United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
Before the court are the first amended petition for writ of habeas corpus (#15), respondents' motion to dismiss (#32), petitioner's opposition (#38), and respondents' reply (#39). The court finds that petitioner has procedurally defaulted most of his grounds for relief and that he has not shown cause and prejudice to excuse the defaults. The court grants the motion.
A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state-law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).
To demonstrate cause for a procedural default, the petitioner must "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Carrier, 477 U.S. at 488.
To show prejudice, "[t]he habeas petitioner must show not merely that the errors at... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).
Ground A of the first amended petition is a claim that petitioner's rights under the constitution and Miranda v. Arizona, 384 U.S. 436 (1966), were violated by the admission into evidence of his statements at trial. Petitioner's statements can be divided into two categories. First, after security officers at a casino in Primm, Nevada, found petitioner and his girlfriend carrying out his girlfriends deceased baby, police officers questioned petitioner twice in Primm. The responses of petitioner and his girlfriend led to petitioner being arrested. Second, while petitioner was being driven to the county jail, he started a conversation with the officer. After he arrived at the jail, he asked the officer to speak with the detective investigating the case, because petitioner wanted to state what happened. The officer told petitioner to tell the officer what he wanted to say first. The officer did not want to contact the detective if petitioner simply would tell the same story that he had told earlier, which the police had found unbelievable. Petitioner then said what he had done to the baby. The officer called the detective, who came to the jail, warned petitioner pursuant to Miranda, and then interrogated petitioner about what had happened.
In the state court proceedings, petitioner first was represented by the county public defender. The public defender moved to suppress petitioner's statements given to the officer at the jail before the officer called the detective, and given to the detective after the Miranda warnings. The public defender did not move to suppress petitioner's statements that he had given in Primm. The trial court denied the motion. Petitioner then sought and received permission to represent himself. He went to trial. The jury found him guilty of, and the trial court convicted him of, first-degree murder. Ex. 2 (#17). Petitioner appealed. The Nevada Supreme Court did not allow petitioner to represent himself on appeal. The county public defender was appointed to represent petitioner on appeal. Appellate counsel raised one issue, whether the statements given to the officer and the detective at the jail were involuntary. See Ex. 28 (#18). The Nevada Supreme Court affirmed the judgment of conviction. Ex. 30 (#18).
Petitioner then filed in state district court a post-conviction habeas corpus petition. Ground 3 of that petition repeated the claim that the statements given at the jail were involuntary. Ground 3 of that petition also newly claimed that the statements given in Primm also were involuntary. Ex. 35, at 5 (#19). The state district court held:
18. In Claim III of his petition, Defendant claimed that his confession was not voluntary and thus not properly admitted into evidence. Because the Nevada Supreme Court determined that Defendant's statements were volunteered and not the product of an "interrogation" this claim is barred by the doctrine of law of the case and this Court declines to reconsider the issue.
Ex. 84, at 4 (#21). The Nevada Supreme Court did not address specifically the statements taken at or near the casino. It did hold that other grounds that could have been raised on direct appeal, but were not, were procedurally barred because petitioner had failed to demonstrate good cause for the failure to raise them on direct appeal. Ex. 93, at 5 (citing Nev. Rev. Stat. § 34.810(1)(b)) (#22).
Respondents and petitioner agree upon what is not procedurally defaulted in ground A. Petitioner's claim that the statements given to the officer and the detective at the jail is before the court properly. Petitioner's claim that trial counsel provided ineffective assistance by not challenging the statements given in Primm is before the court properly. Petitioner's claim that appellate counsel provided ineffective assistance by not raising on direct appeal the issue of the statements given in Primm is before the court properly. The procedural default, if there is one, is only regarding the underlying claim that the admission of petitioner's statements given in Primm were involuntary.
There are two ways that the court can consider this claim. First, it could have been barred by Nev. Rev. Stat. § 34.810(1)(b). Second, because the Nevada Supreme Court did not mention the claim specifically, the court could look through the Nevada Supreme Court's decision to the decision of the state district court. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). If the claim about the admission of the statements given in Primm is indeed a claim separate from the admission of the statements given at the jail, then the use of Nevada's law of the case doctrine in this case does operate as a ...