovery proceedings (first informal, then formal) ensued and did not conclude until October of 2004. On January 3, 2006, Sonner filed an amended petition for a writ of habeas corpus. ECF No. 96. On June 5, 2006, respondents filed a motion to dismiss (ECF No. 103) asserting that many of the claims in the amended petition are barred by the statute of limitations, that many of the claims in the amended petition are unexhausted in state court, and that certain claims in the amended petition are not cognizable in this federal habeas corpus action. Sonner responded by filing a motion for stay and abeyance (ECF No. 108), which the court granted (ECF No. 113).
From December 21, 2006, to January 9, 2012, proceedings were stayed to allow Sonner to exhaust state court remedies for claims contained in his amended petition. ECF Nos. 113-128. During the stay, Sonner returned to state district court and filed a second state habeas petition on February 1, 2007. The state district court determined that only four of Sonner's claims were properly before the court and ordered him to file an amended petition containing only those four claims. The district court ultimately found those claims to be without merit. On appeal, the Nevada Supreme Court affirmed the lower court's decision to deny relief, but concluded that all of Sonner's claims were procedurally barred as untimely under Nev. Rev. Stat. § 34.726(1) and successive under Nev. Rev. Stat. § 34.810(1).
As noted, proceedings were reopened in this case on January 9, 2012. ECF No. 128. On March 26, 2013, pursuant to respondents' motion to dismiss (ECF No. 132), this court dismissed several of Sonner's claims as time-barred. ECF No. 170.
On May 10, 2013, the respondents filed their answer to Sonner's remaining habeas claims. Briefing on the merits of those claims concluded on January 6, 2014. On May 14, 2014, this court entered an order denying Sonner's motion for leave to conduct discovery, motion for evidentiary hearing, and motion for stay and abeyance, but conditionally granting his motion for leave to expand the record.
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
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, 562 U.S. 86, 101 (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, 563 U.S. 170, 181 (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, 563 U.S. at 181. 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. at 182. "[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9
For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9
In Claim G, Sonner claims his constitutional rights were violated by virtue of the state trial court's denial of his motion for further psychiatric testing. Sonner's defense at trial was that he was not guilty by reason of insanity. Prior to trial, Sonner's counsel filed a motion asking the trial court to authorized the expense of conducting a magnetic resonance imaging scan (MRI), electroencephalogram (EEG), and an evoked potential electroencephalogram (Evoked EEG) on the grounds that the defense's efforts "to detect an organic basis for his insanity defense through psychological testing have been unsuccessful and that the requested [tests] may reveal organic brain damage which cannot be detected through psychological testing." ECF No. 205-14, p. 2.
Near the conclusion of jury selection, Sonner's counsel filed a motion asking the trial court to authorize "the expense of `EEG' testing utilizing nasopharyngeal leads and the obtaining of a `sleep record' of the Defendant along with a positron emission tomography (PET) scan of the Defendant's brain on the ground that such testing is necessary to evaluate whether Defendant's brain contains areas of damage." ECF No. 206-19, p. 2. The trial court denied the motion, finding that the tests were not reasonably necessary to rule out the possibility of organic brain damage. ECF No. 207-16, p. 10.
Sonner presented Claim G to the Nevada Supreme Court in his direct appeal. ECF No. 211-17, p. 23-25. The Nevada Supreme Court decided the claim as follows:
Sonner v. State, 930 P.2d 707, 714-15 (Nev 1996).
There is no dispute here that Ake is the clearly established federal law controlling the disposition of Ground G. In Ake, the U.S. Supreme Court held that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. at 83. The Ninth Circuit has construed narrowly the right created by Ake, noting that it is limited to the provision of one competent psychiatrist and questioning whether federal courts are even permitted to define what constitutes an appropriate examination. See Leavitt v. Arave, 646 F.3d 605, 610 (9th Cir. 2011) (quoting Ake, 470 U.S. at 79, 105 S.Ct. 1087). Indeed, the court in Leavitt held that, under Ake, a "defendant `lacks the right to appointment of a second psychiatrist,' even where the first psychiatrist is alleged to be incompetent or reaches a diagnosis unfavorable to the defense." Id. (quoting Pawlyk v. Wood, 248 F.3d 815, 824 (9th Cir. 2001)).
No controlling legal authority dictates that Sonner was entitled to neurological testing beyond what the trial court authorized in this case. Moreover, even the expert who Sonner relied upon in asking the trial court for more testing opined that, even with the additional tests, "the probability of demonstrating any significant abnormalities is not high." ECF No. 206-19, p. 9. And, because "the trial court took careful steps to ensure that it made an informed decision" on the need for additional testing, this case is on all fours with Vickers v. Stewart, 144 F.3d 613 (9
Claim G is denied.
In Claim H, Sonner claims his constitutional rights were violated because the state trial court improperly denied his motions to control pretrial publicity and for a change of venue. With the former motion, Sonner asked the trial court to issue an order that would (1) seal the file and close all proceedings prior to jury sequestration, (2) exclude the public and media from all pretrial hearings, (3) prohibit all persons connected with the prosecution and investigation of the case from extrajudicially releasing information to the media, (4) direct that all records and transcripts be sealed until a jury is impaneled and sequestered; and (5) prohibit the use of video or other cameras during the court proceedings. ECF No. 204-8. The court granted the request with respect to sealing all transcripts and records until the jury was impaneled and directed the attorneys and parties to comply with Nevada Supreme Court Rule 177 regarding trial publicity. ECF No. 205-19, p. 3-4. The court denied the request to exclude the press, but ordered that Sonner could renew this motion if an ongoing problem became apparent. Id. The other requests in the motion were denied. Id.
Sonner filed the motion for change a venue toward the end of jury selection. ECF No. 206-20 through 24. He attached to the motion a "Change of Venue Study" included a survey of 350 eligible jurors in Pershing County. ECF No. 206-20. The reported results of the survey included the following:
Id., p. 6. Also included with the motion were approximately 100 newspaper articles about the case and a declaration indicating that local television stations in Reno, Nevada, had broadcast approximately 100 new reports about the case. ECF No. 206-20 through 24. In denying the motion, the trial court interpreted the survey to indicate that half the members of the community could be fair and impartial in deciding the case and noted that a significant number of the jurors did not know the alleged victim, that there was nothing that could be "characterized as a circus atmosphere about the press coverage," that no television cameras were present in court during jury selection after the first day, and that jury selection process had been lightly attended by the public. ECF No. 208-13.
Sonner presented Claim H to the Nevada Supreme Court in his direct appeal. ECF No. 211-17, p. 2-10. The Nevada Supreme Court decided the claim as follows:
Sonner, 930 P.2d at 712-13.
When a trial court is "unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere[,] . . . due process requires that the trial court grant defendant's motion for a change of venue." Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988) (citing Rideau v. Louisiana, 373 U.S. 723, 726 (1963)). In Skilling v. United States, 561 U.S. 358 (2010), the U.S. Supreme Court applied a two-pronged approach to determine whether the trial court erred by denying a change of venue, considering, first, whether pretrial publicity and community hostility established a presumption of juror prejudice, and then whether actual bias infected the jury. The Ninth Circuit has explained the two types of prejudice as follows:
Hayes v. Ayers, 632 F.3d 500, 508 (9
As evidenced by the excerpt above, the Nevada Supreme Court employed the same twopronged approach in rejecting Sonner's claim. Sonner has not shown that the Nevada Supreme Court was unreasonable in concluding that he had not demonstrated actual prejudice or presumed prejudice.
With respect to actual prejudice, Sonner does not challenge the adequacy of the voir dire process itself, which spanned several days and filled more than 1500 pages of reporter's transcripts. See Hayes v. Ayers, 632 F.3d 500, 510-11 (9th Cir. 2011 (noting that the actual prejudice inquiry focuses on the nature and extent of the voir dire examination and prospective jurors' responses to it). As for the voir dire responses of the jurors who heard his case, Sonner points out that all the jurors had read about the case in the newspaper (or had otherwise been exposed to it through various media) and/or had discussed the case with others. ECF No. 180, p. 64-66. He also notes that many of them were acquainted with witnesses, the trial judge, and/or the prosecuting attorneys.
While Sonner does cite to selected voir dire comments that show potential prejudice, each of the jurors seated in his case affirmed in open court, under oath, that he or she could set aside his or her preexisting opinions about the facts and the law relevant to the case. Cf. Skilling, 561 U.S. at 391-99 (rejecting petitioner's claims of individual juror prejudice and noting the high deference a reviewing court must pay to the trial court's findings of impartiality). Moreover, Sonner did not challenge any of the seated jurors for cause, which is "strong evidence" that he was satisfied they "were not biased and had not formed any opinions as to his guilt." See id. at 396 (quoting Beck v. Washington, 369 U.S. 541, 557-558 (1962)). In summary, the record amply supports the Nevada Supreme Court's conclusion that Sonner cannot show actual prejudice.
Turning to the question of presumptive prejudice, Hayes is instructive here inasmuch as it confirms how rarely presumptive prejudice serves as a basis for concluding that publicity about a crime has deprived a defendant of his constitutional right to a fair trial. See Hayes, 632 F.3d at 508 (citing Supreme Court and Ninth Circuit precedent that has held that presumptive prejudice is reserved for "extreme" cases). The court in Hayes pointed out that, of the three watershed cases establishing the principle of presumptive prejudice — Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966) — only Rideau did not "concern [an] instance[] where the media significantly interfered with the trial itself." See id. (citing footnote 14 in Skilling, where the Court distinguished Estes and Sheppard from Rideau because they "involved media interference with courtroom proceedings during trial" (Skilling, 561 U.S. at 382 n.14)). Because there is no evidence that the media significantly interfered with Sonner's trial, the Nevada Supreme Court reasonably applied Rideau as the controlling federal standard.
While the Nevada Supreme Court mentioned a few of the relevant facts in Rideau, the Court in Skilling described them in more detail:
Skilling, 561 U.S. at 379. Despite his claims to the contrary, Sonner's case bears little resemblance to Rideau beyond the fact that the crime and subsequent trial took place in a small community.
While Sonner cites to media coverage of alleged confessions, there is no evidence that the confessions were obtained involuntarily, that they were presented to the public as a filmed or videotaped interview of Sonner himself, or that they were pervasively broadcast on local television just prior to trial. Indeed, the record indicates that Sonner initiated at least some contact with news media. ECF No. 207-16, p. 7; ECF No. 208-13, p. 3. And, although the scenario in Rideau may not be the exclusive method for establishing presumptive prejudice, Sonner has not shown that the publicity in his case had even a remote possibility of causing the type of prejudice that presumptively arose as a result of the publicity in that case. See Rideau. 373 U.S. at 726 ("For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau's trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.").
Because the Nevada Supreme Court reasonably concluded that Sonner suffered no presumed or actual prejudice compelling a change of venue, Claim H must be denied.
In Claim I, Sonner claims his constitutional rights were violated when the state trial judge failed to recuse himself due to a conflict of interest arising from a prior attorney-client relationship with the prosecutor in Sonner's case. The alleged conflict consisted of the prosecutor, Brent Kolvet, having represented the trial judge, Judge Richard Wagner, in a civil matter. Just prior to trial, Sonner's counsel filed a motion to disqualify Kolvet or, in the alternative, to recuse Judge Wagner on the ground that Kolvet had an attorney-client relationship with Judge Wagner at the time Kolvet had been appointed as a Special Deputy District Attorney to handle Sonner's prosecution. ECF No. 205-47. Judge Wagner denied the motion, stating that the attorney-client relationship had effectively ended in October of 1993, more than two months before Kolvet's appointment, and that he did not entertain any actual or implied bias toward any party. ECF No. 206, p. 6-8.
Sonner presented Claim I to the Nevada Supreme Court in his direct appeal. ECF No. 211-16, p. 30-50; ECF No. 211-17, p. 2. The Nevada Supreme Court decided the claim as follows:
Sonner, 930 P.2d at 712.
The Due Process Clause "clearly requires a `fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). "The Constitution requires recusal where `the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" Hurles v. Ryan, 752 F.3d 768, 788 (9th Cir. 2014) (quoting Withrow, 421 U.S. at 47). Accordingly, a habeas petitioner need not prove actual bias to obtain relief, but he must show an intolerable risk of bias. Hurles, 752 F.3d at 789.
Here, Kolvet represented Judge Wagner in a civil matter wholly unrelated to Sonner's prosecution. While the civil matter was apparently resolved in Wagner's favor, there is no evidence that Wagner was beholden to Kolvet or that the prior attorney-client relationship would color Wagner's judgment in Sonner's case. Simply put, Sonner falls well short of establishing that Judge Wagner's refusal to recuse himself created an intolerable risk of bias. See Withrow, 421 U.S. at 47 (noting that a petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators").
Claim I is denied.
In Claim GG, Sonner claims his constitutional rights were violated because the state trial court improperly denied his motion for discovery of Trooper Borland's institutional records. Prior to trial, the defense filed a motion requesting discovery of all records pertaining to Trooper Borland on the ground that Sonner was entitled to present all available mitigating evidence and evidence to counter "victim impact evidence" presented by the State. ECF No. 204-20. The trial court denied the motion, finding it "overly broad." ECF No. 205-41. Sonner contends he was entitled to the information under the authority of Brady v. Maryland, 373 U.S. 83 (1963) and under Nevada law.
Sonner presented Claim GG to the Nevada Supreme Court in his direct appeal. ECF No. 211-17, p. 25-29. The Nevada Supreme Court decided the claim as follows:
Sonner, 930 P.2d at 715-16.
In Brady, the Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. Brady, 373 U.S. at 87. The Court has also clarified that "[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In addition, Brady does not permit a defendant to sift through information held by the government to determine materiality. Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987).
Sonner has not identified any material evidence favorable to the defense that the State withheld from him. The Nevada Supreme Court's decision rejecting his Brady claim adheres closely to the clearly established federal law cited above. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that state court is not required to cite U.S. Supreme Court cases, or even be aware of them, to avoid its decision being "contrary to" U.S. Supreme Court precedent). And, the decision was not based on an unreasonable determination of the facts.
Claim GG does not warrant habeas relief.
In Claim II, Sonner claims his constitutional rights were violated because the trial court improperly limited his penalty phase presentation regarding the sentence of life without parole. Specifically, Sonner contends that the trial court erred by not allowing him to present the testimony of Billy Farmer to inform the jury as to the consequences of a sentence of life without possibility of parole. Farmer is a Nevada prisoner serving that particular sentence. According to Sonner, he was entitled to present such evidence because the Due Process Clause does not allow the execution of a person "on the basis of information which he had no opportunity to deny or explain" (Gardner v. Florida, 430 U.S . 349, 362 (1977)) and the Eight Amendment imposes a heightened standard "for reliability in the determination that death is appropriate punishment in a specific case" (Woodson v. North Carolina, 428 U.S. 280, 305 (1977)).
Sonner presented Claim II to the Nevada Supreme Court in his direct appeal. ECF No. 211-17, p. 29-32. The Nevada Supreme Court decided the claim as follows:
Sonner, 930 P.2d at 716 (footnote omitted).
"[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Lockett v. Ohio, 438 U.S. 586, 604 (1978), (ellipses in original) (quoting Woodson, 428 U.S. at 304. Accordingly, the Supreme Court has held since 1978 that a defendant facing a capital sentence must have the opportunity to present all relevant evidence in mitigation. See id. at 604-05. The test for relevance with respect to mitigating evidence "is simply whether the evidence is of such a character that it might serve as a basis for a sentence less than death." Tennard v. Dretke, 542 U.S. 274, 285 (2004) (internal quotation marks omitted). In the context of the Supreme Court's mitigation-evidence case law, however, the evidence still must be relevant to "a reasoned moral response to the defendant's background, character, and crime." Penry v. Lynaugh, 492 U.S. 302, 319 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (quoted source omitted).
According to Sonner, Farmer would have testified about the conditions of confinement in Nevada prisons and the fact that a prisoner has virtually no chance of ever escaping from a maximum security facility. Such testimony did not bear upon Sonner's background or character or upon the circumstances of Sonner's crime. See Lockett, 438 U.S. at 604 ("Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense."). No U.S. Supreme Court case holds that a capital defendant's constitutional rights are violated by the trial court's refusal to allow evidence that does not fall into one of these categories. Consequently, this court must defer to the Nevada Supreme Court's rejection of Claim II. See Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court regarding the [issue presented] here, it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'").
Claim II is denied.
In Claim PP(4), Sonner claims his constitutional rights were violated because a jury instruction issued in the penalty phase of his trial introduced improper considerations into the sentencing process and had the potential to confuse the jury into believing that even if they sentenced him to life without the possibility of parole, he might still be paroled. The instruction, which was prescribed by the Nevada Supreme Court in Petrocelli v. State, 692 P.2d 503 (Nev. 1985), read as follows:
ECF No. 210-4, p. 27.
Sonner presented Claim PP(4) to the Nevada Supreme Court in his direct appeal. ECF No. 211-16, p. 18-29. The Nevada Supreme Court decided the claim as follows:
Sonner, 930 P.2d at 711 (footnotes omitted).
In Ramos, the Court held that instructions to a capital sentencing jury may include accurate information regarding the Governor's authority to commute a sentence of life without possibility of parole to a sentence that would include the possibility of parole. 463 U.S. at 1001. Sonner contends that the instruction was not "accurate" because, even if the Board of Pardons Commissioners commuted Sonner's sentence, he would not have been eligible for parole under Nevada law. In this regard, he notes that the fact that he was wanted for crimes in other jurisdictions, that he had a lengthy criminal history, and that he had documented substance abuse issues made him ineligible for parole under Nev. Rev. Stat. § 213.1099(4).
This court does not agree. The "board" referenced in § 213.1099 is the State Board of Parole Commissioners. Irrespective of whether that board was permitted to grant Sonner parole given his particular circumstances, the State Board of Pardons Commissioners was permitted, under Nevada law at the time, to modify Sonner's sentence. See Sonner, 930 P.2d at 711. The instruction did not erroneously suggest to the jury that sentencing Sonner to death was the only way to prevent him from someday being released into society. Indeed, the instruction did not refer to a particular sentence with respect to the Board of Pardons Commissioner's power to modify sentences. Cf. Coleman v. Calderon, 210 F.3d 1047, 1050 (9th Cir. 2000) (finding instruction constitutionally infirm because it plainly misled jury as to the Governor's power "to commute a sentence from life imprisonment without the possibility of parole to some lesser sentence that would include the possibility of parole").
Sonner also argues that he is entitled relief under Simmons v. South Carolina, 512 U.S. 154 (1994), which held that inaccurate instructions about parole eligibility may deprive a defendant of due process when the defendant's future dangerousness is at issue. Simmons, 512 U.S. at 163-66. In Simmons, the trial court refused petitioner's request for the court to instruct his capital sentencing jury that a sentence of life imprisonment carried with it no possibility of parole. Id. at 160. During the sentencing phase "[t]he State raised the specter of the petitioner's future dangerousness," but "[t]he jury was left to speculate about petitioner's parole eligibility when evaluating petitioner's future dangerousness, and was denied a straight answer about petitioner's parole eligibility even when it was requested." Simmons, 512 U.S. at 165-66.
Simmons does not provide Sonner with grounds for relief as it is distinguishable on important points. In Simmons, the petitioner's murder conviction exposed him to two possible sentences — death or life imprisonment — with eligibility for parole a conclusive impossibility under state law. Id. at 158. The petitioner asked the trial court three times to inform the jury that in fact he was ineligible for parole under state law, but his requests were denied. Id. at 162. Then, during deliberations, the jury sent a note to the judge specifically asking whether the imposition of a life sentence carried with it the possibility of parole. Id at 160. Instead of providing the jury with the simple and accurate response — i.e., "no," the judge instructed the jury to a "not consider parole or parole eligibility" in reaching its verdict. Id.
By contrast, the sentencing options in Sonner's case included life with the possibility of parole. Sonner asked the trial court to replace the last sentence of the Petrocelli instruction with the following sentence: "The State Board of Pardons Commissioners cannot change the sentence of life imprisonment without the possibility of parole." ECF No. 210-10, p. 11. For the reason noted above, such an instruction would not have been accurate. And, unlike in Simmons, there is no evidence that Sonner's jury misunderstood its instructions, much less have its misunderstanding of its instructions exacerbated by a "confusing and frustrating" response to its attempt to clarify them. Simmons, 512 U.S. at 170.
In summary, the Nevada Supreme Court's application of clearly established federal law was not so unreasonable that fairminded jurists could not at least disagree on the correctness of the court's decision. Thus, this court must defer the state court's rejection of Claim PP(4). See Richter, 562 U.S. at 101.
Claim PP(4) is denied.
In Claim TT(2), Sonner alleges that he was deprived of effective assistance of counsel, in violation of his constitutional rights, because his trial counsel failed to seek a continuance of his penalty phase trial so that he could first be sentenced on his non-murder convictions. As noted above, the jury also found Sonner guilty of being an ex-felon in possession of a firearm, possession of a stolen vehicle, and resisting a public officer. Subsequent to the penalty phase hearing, the trial court sentenced him on those convictions and, with respect to the possession of stolen vehicle charge, adjudicated him a habitual criminal, for which the court sentenced him to life imprisonment without the possibility of parole. ECF Nos. 211-5; ECF No. 211-8. Sonner contends that, had counsel obtained a continuance, counsel could have argued as mitigation that he would be incarcerated for a term of life without the possibility of parole if the jury decided not to impose the death penalty.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a twoprong test for analysis of claims of ineffective assistance of counsel (IAC): a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.
Sonner presented Claim TT(2) to the Nevada Supreme Court in his appeal of state district court's denial of his first state post-conviction petition. ECF No. 213-10, p. 28-30. The Nevada Supreme Court correctly identified and applied Strickland as the federal law standard governing Sonner's IAC claims. ECF No. 213-14, p. 2-3. The Nevada Supreme Court addressed the claim as follows:
Id. at 3-4.
Sonner cannot show that the Nevada Supreme Court's application of the Strickland standard was unreasonable. He does not cite to any controlling legal authority or persuasive arguments that would have supported a request from Sonner's counsel to continue the penalty hearing. Counsel did not perform below constitutional standards by not making a request devoid of supporting legal or factual grounds.
In Sonner's state post-conviction proceeding, the state district court astutely pointed out that, had it been informed that Sonner had already been sentenced to life without possibility of parole, the jury would have likely (1) disregarded life with the possibility of parole as a possible sentence for the murder and (2) felt more compelled to impose a death sentence given the seriousness of first degree murder relative to possession of a stolen vehicle and being a habitual criminal.
Neither prong of the Strickland standard is satisfied with respect to Claim TT(2). Thus, the claim is denied.
In Claim TT(10), Sonner alleges that he was deprived of effective assistance of counsel, in violation of his constitutional rights, because his trial counsel failed to call Dr. Carlos Brandenburg to testify in mitigation in the penalty phase of his trial. Dr. Brandenburg, a psychologist, assessed Sonner's competency prior to trial during a one-month stay at maximum security mental health facility. In his testimony at a pre-trial competency hearing, Dr. Brandenburg characterized Sonner as a "model inmate" and confirmed that he did not attempt to escape from the facility or act in an assaultive manner towards any person at the facility. ECF No. 202-13, p. 30-31. According to Sonner, effective counsel would have presented Dr. Brandenburg's testimony in mitigation and to rebut the prosecution's evidence that Sonner would be a future danger and an escape risk.
In Claim TT(11), Sonner alleges that he was deprived of effective assistance of counsel because his trial counsel failed to call, during the penalty phase, an expert witness on institutional adjustment. According to Sonner, an institutional adjustment expert could have provided testimony about the conditions of confinement for a prisoner sentenced to life imprisonment without possibility of parole in a maximum security prison, which would have demonstrated for the jury that Sonner would not pose a security risk or a future danger. Here again, Sonner contends that effective counsel would have presented such testimony as evidence in mitigation and in rebuttal of the aggravating evidence presented by the State.
In his state post-conviction appeal, Sonner presented Claims TT(10) and TT(11) as a unified claim. ECF No. 213-10, p. 30-32. The Nevada Supreme Court addressed the claim(s) as follows:
ECF No. 213-14, p. 4-5.
Here again, Sonner cannot show that the Nevada Supreme Court's application of the Strickland standard was unreasonable. There is no question that testimony about Sonner's behavior during a relatively brief stay at the mental health facility and his pre-trial incarceration in Pershing County would have been far outweighed by his prior record of escapes and violent crime. With respect to presenting an expert witness on institutional adjustment, Sonner has presented no evidence setting forth the testimony such an expert would have provided or demonstrating that it actually would have supported his case for mitigation. See Wildman v. Johnson, 261 F.3d 832, 839 (9
Neither prong of the Strickland standard is satisfied with respect to Claim TT(10) or TT(11). Thus, the claims are denied.
In Claim XX, Sonner claims that the Nevada death penalty statute violates the U.S. Constitution. He contends this is so because:
In Claim HHH, Sonner alleges that Nevada's aggravating circumstances, taken together, encompass nearly all first degree murders. The thrust of Claims XX and HHH is that the Nevada's capital sentencing scheme allows for the arbitrary imposition of the death penalty because it fails to narrow the class of persons eligible for the death penalty.
Since Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court has required that there be a "meaningful basis for distinguishing the few cases in which [the death sentence] is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. at 313 (WHITE, J. concurring). A capital sentencing scheme must "genuinely narrow the class of persons eligible and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983). The finding of an aggravating circumstance that serves the "`function of narrowing the class of persons convicted of murder who are eligible for the death penalty'" is "all that the Constitution requires." Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (citing Zant, 462 U.S. at 874).
The Nevada statutes contain a list of aggravating circumstances that elevate a first degree murder to a capital crime, at least one of which the jury must find beyond a reasonable doubt for the defendant to be sentenced to death. Nev. Rev. Stat. §§ 175.554(4) and 200.033.
Sonner's challenge regarding Nevada's aggravating circumstances also fails. An aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. See Arave v. Creech, 507 U.S. 463, 474 (1993). ("If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm"). Second, the aggravating circumstance may not be unconstitutionally vague. Godfrey v. Georgia, 446 U.S. 420, 428 (1980).
In Godfrey, the Supreme Court considered an aggravating circumstance instruction that allowed for the death penalty if the jury found that the murder was "`outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.'" 446 U.S. at 422 (quoting Georgia statute). The Court held that the instruction was unconstitutional as applied in that case because it resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury." Id. at 429. The Court further held that the Georgia Supreme Court failed to cure the defect because it did not apply a constitutional construction of the statutory language in affirming petitioner's death sentences on appeal. Id. at 432-33.
As explained in Tuilaepa v. California, the Supreme Court has found very few death sentence eligibility or selection factors to be impermissibly vague and all of those have been similar to each other. 512 U.S. 967, 973-74 (1994) (citing to Godfrey and Maynard v. Cartwright, 486 U.S. 356, 361-364 (1988) as examples, the latter of which addressed an aggravating circumstance that asked whether the murder was "especially heinous, atrocious, or cruel").
In Claim XX, Sonner identifies only two aggravating circumstances as being vague or overly broad.
Sonner also challenges what he refers to as a "catch all" aggravating circumstance, but there is no such thing under Nevada law. While the State may present, at the penalty hearing, "any other matter which the court deems relevant to the sentence" (Nev. Rev. Stat. Ann. § 175.552(3)) that does not mean, as Sonner appears to be claiming, that such evidence can be used to establish an aggravating circumstance other than one specifically enumerated under Nev. Rev. Stat. § 200.033.
Claims XX and HHH are denied.
In Claim YY, Sonner alleges that Nevada's death penalty scheme violates U.S. Supreme Court precedent established in Jones v. United States, 526 U.S. 227 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); and Blakely v. Washington, 542 U.S. 296 (2004). Under these cases, any fact that exposes a defendant to a punishment greater than that authorized by the jury's guilty verdict must be submitted to a jury and proved beyond a reasonable doubt. See Blakely, 542 U.S. at 301 (explaining the holding in Apprendi). According to Sonner, this means that, in Nevada, a jury must unanimously find beyond a reasonable doubt that aggravating circumstances exist and that the aggravating circumstances substantially outweigh the mitigating circumstances. He argues that the death penalty scheme under which he was sentenced was unconstitutional because the jury was not required to unanimously find the existence of aggravating circumstances, and was not required to unanimously find that aggravating circumstances substantially outweigh mitigating circumstances beyond a reasonable doubt.
As an initial matter, the parties dispute whether Nevada law at the time required the jury to agree unanimously with respect to the existence of an aggravating circumstance. This court need not resolve this issue here because the jury in Sonner's case was explicitly instructed that "[t]he jury may impose a sentence of death only if it unanimously finds at least one aggravating circumstance has been established beyond a reasonable doubt" and that "[t]he jury must be unanimous in order to find the existence of any aggravating circumstance or circumstances." ECF No. 210-4, p. 23.
With respect to the other eligibility factor, this court first notes that Sonner misstates the requirement inasmuch as the phrase "substantially outweigh" does not appear anywhere in Nevada's death penalty statutes, nor has the U.S. Supreme Court imposed such a standard. As noted above, a defendant is eligible for the death penalty in Nevada as long as the factfinder finds (in addition to the existence of an aggravating circumstance) that mitigating circumstances do not outweigh the aggravating circumstance or circumstances. And, despite Sonner's construction of the cases to the contrary, none of the U.S. Supreme Court cases he cites support his contention that the weighing determination is a "fact" that must be submitted to a jury or found beyond a reasonable doubt.
The holding in Ring is "tightly delineated" to deciding whether the Sixth Amendment required jury findings on the existence of aggravating circumstances. Ring, 536 U.S. at 597 n.4. The Court concluded that "[b]ecause Arizona's enumerated aggravating factors operate as `the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury." Id. at 609 (quoting Apprendi, 530 U.S. at 494 n.19. To be sure, as the "functional equivalent of an element," the existence of aggravating circumstances must be proved beyond a reasonable doubt (which Nevada law requires and required in Sonner's case). See Alleyne v. United States, 133 S.Ct. 2151, 2156 (noting that the Sixth Amendment right to a jury "in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt"). However, nothing in Ring can be read to extend either the right to a jury or the beyond a reasonable doubt standard to Nevada's weighing determination.
And, in a more recent case, the Supreme Court passed up the opportunity to hold that a jury must perform the weighing function. In Hurst v. Florida, 136 S.Ct. 616 (2016), the Court addressed the constitutionality of Florida's death penalty sentencing scheme, under which the jury rendered an advisory verdict, but the judge made the ultimate sentencing determinations, including a finding whether there "are insufficient mitigating circumstances to outweigh the aggravating circumstances." Hurst, 136 S. Ct. at 622. Rather than including the weighing function as an "element" that must be submitted to the jury and proved beyond a reasonable doubt, the Court confined its holding in this regard to the finding of an aggravating circumstance. See id. at 624 (holding that prior decisions upholding Florida's capital sentencing statute "are overruled to the extent they allow a sentencing judge to find an aggravating circumstance" and that Florida's sentencing scheme is unconstitutional because it "required the judge alone to find the existence of an aggravating circumstance").
Because the jury in Sonner's case was properly instructed that it must unanimously find existence of an aggravating circumstance beyond a reasonable doubt, he cannot establish a violation under the Jones/Apprendi/Ring/Blakely line of cases. Claim YY is denied.
In Claim ZZ, Sonner alleges that Nevada's death penalty scheme violates the U.S. Constitution because it allows the State to present evidence in the penalty phase of the trial beyond that which is needed to prove the existence of statutory aggravating circumstances. According to Sonner, the introduction of evidence other than that which is relevant to enumerated aggravating circumstances allows the jury to consider aggravating factors that are unconstitutionally vague under Stringer v. Black, 503 U.S. 222 (1992). In Stringer, the Court noted that "[a] vague aggravating factor employed for the purpose of determining whether a defendant is eligible for the death penalty fails to channel the sentencer's discretion" and that "[a] vague aggravating factor used in the weighing process . . . creates the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence of an illusory circumstance." Stringer, 503 U.S. at 235.
Sonner makes a similar, if not identical, claim under Claim GG. In Claim GG, he argues that Nevada's death penalty statute is unconstitutional because it allows for the use of unspecified non-statutory aggravating circumstances. Both Claim GG and ZZZ are premised on Nev. Rev. Stat. § 175.552 which allows "any other matter which the court deems relevant to sentence" to be admitted during the penalty hearing.
Sonner presented Claims ZZ and GGG to the Nevada Supreme Court in his direct appeal. ECF No. 211-17, p. 45-48. The Nevada Supreme Court decided the claims as follows:
Sonner, 930 P.2d at 718.
The jury in Sonner's case was instructed that evidence "not offered to prove an aggravating circumstance" was "not be considered as an aggravating circumstance." ECF No. 210-4, p. 16. Stringer and the the other case Sonner cites in Claim ZZ — Maynard v. Cartwright, 486 U.S. 356 (1988) — each involved a particular aggravating factor found unconstitutionally vague because it failed to give sufficient guidance to the jury in deciding whether to impose the death penalty. Stringer, 503 U.S. at 228-29; Maynard, 486 U.S. at 364. No U.S. Supreme Court case holds that a capital defendant's constitutional rights are violated by failing to restrict penalty phase evidence to that which supports a specified aggravating circumstance. Consequently, this court must defer to the Nevada Supreme Court's rejection of Claims ZZ and GGG. See Musladin, 549 U.S. at 77. Claims ZZ and GGG are denied.
In Claim III, Sonner claims that his death sentence is unconstitutional because Nevada's capital punishment system operates in an arbitrary and capricious manner. In support of this claim, he alleges that, in Nevada, the death penalty is available for all first degree murders and that first degree murders are not restricted to those cases traditionally defined as first degree murders. In addition, he alleges that the death penalty is imposed disproportionately on racial minorities, that the lack of resources provided to capital defendants virtually ensures that compelling mitigating evidence will not be presented to the sentencing body, and that defects in the system are exacerbated by an inadequate judicial review process.
Sonner's allegations as to the scope of the murders to which it may apply are addressed in the court's discussion of Claims XX and HHH, above. Sonner's complaint regarding the racially-disproportionate application of the death penalty also fails to provide grounds for habeas relief because he has not shown that racial bias was a factor in his case. See McCleskey v. Kemp, 481 U.S. 279, 292-93 (1987) ("[T]o prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose."). Similarly, Sonner has not shown that lack of resources prevented him from presenting compelling evidence in his particular case.
The Constitution does require some form of meaningful review of death sentences to guard against arbitrary and inconsistent results. See Jurek, 428 U.S. at 276; Proffitt v. Florida, 428 U.S. 242, 258-60 (1976). However, Sonner does not identify the manner in which Nevada's judicial review process is inadequate. Moreover, the Nevada Supreme Court conducted an adequate Constitutional review of his death sentence. Thus, this court also rejects this aspect of Claim III.
Claim III is denied.
In Claim JJJ, Sonner alleges that his death sentence is unconstitutional because the Nevada death penalty scheme allows county prosecutors unlimited discretion in seeking the death penalty. He argues that disparity between Nevada's counties with respect to seeking and imposing the death penalty and the failure of the Nevada Attorney General to implement a uniform policy violate his right to equal protection under the Fourteenth Amendment. Sonner cites the U.S. Supreme Court's opinion in Bush v. Gore, 531 U.S. 98 (2000), as support for this claim.
Certainly, a prosecutorial decision may not be "`deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962). Also prohibited are vindictive prosecutions in response to a defendant's exercise of protected statutory and constitutional rights. United States v. Goodwin, 457 U.S. 368, 372 (1982). Beyond that, the Constitution places virtually no limits on prosecutorial discretion. See Bordenkircher, 434 U.S. at 364 ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."). Moreover, "the decision to prosecute is particularly ill-suited to judicial review" and "[j]udicial supervision in this area . . . entails systemic costs of particular concern." Wayte v. United States, 470 U.S. 598, 607 (1985),
Sonner's has alleged no facts showing he was the victim of selective or retaliatory prosecution. Also, the holding in Bush v. Gore does not apply in the criminal procedure context. Coleman v. Quarterman, 456 F.3d 537, 542 (5
Claim JJJ is denied.
In Claim KKK, Sonner claims that the death penalty is, per se, cruel and unusual punishment and therefore prohibited by the Eight Amendment. This claim is unsupportable under controlling Supreme Court precedent and must be denied. See Gregg v. Georgia, 428 U.S. 153, 187 (1976).
Claim KKK is denied.
For the reasons set forth above, Sonner is not entitled to habeas relief.
Because this is a final order adverse to the petitioner, 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 (9
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.
The COA standard is not high. Sonner must only "`sho[w] that reasonable jurists could debate'" the district court's resolution or that the issues are "`adequate to deserve encouragement to proceed further.'" Hayward v. Marshall, 603 F.3d 546, 553 (9
