United States District Court, D. Nevada
JAMAS C. MAHAN, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Joseph Weldon Smith, a Nevada prisoner sentenced to death. ECF No. 40.
I. FACTUAL AND PROCEDURAL HISTORY
On December 11, 1992, Smith was convicted of three counts of murder with the use of a deadly weapon, and one count of attempted murder with the use of a deadly weapon. The convictions were pursuant to jury verdicts in the Eighth Judicial District Court, Clark County, Nevada. The facts of Smith's case are recounted in Nevada Supreme Court's decision on Smith's initial direct appeal:
During the trial Michael Hull, a police officer for the City of Henderson, testified as follows: On Saturday, October 6, 1990, at approximately 2:29 a.m., he was dispatched to the Fountains, a gated community in Henderson. While on his way, Hull was flagged down by a man who subsequently identified himself as Frank Allen. Allen appeared frantic and Hull observed blood on his shirt and blood running down the left side of his head. Allen told Hull that Smith had attacked him with a hammer or a hatchet.
After arriving at the Smiths' home, located at 2205 Versailles Court inside the gated community, Hull and two other officers observed a large broken window laying on the front porch outside the house. Allen had explained to the officers that he had left through that window. The officers entered the premises and, during a search of a bedroom, observed what appeared to be a figure beneath a blanket. After lifting the blanket, they discovered a dead body, subsequently identified as twelve-year-old Kristy Cox. In an adjacent bedroom they discovered a second body, also dead and covered with a blanket, later identified as twenty-year-old Wendy Cox. Under a blanket in the master bed, the officers found a third victim, Kristy and Wendy's mother and Smith's wife, Judith.
The officers also located some notes written by Smith. The first, found inside a briefcase in the upstairs den, and dated October 5, 1990, read:
A triple murder was committed here this morning. My wife, Judith Smith and my two stepdaughters, Wendy Cox and Kristy Cox, were assassinated. I know who did it. I know who sent them. I had been warned that this would happen if I did not pay a large sum of money to certain people. I have been owing it for a long time and simply could not come up with it. And I didn't believe the threat. I don't need any help from the police in this matter. I will take care of it myself. They will have to kill me, too. When and if you find me, I'm sure I will be dead, but that's okay. I already killed one of the murderers. And I am going to get the others and the man who I know sent them. There were three in all. You will probably find my body within a day or two.
Thank you, Joe Smith.
P.S.: I thought I had gotten away when we moved here, but it didn't work. When we moved, we were being watched. If I am successful in my task at hand, I will turn myself into (sic) the police.
The second letter stated, "Frank [Allen], look in the locked room upstairs for your package. The key is on the wet bar. Joe."
Dr. Giles Sheldon Green, Chief Medical Examiner for Clark County, testified that he performed the autopsies on the bodies of the three victims. Green stated that all three victims died from asphyxia due to manual strangulation. He also opined that the pattern of injuries found on the three victims could have been inflicted with a carpenter's hammer. On Kristy, Green observed three blunt lacerations to the scalp and a lot of blood in Kristy's hair, some bruising and a scratch on her neck, and substantial hemorrhaging as a result of the trauma to her scalp.
On Wendy, Green observed several "quite ragged, irregular, deep lacerations of the forehead, " and at least six or seven wounds of the face. There were a total of thirty-two head lacerations, some of which were patterned injuries of pairs of penetrating wounds of the scalp tissue. On the left side of Wendy's head, a large laceration inside the ear almost cut the outer ear in two. Green found numerous scratches and abrasions on the front of Wendy's neck, as well as defensive wounds, such as a fractured finger, bruises on the backs of her hands and a finger with the skin over the knuckle knocked away. Green found areas in which the various head impacts had created depressed fractures of the outer and inner surfaces of the skull. There was also a great deal of hemorrhaging and damage to the soft tissues of Wendy's neck.
On Judith, Green found lacerations of the forehead and above her right eyebrow, abrasions and scratches on the front of her neck and a cluster of at least five lacerations of the scalp, mainly on the right side of the back of the head. It was Green's opinion that the five lacerations were inflicted after death.
Allen testified as follows: He met Smith in September 1990, when Smith came to Allen's home located at 2205 Versailles Court, inside the Fountains, wishing to purchase that home. Although Allen first indicated that the house was not for sale, after Smith agreed to pay $50, 000 over the appraised value of $650, 000, Allen agreed to sell him the house. Allen subsequently gave Smith the keys to the house, but retained one of the bedrooms for his use when he came to Las Vegas on weekends, until the sale was final. Smith informed Allen that he was in a rush to move into the house because he wanted to make preparations for his step-daughter, Wendy's, wedding in November.
On September 21, 1990, Smith gave Allen a personal check for $35, 000 as a good faith deposit. Approximately six days later, the bank notified Allen that the check had been returned because Smith had closed his account. Smith assured Allen that he would mail him a certified check immediately. Two days later, having not received a check, Allen indicated to Smith that he would be coming to Las Vegas on Friday, October 5, 1990, and would pick up the check then.
On Friday morning, Allen received a call from Smith who stated, "I thought you were coming up here this morning." Allen told Smith that he would be coming later in the day. Smith stated that he and his wife were going to California to shop for furniture that day, so they arranged for Smith to leave two checks, the $35, 000 deposit check and a $3, 338.80 check for the October mortgage payment, behind the wet bar in the house, along with Allen's mail.
Allen arrived at the house between 1:00 a.m. and 1:30 a.m. on Saturday, October 6, 1990, and noticed that the security system was off. He went behind the wet bar to retrieve his mail and found the note from Smith telling him to look in the locked room upstairs for the package. Allen went to that room and, not finding any checks, went into the game room. Although the light was not on in the game room, the area was illuminated by a large chandelier in the hallway.
In the game room, Allen saw Smith crouched in the closet. Smith then jumped out and began to pound Allen in the head with an object, which Allen assumed was a hammer. Allen asked Smith what he was trying to do, but Smith did not say anything. Realizing that Smith was trying to kill him, Allen said, "You're not going to get away with this, " and pushed Smith backward and ran down the stairway with Smith pursuing him. Allen tried to figure out the best way to get out of the house, and after realizing that he had locked himself in, ran straight through the full-length, leaded-glass front door. He then got into his car and drove to the guard shack at the entrance to the development and asked the guard to call the police.
Eric Lau, the security guard then on duty at the guard-gated entrance to the Fountains, testified that at approximately 2:30 a.m. on Saturday, October 6, 1990, Allen ran up to the side of the guard house and pounded on the window. Allen's shirt was covered with blood and he said, "He's after me! He's after me!" Lau immediately called for help and then saw Smith's Lincoln automobile exit the Fountains, with Smith behind the wheel.
Yolanda Cook, Judith's daughter-in-law, testified that on the morning of Friday, October 5, 1990, at 8:00 a.m., she called the Smiths' house to see if someone could take her son to school. She spoke with Smith, who told her that he had to go to a meeting and that Judith, Wendy and Kristy had gone shopping for Wendy's wedding. Between 9:00 a.m. and 3:30 p.m., Yolanda called the Smiths' house three more times, and each time Smith told her that Judith and her daughters were away.
Yolanda further testified that on Saturday, October 6, 1990, at approximately 5:00 a.m., Smith called her and told her of the three murders. He told her that Allen came into the house and bludgeoned them to death. Smith requested that she tell all of Judith's other children and then go to the house and get the letters out of his briefcase explaining what happened. He then told her that he was going to kill himself and hung up the phone.
William Lawrence Cook, one of Judith's sons, testified that Smith had expressed concern and irritation over financial obligations such as Wendy's pending wedding and the new house. William testified that Smith would often refer to himself as the "Lone Wolf" and say, "I gotta get outta here." Sometimes Smith would say that he just wanted to go away and live on an island somewhere "around no kind of family or nothing like that." William also remembered Smith telling him that "the worse thing to f____ up a man was to have a family." Smith made these statements during a collection of conversations over a period of years.
Smith took the stand on his own behalf and testified as follows: In 1986 he encountered financial difficulties and agreed to accept a drug dealing opportunity in Los Angeles with an organization. That same year, Smith moved to Las Vegas and continued working for the organization. At some point, the organization falsely accused Smith of stealing cocaine and told Smith that he now owed the organization a big debt. Smith quit working for the organization and in 1989 Gino, a man from the organization, found Smith and reminded him of the debt, saying that "it had to be paid or else they were going to give [him] a fate worse than death."
He resumed working for the organization, and also began to look for a new house in a gated community. He found the house at the Fountains and arranged payment terms with Allen, which included giving Allen eleven kilograms of cocaine in exchange for the equity in the house. The eleven kilograms were part of a twenty kilogram shipment which Smith had received from the organization and had decided to keep for himself. Smith gave Allen ten kilograms of cocaine, worth approximately $200, 000, on the same day that he gave Allen the $35, 000 check. He claimed that Allen knew that the check was no good and served only to make the transaction seem legitimate, and said he would not deposit it.
On Thursday, October 4, 1990, Smith left the additional kilogram of cocaine owed Allen in Allen's bathroom sink, upstairs where Allen stayed when he was in town for weekends. That same day, Smith told the organization that he had sold twenty kilograms of cocaine and was keeping the money because he was "tired of working for peanuts."
Between 2:00 a.m. and 3:00 a.m. on the morning of Friday, October 5, while he was in bed with Judith, he was awakened by a tap on his toe. He then saw three men standing over his bed, one of whom picked up a hammer Smith had been using the previous night and began slapping it in his hand and asking Smith where the "stuff" was. Another man, who had a sawed-off shotgun, forced Smith to go into the game room and made him lay down and stay there. Smith subsequently discovered that his family had been killed.
On Friday, after the murders, he remembered receiving three phone calls from Yolanda. He stated that "I brushed her off like I had other things to do, a meeting I had to attend... I really needed some time to sort this out. There was too many loose ends that I didn't have answers to." Smith stated that he did not go to the police because he would have to tell them about the drugs and because it looked like he committed the crime and he knew they would put him in jail. He stated that he was also trying to figure out if Allen might have been involved in the murders and might have provided the killers with keys to the house. He called Allen that Friday morning to see if he could find out from Allen's voice if Allen was involved in the murders. After the phone call, he decided that Allen was not involved.
At approximately 4:00 p.m. on Friday, Smith took some sleeping pills and lay down on the game room floor by the closet. Early Saturday morning, he awoke to the sounds of someone coming into the game room. He thought that the killers had returned and began swinging the hammer at a man. He did not know it was Allen because it was dark and Allen did not say anything during the attack.
Six months after the murders, Smith was arrested in California. When he was arrested, evidence was seized which indicated that he was attempting to change his identity. Smith was charged with three counts of murder with use of a deadly weapon and one count of attempted murder with use of a deadly weapon. He was convicted of all four counts and sentenced to death for the murders of Kristy and Wendy, life without possibility of parole for Judith's murder and to two consecutive twenty-year terms for the attempted murder of Allen with use of a deadly weapon.
Smith v. State, 881 P.2d 649, 650-53 (Nev. 1994).
The Nevada Supreme Court affirmed the convictions but vacated the deadly weapon enhancement. Id. at 654. The state supreme court also vacated the death sentences and remanded for a new punishment trial. Id. at 655-56.
On April 18, 1996, a jury again sentenced Smith to death for the murders of Wendy and Kristy Cox. On appeal, the Nevada Supreme Court vacated the death sentence as to the murder of Kristy (replacing it with a life sentence without the possibility of parole), but affirmed the death sentence for the murder of Wendy. Smith v. State, 953 P.2d 264 (Nev. 1998). The Nevada Supreme Court denied Smith's petition for rehearing and issued its remittitur on March 31, 1998. On May 20, 1998, Smith was sentenced by the lower court in accordance with the state supreme court's remand.
On August 11, 1998, Smith filed, pro se, a state habeas petition in the Eighth Judicial District Court, Clark County. Having been appointed counsel, he filed an amended petition on September 21, 1999. On July 15, 2003, he filed supplemental points and authorities in support of his petition. On January 5, 2005, Smith filed a supplemental brief in support of his petition. The Eighth Judicial District Court denied relief on April 25, 2005. Smith appealed. On September 29, 2006, the Nevada Supreme Court affirmed the lower court in an unpublished order. The Nevada Supreme Court denied rehearing on November 29, 2006.
On March 13, 2007, Smith initiated this action by filing, pro se, a federal petition for writ of habeas corpus. ECF No. 1. Represented by the Federal Public Defender's office (FPD), Smith filed his first amended petition in this court on October 9, 2007. ECF No. 40. On February 28, 2008, this court granted a stipulation to stay the proceedings and hold them in abeyance pending Smith's exhaustion of state remedies. ECF No. 53.
On April 2, 2009, the FPD was relieved as counsel for Smith. ECF No. 79. Mario Valencia was appointed as counsel on June 29, 2009. ECF No. 85. On February 9, 2011, this court granted Smith's motion to lift the stay and reopen the proceedings. ECF No. 98. On April 4, 2011, the State filed a motion to dismiss in which they argued that numerous claims in the petition should be dismissed under the doctrine of procedural default or for failure to state a federal claim for relief. ECF No. 118. Pursuant to that motion, this court dismissed several claims from the first amended petition. ECF No. 165. Claims One, Two, Six through Eight, Ten through Fifteen, and Thirty remain before the court for a decision on the merits.
II. STANDARDS OF REVIEW
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.
III. ANALYSIS OF CLAIMS
Claims One and Two
In Claim One, Smith contends that his constitutional rights were violated because the Nevada courts lacked jurisdiction to adjudicate the criminal proceeding that resulted in his convictions and sentences. In Claim Two, he contends that the prosecutors and the Nevada courts failed to follow the relevant state statute that vested the trial court with jurisdiction. Both of these claims are premised on the factual allegation that the State did not file a criminal complaint prior to Smith's preliminary examination.
Smith exhausted the claims by presenting them to the Nevada Supreme Court in his first post-conviction proceeding. ECF No. 111-12, p. 8-10, 37-38. In his opening brief, Smith argued that, under state law, the absence of a criminal complaint on file means that the warrant for his arrest was invalid, that the state justice court lacked jurisdiction to conduct a preliminary hearing and bind him over to the district court for trial, and, consequently, that the district court never acquired jurisdiction to adjudicate his case. ECF No. 111-10, p. 19-25. In his reply brief, Smith claimed that, due to the state court's lack of jurisdiction, his convictions violate the Fifth, Sixth, and Fourteenth Amendments of the Unites States Constitution. ECF No. 111-12, p. 8-10.
The Nevada Supreme Court denied relief on two grounds. First, the court held that any challenge to the arrest warrant or the jurisdiction of the justice court should have been raised prior to trial. ECF No. 111-12, p. 37-38. Second, the court concluded "that Smith had failed to show that the warrant was infirm or that the justice of the peace who issued it lacked the authority to do so." Id.
The absence of a reference to federal law in the Nevada Supreme Court's decision does not necessarily mean that the deferential standards imposed by § 2254(d) do not apply here. See Richter, 131 S.Ct. at 784. Even considered de novo, however, neither Claim One nor Claim Two is a ground for granting Smith relief.
With respect to Claim One, the Nevada Supreme Court was satisfied that the trial court had jurisdiction under Nevada law to adjudicate Smith's case. As stated by the Supreme Court in Estelle v. McGuire, 502 U.S. 62 (1991), "it is not the province of a federal habeas court to reexamine state court determinations on state law questions." 502 U.S. at 67-68. Determinations regarding jurisdiction are not an exception to this general rule. Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994); see also Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) ("Determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary.").
As for Claim Two, a habeas petitioner may not transform a state law issue into a federal one merely by asserting a due process violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). At a minimum, Smith needs to show that the alleged failure to follow state procedures resulted in the deprivation of a substantive right. See Moran v. Godinez, 57 F.3d 690, 695 (9th Cir. 1994) ("Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest."). While Smith claims that he had "a state-created, constitutionally protected liberty interest in the fair administration of state procedures governing charging and arresting those suspected of committing felonies" (ECF No. 168, p. 59), he fails to explain how the procedures in his case resulted in unfairness. "Process is not an end in itself;" and "an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause." Olim v. Wakinekona, 461 U.S. 238, 251 n. 12 (1983).
Claims One and Two ...