LARRY R. HICKS, District Judge.
This action is a petition for writ of habeas corpus by Nevada prisoner Shelli Rose Dewey, who was convicted in 2006, in Nevada's Fourth Judicial District Court, in Elko County, of second-degree murder with use of a deadly weapon. On August 10, 2018, this Court ruled on a motion to dismiss, and dismissed certain of Dewey's claims (ECF No. 69). The action is now before the Court for adjudication of Dewey's remaining claims. The Court will deny Dewey's petition and will deny Dewey a certificate of appealability.
In its decision on Dewey's direct appeal, the Nevada Supreme Court described the factual background of the case, as revealed by the evidence presented at Dewey's ten-day jury trial, as follows:
Dewey v. State, 123 Nev. 483, 485-87, 169 P.3d 1149, 1150-51 (2007) (a copy of the opinion is filed in the record at Exh. 72 (ECF No. 22-2)). Dewey was sentenced to two consecutive terms of life in prison with the possibility of parole after ten years. See Judgment of Conviction, Exh. 67 (ECF No. 21-10).
The Nevada Supreme Court affirmed the judgment on November 1, 2007. See Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court denied Dewey's petition for rehearing. See Order Denying Rehearing, Exh. 74 (ECF No. 22-4).
Dewey filed a post-conviction petition for writ of habeas corpus in the state district court on October 18, 2008. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhs. 77, 83 (ECF Nos. 22-7, 22-13). The court held a six-day evidentiary hearing (see Transcripts of Evidentiary Hearing, Exhs. 86-91 (ECF Nos. 22-16, 22-17, 23, 23-1, 23-2, 23-3)), entertained post-hearing briefing (Exhs. 93, 94, 95 (ECF Nos. 24-1, 24-2, 24-3)), and denied the petition on June 28, 2011. See Decision, Exh. 97 (ECF No. 24-5); Notice of Entry of Order, Exh. 98 (ECF No. 24-6). Dewey filed a motion for reconsideration. See Motion to Alter or Amend Judgment or in the Alternative, Motion for Reconsideration, Exh. 99 (ECF No. 24-7). The court ruled on that motion on October 17, 2011, issuing an addendum to its June 28, 2011, order, further explaining its denial of certain claims. See Addendum, Exh. 104 (ECF No. 24-12); Notice of Entry of Addendum, Exh. 105 (ECF No. 24-13). Dewey appealed, and the Nevada Supreme Court affirmed the denial of Dewey's state habeas petition on April 10, 2013. See Order of Affirmance, Exh. 112 (ECF No. 24-20). The court then denied Dewey's petition for rehearing. See Order Denying Rehearing, Exh. 114 (ECF No. 24-22).
Dewey filed her initial, nominally pro se, federal habeas corpus petition, initiating this action, on June 13, 2013 (ECF No. 1). The Court appointed counsel for Dewey (ECF No. 4), and, with counsel, Dewey filed a first amended petition on November 7, 2014 (ECF No. 16).
Respondents filed a motion to dismiss on May 28, 2015 (ECF No. 41), contending that certain of Dewey's claims were barred by the statute of limitations, that certain of her claims were unexhausted in state court, and that certain of her claims were not cognizable in this federal habeas corpus action. The Court ruled on that motion on October 29, 2015, ruling that Claims 5A, 5B, 5C and 5D of the first amended petition were unexhausted, and directing Dewey to elect, with respect to those claims, whether to abandon them or move for a stay to allow her to exhaust them in state court. See Order entered October 29, 2015 (ECF No. 47).
Dewey filed a motion for stay on December 7, 2015 (ECF No. 50). The respondents did not oppose the motion (ECF No. 51), and the Court granted the motion and stayed this action on January 26, 2016, pending further proceedings in state court. See Order entered January 26, 2016 (ECF No. 52).
The stay was lifted, upon a motion by Dewey, on July 20, 2017 (ECF No. 58). Dewey then filed a second amended petition for writ of habeas corpus (ECF No. 59) on September 18, 2017. The Court reads Dewey's second amended petition to include the following claims:
See Second Amended Petition for Writ of Habeas Corpus (ECF No. 59).
On March 9, 2018, Respondents filed a motion to dismiss Dewey's second amended petition, arguing: that Grounds 2A, 2B, 5A, 5B, 5C and 5D are barred by the statute of limitations; that part of Grounds 2B, 5A, 5B, 5C and 5D are barred by the procedural default doctrine; that Grounds 2A, 2D and 2E include allegations not exhausted in state court; and that Ground 6 is not procedurally viable for several reasons. See Motion to Dismiss (ECF No. 64). The Court ruled on that motion on August 10, 2018. See Order entered August 10, 2018 (ECF No. 69). The Court denied the motion to the extent it was based on the statute of limitations. See id. Regarding the questions of exhaustion and procedural default of Ground 2B, the Court denied the motion to dismiss, without prejudice to Respondents again raising the procedural default defense in their answer. See id. With respect to Grounds 5A, 5B, 5C and 5D, the Court granted the motion to dismiss and dismissed those claims as procedurally defaulted. See id. The Court denied the motion to dismiss with regard to Grounds 2A, 2D, 2E and 6. See id.
Respondents filed an answer (ECF No. 77) on February 26, 2019, responding to the remaining claims in Dewey's second amended petition. Dewey filed a reply (ECF No. 82) on April 29, 2019. Respondents filed a response to the reply (ECF No. 83) on May 6, 2019.
A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. 28 U.S.C. § 2254(d). A state-court ruling is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is "an unreasonable application" of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court precedent was "objectively unreasonable." Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the "unreasonable application" clause of section 2254(d), only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
In Ground 1, Dewey claims that her confession was taken in violation of her federal constitutional rights. See Second Amended Petition (ECF No. 59), pp. 23-33.
Dewey was interviewed by police officers three times after she was taken into custody: first by Detective Larry Kidd and Officer Kamiah Hamilton at about 8:55 a.m. on September 12, 2004, the morning Steven was killed (see Transcript, Exh. 117 (ECF No. 24-25)); second, by Kidd, Detective Connie Bauers, and Detective Sergeant Randy Parks at 11:25 a.m. on September 12, 2004 (see Transcript, Exh. 118 (ECF No. 24-26)); and third, by Kidd and Bauers at 9:05 a.m. the next morning, September 13, 2004 (see Transcript, Exh. 126 (ECF No. 26-2)). In the first interview, while the officers were going over Dewey's rights with her, Dewey said she did not want to speak, and the interview was terminated. See Transcript, Exh. 117 (ECF No. 24-25). In the second interview, Dewey made several incriminating statements. See Transcript, Exh. 118 (ECF No. 24-26). In the third interview, Dewey requested an attorney, and the interview ceased before Dewey said anything of substance about the events of the previous morning. See Transcript, Exh. 126 (ECF No. 26-2).
Dewey claims that the police violated her rights to counsel, to silence, and to due process of law, under the Fifth, Sixth and Fourteenth Amendments and Miranda v. Arizona, 384 U.S. 436 (1966). See Second Amended Petition (ECF No. 59), pp. 23-33; Reply (ECF No. 82), pp. 4-12. Specifically, Dewey claims that in the first interview she invoked her right to counsel — not just her right to remain silent — and, in interviewing her a second time without counsel present, the police violated her right to counsel. See Reply (ECF No. 82), pp. 5-8. In support of her argument, Dewey cites Edwards v. Arizona, 451 U.S. 477 (1981); Solem v. Stumes, 465 U.S. 638 (1984); Smith v. Illinois, 469 U.S. 91 (1984); Connecticut v. Barrett, 479 U.S. 523 (1987); McNeil v. Wisconsin, 501 U.S. 171 (1991); and Davis v. United States, 512 U.S. 452 (1994). Id. Dewey claims, further, that in commencing the second interview when and as they did, the police officers violated her right to remain silent; in support of this argument, Dewey cites Edwards; Michigan v. Mosley, 423 U.S. 96 (1975); and Arizona v. Roberson, 486 U.S. 675 (1988). See Reply (ECF No. 82), pp. at 8-10. Dewey also claims that her incriminating statements, made in the second interview, were involuntary, in violation of her constitutional rights, under Blackburn v. Alabama, 361 U.S. 199 (1960); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Colorado v. Connelly, 479 U.S. 157 (1986); and Withrow v. Williams, 507 U.S. 680 (1993). See Reply (ECF No. 82), pp. at 10-12.
Before her trial, Dewey filed a motion to suppress her statements. See Motion to Suppress, Exh. 14 (ECF No. 17-14). That motion was briefed extensively, and was addressed at hearings, including three days of evidentiary hearings. See Opposition to Motion to Suppress, Exh. 15 (ECF No. 17-15); Offer of Proof Concerning Statements of the Defendant, Exh. 16 (ECF No. 17-16); Response to State's Offer of Proof, Exh. 22 (ECF No. 18-5); Supplement to Defendant's Motion to Suppress, Exh. 23 (ECF No. 18-6); Transcript of Hearing, April 7, 2005, Exh. 137 (ECF No. 26-12); Supplement to Opposition to Motion to Suppress, Exh. 24 (ECF No. 18-7); Transcript of Hearing, May 19, 2005, Exh. 139 (ECF No. 26-14); Second Supplement to Opposition to Motion to Dismiss, Exh. 27 (ECF No. 18-10); Transcript of Hearing, May 26, 2005, Exh. 144 (ECF No. 26-19). Dewey and the State presented expert witnesses (Tom Owen for Dewey, and Mark Carey for the State), who created enhanced recordings of the first interview, and who testified about what they could hear on the enhanced recordings. In two written orders, the trial court ruled that Dewey's rights were not violated, and her incriminating statements were admissible. See Order Denying Motion to Suppress, Exh. 40 (ECF No. 18-23); Order Re: Statements of the Defendant, Exh. 49 (ECF No. 18-32).
After her conviction, Dewey raised these issues on her direct appeal. See Second Amended Petition (ECF No. 59), p. 23; Appellant's Opening Brief, Exh. 68, pp. 17-25 (ECF No. 21-11, pp. 40-48). The Nevada Supreme Court denied Dewey relief on these claims. See Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court described, as follows, the facts regarding Dewey's statements:
Dewey, 123 Nev. at 486-87, 169 P.3d at 1151.
The Nevada Supreme Court held that, in the first interview, although Dewey invoked her right to remain silent and refused to speak, she did not invoke her right to counsel. See Dewey, 123 Nev. at 487-89, 169 P.3d at 1152-53. The court recognized that, under United States Supreme Court precedent, "[a] request for counsel must be, at minimum, `some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney,'" and "[t]he right to counsel `must be affirmatively invoked by the suspect' and requires more than an expression of one's desire to remain silent." Id., 123 Nev. at 488-89, 169 P.3d at 1152 (quoting McNeil, 501 U.S. at 178, and Davis, 512 U.S. at 461). The Nevada Supreme Court ruled that, although Dewey terminated the first interview, telling the police that she did not want to talk to anybody, she did not make an affirmative, unequivocal, unambiguous request for counsel until the third interview. Dewey, 123 Nev. at 489, 169 P.3d at 1152-53 (citing Barrett). The Nevada Supreme Court determined that the trial court's ruling was supported by substantial evidence and held that Dewey's statements were not obtained in violation of her right to counsel. Id.
Next, turning to Dewey's claim that her right to remain silent was violated, the Nevada Supreme Court applied Roberson, Edwards, and Mosley, and held that the police "scrupulously honored" Dewey's invocation of her right to remain silent, and, therefore, after again advising Dewey of her Miranda rights and obtaining her waiver of those rights before the second interview, the second interview could proceed. Dewey, 123 Nev. at 489-91, 169 P.3d at 1153-54 (citing United States v. Hsu, 852 F.2d 407 (9th Cir. 1988)). The court stated:
Dewey, 123 Nev. at 491, 169 P.3d at 1154. The Nevada Supreme Court held, therefore, that Dewey's statements in the second interview were not obtained in violation of her right to remain silent. Id.
The Nevada Supreme Court also rejected Dewey's claim that her statements were involuntary. Dewey, 123 Nev. at 491-93, 169 P.3d at 1154-55 (citing Blackburn). The court stated that "the State bears the burden of proving voluntariness, based on the totality of the circumstances, by a preponderance of the evidence," and went on to rule as follows:
Id., 123 Nev. at 492-93, 169 P.3d at 1155.
This Court finds the Nevada Supreme Court's rulings to be reasonable. Regarding the question whether Dewey invoked her right to counsel in the first interview, it was not unreasonable for the Nevada Supreme Court to conclude that Dewey did not, in that interview, make an unambiguous and unequivocal request for counsel such that a reasonable officer would understand that she wished to request counsel. See Davis 512 U.S. at 560-62. The two officers at the first interview, Detective Kidd and Officer Hamilton, testified that they did not hear Dewey request counsel. Testimony of Kamiah Hamilton, Transcript of Hearing on Pretrial Motions, May 19, 2005, Exh. 139, p. 33 (ECF No. 26-14, p. 34); Testimony of Larry Kidd, Transcript of Hearing on Pretrial Motions, May 19, 2005, Exh. 139, p. 42 (ECF No. 26-14, p. 43); Testimony of Larry Kidd, Transcript of Trial, December 13, 2005, Exh. 55, p. 80 (ECF No. 20-1, p. 81). And, while much has been made in this case of the experts' enhancements of the recording of the first interview, the question is not what can be heard on an enhanced recording of the interview; the question is whether a reasonable police officer at the interview would have heard and understood Dewey to make a request for counsel. This Court concludes that the Nevada Supreme Court reasonably determined, in light of the evidence, and under Supreme Court precedent, that, in the first interview, Dewey did not unambiguously and unequivocally make a request for counsel that police officers should reasonably have heard and understood.
The Court also determines that the Nevada Supreme Court reasonably held that Dewey's right to remain silent was not violated. See Mosley, 423 U.S. at 104-05; Hsu, 852 F.2d at 409-12. The officers present at the second interview carefully administered the Miranda warnings to Dewey, and Dewey indicated unambiguously that she understood them and waived her right to silence. Dewey demonstrated in the first interview (and also in the third interview, for that matter) that she was quite able to stand on her rights and terminate the second interview had that been her intention. Here, reviewing on federal habeas a state court's fact-based ruling, necessarily based on the totality of the circumstances, the deference to be afforded the state court's ruling is "near its apex." See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018). In view of the totality of the circumstances, it was not unreasonable, under Supreme Court precedent, for the Nevada Supreme Court to rule that the commencement of the second interview, after Dewey invoked her right to silence and terminated the first interview about two hours earlier, was not a constitutional violation.
With respect to the question whether Dewey's statements were voluntary, here again, this Court must give a great deal of deference to the state court's ruling. And, again, it is important to recognize that, in the first interview, Dewey demonstrated that she was able to terminate the interview when that was her wish. Looking at all the circumstances, the Nevada Supreme Court reasonably ruled that Dewey's statements were knowingly, intelligently and voluntarily given.
The Nevada Supreme Court's rulings, denying relief on the claims asserted in Ground 1 were not contrary to, or an unreasonable application of, United States Supreme Court precedent, and were not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 1.
In Ground 2A, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to present evidence from an audio expert regarding whether she invoked her right to counsel. See Second Amended Petition (ECF No. 59), pp. 37-45. Dewey's claim, here, is that her trial counsel failed to properly present the testimony of the audio expert at the pre-trial evidentiary hearing regarding the motion to suppress her statements, and also at trial. See id. Dewey asserts that her trial counsel erred in presenting Owen's testimony telephonically, rather than in person, at the pre-trial hearing, and in not presenting Owen's testimony at trial. See id.
Dewey asserted this claim on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 48-56 (ECF No. 24-16, pp. 60-68)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, p. 5 (ECF No. 24-20, p. 6) (footnote omitted).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the 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. A court considering a claim of ineffective assistance of counsel must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id. at 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. To establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, the errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
The Court finds the Nevada Supreme Court's ruling to be reasonable. Dewey's audio expert, Tom Owen, testified by telephone at the hearing on the pre-trial motion to suppress Dewey's statements. See Testimony of Tom Owen, Transcript of Hearing on Pretrial Motions, May 19, 2005, Exh. 139, pp. 57-87 (ECF No. 26-14, pp. 58-88). Owen testified that he had enhanced the recording of the first interview, and, on the enhanced recording, he could hear Dewey request counsel. See id. at 60-61, 68, 76-77 (ECF No. 26-14, pp. 61-62, 69, 77-78). Owen testified that if he was present at the hearing, and if he played back the enhanced recording, most anybody would be able to hear Dewey say she wanted a lawyer. See id. at 76-77 (ECF No. 26-14, pp. 77-78). The trial court, in ruling on the motion to suppress, made clear that the important question was not what an expert could hear on an enhanced recording, but what a reasonable officer could hear at the interview. See Order Denying Motion to Suppress, Exh. 40, pp. 5-8 (ECF No. 18-23, pp. 6-9) ("[T]he Court does not reach the merits of which expert to credit in this case.").
Later, in its ruling on this claim in Dewey's first state habeas action, the state district court made this same point again:
Decision, Exh. 97, p. 6 (ECF No. 24-5, p. 7). In Dewey's first state habeas action, after hearing the in-person testimony of Owen, the state district court ruled that Dewey's "purported invocation of right to counsel was not clear; it was not unequivocal, and it was not unambiguous." Id. The Nevada Supreme Court affirmed that ruling. See Order of Affirmance, Exh. 112, p. 5 (ECF No. 24-20, p. 6).
Taking into consideration all the evidence, including both the original and enhanced recordings filed by Dewey, this Court determines that the state courts' denial of relief on this claim was reasonable. Dewey makes no showing that having Owen present, in person, to testify and play his enhanced recording, at either the pre-trial hearing or trial, would have had any impact on the outcome of her case. The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2A.
In Ground 2B, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to present a Battered Women's Syndrome (BWS) defense. See Second Amended Petition (ECF No. 59), pp. 45-55. Dewey argues that evidence that she suffered from BWS would have buttressed her claim of self-defense and her claim that she did not harbor the malice necessary for murder. In support of her claim, Dewey presents evidence that she suffered terrible abuse by her husband (see, e.g., Exhs. 227, 228, 229, 230, 240, 241 (ECF Nos. 28-18, 28-19, 28-20, 28-21, 28-30, 28-31)), and she presents a report (Exh. 223 (ECF No. 28-14)) and evidentiary hearing testimony (Exh. 87, pp. 3-71, 162-228 (ECF No. 22-17, pp. 4-72, 163-229)) of a clinical psychologist, Dr. Joanne Behrman-Lippert. Dewey argues that her trial attorney should have presented such evidence at trial to show that she suffered from BWS.
Dewey raised this issue on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 29-36 (ECF No. 24-16, pp. 41-48)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, pp. 3-4 (ECF No. 24-20, pp. 4-5).
This Court agrees that Dewey does not demonstrate a reasonable probability of a better outcome at trial if her trial counsel had presented evidence that she suffered from BWS. Dewey's expert, Dr. Behrman-Lippert, explains that BWS, is a syndrome — albeit not one diagnosable under the Diagnostic and Statistical Manual (DSM), which is relied upon by mental health professionals to diagnose mental health disorders — found in individuals who have been abused by their spouses. See Testimony of Dr. Behrman-Lippert, Exh. 87, pp. 178-84 (ECF No. 22-17, pp. 179-85). After examining Dewey, Dr. Behrman-Lippert reported that she exhibited traits consistent with BWS, and with Post-Traumatic Stress Disorder (PTSD), a closely related disorder. See id. at 31-34, 49, 51-52, 68, 71, 219 (ECF No. 22-17, pp. 32-35, 50, 52-53, 69, 72, 220); Psychological Evaluation of Shelli Dewey, Exh. 223, pp. 12-13 (ECF No. 28-14, pp. 16-17). However, as noted by the Nevada Supreme Court in its ruling on this issue, Dr. Behrman-Lippert was unable to determine the extent to which Dewey's condition was caused by factors other than abuse by her husband. See Evidentiary Hearing Testimony of Dr. Behrman-Lippert, Exh. 87, pp. 52-53, 215-17, 226 (ECF No. 22-17, pp.53-54, 216-28, 227). This significantly undermines any potential such evidence would have had to buttress Dewey's defense.
Furthermore — and while not minimizing the trauma to Dewey caused by the abuse evidently inflicted by Steven — this Court determines that there is further reason why evidence of Steven's abuse, and testimony of an expert like Dr. Behrman-Lippert, would not have changed the outcome of the trial in Dewey's favor. Dewey was charged with open murder, potentially including first-degree murder, and she was convicted of second-degree murder. For Dewey to show that she was prejudiced by her trial counsel's failure to present evidence of BWS, she must show that, had such evidence been presented, there would have been a reasonable probability of a manslaughter conviction or an acquittal. See Strickland, 466 U.S. at 688, 694.
One of Dewey's theories in her defense was self-defense. However, the evidence at trial weighed heavily against that defense. Before Steven was killed, Dewey and Steven were drinking at a bar in Elko, and witnesses observed an altercation between them in the bar, during which Steven was seen on his back on the floor, with Dewey on top of him, the two of them holding on to each other, and Dewey being more aggressive than Steven. Trial Testimony of Charlene Marie Triste, December 7, 2005, Exh. 52, p. 125 ("... I heard a large sound and I turned around and they were both on the floor by the juke box."), p. 126 ("He was lying on his back and she was on top of him."), p. 129 ("... [T]hey had a hold of each other pretty good. And she was on top of him and she didn't want to let go."), p. 137 ("I didn't see either one of them strike each other at all."), p. 149 ("[S]he was more intense on it than he was."), p. 154 (Dewey and Steven were holding on to each other's clothing and shoulders; Dewey holding on more than Steven.) (ECF No. 19-1, pp. 126, 127, 130, 138, 150, 155); Trial Testimony of Raymond Ostrander, December 8, 2005, Exh. 53, p. 8 ("He was on his back or on his rear on the floor. She would have been over him."), pp. 9, 20-21, 37, 44-45 (ECF No. 19-2, pp. 9, 10, 21-22, 38, 45-46). The bartender then asked Dewey to leave the bar, and Dewey did so. Trial Testimony of Charlene Marie Triste, December 7, 2005, Exh. 52, pp. 129-30, pp. 148-50 (Bartender kicked Dewey out because she was more trouble than Steven.), p. 155 (ECF No. 19-1, pp. 130-31, 149-51, 156). About five minutes after leaving the bar, Dewey returned, looking angry, whispered something in Steven's ear, and then left again. Trial Testimony of Charlene Marie Triste, December 7, 2005, Exh. 52, pp. 130-31 ("She came storming back in."), p. 147 ("She still looked upset. Mad." "He looked confused, I would say.") (ECF No. 19-1, pp. 131-32, 148). It then appeared to the bartender that Steven was about to leave, the bartender told him that if he left he could not return, and Steven then apologized and left. Trial Testimony of Charlene Marie Triste, December 7, 2005, Exh. 52, p. 131 (ECF No. 19-1, p. 132). About half an hour later, a witness observed, for five or ten minutes, Dewey and Steven in a parking lot near the bar, arguing and yelling at each other. Testimony of Raymond Ostrander, December 8, 2005, Exh. 53, pp. 13-15 ("There was some yelling going on.... There were hand motions. They may have touched each other. There was no blows or anything rough. It didn't seem like it was going to escalate, you know, anything that needed to be intervened, and so I went back to doing what I was doing, shooting pool."), pp. 23-24, pp. 29-31 (Witness may have observed pushing and shoving.), pp. 46-49 (Witness may have told detective that Dewey was being more aggressive than Steven.) (ECF No. 19-2, pp. 14-16, 24-25, 30-32, 47-50.); see also Trial Testimony of Shayne Allen Springston, December 7, 2005, Exh. 52, pp. 72-73 (ECF No. 19-1, pp. 73-74). Then, about 15 to 30 minutes later, after Steven was stabbed, Dewey called 911 but did not tell the dispatcher or the responding police officers that she stabbed him in self-defense, and she did not show the responding police officers the dagger that was used to stab him.
In light of the evidence, and Dewey's actions just before and after Steven was killed — with or without evidence that Dewey suffered from BWS — there was, in this Court's view, no reasonable probability of the jury accepting Dewey's self-defense theory.
The instruction given to the jury regarding self-defense was as follows:
Instruction No. 22, Exh. 59 (ECF No. 21-2, pp. 28-29); see also NRS 200.200; Hill v. State, 98 Nev. 295, 847 P.2d 370 (1982). There was no evidence indicating that Steven did anything to cause Dewey to reasonably believe that she was in imminent danger that Steven would kill her or cause her great bodily injury, and that it was absolutely necessary for her to use deadly force against Steven to protect herself. The evidence showed that before the stabbing, in their arguments and in their altercation in the bar, Dewey was at least as aggressive as Steven, and she did nothing to get away from him, but, rather, after the altercation in the bar, returned to the bar and initiated further contact with him. Moreover, after the stabbing, Dewey's 911 call and her interactions with the responding police officers were inconsistent with her claim that she stabbed Steven in self-defense. In this Court's view, whether or not Dewey could show that she suffered from BWS, the State could show beyond a reasonable doubt that she did not act with a reasonable belief in the necessity for self-defense. Therefore, the best Dewey could have done with evidence that she suffered from BWS would have been to help establish that she had an honest but unreasonable belief in the necessity for self-defense. However, under Nevada law, this would not have led to a manslaughter conviction; at best, it would only have supported a second-degree murder conviction, which is what Dewey received at any rate. In short, regarding Dewey's claim of self-defense, this Court determines that evidence that she suffered from BWS would have done her no good.
Moreover, the evidence presented by Dewey does not show that BWS might have led her to accidently stab Steven or might have rendered her unable to harbor the malice necessary for murder. There simply is nothing in either Dr. Behrman-Lippert's report (Exh. 223 (ECF No. 28-14)) or evidentiary hearing testimony (Exh. 87, pp. 3-71, 162-228 (ECF No. 22-17, pp. 4-72, 163-229)) to provide any significant support for such a theory.
The Court determines, then, that Dewey has not shown that evidence that she suffered from BWS could have given rise to a reasonable probability of an outcome more favorable for her than second-degree murder.
This Court determines, therefore, that the Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2B.
In Ground 2C, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to investigate and present an expert witness on linguistics to testify that she did not waive her right to counsel. See Second Amended Petition (ECF No. 59), pp. 55-56.
Dewey asserted this claim on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 12-20 (ECF No. 24-16, pp. 24-32)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, pp. 2-3 (ECF No. 24-20, pp. 3-4).
This Court finds this claim to be without merit and determines that the Nevada Supreme Court's ruling was reasonable. Dewey does not point to any precedent suggesting that it is — or, more accurately, was in 2005 — below the standard of reasonable practice for a defense attorney to not call an expert in linguistics to explain a criminal defendant's statement to the police. The jury in this case listened to a recording of Dewey's statement, and could judge for themselves whether, and the extent to which, Dewey's statement was a confession. It was not unreasonable for Dewey's trial counsel not to see the need for any such expert.
Moreover, the Court has carefully considered the evidentiary hearing testimony of the linguistics expert, Robert Leonard, and determines that the Nevada Supreme Court reasonably concluded that there is no reasonable probability that such testimony would have changed the outcome of Dewey's trial. See Testimony of Robert Leonard, December 6, 2010, Exh. 86, pp. 132-233 (ECF No. 22-16, pp. 133-234).
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2C.
In Ground 2D, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to provide the defense crime scene analyst with all the available evidence and for failing to properly question the analyst at trial. See Second Amended Petition (ECF No. 59), pp. 56-58.
Dewey raised this issue on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 21-29 (ECF No. 24-16, pp. 33-41)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, p. 3 (ECF No. 24-20, p. 4).
Here again, the Court finds this claim to be without merit. Dewey does not show, in her second amended petition, or in her reply to Respondents' answer, how better preparation of the expert in question, Jon J. Nordby, could have changed the nature of his testimony so dramatically as to raise a reasonable probability of a better outcome at trial for Dewey. See Second Amended Petition (ECF No. 59), pp. 56-58; Reply (ECF No. 82), pp. 28-30; see also Trial Testimony of Jon J. Nordby, December 15, 2005, Exh. 57, pp. 80-166 (ECF No. 21, pp. 81-167); Evidentiary Hearing Testimony of Jon J. Nordby, December 7, 2010, Exh. 87, pp. 72-160, and December 8, 2010, Exh. 88, pp. 3-95 (ECF No. 22-17, pp. 73-161, and ECF No. 23, pp. 4-96).
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2D.
In Ground 2E, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to request a jury instruction regarding spoliation of evidence. See Second Amended Petition (ECF No. 59), pp. 58-62.
Dewey raised this issue on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 36-43 (ECF No. 24-16, pp. 48-55)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, p. 4 (ECF No. 24-20, p. 5).
This claim, too, is without merit. Dewey does not provide, as part of her claim, the jury instruction that she believes her attorney should have requested. See Second Amended Petition (ECF No. 59), pp. 62-63. Even after Respondents called attention to this shortcoming of the claim in their Answer (see Answer (ECF No. 77), p. 18 n.3), Dewey did not provide the instruction. See Reply (ECF No. 82), pp. 30-32.
Furthermore, Dewey makes general allegations regarding alleged deficiencies of the investigation in this case, with respect to the handling of evidence by the police. However, nowhere does Dewey explain in any detail how the alleged mishandling of evidence by the police undermined her defense. The Court agrees with the conclusion of the Nevada Supreme Court, that Dewey has not shown that there is a reasonable probability that the outcome of trial would have been better for Dewey had the defense had access to any evidence that Dewey claims to have been lost.
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2E.
In Ground 2F, Dewey claims that her federal constitutional rights were violated because her trial counsel was ineffective for failing to present testimony from R. Goldie. See Second Amended Petition (ECF No. 59), pp. 58-62.
R. Goldie was the owner of the bar where Dewey and Steven had been drinking prior to Steven's death. Goldie testified at the evidentiary hearing in the state habeas action. See Evidentiary Hearing Testimony of Ronald Goldie, December 8, 2010, Exh. 88, pp. 107-15 (ECF No. 23, pp. 108-16). He testified that on the morning of Steven's death he was asleep in a motor home outside the bar, when he awoke to hear a female voice screaming "oh, my God; oh, my God; oh, my God." Id. at 107-09 (ECF No. 23, pp. 108-10). He testified that he then looked out of the motorhome and saw "a man on the ground and three different people standing around that man." Id. at 109 (ECF No. 23, p. 110). He testified further:
Id. at 111 (ECF No. 23, p. 112). Dewey claims that her trial counsel was ineffective for not presenting Goldie's testimony at trial.
Dewey raised this issue on the appeal in her first state habeas action (see Appellant's Opening Brief, Exh. 108, pp. 56-58 (ECF No. 24-16, pp. 68-70)), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exh. 112, pp. 5-6 (ECF No. 24-20, pp. 6-7).
Dewey argues that Goldie's testimony would have been helpful to the defense because between the time when Goldie heard the female voice screaming "oh, my God," and the time he looked out, there was insufficient time for Dewey to hide the murder weapon in the truck, as the prosecution suggested she did. See Reply (ECF No. 82), p. 34. Dewey argues: "If called at trial, Goldie could have testified that less than a minute after hearing the screams, he looked outside and saw a man on the ground ([Steven]) and saw Shelli and two other men standing over the man on the ground." Id. That, however, is a misrepresentation of Goldie's testimony; Goldie did not testify that he looked outside "less than a minute after hearing the screams." See Evidentiary Hearing Testimony of Ronald Goldie, December 8, 2010, Exh. 88, pp. 107-15 (ECF No. 23, pp. 108-16). Nowhere in Goldie's evidentiary hearing testimony did he say how long it was between when he heard the screams and when he looked outside. See id.
Dewey also argues that Goldie's testimony, that after the stabbing Dewey screamed "oh, my God; oh, my God; oh, my God" would have shown that she did not harbor the malice necessary for murder. See Reply (ECF No. 82), p. 34. However, this Court disagrees that Dewey's reaction in that manner after the stabbing shows a lack of malice on her part at the moment of the stabbing. Furthermore, Goldie's testimony regarding Dewey's reaction after the stabbing would have been cumulative of the testimony of other witnesses. See Trial Testimony of Cody Lynn Madison, December 7, 2005, Exh. 52, pp. 20-22, 24 (ECF No. 19-1, pp. 21-23, 25); Trial Testimony of Vicki Albin, December 7, 2005, Exh. 52, p. 43 (ECF No. 19-1, p. 44); Trial Testimony of Lee Philip Griswold, December 7, 2005, Exh. 52, pp. 47-49, 52, 54, 62 (ECF No. 19-1, pp. 48-50, 53, 55, 63); Trial Testimony of Shayne Allen Springston, December 7, 2005, Exh. 52, pp. 71-76 (ECF No. 19-1, pp. 72-77). The trial testimony of Shayne Allen Springston is especially notable, as he too was sleeping in a vehicle in the parking lot and awoke to Dewey and Steven arguing and then Dewey screaming. See Trial Testimony of Shayne Allen Springston, December 7, 2005, Exh. 52, pp. 71-76 (ECF No. 19-1, pp. 72-77). Springston, though, heard a door open and close between the time he was awakened and when he got out of the vehicle and saw what was going on. See id.
The Court determines that Goldie's testimony would have added nothing of any significant value for the defense. The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Strickland, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 2F.
In Ground 3, Dewey claims that her federal constitutional rights were violated because she was convicted without sufficient evidence. See Second Amended Petition (ECF No. 59), pp. 63-65.
The Due Process Clause of the United States Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). However, a federal court collaterally reviewing a state court conviction for sufficiency of the evidence does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir.1992). Rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Payne, 982 F.2d at 338. "[F]aced with a record of historical facts that supports conflicting inferences," the court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." McDaniel v. Brown, 558 U.S. 120, 133 (2010). The Supreme Court has emphasized that claims of insufficiency of the evidence "face a high bar in federal habeas proceedings...." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).
The Nevada Supreme Court denied Dewey relief on this claim on her direct appeal, stating only: "We have carefully considered these arguments and conclude that they lack merit." Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 784. In such cases, the federal habeas court must "independently review" the record to determine whether the state court's decision was objectively unreasonable. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
This Court has reviewed the record of the trial in this case and determines that Dewey's claim is meritless. There was ample evidence supporting Dewey's conviction. The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Jackson, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 3.
In Ground 4A, Dewey claims that her federal constitutional rights were violated because an instruction given to the jury, Instruction No. 13, regarding second-degree murder, reduced the State's burden of proof with respect to the malice element of the crime. See Second Amended Petition (ECF No. 59), pp. 65-67. Instruction No. 13 stated:
Instruction No. 13, Exh. 59 (ECF No. 21-2, p. 18).
Here, too, on Dewey's direct appeal, the Nevada Supreme Court denied relief on this claim without any analysis. Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. The question, then, is whether Dewey shows that there was no reasonable basis for the Nevada Supreme Court's ruling. See Richter, 562 U.S. at 784.
As the Court understands Dewey's claim, she asserts, first, that the jury instruction given in her case provided an incorrect definition of second-degree murder under Nevada law. But the Nevada Supreme Court's rejection of that aspect of Dewey's claim is an authoritative ruling by the state supreme court on an issue of state law. This aspect of Dewey's claim is beyond the scope of federal habeas review. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("[S]tate court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."), citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); see also Rivera v. Illinois, 556 U.S. 148, 158 (2009) ("A mere error of state law... is not a denial of due process.")
In her reply, Dewey cites Estelle, 502 U.S. at 72, for the proposition that "[a]n ambiguity, inconsistency, or deficiency in a jury instruction that infects the entire trial, which in turn results in a conviction, violates due process." Reply (ECF No. 82), pp. 36-37. Dewey does not show, however, that the second-degree murder instruction given in this case was ambiguous, inconsistent, or deficient, such that it infected her entire trial with unfairness.
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Estelle, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 4A.
In Ground 4B, Dewey claims that her federal constitutional rights were violated because Jury Instruction No. 19, defining "deadly weapon," relieved the State of its burden to prove an element of the deadly weapon enhancement. See Second Amended Petition (ECF No. 59), pp. 67-69. Instruction No. 19 stated:
Instruction No. 19, Exh. 59 (ECF No. 21-2, p. 24). In her reply, Dewey cites Sandstrom v. Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471 U.S. 307 (1985), in support of her claim. Dewey claims, essentially, that it was improper, and a constitutional violation, for the trial court to instruct the jury that a dagger is a deadly weapon.
The Nevada Supreme Court denied Dewey relief on this claim, without analysis. See Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. So, here again, the question is whether Dewey shows that there was no reasonable basis for the Nevada Supreme Court's ruling. See Richter, 562 U.S. at 784.
To the extent that the Nevada Supreme Court's ruling was that, under Nevada law, a dagger is, as a matter of law, a deadly weapon, that part of the court's ruling, dealing with a matter of state law, would be authoritative, and beyond the scope of federal habeas review. See Bradshaw, 546 U.S. at 76.
Moreover, even assuming, for the purpose of analysis, that Instruction No. 19 was erroneous under Sandstrom, such error was plainly harmless; there is simply no reasonable debate about whether a dagger is a deadly weapon. Errors in jury instructions involving "omissions or incorrect descriptions of elements are considered trial errors," subject to a harmless error analysis. Neder v. United States, 527 U.S. 1, 8-11 (1999). The Nevada Supreme Court could reasonably have determined that any error in instructing the jury that a dagger is a deadly weapon was harmless. See Richter, 562 U.S. at 784.
The Nevada Supreme Court's denial of relief on this claim was not contrary to, or an unreasonable application of Sandstrom, Francis, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 4B.
Finally, in Ground 6, Dewey claims that her federal constitutional rights were violated because of the cumulative effects of the errors she alleges. See Second Amended Petition (ECF No. 59), pp. 71-72. However, as the Court determines that Dewey has not shown there to have been any errors, there are no errors to consider cumulatively, and her claim in Ground 6 fails. The Court will deny Dewey relief on Ground 6.
The standard for the issuance of a certificate of appealability requires a "substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).
The Court finds that, applying the standard articulated in Slack, a certificate of appealability is unwarranted. The Court will deny Dewey a certificate of appealability.
