ANDREW P. GORDON, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Richard Allen Walker, a Nevada prisoner. ECF No. 55.
With his petition, Walker is challenging a January 1995 judgment of conviction in the state district court for Clark County, Nevada, on charges of first degree murder with use of a deadly weapon and robbery with use of a deadly weapon. The Supreme Court of Nevada recounted the facts of Walker's case and the testimony presented at his trial as follows:
Walker v. State, 944 P.2d 762, 766-67 (Nev. 1997).
Prior to the beginning of Walker's trial, David Riker was convicted and sentenced to death for Marble's murder. The State sought the death penalty against Walker as well, alleging as aggravating circumstances that the murder was committed while Walker was engaged in a robbery or attempted robbery and that the murder was committed at random or without apparent motive.
The jury verdicts supporting Walker's convictions were returned on June 21, 1994. Before the penalty phase hearing, Walker filed a motion for new trial. After a penalty phase hearing in October 1994, the jury, having found no aggravating circumstance and found his lack of a significant criminal history as a mitigating circumstance, sentenced Walker to life without possibility of parole with respect to the first degree murder.
The judgment of conviction entered on January 10, 1995 sentenced Walker to two consecutive life sentences without possibility of parole for the first degree murder with use of a deadly weapon to be followed by two consecutive sentences of 15 years for the robbery with use of a deadly weapon. The trial court held hearings on Walker's motion for new trial in February 1995 and entered an order denying the motion in August 1995.
The Supreme Court of Nevada affirmed the judgment conviction in August 1997.
On September 10, 1999, Walker filed a petition for post-conviction relief in the state district court. That proceeding did not conclude in until June 2013, with the Supreme Court of Nevada affirming the lower court's denial of collateral relief.
In a September 29, 2014 order, this court dismissed Grounds N and O from the amended petition. Respondents then filed a motion to dismiss. On September 30, 2015, the court entered an order dismissing Ground D, G, Q(1), S, and A (to the extent it raised a stand-alone claim of actual innocence). That order also found Grounds B and J unexhausted. On December 28, 2015, Walker filed a notice of election to proceed on the exhausted claims but reserving the right to request a certificate of appealability regarding the exhaustion of Grounds B and J. This order addresses Walker's remaining claims on the merits.
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:
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 statecourt 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).
"[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 (9th Cir. 2004); see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).").
Because de novo review is more favorable to the petitioner, federal courts can deny writs of habeas corpus under § 2254 by engaging in de novo review rather than applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
In Ground A, Walker alleges that the State failed to produce sufficient evidence at his trial to convict him.
Walker, 944 P.2d at 767-68.
The test articulated by the Supreme Court of Nevada is the "rational factfinder" standard established by U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Thus, the state court applied the correct federal law standard to determine whether, as a matter of due process, sufficient evidence supported Walker's conviction. See Mikes v. Borg, 947 F.2d 353, 356 (9th Cir. 1991). And because this court must review the Supreme Court of Nevada's sufficiency of evidence determination under AEDPA, "there is a double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). That means that even if this court "think[s] the state court made a mistake," the petitioner is not entitled to habeas relief unless the state court's application of the Jackson standard was "`objectively unreasonable.'" Id.
Additional evidence beyond that cited by the Supreme Court of Nevada indicated that Walker participated in the murder. Blood found in the treads of Walker's shoes matched Marble's or Riker's blood type, but not his. ECF No. 28, p. 29-31.
This court also rejects Walker's argument that the guilt phase verdict must have been premised on a specific intent theory rather than a felony murder theory. The jury found Walker guilty of robbery in the guilt phase. Its rejection of the robbery aggravating circumstance did not, perforce, mean that it could not have relied upon felony murder as the basis for its first degree murder verdict. See McConnell v. State, 102 P.3d 606, 623 (Nev. 2004) (noting that the felony aggravator adds an element not required for felony murder — i.e., that the defendant killed or attempted to kill the victim or knew or had reason to know that life would be taken or lethal force used). And, as discussed below in relation to Ground K, the testimony of DeFalco, the casino security officer, strongly suggests that Walker was driving when Riker and Walker left the casino headed for California, shortly after the murder. This undermines Walker's claim that he was too intoxicated to participate in the murder.
In summary, this court concludes that the Supreme Court of Nevada's application of the Jackson standard was not objectively unreasonable, nor was its decision based on an unreasonable determination of the facts. Accordingly, this court defers to the state court decision.
Ground A is denied.
In Ground C, Walker alleges that the trial court violated his constitutional rights when it precluded him from introducing the testimony of a medical doctor regarding his blood alcohol level during the time of the Marble killing and robbery. On May 27, 1994, a week before the start of Walker's trial, Arthur B. Pitterman, M.D., interviewed Walker about his history of drug and alcohol use and his use on the day of the murder. ECF No. 51, p. 4-15. Based on that interview and on Walker's blood alcohol content (as measured at the hospital after his arrest), Dr. Pitterman provided a report to Walker's counsel in which he opined that Walker was "profoundly intoxicated or unconscious" at 11:30 p.m. on April 13, 1992 (i.e., at the approximate time of the murder). Id.
The State objected to allowing Dr. Pitterman to testify about the report, arguing that, unless Walker also testified, the State would have "no way of getting at or attacking the reliability of what the Defendant told . . . Dr. Pitterman." ECF No. 28, p. 66. The trial court granted the State's motion in limine based on a determination that Walker's statements to Dr. Pitterman were hearsay that did not fall within the medical diagnosis exception (Nev. Rev. Stat. § 51.115) because they were not made for the purposes of treatment. ECF No. 29, p. 24-25. The court also noted that the State had not been notified of the report until after the trial began and, as such, did not have an opportunity to rebut the evidence. Id., p. 26.
On direct appeal, the Supreme Court of Nevada rejected the claim contained in Ground C as follows:
Walker, 944 P.2d at 774.
Walker argues that Dr. Pitterman's proposed testimony was admissible as a general exception to the hearsay rule
The U.S. Supreme Court has recognized that the Constitution guarantees criminal defendants a "meaningful opportunity to present a complete defense," but that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Nevada v. Jackson, 569 U.S. 505, 509 (2013) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986) and Holmes v. South Carolina, 547 U.S. 319, 324 (2006)). Accordingly, "[o]nly rarely [has the Court] held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Id. (citing as examples Holmes, 547 U.S. at 331 (rule did not rationally serve any discernible purpose); Rock v. Arkansas, 483 U.S. 44, 61 (1987) (rule arbitrary); Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973) (State did not even attempt to explain the reason for its rule); Washington v. Texas, 388 U.S. 14, 22 (1967) (rule could not be rationally defended)). Evidentiary rules or decisions do not violate a defendant's constitutional rights unless they "infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." Holmes, 547 U.S. at 324 (alteration in original) (internal quotation marks and citation omitted).
The Court in Crane concluded that the exclusion of testimony about the circumstances of the defendant's confession violated the defendant's constitutional right to present a defense because it was "competent, reliable evidence" that was "central to the defendant's claim of innocence" and the State had failed to advance "any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence." Crane, 476 U.S. at 690-91. Likewise, the Court in Holmes invalidated an evidentiary rule that excluded defense evidence about a third party's alleged guilt where there was strong evidence of the defendant's guilt, even if the excluded evidence "would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues." Holmes, 547 U.S. at 329-31.
Here, the Supreme Court of Nevada reasonably concluded that Dr. Pitterman's proposed testimony did not fall within either the medical diagnosis exception or the general exception to the rule against hearsay. At most, Dr. Pitterman should have been permitted to testify as to his opinion based on the hospital's test results alone, i.e., without relying on what Walker had told him regarding his ingestion of alcohol and marijuana.
Thus, unlike in Crane and Holmes, the excluded evidence here was only marginally relevant and there was a rational justification for not allowing its presentation at trial. Accordingly, it cannot be said that the trial court's evidentiary ruling "infringed upon a weighty interest of the accused" or was "arbitrary" or disproportionate to the purpose it was designed to serve. This, in turn, means that Walker is not entitled to habeas relief because the Supreme Court of Nevada's decision affirming the trial court's ruling did not involve an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts.
Finally, even if the trial court's evidentiary ruling violated Walker's constitutional right to present a defense, such error is subject to harmless error analysis (Crane, 476 U.S. at 691), meaning that Walker would be entitled to habeas relief only if the error has a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Given the marginal probative value of his opinion, this court is not convinced the trial court's exclusion of Dr. Pitterman's testimony had such an impact in this case.
Ground C is denied.
In Ground E, Walker claims that his constitutional rights were violated when the trial court denied his motion to disqualify the judge presiding over his trial. Several weeks prior to trial, Walker filed a motion to disqualify Judge Guy due to his participation on the three-judge panel that had sentenced Riker to death, which had exposed him to evidence regarding Walker and his alleged participation in the Marble murder and the Blythe murder in California. ECF No. 66-9.
At the hearing on the motion, with a different judge presiding, Walker argued that Judge Guy was biased because the panel had already made determinations regarding issues related to his trial, such as finding that depravity and the robbery were aggravating factors. ECF No. 67-3. The judge hearing the motion denied the motion. Id.
Walker further alleges Judge Guy's bias was manifested in his rulings on the admissibility of documentary evidence regarding Riker and his exclusive participation in the Marble murder and robbery. On direct appeal, the Supreme Court of Nevada rejected the claim contained in Ground E as follows:
Walker, 944 P.2d at 769.
"[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Instead, a party seeking recusal on grounds of impartiality generally must point to some extrajudicial source for the bias. Id. at 551. The Ninth Circuit has held that bias does not necessarily arise from the fact that a trial judge has been exposed to evidence presented at a co-defendant's trial. See Paradis v. Arave, 20 F.3d 950, 958 (9th Cir. 1994) (finding no bias where the trial judge presided over the trial of defendant's confederate and sentenced the confederate to death before presiding over defendant's trial).
Walker contends the Supreme Court of Nevada's decision on this issue is not entitled to deference because it misses the point of the claim — that being, that Judge Guy based rulings in Walker's case on evidence adduced in the Riker proceeding that was inadmissible in the Walker proceeding. That evidence, according to Walker, consisted of statements Riker made to mental health professionals that Judge Guy relied upon to find aggravating circumstances in Riker's case. Walker does not, however, point to any Supreme Court precedent establishing that Judge Guy's rulings in this regard violated his constitutional rights. 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.'").
Regardless of whether the Supreme Court of Nevada failed to fully grasp the theory of his claim, Walker still needs to show that, due to information learned in the Riker proceeding, Judge Guy developed an opinion "that would display a deep-seated antagonism or make fair judgment impossible." Liteky, 510 U.S. at 555. He has not done so.
Ground E is denied.
In Ground F, Walker alleges that the trial court violated his constitutional rights when it precluded him from introducing evidence that would rebut the prosecution's theory of criminal liability — i.e., evidence that Riker killed his roommate, William Rutkowski, which Walker claims was relevant as to whether Riker had the ability to act alone in killing Marble. In support of his pre-trial motion asking the trial court to permit introduction of the evidence, Walker outlined alleged facts that, according to him, showed Rutkowski (who died from a gunshot to the head on December 10, 1990) did not commit suicide, as ruled, but instead, had been murdered by Riker. ECF No. 68-7. In denying the motion, the trial court noted that Riker had never been charged in relation to the incident, it was speculative as to whether Riker committed the shooting, and the event was too remote in time. ECF No. 69-12, p. 30. In addressing the issue on direct appeal, the Supreme Court of Nevada decided as follows:
Walker, 944 P.2d at 769-70.
As discussed above, in relation to Ground C, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense," but trial courts also have "broad latitude" to exclude evidence under a state's rules of evidence. Walker relies on the balancing test outlined in Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985) to argue that his constitutional rights were violated by the trial court's exclusion of evidence Riker killed Rutkowski. However, the Court in Jackson specifically rejected the notion that the Constitution "requires a case-by-case balancing of interests" before an evidentiary rule precluding the admission of extrinsic evidence to impeach a witness could be enforced. Jackson, 569 U.S. 505, 510-11; see also Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009) (clarifying that the Miller balancing test was not required under AEDPA because it was merely a creation of Ninth Circuit law, and was not established or compelled by controlling Supreme Court precedent).
Instead, evidentiary rules will not violate a defendant's constitutional rights unless they "infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." Holmes, 547 U.S. at 324 (alteration in original) (internal quotation marks omitted). In this context, a rule is "arbitrary" if it excludes important defense evidence but does not serve any legitimate interests. Id. at 325. Trial judges are permitted to exclude evidence where its probative value is outweighed by factors such as irrelevance, confusion of the issues, or the potential to mislead the jury. Id. at 326.
Here, proposed evidence suggesting Riker may have shot his roommate a year and half earlier had little probative value with respect to whether he alone committed the Marble killing. Admission of the evidence would have given rise to a trial within a trial on a collateral issue that was only marginally relevant to issues properly before the jury. It had the potential to confuse or mislead the jury. Accordingly, the trial court did not arbitrarily exclude the requested evidence, and Walker was not deprived of his opportunity to present a complete defense.
Ground F is denied.
In Ground H, Walker claims that his constitutional rights were violated because the trial court failed to remove four jurors whose views regarding the imposition of a sentence of life without the possibility of parole made them unqualified to serve as jurors. In support of the claim, Walker alleges that he unsuccessfully challenged prospective jurors numbered 154, 157, 162 and 164 for cause based on their voir dire responses indicating that they could not impose a punishment of life with the possibility of parole for first degree murder. He further notes that he used his first four peremptory challenge to each of these jurors and that he ultimately exercised all eight of his peremptory challenges. In addressing the issue on direct appeal, the Supreme Court of Nevada decided as follows:
Walker, 944 P.2d at 770-71.
The Supreme Court of Nevada correctly identified the standard in Witt as the proper federal law standard to use in assessing whether a prospective juror is to be excused based on his or her views on capital punishment. There is a significant question here, however, as to whether the Supreme Court of Nevada was reasonable in finding that views of the prospective jurors in question would not "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."
The U.S. Supreme Court has held that, while the Constitution guarantees a defendant the right to an impartial jury, the fact that a defendant is required to use a peremptory challenge to cure a trial court's error in denying a challenge for cause does not constitute a constitutional violation. The Court stated:
Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (citations omitted). The Court in Ross also rejected that petitioner's argument that he was deprived of his Fourteenth Amendment right to due process because the trial court's erroneous challenge-for-cause ruling deprived him of the full complement peremptory challenges allowed under state law. Id. at 89. "[B]ecause no member of the jury as finally composed was removable for cause, [the Court] found no violation of Ross's Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process." Rivera v. Illinois, 556 U.S. 148, 158, (2009) (citing Ross, 487 U.S. at 86-91); see also United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (holding that that "if the defendant elects to cure [trial court] error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any . . . constitutional right").
Here, no prospective juror Walker challenged for cause was seated on his jury. At trial, Walker complained that expending four peremptory challenges on prospective jurors 154, 157, 162, and 164 deprived him of peremptory challenges that he would have used on four seated jurors — i.e., 146, 174, 181, and 185. Walker did not, however, lodge a challenge for cause against any of those four seated jurors, nor did any of the four, based on this court's review of the voir dire, express any views that would impact the performance of his or her duties as a juror in accordance with the court's instructions and the juror's oath. ECF No. 13, p. 124-51; ECF No. 17, p. 150-74; ECF No. 18, p. 44-64; ECF No. 20, p. 15-37. Because he has not shown that a biased or unqualified juror served on his jury, Walker has not shown that his voir dire did not meet constitutional requirements. See Skilling v. United States, 561 U.S. 358, 395 n.31 (2010) (citing Martinez-Salazar, 528 U.S. at 307).
Relying on a footnote in Ross, Walker argues that he is entitled to relief because the trial judge deliberately misapplied the law in denying his challenges for cause. In the footnote, the Court clarified that Ross had made no claim that "the trial court repeatedly and deliberately misapplied the law in order to force petitioner to use his peremptory challenges to correct these errors." Ross, 487 U.S. at 91 n.5. Without providing further guidance, the Court in Martinez-Salazar and Rivera suggested that such conduct by a trial court could constitute a due process violation. Martinez-Salazar, 528 U.S. at 316; Rivera, 556 U.S. at 160. In any case, the record in this case demonstrates, at most, good-faith errors in denying Walker's challenges for cause. Thus, Walker's argument premised on the Ross footnote is unavailing.
Having concluded that no constitutional violation resulted from the trial court's denial of Walker's challenges for cause, Ground H is denied.
In Ground I, Walker alleges that his constitutional rights were violated by the State's use of peremptory challenges to strike prospective jurors on gender grounds. Walker points to the fact that the State used five of its eight challenges to remove a woman from the venire. In relation to this claim, he notes that at the time of the trial he had very long hair and a beard and that almost all prospective jurors (25 of 28) were asked on voir dire whether those features impacted their thinking about the case. In addressing the issue on direct appeal, the Supreme Court of Nevada decided as follows:
Walker, 944 P.2d at 771-72.
The Supreme Court of Nevada correctly identified Batson as the federal law test to determine whether the State used its peremptory challenges to engage in purposeful discrimination, in violation of the Equal Protection Clause. See Rice v. Collins, 546 U.S. 333, 338 (2006). The court was also correct in recognizing that the Supreme Court of the United States had, prior to Walker's trial, extended Batson to peremptory challenges based on gender. See J.E.B., 511 U.S. at 130-31.
Based on its review of the record, this court concludes that the Supreme Court of Nevada's application of J.E.B./Batson was not objectively unreasonable and that its decision was not based on an unreasonable determination of the facts. The State used its first two peremptory challenges to remove men. ECF No. 16, pp. 87, 123. When the State used its third challenge to remove a woman (Guinn), the defense objected on gender grounds, noting that Guinn had said she thought Walker was "nicely coiffured." ECF No. 17, p. 40-41. While it found no prima facie showing of intentional discrimination, the trial court permitted the prosecutor to make a record. Id. Among other things, the prosecutor noted that Guinn had mentioned her poor memory multiple times, which caused him concern given the number of witnesses that could be called at trial. Id., p. 42. The prosecutor also questioned her ability "to follow through" based on the fact that she had quit her job as a 911 operator after being employed "for about a month or two."
When the State used its fourth challenge to remove an African-American woman (Cason), the defense objected on racial, not gender, grounds. Id., p. 103-104. Once again the trial court found no evidence of intentional discrimination, but nonetheless allowed the prosecutor to make a record. Id. The prosecutor noted that Cason had worked for 23 years as a counselor in the Department of Corrections, "was licensed in Human Services," and admitted to being a "bleeding heart." He further explained that she had "refused to acknowledge" the felony murder rule as a theory of criminal liability and that she indicated that she believes in psychology and "works with it on a regular basis," which made him think she might give such evidence more weight than it deserves. Id., p. 105-06.
When the State finished making a record with respect to Cason, the trial court admonished counsel at length for objecting to peremptory challenges in the absence of "a pattern of rejection" on the basis of "race, color, or creed or sex." Id., p. 106-08. Walker claims the trial court's admonishment "preclude[d] [the] defense from making or even announcing any subsequent gender-based challenges." ECF No. 109, p. 34. This court is not convinced the trial court's comments had that effect. For one, Walker subsequently objected on gender grounds when the State used its fifth peremptory challenge to remove a woman (Laws). ECF No. 18, p. 10-11. And, as discussed below, the defense's failure to object to the State's other two peremptory challenges against women was almost certainly due to obvious gender-neutral reasons supporting those challenges, not the trial court's supposed proscription against further objections.
In making an objection to the removal of Laws, the defense noted only that "[t]hree out of their five peremptories have been to women." Id. Finding no discriminatory intent, the trial court overruled the objection and called in the next prospective juror. Id. The State did not attempt to make a record of its reasons for challenging Laws. Id.
The defense did not object when the State used its sixth peremptory challenge to remove a woman (Komorny) or when it used its eighth and final challenge to remove another woman (Kraft). ECF No. 18, p. 75-76; ECF No. 20, p. 162. Throughout the first part of her voir dire, Komorny expressed discomfort with "being able to deal with the fate of another human being." ECF No. 18, p. 14-23. The prosecutor interrupted her voir dire and, in a bench conference, notified the trial court and opposing counsel of the State's intent to challenge her. Id., pp. 23-24. As a result, the defense agreed to cut short its questioning of her. Id.
As for Kraft, the record shows she was very nervous throughout her voir dire, especially when questioned by the prosecutor, and that she repeatedly equivocated about of her ability to serve on a jury or decide upon a sentence. ECF No. 20, p. 48-61. Her work history included being a teacher's aide in a work program for juvenile offenders and when asked whether she could conceive of a set of facts that would permit her to vote for the death penalty, she responded, "it would have to be pretty bizarre." Id. The State's decision to remove Kraft was obvious enough for the trial court to correctly predict it before the prosecutor disclosed it. Id., p. 61-62.
Based on the foregoing, this court concludes that the trial court's failure to find a prima facie showing of discrimination with respect to the prosecution's exclusion of prospective juror Laws is the only occurrence that comes remotely close to constituting Batson error. To establish a prima facie case, the defendant must show that "the facts and circumstances of the case `raise an inference' that the prosecution has excluded venire members from the petit jury on account of their [gender]." McClain v. Prunty, 217 F.3d 1209, 1219-20 (9th Cir. 2000) (quoting Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000) (internal citations omitted)). The burden has been described as "minimal." Johnson v. Finn, 665 F.3d 1063, 1071 (9th Cir. 2011). However, this court must defer to a state court's finding that a prima facie showing has or has not been made. Tolbert v. Page, 182 F.3d 677, 680, 683-684 (9th Cir.1999) (en banc).
Here, six women, including Laws, were seated in the jury box when the State used its first two peremptory challenges to remove men. ECF No. 15, p. 124-25. The State's prior challenges had been evenly split between men and women when it excused Laws. Two of the other four women sitting in the jury box when Laws was removed had been more complimentary than Laws in responding to questions about Walker's appearance.
Finding no Batson error, this court shall deny Ground I.
In Ground K, Walker contends that his conviction and death sentence are in violation of his constitutional rights due to various jury instructions.
In conducting habeas review of the trial court's jury instructions, this court is not permitted to "reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 68 (1991). In order to successfully challenge a jury instruction on habeas, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). The petitioner must prove that "`the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. at 72 (quoting Naughten, 414 U.S. at 147). The instruction must be viewed in the context of the entire trial and the jury instructions taken as a whole. See id. The relevant inquiry is "`whether there is a reasonable likelihood that the jury has applied the challenged instruction'" in an unconstitutional manner. Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
Walker argues that the "mere presence" instruction used at his trial improperly instructed on the elements of aiding and abetting, relieved the State of its burden of proof of the elements, and allowed the jury to convict him without finding all the facts necessary for the charge.
At trial, Walker proposed the following instruction:
ECF No. 51, p. 64.
Instead, the trial court issued the following instruction:
ECF No. 30, p. 14.
On direct appeal, the Supreme Court of Nevada rejected Walker's argument that the trial court's mere presence instruction was inadequate:
Walker, 944 P.2d at 772-73 (footnote omitted).
Citing Brooks v. State, 747 P.2d 893, 894 (Nev. 1987), Walker contends the trial court failed to inform the jury that, to find him guilty under an aiding and abetting theory, it must find that he was a participant in the crime, not merely a knowing spectator. ECF No. 55, p. 133-34. This court does not agree and concludes the trial court's instruction in this case complied with Brooks.
In Brooks, part of the reason the Supreme Court of Nevada reversed the defendant's conviction is that the trial court determined that the aiding and abetting instruction "sufficiently covered the mere presence theory" and, thus, did not give any mere presence instruction at all. Brooks, 747 P.2d at 614. Here, the trial court issued a mere presence instruction. In addition, there is not a significant difference in meaning between that instruction and the mere presence instruction approved by the court in Brooks.
Walker argues that the trial court's instruction on the unanimity requirement relieved the State of its burden of proof of the elements and allowed the jury to convict him without finding all the facts necessary support the charge. The instruction issued by the trial court stated:
ECF No. 30, p. 21.
On direct appeal, the Supreme Court of Nevada rejected Walker's argument that the instruction violated his constitutional rights:
Walker, 944 P.2d at 773.
Walker argues that Schad is not controlling because its "holding was limited to the question of whether felony murder may ever be treated as the equivalent of murder by deliberation." ECF No. 55, p. 144. According to Walker, Schad's analysis "clearly does not apply to the mental state of a person who may be convicted of first degree murder based upon and aider/abettor theory of criminal liability." Id., p. 145. Walker cites to United States v. Echeverry, 719 F.2d 974 (9th Cir. 1983), as a case that supports granting him habeas relief. In Echeverry, the court held that the trial court must augment the general unanimity instruction "[w]hen it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts." Echeverry, 719 F.2d at 975.
Echeverry, however, presented a unique set of circumstances absent here. In a later case, the Ninth Circuit explained the need for the special unanimity instruction in Echeverry as follows:
United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999).
The court in Kim rejected petitioner's argument that his conviction for aiding and abetting the possession of stolen goods must be set aside due to the trial court's failure to issue a special unanimity instruction. Id. at 1082-83. In so holding, the court noted that, unlike Echeverry, Kim was charged with "only a single crime, based upon a single set of facts" and that "[u]nder Schad, . . . it was not necessary for the jurors . . . to unanimously agree on a specific classification of Kim's conduct. Nor was it necessary for them to specify which conduct led them to conclude that Kim was an accessory." Id. at 1083. Likewise, the charges in Walker's case arose from a single event or set of facts and Schad allowed jurors to arrive at its guilty verdict based on alternative theories of criminal liability.
In summary, Walker does not identify any U.S. Supreme Court precedent contravened by the Supreme Court of Nevada's rejection of Walker's unanimity instruction challenge. Moreover, the state court's decision was based on reasonable interpretation of Schad. Thus, the trial court's unanimity instruction does not provide a ground for habeas relief.
Walker argues that the trial court's instruction on flight was self-contradictory and created a mandatory presumption that proof of flight equates to guilt. He also argues that the facts of the case did not warrant issuance of the instruction because he was not in control of the vehicle that the State claimed was fleeing and, because he had passed out, he did not have any knowledge of the alleged flight.
This is the instruction at issue:
ECF No. 30, p. 30.
On direct appeal, the Supreme Court of Nevada rejected Walker's argument that the instruction violated his constitutional rights:
Walker, 944 P.2d at 773 (footnote omitted).
The Supreme Court of Nevada's rejection of Walker's flight instruction claim was not contrary to, nor did it involve an unreasonable application of, clearly established Supreme Court precedent. 28 USC § 2254(d). Nor did it involve an unreasonable determination of the facts. Id. Evidence presented at Walker's trial warranted giving the flight instruction. See Hutchins v. State, 867 P.2d 1136, 1143 (Nev. 1994) (holding that It is proper to instruct on flight where it is reasonable to infer flight from the evidence presented). Within a couple of hours of the murder, Riker and Walker had traveled from Las Vegas to a casino on the Nevada-California border in the TSC van. Based on the testimony of DeFalco (the security officer at the casino), Walker was not passed out or otherwise an unwitting passenger. DeFalco testified that he saw a clean-shaven man with shoulder length blondish-brown hair get into the passenger side the van, then saw the van leave the parking lot at a high rate of speed and head towards California. ECF No. 24, pp. 43-46, 53, 55. DeFalco's description of the passenger fit Riker, not Walker (who had long black hair and a beard at time), which would mean that Walker must have been driving. Riker and Walker then traveled over a hundred miles before crashing the van in Barstow, California while being chased by police. It was reasonable to infer flight from this evidence. Cf. Hutchins, 867 P.2d at 1142-43 (describing facts that justified giving the flight instruction).
In addition, the instruction did not give rise to a mandatory presumption. Instead, the instruction plainly informed the jury that flight alone did not equate to guilt, but that the jury could nonetheless consider it as circumstantial evidence weighing in favor of a finding of guilt.
Walker cannot show that the flight instruction by itself "so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. at 72 (quoting Naughten, 414 U.S. at 147); see also County Court of Ulster County v. Allen, 442 U.S. 140, 165 (1979) (holding permissive presumption constitutional where there was a "`rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is `more likely than not to flow from' the former").
Even if the trial court's instruction on flight amounted to constitutional error, it cannot be said that the error had a substantial or injurious effect on the jury's verdict. See Calderon v. Coleman, 525 U.S. 141, 146-47 (1998). The instruction specifically cautioned the jury not to infer Walker's guilt from flight alone. The jury necessarily had to rely on other evidence against Walker in order to find him guilty. Indeed, the evidence presented against Walker, as discussed above, was substantial. In light of all of that evidence, it simply cannot be said that he was prejudiced by the flight instruction. See id.
Walker is not entitled to federal habeas relief based on the flight instruction.
Walker argues that language used in the trial court's reasonable doubt instruction suggested a higher degree of doubt than what is necessary under the reasonable doubt standard established by the U.S. Supreme Court. He also claims that the instruction lowered the State's burden of proof in violation of the Due Process Clause.
The reasonable doubt instruction at Walker's trial read as follows:
ECF No. 30, p. 33.
On direct appeal, the Supreme Court of Nevada rejected Walker's argument that the instruction violated his constitutional rights:
Walker, 944 P.2d at 773-74.
The constitutionality of the reasonable doubt jury instruction depends on "`whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet' the requirements of due process." Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir. 1998) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)). The jury instruction on reasonable doubt used at Walker's trial was the same instruction challenged in Ramirez, which the court of appeals criticized but nonetheless upheld as constitutional. Ramirez, 136 F.3d at 1214-15; see, also, Nevius v. McDaniel, 218 F.3d 940, 944-45 (9th Cir. 2000). As such, the law of this circuit forecloses habeas relief based on this jury instruction.
Ground K is denied.
Walker argues that he was denied his constitutional rights because the State made numerous improper remarks in the presence of the jury that constituted prejudicial prosecutorial misconduct. In support of the claim, he cites to comments the prosecutor made during opening argument, throughout the presentation of evidence in the guilt phase of the trial, during the guilt phase closing argument, and during closing argument in the penalty phase.
On direct appeal, the Supreme Court of Nevada rejected Walker's argument that the prosecutorial misconduct violated his constitutional rights:
Walker, 944 P.2d at 774.
Federal habeas corpus review of prosecutorial misconduct claims is limited to the narrow issue of whether the alleged misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The "standard allows a federal court to grant relief on habeas review when the state court trial was fundamentally unfair but avoids interfering in state-court proceedings when errors fall short of constitutional magnitude." Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000). "To constitute a due process violation, the prosecutorial misconduct must be `of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987). "[P]rosecutorial misconduct[ ] warrant[s] relief only if [it] `had substantial and injurious effect or influence in determining the jury's verdict.'" Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (quoting Brecht, 507 U.S. at 637-38).
These are the comments made during opening statements that Walker cites as prosecutorial misconduct:
ECF No. 21, p. 109.
Id., p. 110.
Id., p. 114.
Id., p. 123-24.
Walker cites to the following as examples of improper conduct during the presentation of evidence in the guilt phase:
ECF No. 22, p. 32.
Id., p. 33-34.
ECF No. 25, p. 54.
Id., pp. 67-69.
ECF No. 27, p.175-76.
Id., p. 225-26.
Walker cites to the following as examples of improper vouching and/or improper reference to factual matters outside the record during the presentation of evidence in the guilt phase:
ECF No. 22, p. 64.
ECF No. 24, p. 18.
Id., p. 77.
ECF No. 27, p. 220.
Id., p. 226-27.
With regard to closing arguments in the guilt phase, Walker claims the prosecution improperly vouched for a State witness by stating:
ECF No. 29, p. 152.
Walker also cites to the prosecutor's interruption of defense counsel's closing argument:
Id., p. 180.
Then, in the State's rebuttal closing argument in the guilt phase, the prosecutor made an objectionable comment:
Id., p. 199.
Turning the penalty phase, Walker claims the following comments improperly denigrated the defense's mitigation case:
ECF No. 32, p. 91-92.
Id., p. 92.
Id., p. 93.
Id., p. 94.
Id., p. 95-96.
Walker claims the following comments improperly asked the jury to identify with the victim:
Id., p. 92.
Id., p. 95.
Walker claims the prosecutor misstated the law by arguing that "this is a killing of passion" (id., p. 89) and impermissibly commented on Walker's election to exercise his constitutional right to a trial:
Id., pp. 96.
Finally, Walker claims the prosecutor committed misconduct by comparing him to notorious criminals:
Id., p. 94-95.
Having considered the foregoing statements, individually and cumulatively, this court concludes that, to the extent they may have been improper, any error was harmless. With respect to the comments in the State's opening statement in the guilt phase, none was particularly egregious. Moreover, the trial court sustained the defense's objection to each one and instructed the jury that statements, arguments, and opinions of counsel are not evidence. ECF No. 30, p. 36 see Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (whether a curative jury instruction was given is a factor to be considered in assessing prejudice arising from prosecutorial misconduct); Richardson v. Marsh, 481 U.S. 200, 211 (2000) (jurors are presumed to follow the court's instructions).
Likewise, none of the prosecutor's comments during the presentation of guilt phase evidence was unduly prejudicial. While Walker cites to several instances of alleged misconduct, those instances were spread out over eight days of testimony. See United States v. Young, 470 U.S. 1, 11 (1985) ("[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial."). In addition, the jury was instructed that it must "not speculate to be true any insinuations suggested by a question asked a witness." ECF No. 30, p. 36. As for the alleged vouching, it was not flagrant enough to cause the jury to convict on the basis of evidence not presented or induce the jury to adopt the government's judgment rather than its own. See Young, 470 U.S. at 18.
Finally, this court is also unimpressed with the alleged seriousness of comments made during closing arguments in the guilt phase and the penalty phase. See Ceja v. Stewart, 97 F.3d 1246, 1253-54 (9th Cir. 1996) ("Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." (citation omitted)); United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991) ("It is a common practice for one side to challenge the other to explain to the jury uncomfortable facts and inferences."). Moreover, the jury was instructed, once again, in the penalty phase that statements, arguments, and opinions of counsel are not evidence. ECF No. 17-24, p. 17.
The Supreme Court of Nevada's ruling on this claim was not contrary to, or an unreasonable application of Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The court will deny Walker habeas corpus relief with respect to Ground L.
In Ground M, Walker claims that his constitutional rights were violated because the trial court prevented him from presenting mitigating evidence in the penalty phase of his trial. According to Walker, a proposed order authorizing travel and lodging funds for several mitigations witnesses was initially submitted to the trial court on October 4, 1994, six days before the beginning of the penalty phase of his trial. He further alleges that the proposed order was initially rejected and not signed until October 7, 1994, which prevented three of his intended witnesses—Elizabeth Walker (Walker's ex-wife and mother of his two children), Ollie Joshua Walker (Walker's younger brother), and Robbie Wangaline (Walker's close, life-long friend)— from attending the trial. Walker claims that these witnesses would have provided valuable testimony regarding his "good character and good things he has done." ECF No. 109, p. 43.
On direct appeal, the Supreme Court of Nevada rejected Walker's claim that the trial court's delay in approving the funds violated his constitutional rights:
Walker, 944 P.2d at 774.
"[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 v. North Carolina, 428 U.S. 280, 304 (1976)). Accordingly, the Supreme Court has routinely held that a defendant facing a capital sentence must have the opportunity to present, and have the jury consider, all relevant evidence in mitigation. See id. at 604-05; see, also, Skipper v. South Carolina, 476 U.S. 1, 8 (1986); Eddings v. Oklahoma, 455 U.S. 104, 116 (1982); Blystone v. Pennsylvania, 494 U.S. 299, 304 (1990).
Cases of this ilk, however, generally address evidentiary rulings or the application of state law that implicates the presentation or consideration of mitigating factors or evidence. Here, Walker merely claims that the trial court's delay in granting funding approval made it logistically impossible for certain witnesses to appear at his penalty hearing. And, the Supreme Court of Nevada determined that any impediment to Walker's to ability to present the witnesses was due to his own delay in requesting funds. This court is unable to discern, nor does Walker explain, how the Supreme Court of Nevada's holding contravenes U.S. Supreme Court precedent or is based upon an unreasonable determination of the facts. Consequently, this court defers to the Supreme Court of Nevada's rejection of Ground M.
In Ground P, Walker alleges that his trial counsel committed various errors or omissions that deprived him of effective assistance of counsel, in violation of his constitutional rights. Each of the alleged deficiencies was presented to the Supreme Court of Nevada in Walker's state post-conviction proceeding. ECF No. 80-7, p. 43-73. The Supreme Court of Nevada correctly identified the test announced in Strickland v. Washington, 466 U.S. 668 (1984), as the applicable federal law standard, and determined that Walker was not entitled to relief. ECF No. 81-3, p. 2-13. See Williams v. Taylor, 529 U.S. at 391 ("It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'").
In Strickland, the Supreme Court propounded a two-prong test for analyzing 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.
According to Walker, effective counsel would have retained the following experts and/or pursued the following areas of investigation.
Walker alleges that an expert on knives or knife wounds could have demonstrated that Marble's knife wounds were inflicted by a right-handed person, which would have been exculpatory because Walker is left-handed and Riker is right-handed. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 4.
Walker has not substantiated his allegation that an expert would have been able to provide exculpatory evidence regarding Marble's knife wounds. He claims that "Dr. Joaquim Almeria" reviewed crime and autopsy photographs and determined that "Marble's stab wounds were inflicted by a right-handed person." ECF No. 55, p. 199-200. Almeria testified at Walker's California trial about the tenets of martial arts. ECF No. 42, p. 85-156. However, the California trial court expressed incredulity regarding Almeria's medical credentials and prohibited him from testifying about stab wounds or making any reference to his claimed medical expertise.
In the absence of any credible evidence that an expert on knives or knife wounds would have been helpful to his defense, Walker has not shown the counsel's failure to retain such an expert constituted ineffective assistance of counsel.
Walker alleges that counsel's failure to consult a martial arts expert impacted counsel's advice to Walker that he not testify at trial, which he claims was based on counsel's fear that jurors would not look favorably upon his martial arts background. Walker claims that a martial arts expert's testimony could have been used to overcome jurors' misconceptions. In particular, Walker claims an expert would have been able to testify that Walker's martial arts training was designed to incapacitate aggressors with the least possible injury and that it did not involve the use of knives. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 4.
In support of this claim, Walker points to the testimony of Almeria in the California trial, where Walker testified in his own defense and was acquitted on the murder charge. That trial, however, occurred eleven years after Walker's Nevada trial and involved significantly different circumstances. See Riker v. Benedetti, 2011 WL 978260, at *7 (C.D. Cal. Feb. 2, 2011). Moreover, there is no evidence in the record, other than Walker's bald allegation, that his martial arts background influenced counsel in advising him not to testify.
The Supreme Court of Nevada's application of the Strickland standard to this IAC claim was not objectively unreasonable, nor was its decision based on an unreasonable determination of the facts. Accordingly, this court defers to the state court decision.
Walker alleges that the head injury he suffered in the car crash prior to his arrest "should have given trial counsel incentive to examine [his] mental health." He claims that inquiry into his mental health would have provided evidence of his substance abuse disorder which would have been exculpatory if presented at trial.
The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 4-5.
The Supreme Court of Nevada's decision did not squarely address the main thrust of Walker's claim. Even so, the claim is wholly without merit.
Here again, Walker points to testimony presented at his California trial — i.e., the testimony of Dr. Mace Beckson, a psychiatrist. Evidence at the California trial established that Walker, who had been drinking, knocked the victim unconscious when the victim "made a racial slur about Japanese women." Riker v. Benedetti, 2011 WL 978260, at *7. Walker's mother is Japanese. Id. Dr. Beckson "opined that Walker's behavior in knocking [the victim] unconscious was consistent with his being influenced by deep-seated feelings of anger toward his mother and father over their divorce and the disinhibiting effects of intoxication." Id. Dr. Beckson testified to a direct causal link between the victim's racial comment and Walker's conduct. ECF No. 44, p. 161-64.
There is no evidence that similar testimony would have been available or helpful in Walker's Nevada case. Thus, Walker cannot satisfy either prong of the Strickland test with respect to this claim.
Walker alleges that effective counsel would have presented testimony about the prevalence of the type of tennis shoe that could have left the shoeprint impressions left at the murder scene. He notes that the defense investigator had contacted an expert who would have presented evidence that "at least 500,000 pairs of that particular shoe had been manufactured and distributed throughout the country," but such evidence was not presented to the jury. ECF No. 55, p. 204. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 5-6.
As noted above in footnote 15, defense counsel decided to not present a defense at the close of the State's case-in-chief in order to prevent the State from calling a potentially harmful witness on rebuttal. The record indicates that, but for that decision, the defense was prepared to present expert shoe testimony. ECF No. 72-21, p. 6-7. Thus, the Supreme Court of Nevada made a reasonable factual determination that defense counsel made a tactical decision to not present a defense, including shoe evidence. See Wood v. Allen, 558 U.S. 290, 303 (2010). And Walker has not shown that defense counsel's decision to not present its shoe expert was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.
Walker claims that effective counsel would have retained a fingerprint expert to scrutinize the fingerprint evidence presented by the State's expert. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 6.
Walker presented no evidence to the state court and has proffered no evidence in this proceeding that undermines the finding or testimony of the State's fingerprint evidence. Thus, he has failed to demonstrate how counsel's alleged omission entitles him to relief under Strickland. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (noting that speculation that an expert would have testified on the defendant's behalf is not enough to establish prejudice under Strickland).
Walker claims counsel was ineffective by failing to retain Dr. Pitterman in a timely manner. According to Walker, counsel's late disclosure of the defense's intention to call Dr. Pitterman as a witness resulted in the exclusion of his testimony. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 6-7.
In granting the State's motion to exclude Dr. Pitterman's testimony, the trial court stated: "Dr. Pitterman will not be able to testify nor will the State be able to get it in, unless the Defendant testifies." ECF No. 29, p. 24. This undermines Walker's claim that the evidence was excluded due to counsel's delay. It also appears, however, as if the trial court was concerned about unfairness to the State resulting from the late disclosure. Id., p. 26.
In any case, there is little question that the information Walker provided to Dr. Pitterman, for the purposes his report, was excludable hearsay.
Walker alleges that counsel was ineffective for not investigating the possibility that evidence in his case was contaminated. He bases this claim on the fact that the head of the Metro crime lab had been placed on administrative leave in June of 1993 "due to allegations that she knew that a hair sample in the Cravens case had been contaminated with the victim's blood prior to sending it to an outside lab for analysis." ECF No. 55, p. 206-07. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 7.
The only nexus Walker attempts to establish between his case and the Cravens case is that his defense investigator worked on both cases. In the absence of any significant connection between the two cases, this claim is wholly without merit.
Walker alleges that his counsel was ineffective in their handling of Jody Diaz, a witness who, along with Dr. Pitterman, the defense intended to call to establish that Walker was profoundly intoxicated or unconscious at the time of the murder. According to Walker, the circumstances underlying this claim are as follows. Diaz was working as clerk in a liquor store that Walker visited in the afternoon on the day of the murder. According to an affidavit he executed in September 1994, the defense's investigator, Jim Thomas, obtained the following information from Diaz over the course of three separate interviews:
ECF No. 30, p. 159-60.
When contacted by Thomas close to the end of the State's presentation of its case, Diaz told Thomas that she had sold Walker a pint of Everclear, not a fifth, and that she had been contacted by the prosecutor a couple days earlier. She further informed Thomas that she had told the prosecutor that after selling Walker the Everclear she saw Walker again at about 10:30 pm walking along Las Vegas Boulevard (i.e., near the time and location of the murder) with another man and that Walker appeared completely sober.
Walker claims that effective counsel would have tape-recorded the interviews with Diaz and would have been aware of what her testimony would be well in advance of trial. He also claims that effective counsel would have requested a continuance in order to re-interview Diaz, would have called Diaz to testify, and, if necessary, would have impeached any unfavorable testimony with testimony from Thomas.
The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 7-8.
Walker's allegations that counsel "panicked" and "did nothing" when they learned of Diaz's interview with the prosecutor are not supported by the record. Instead, it appears from the record that counsel did, in fact, re-interview Diaz after the revelation, "where she again informed us regarding this second sighting." ECF No. 72-21, p. 6. After discussing the matter for "several hours," counsel decided to abandon their defense case rather than risk having Diaz testify on cross-examination or rebuttal "that she saw [Walker] at 10:30 at night on his way to the scene — towards the street where the murder occurred and he was sober, based on her information." Id., p. 6-7. So, after determining that "[they] didn't have anything to impeach Ms. Diaz's second story in any way," defense counsel rested at the conclusion of the State's case-in-chief. Id.
This court is unable to conclude that this was anything but a reasonable strategic or tactical decision under the circumstances. It is hard to imagine a scenario in which the jury would have given credence to testimony from Diaz that was favorable to Walker, while discounting testimony from her that was inculpatory. And, from the defense's perspective, the potential damage her testimony might cause significantly outweighed the potential benefit.
Indeed, it is not clear that Diaz would have been able to provide effective evidence for the defense even if she did not testify about seeing Walker a second time on the night of the murder. According to a July 9, 1992 memorandum Thomas sent to defense counsel, Diaz told Thomas at their first meeting that she did not remember what Walker had purchased. ECF No. 30, p. 70-71. At a hearing on Walker's motion for new trial, Thomas testified that Diaz later remembered it was Everclear, but did not tell him it was a fifth, not a pint, until August 16, 1993, sixteen months after the night in question. ECF No. 73-2, p. 13-16. Moreover, the mere fact that she sold Walker a bottle of Everclear, regardless of size, does not equate to Walker being "profoundly intoxicated" at the time of the murder.
In summary, the Supreme Court of Nevada's conclusion as to a lack of prejudice was a reasonable one. That is, Walker has not demonstrated a reasonable probability that the outcome of his trial would have been different if counsel conducted a more rigorous investigation of Diaz.
Walker faults counsel for not interviewing a single police officer, any of the witnesses who testified against him, the occupants of the apartment complex and surrounding neighborhood where Marble's body was found, staff of the Las Vegas hotel where Walker stayed, or a percipient witness to an incident at the Primadonna Hotel. He also complains that counsel did not obtain copies of the hotel's phone records, perform any public records searches of the witnesses, or examine any of the physical evidence presented at trial.
The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 8.
In the absence of any showing whatsoever that any of these additional steps would have benefitted his defense, Walker is not entitled to relief on this ground.
Walker alleges that the defense investigator was subject to a conflict of interest because the private investigation firm he worked for also employed the lead detective in the State's case against Walker, who had retired from the police force in July 1992. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 3 n.1.
Here again, Walker fails to show how the Supreme Court of Nevada's decision constituted an unreasonable application of federal law or was based on an unreasonable determination of the facts.
Walker alleges that he was deprived of effective assistance of counsel by virtue of counsel's failure to interview Walker's friends and family members, who would have been able to testify in the guilt phase about his reputation for truthfulness and non-violence. Walker claims that such evidence "would have been important to Mr. Walker's defense at the guilt phase" and would have made counsel recognize that "it was in Mr. Walker's best interests for him to testify." ECF No. 55, p. 210. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 8-9.
Once again, Walker relies upon evidence presented at his California trial several years later, which included "the testimony of several character witnesses who testified that he was not violent or aggressive and described his background in martial arts." Riker v. Benedetti, 2011 WL 978260, at *7. In that case, however, Walker was able to present exculpatory evidence from several other sources and, with his own testimony, provided a plausible account of how the crime occurred. Id. Given the different circumstances present in this case, this court is not persuaded that character evidence from friends and family members would have been helpful to Walker's defense. In addition, the record indicates that defense counsel was prepared to present testimony from friends and family until it learned about the information Jody Diaz had related to the prosecution. ECF No. 72-21, p. 6-7.
Walker has not demonstrated that counsel was ineffective by failing to interview Walker's friends and family in preparation for a guilt phase defense.
Walker claims that counsel was ineffective by not objecting to erroneous and abstract instructions regarding aiding and abetting. According to Walker, the instructions at issue allowed the jury to convict Walker without finding all the requisite elements. In particular, Walker claims that the instructions allowed the jury to rely on an aiding and abetting theory without finding that Walker intended for Riker to kill Marble.
The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 9.
As discussed above in relation to Ground K, Walker proposed a more detailed aiding and abetting instruction that was rejected by the trial court. ECF No. 51, p. 64. In addition, the trial court instructed the jury "the evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping commit the crime." ECF No. 30, p. 14. In fact, the State expressed opposition to that language, but defense counsel successfully argued that it should be included in the instruction. ECF No. 29, p. 108-11. And because the jury found Walker guilty of robbery, its first degree murder verdict may have been based on the felony murder rule.
Under these circumstances, this court is unable to conclude the Supreme Court of Nevada's decision was erroneous, much less unreasonable.
Walker claims that effective counsel would have objected because the complaint filed in his case specified that he aided and abetted in Marble's murder by "physically participating in the restraint and/or force employed at the time of the killing," but the jury was never instructed that it had to find that Walker engaged in such conduct in order to find him guilty under an aiding and abetting theory. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 9-10.
In addition to "physically participating in the restraint and/or force employed at the time of the killing," the complaint also listed "counseling, encouraging and planning the offense." ECF No. 9, p. 10. Where the complaint alleges the crime was committed by one or more specified means, an accused must be prepared to defend against all means alleged, regardless of whether they are pleaded in the disjunctive or the conjunctive. State v. Kirkpatrick, 584 P.2d 670, 671-72 (Nev. 1978).
Moreover, Nevada law allows the State to amend an indictment or information any time before the verdict "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Nev. Rev. Stat. § 173.095(1). Thus, any objection from defense counsel would have most likely resulted, at most, in an amended charging document and would not have changed the outcome of Walker's trial. This claim is without merit.
Walker alleges that counsel was ineffective in not taking additional steps to limit the adverse impact of evidence that Walker and Riker had stolen the NOAA van and its contents in Blythe, California. Over defense counsel's objections, the trial court allowed the State to introduce evidence of the Blythe theft, but prohibited evidence of the related murder. ECF No. 21, p. 96-99. During the trial, defense counsel moved for mistrial, claiming that, even though the defense had stipulated that the van and its contents had been stolen, the State had presented extensive evidence about the theft, thereby implicating Walker in the Blythe robbery and murder. ECF No. 22, p. 122-24. The jury was given an instruction at the end of the guilt phase that conformed with Nev. Rev. Stat. § 48.045(2).
According to Walker, effective counsel would have required the State "to articulate precisely the evidential hypothesis underlying the introduction of the other crime evidence and would have objected to the overly broad jury instruction." ECF No. 55, p. 220. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 10.
At Walker's trial, the State made clear that the reason for presenting the Blythe theft evidence was to explain how the stolen property ended up at the murder scene and with the defendants when they were arrested. ECF No. 22, p. 124. As noted by the Supreme Court of Nevada in deciding Walker's direct appeal, Nev. Rev. Stat. § 48.035(3) permits the introduction of evidence of another act or crime that "is so closely related to an act in controversy or crime charged that an ordinary witness cannot describe the act in controversy or crime charged without referring to the other act or crime." Walker, 944 P.2d at 772. In addition, the record demonstrates that the trial court properly balanced the prejudicial effect of the Blythe theft with its probative value.
Counsel did not perform below an objective standard of reasonableness with respect to the Blythe theft evidence. In addition, Walker has not demonstrated that additional argument from counsel would have precluded the introduction of the evidence or that counsel erred by not objecting to the court's jury instructions.
Walker claims that counsel was ineffective for failing to object to or make a record of several instances of the prosecutor making disparaging remarks directed at defense counsel — citing as examples the prosecutor telling defense counsel to "fuck off" and the prosecutor accusing defense counsel of "stealing" from a witness and being "vindictive." The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 10-11.
With respect to the profane remark, there is no convincing evidence the jury heard it, assuming it was made, and no evidence at all that it would have adversely impacted the defense rather than the prosecution. The "stealing" and "vindictive" remarks occurred during a bench conference, presumably out of earshot of the jury. ECF No. 24, p. 130-31. The other alleged instances either do not appear in the record or are so inconsequential as to not be worthy of discussion.
Walker alleges that counsel was ineffective by informing him that he was not going to testify without also informing him that he nonetheless had the right to testify if he so desired. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 11.
The record supports the Supreme Court of Nevada's finding that the trial court notified Walker of his right to testify. ECF No. 28, p. 55. There is no evidence in the record that counsel conveyed to Walker that counsel alone controlled the decision as to whether he testified. Walker does not explain how his testimony might have resulted in a more favorable outcome; and, as noted above, defense counsel made a reasonable strategic decision to not put on any defense.
Walker claims that counsel was ineffective in not making a record of the trial judge's "extreme illness." According to Walker, the judge's illness "so impacted his ability to perform his duties" that Walker was deprived of his constitutional right to a fair trial. ECF No. 55, p. 222. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 11.
Here again, the record fails to support Walker's allegations. That is, there is no evidence (other than opinions voiced by defense counsel in declarations) the trial judge was suffering from debilitating health problems while presiding over this case. Moreover, the transcripts of the pretrial, trial, and post-trial proceedings do not show that the trial judge was forgetful, failed to moderate the prosecutor's conduct, or made "unfathomable rulings," as Walker claims.
Walker claims his counsel were ineffective for not presenting a defense case after the State presented its case-in-chief. According to Walker, counsel intended, prior to trial, to present a defense that included statements by Riker that he acted alone in killing robbing and killing Marble, expert testimony as to Walker's level of intoxication at the time of the offense, and the testimony of Jody Diaz. During trial, however, counsel learned that they would not be permitted to present Riker's statements or the expert's testimony and that Diaz had changed her story. Walker alleges that, in light of the introduction of evidence the Blythe incident, "the appropriate defense would have been to present through him the totality of the circumstances surrounding his involvement with Mr. Riker." ECF No. 55, p. 222.
The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 12.
As discussed above, counsel had prepared a defense, but made a reasonable strategic or tactical decision to not present it out of concern that doing so would allow the prosecution to present damaging testimony from Jody Diaz on rebuttal. Walker has not established that he had a viable defense that had a reasonable probability of changing the outcome of his trial. And this court is not in a position to question trial counsel's determination, made after re-interviewing Diaz, that it they would not be able effectively impeach her testimony. See Strickland, 466 U.S. at 690-91.
The Supreme Court of Nevada's decision to deny this claim was not unreasonable or based on an unreasonable determination of the facts.
Walker claims counsel was ineffective by informing the trial court that she was not suggesting someone other than Walker committed the crime. Though the comment was made during a bench conference, Walker alleges that he believes jurors heard the remark. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 12.
Walker proffers no evidence showing that any juror heard this remark. This claim fails.
Walker alleges counsel was ineffective for not filing a motion in limine to preclude the prosecution from referring to him as a "carnie." The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 12-13.
Walker does not refute the Supreme Court of Nevada's conclusion that he fails to demonstrate Strickland-level prejudice with respect to this claim. ECF No. 109, p. 65. The claim is denied.
Walker claims counsel was ineffective by not filing a motion in limine to prevent the State from eliciting testimony that Walker told his boss that he was quitting his carnival job because he was "tired of being treated like a nigger." Walker alleges that counsel was notified of the likelihood that the particular witness would provide such testimony prior to trial. The Supreme Court of Nevada addressed this issue as follows:
ECF No. 81-3, p. 13.
Walker has not demonstrated a reasonable probability that a motion of limine would have been granted. Thus, this court defers to the Supreme Court of Nevada's decision denying relief.
For the foregoing reasons, each of Walker's IAC claims must be denied because either the Supreme Court of Nevada's decision on the claim is entitled to deference under § 2254(d) or because the claim fails under de novo review.
In Ground Q, Walker alleges that his appellate counsel committed various errors or omissions that deprived him of effective assistance of counsel, in violation of his constitutional rights. Each of the alleged deficiencies was presented to the Supreme Court of Nevada in Walker's state post-conviction proceeding. ECF No. 80-7, p. 73-77. The Supreme Court of Nevada correctly identified the Strickland test as the applicable federal law standard and determined that Walker was not entitled to relief. ECF No. 81-3, p. 13-15. See Smith v. Murray, 477 U.S. 527, 535-536 (1986) (applying Strickland to claim of attorney error on appeal).
Walker argues that counsel was ineffective by not arguing on direct appeal that Jody Diaz changed her story about her interactions with Walker on the day of the murder because the State made undisclosed promises to her about sealing her criminal records. Walker's counsel did argue that the trial court erred in not granting her a new trial based, in part, on Diaz's allegedly revised story, but counsel did not raise it as a stand-alone issue. The Supreme Court of Nevada addressed this claim as follows:
ECF No. 81-3, p. 14-15.
Walker's claim that the State induced Diaz to fabricate testimony is unsubstantiated. The record shows that, while being interviewed by the prosecution, Diaz asked about sealing the records of two misdemeanors, one in 1981 and one in 1987. ECF No. 30, p. 140-41; ECF No. 33, p. 165-70. In ruling upon Walker's motion for new trial, the trial court found that "statements of Jodi Diaz to the prosecution are not the result of any inducement, improper or otherwise, by the prosecution." ECF No. 33, p. 240-41. Walker has not presented evidence that refutes that finding. See 28 U.S.C. § 2254(e)(1) (providing that, on habeas review, presumption of correctness accorded state court findings of fact must be rebutted by clear and convincing evidence).
The Supreme Court of Nevada's determination that appellate counsel was not ineffective was not unreasonable.
Walker alleges that appellate counsel was ineffective for not arguing on direct appeal that the State knowingly presented false testimony from Louis DeFalco, the security officer at the Primadonna Hotel. The Supreme Court of Nevada addressed this claim as follows:
ECF No. 81-3, p. 15.
Walker presents no convincing evidence that the State knowingly presented false testimony. Accordingly, the Supreme Court of Nevada's determination that appellate counsel was not ineffective was not unreasonable.
In Ground R, Walker alleges that the cumulative effect of errors in his trial and appeal deprived him of his constitutional rights. He has not demonstrated, however, that multiple constitutional errors in concert prejudiced the outcome of his state criminal proceeding. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) ("Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible."). Ground R is denied.
For the reasons set forth above, Walker 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 (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.
The COA standard is not high. Walker 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 (9th Cir. 2010) (en banc) (citations omitted). Having reviewed its determinations and rulings in adjudicating Walker's petition, the court concludes that the Slack standard is met with respect to the court's resolution of Ground H—Walker's claim that his constitutional rights were violated because the trial court failed to remove prospective jurors who expressed an inability to impose a sentence with the possibility of parole for first degree murder.
The court therefore grants a COA as to that issue. The court declines to issue a COA for its resolution of any procedural issues or any of Walker's other habeas claims.
IT IS THEREFORE ORDERED that petitioner's first amended petition for writ of habeas corpus
IT IS FURTHER ORDERED that a Certificate of Appealability is granted as to the following issue:
A COA is otherwise denied.
Id. at 613.
