United States District Court, D. Nevada
TYRONE L. GARNER, Petitioner,
CRAIG FARWELL, et al., Respondents.
ROBERT C. JONES, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Tyrone L. Garner, a Nevada prisoner. ECF No. 87.
Early one morning in May of 1998, Garner drove Charles Randolph to a bar in Las Vegas. Randolph entered the bar, shot the bartender to death, and stole cash and video equipment. In 2000, Garner was convicted in Nevada's Eighth Judicial District court of robbery, conspiracy to commit robbery, burglary while possessing a deadly weapon, and first degree kidnaping and first degree murder, each with the use of a deadly weapon. He was sentenced to various consecutive terms of imprisonment, including life sentences with the possibility of parole after serving a minimum of seventy years in prison. The Nevada Supreme Court's decision on Garner's direct appeal recounts, in detail, the facts and circumstances surrounding the crimes for which he was convicted. Garner v. State, 6 P.3d 1013, 1016-19 (Nev. 2000).
The Nevada Supreme Court affirmed the judgment of conviction and sentence. Id. at 1025. On February 6, 2002, Garner filed a state post-conviction petition, which was denied by the state district court. On March 21, 2003, that denial was affirmed by the Nevada Supreme Court.
On June 10, 2003, Garner filed, in this court, his initial petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising twenty-five grounds for relief. Following litigation of a motion to dismiss, the court determined that several of those claims had yet to be exhausted. Garner was given the option to dismiss the unexhausted grounds and proceed in this court or dismiss the entire petition without prejudice in order to return to state court to pursue exhaustion.
After an aborted attempt to appeal that decision, Garner sought leave to file an amended petition presenting only the exhausted claims and filed a declaration abandoning the unexhausted claims. Thereafter, respondents filed an answer addressing the merits of the claims, in response to which Garner filed a reply.
An order and judgment on the merits was entered on September 27, 2006. Garner filed a notice of appeal and then a motion to amend or correct the order. Before that motion was decided, however, Garner filed a motion for stay and abeyance arguing that a recent change in Nevada law disavowing the doctrine of natural and probable consequences called his convictions into question. The court agreed and vacated the previously entered order and judgment, permitting Garner to return to state court to present his claims to the state courts.
After his second foray into state court ended unsuccessfully, Garner moved to reopen these proceedings and file an amended petition. Respondents filed a motion to dismiss in response to the amended petition. Pursuant to that motion, this court dismissed several claims from the petition. Grounds One, Three, Four, Ten, Eleven, Twelve, and Fourteen through Seventeen remain before the court for a decision on the merits.
Subsequent to the reopening of this federal case, Garner filed a third state petition for post-conviction relief in June of 2012. That petition was denied by the state district court. The Nevada Supreme Court affirmed that denial in May of 2013.
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:
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
In Ground One, Garner claims that his constitutional rights have been violated because Nevada's statutes do not set forth a definition of conspiracy, which renders Nev. Rev. Stat. § 199.480 unconstitutionally vague. Garner alleges both a due process violation and a violation of his right to effective assistance of counsel, the latter due to counsel's failure to challenge the indictment containing the conspiracy charge.
In addressing Garner's sufficiency of evidence claim on direct appeal, the Nevada Supreme Court stated as follows:
The State charged Garner with conspiring with Randolph to commit robbery and aiding and abetting Randolph in the commission of burglary, robbery, kidnapping, and murder. There appears to be no comprehensive statutory definition of conspiracy. See NRS 199.480 (providing various penalties for conspiracy to commit various crimes or acts); NRS 199.490 (providing that it is not necessary to prove any overt act was done in pursuance of a conspiracy).
According to this court's case law, conspiracy is "an agreement between two or more persons for an unlawful purpose." Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998), cert. denied, 528 U.S. 830, 120 S.Ct. 85, 145 L.Ed.2d 72 (1999). Conspiracy is seldom demonstrated by direct proof and is usually established by inference from the parties' conduct. Id. Evidence of a coordinated series of acts furthering the underlying offense is sufficient to infer the existence of an agreement and support a conspiracy conviction. Id. However, absent an agreement to cooperate in achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not make one a party to conspiracy. Doyle v. State, 112 Nev. 879, 894, 921 P.2d 901, 911 (1996). We conclude that the evidence here was sufficient for the jury to reasonably infer that Garner had agreed to aid Randolph in committing the robbery.
Garner, 6 P.3d at 1019-20.
When Garner sought to challenge the constitutionality of Nev. Rev. Stat. § 199.480 in his first post-conviction ...