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Pray v. Farwell

United States District Court, D. Nevada

March 12, 2014

CRAIG FARWELL, et al., Respondents.


JAMES C. MAHAN, District Judge.

Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Mark Ronald Pray, a Nevada prisoner. ECF No. 56.


In 1996, Pray was convicted of murder in the first degree with use of a deadly weapon and sentenced to two consecutive life sentences with the possibility of parole. The facts of Pray's case are recounted in Nevada Supreme Court's decision on his direct appeal:

Appellant Mark Pray ("Pray") and his ex-wife, Marjorie Pray ("Marjorie"), were travelling north in an automobile on I-15 on their way to Mesquite, Nevada, when, by their own account, they noticed that an Isuzu pickup truck seemed to be following them. In an unsuccessful attempt to evade their pursuer, Pray began driving fast and executed a series of U-turns, crossing from the northbound to the southbound lanes of I-15. Finally, Pray slammed on his brakes, turned onto the median, and fired six shots from his.357 caliber revolver at the oncoming vehicle. One of the shots struck the driver of the vehicle, Peter Ghiglione, II ("Ghiglione") in the head, killing him. Pray later told the police that he believed the man following him in the Isuzu pickup was William "Bud" Baker ("Baker"). Baker had previously been in a relationship with Marjorie. According to Pray, he had a confrontation with Baker several weeks before the shooting in which Baker had threatened him with a handgun. Pray stated that he felt that Baker was going to harm Marjorie and him.
After the shooting, Pray and Marjorie drove around for several hours, then checked into a motel in Pahrump. They then went to a bar and had several drinks. Pray and Marjorie then drove toward Las Vegas. At one point during the drive, Pray became angry and struck Marjorie, giving her a black eye. Pray told her to say that she hit her eye on the dashboard.
They later returned to the motel in Pahrump. At the motel, Pray thought that he saw one of Baker's friends, a man named Angel. Pray got his pistol out of the truck and returned to their room. Marjorie called motel security and then the police.
Officers of the Nye County Sheriff's Office arrived at the motel, and Pray informed them of his fears. Pray and Marjorie were taken into protective custody.
The officers searched the area around the motel and found a person matching Angel's description. The officers soon learned that this person was Las Vegas Metropolitan Police Officer Larry Huggins, who was staying in Pahrump while participating in a police officer's golf tournament.
The police eventually questioned Pray about the Ghiglione shooting. Pray told the police that he and Marjorie were on their way to Mesquite at the time of the shooting because he had seen Baker lurking around their apartment in North Las Vegas. William Shouse ("Shouse"), who was with Pray and Marjorie at their apartment, testified that he checked outside and did not see Baker anywhere about.
Shouse told Pray that Baker was not outside, but Pray did not believe him. Shouse then called Baker's residence and awakened him, ascertaining that he was, in fact, at home and not lurking near Pray's house. Shouse told Pray that Baker was at home, but still Pray refused to believe him.
Marjorie testified that she told Pray that the pickup truck was not Baker's pickup truck; it was too small. She also testified that she never saw the face of the man in the pickup truck and never saw any weapon in the man's possession. Neither the man who subsequently discovered Ghiglione's body nor the police found any weapon in the truck.
Pray and Marjorie admitted that prior to leaving their apartment, they had been smoking crack cocaine and drinking. Shouse also testified that Pray was "tweaking" quite a bit at this time. Shouse described "tweaking" as a crack-induced state of nervous paranoia. Shouse said that "tweaking" is a sign that one has smoked too much crack cocaine. Marjorie testified that Pray was a frequent "tweaker."
At trial, Pray claimed justifiable homicide as a defense.... Pray v. State, 959 P.2d 530, 531 (Nev. 1998).

The Nevada Supreme Court affirmed the conviction and sentence. Id. at 532. On August 3, 1998, Pray filed a post-conviction petition for writ of habeas corpus in the state district court. The court found insufficient information and allegations in the petition to justify an evidentiary hearing and issued a written denial in June of 1999.

Pray appealed. On July 7, 2000, the Nevada Supreme Court affirmed the dismissal in part and remanded the matter to the state district court to conduct an evidentiary hearing on Pray's claim that members of the jury interacted with the state's investigator and the victim's family during the trial. The Nevada Supreme Court denied Pray's petition for rehearing.

The state district court held an evidentiary hearing in May of 2001. In June of 2002, the court issued a written order denying the post conviction relief, in which it found, based on the testimony and affidavits of the jurors, that there appeared to be no misconduct by the jurors and no private communication between the victim's family members and the jurors. Pray appealed. In August of 2003, the Nevada Supreme Court upheld the denial of Pray's state habeas petition.

Pray mailed his pro se federal petition for writ of habeas corpus to this court on November 5, 2003. ECF No. 6. The court appointed counsel; and, on December 21, 2004, Pray filed his first amended petition (ECF No. 16).

Respondents moved to dismiss the petition. ECF No. 31. This court granted respondents' motion in part, finding Grounds Two, Six(D), Six(F), and Six(G)(2) to be unexhausted. ECF No. 48. Pray moved for stay and abeyance in order to pursue exhaustion, which this court granted. ECF Nos. 49-51.

On September 1, 2006, Pray filed his second state habeas petition, which the state then moved to dismiss. The state district court denied the petition, finding that it was time barred pursuant to NRS 34.726, successive pursuant to NRS 34.810, and barred by the doctrine of laches pursuant to NRS 34.800. The court further found that Pray failed to demonstrate actual cause or substantial prejudice to overcome the procedural bars.

Pray appealed. The Nevada Supreme Court affirmed the district court's decision to deny the petition. On July 16, 2008, Pray moved to reopen the federal case before this court. ECF No. 52. The court having granted the motion, Pray filed his second amended petition for writ of habeas corpus on January 13, 2009. ECF No. 56. On May 1, 2009, respondents filed a motion to dismiss claiming that the petition is a mixed petition and that many of the claims are time-barred or procedurally barred. ECF No. 61. Pursuant to that motion, this court dismissed several claims from the second amended petition. ECF No. 77. Grounds Three, Five, Six(A), Six(B), Six(C), Six(E), Six(G)(1), Six(H), Six(I), and Seven remain before the court for a decision 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:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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 decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, ' and demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court reasoned that the "backward-looking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made, " and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id.

For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is de novo where a state court does not reach the merits, but instead denies relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 S.Ct. at 1401 ("Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief."); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo ).

Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review habeas claims by conducting a de novo review prior to applying the "contrary to or unreasonable application of" limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, however, the Court did not preclude such an approach. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id.


Ground Three

In Ground Three, Pray claims that his constitutional rights have been violated because there was not sufficient evidence to convict him of first degree murder. The Nevada statutes define first degree murder, in relevant part, as a "willful, deliberate and premeditated killing." Nev. Rev. Stat. § 200.030(1)(a). According to Pray, the evidence presented at trial supported his claim of self-defense and failed to establish that he intended to kill Peter Ghiglione

The standard used by the federal habeas court to test whether sufficient evidence supports a state conviction is the "rational factfinder" standard established in Jackson v. Virginia, 443 U.S. 307 (1979). Mikes v. Borg, 947 F.2d 353, 356 (9TH Cir. 1991). Under that standard, the court inquires as to "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, 443 U.S. at 319 (citation omitted).

In addressing Pray's sufficiency of evidence claim on direct appeal, the Nevada Supreme Court ruled as follows:

... Pray argues that insufficient evidence existed to convict him of first-degree murder because "there is nothing to support or even suggest that [he] meant to kill anyone when the shots were fired in what he believed was an attempt to prevent injury to himself or Marjorie." Pray further contends that the "keystone cop nature of the entire chase mitigates against the actions being first-degree murder." It is well settled that this court will not overturn a criminal conviction for lack of sufficient evidence so long as "the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence that was properly before it." Lay v. State, 110 Nev. 1189, 1192, 886 P.2d 448, 450 (1994).
In the present case, the State presented evidence that Pray turned his vehicle around on the highway median and fired six shots from a large caliber handgun at the driver's compartment of Ghiglione's oncoming vehicle. We conclude that from this evidence, a reasonable jury could have found the intent required for first-degree murder.

ECF No. 21, p. 78-79.[1]

Under Nevada law, "the intention to kill may be ascertained or deduced from the facts and circumstance of the killing, such as the use of a weapon calculated to produce death, the manner of use, and the attendant circumstances characterizing the act." Moser v. State, 544 P.2d 424, 426 (Nev. 1975). Beyond the evidence cited by the Nevada Supreme Court in rejecting this claim, additional evidence supported a finding that Pray was not acting in self-defense; that being Marjorie's testimony that she told Pray that the pickup truck was not Baker's pickup truck, that she never saw the face of the man in the pickup truck, and that she never saw any weapon in the victim's possession. The evidence also established that Pray bypassed the chance to stop in a populated area, did not contact authorities after the shooting, and admitted to an investigating detective that he never saw the victim with a gun.

This court concludes that there was sufficient evidence for a rational jury to find beyond a reasonable doubt that Pray's conduct satisfied the elements of first degree murder under Nevada law. Thus, Pray is not entitled to habeas relief under the Jackson standard, especially in light of the extra layer of deference imposed by AEDPA. See Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011) (noting that "the state court's application of the Jackson standard must be objectively unreasonable' to warrant habeas relief for a state prisoner).

Ground Five

In Ground Five, Pray contends that his constitutional rights were violated because the jury instruction defining implied malice created an improper presumption, thereby minimizing the State's burden ...

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