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Homick v. Baker

United States District Court, D. Nevada

March 24, 2014

STEVEN M. HOMICK, Petitioner,
v.
RENEE BAKER, et al., Respondents.

PHILP M. PRO, District Judge.

Introduction

In this capital habeas corpus action, brought by Steven M. Homick, a prisoner on Nevada's death row, the respondents have filed a motion to dismiss (ECF No. 303). The motion to dismiss is based on the statute of limitations, the requirement of exhaustion of state-court remedies, and the procedural default doctrine, and it also raises issues regarding the cognizability of certain of Homick's claims. Homick opposes the motion to dismiss, and has filed a motion for an evidentiary hearing (ECF No. 346). The court will deny the motion to dismiss, in part with prejudice and in part without prejudice, will deny the motion for evidentiary hearing, and will direct respondents to file an answer responding to the merits of the Brady claims in Claim 1 of Homick's second amended habeas petition.

Factual Background and Procedural History

On Homick's direct appeal, the Nevada Supreme Court set forth the factual background of the case, and summarized the evidence presented at trial, as follows:

Appellant Steven Michael Homick was convicted by a jury of the first-degree murder of three unarmed victims with the use of a deadly weapon and sentenced to death. Homick was also convicted of robbery with the use of a deadly weapon, and burglary.
* * *
In the early afternoon of December 11, 1985, David Tipton, unsuccessful in contacting his wife by telephone concerning their planned luncheon engagement for the day, drove unsuspectingly to a horror scene awaiting him at his Las Vegas home. After entering his residence and walking down the hall, he observed the body of a male sprawled across the floor at the entrance to the master bedroom. Mr. Tipton also noticed that the bedroom had been ransacked and that jewelry boxes were strewn about on the floor. Finally, the frantic man saw the bodies of his wife, Bobbie Jean Tipton, and the Tipton's housekeeper, Maria Bullock, on the floor of the walk-in closet containing a floor safe.
The trial evidence reflects that Homick had learned of the valuable jewelry owned by Mrs. Tipton as a result of his employment as a security specialist with The Tower of Jewels, a Las Vegas jewelry store where the victim had taken 50 to 60 pieces of her jewelry for appraisal and cleaning. Timothy Catt, a jeweler employed at The Tower of Jewels, testified that Homick told him that he had heard through his wife that Bobbie Jean Tipton was a very wealthy lady with magnificent jewelry, and that only a portion of it had been taken to The Tower of Jewels.
During the month following the murders, Homick twice showed Catt items of jewelry that Catt recognized as part of a collection belonging to Bobbie Jean Tipton. Homick did not indicate where he had obtained the jewelry, and warned both Catt and Catt's girlfriend, under threat, to keep quiet about the jewelry. Catt, who on occasion had worked on various pieces of the victim's jewelry, was familiar with many of the items because of their unique qualities. Finally, after inquiring of Catt as to the value of a pear-shaped diamond ring owned by Mrs. Tipton, Homick arranged to meet Catt at a commercial center. The meeting took place in Catt's automobile. After complaining of money problems, Homick eventually told Catt about the crimes he had committed in the Tipton residence.
Catt's testimony concerning Homick's admissions was consistent with the evidence found at the scene of the crimes. Homick stated to Catt that when Mrs. Tipton opened the floor safe, he shot her in the head. Homick also declared that he "also shot the nigger." As Homick continued the search for money inside the house, the doorbell rang. Homick answered the door, "yanked" the man inside and "offed him." The latter victim, James Meyers, was a deliveryman for a local steak and seafood business. Catt, fearful of Homick, did not reveal his knowledge of Homick's criminal conduct to the police until after Homick was taken into custody.
Autopsy examinations of the two female victims revealed that each had been shot in the head three times, evincing wounds consistent with those made by.22 caliber bullets. An autopsy on the body of James Meyers disclosed two bullet wounds to the head and one.38 caliber bullet wound to the anterior chest. The trial evidence revealed that Homick had possessed handguns consistent with those used in killing the three victims.
We deem it unnecessary to recite in detail the full extent of the evidence adduced at trial in support of the State's case against Homick. To characterize the evidence of his guilt as overwhelming is an evaluation fully supported by the record. The evidence of record vividly portrays the picture of what occurred in the Tipton residence on the morning of December 11, 1985. Homick's own daughter provided police with items of jewelry taken from the Tiptons and given to her by her father. Other witnesses presented testimony clearly identifying jewelry belonging to Mrs. Tipton in the possession of Homick. Indeed, a police surveillance in California produced evidence obtained by binocular viewing of Homick and others passing pieces of jewelry, and Homick placing the jewelry in plastic bags. A search of the surveilled premises pursuant to a search warrant, produced, among other items, a stone later identified as having been specially created for, and belonging to, Bobbie Jean Tipton.
Additional evidence of Homick's guilt included testimony by a long time friend and criminal confederate of Homick's, Michael Dominguez, who, at Homick's behest, attempted to murder a man by the name of Craig Maraldo to satisfy a drug debt owed to Homick. A firearms expert, Richard Good, testified that the eight.22 caliber Remington long rifle expended cartridge casings recovered from the Tipton house were fired from the same weapon as six of the seven expended casings found at Maraldo's residence. Moreover, Dominguez testified that on the afternoon of the day of the Tipton murders, he saw in Homick's car the same.22 Ruger with silencer that Homick had loaned to Dominguez to kill Maraldo.
In January of 1986, Ronald Byrl, another of Homick's associates, was arrested and his house examined pursuant to a warranted search. Among the items uncovered by the search were a diamond ring and two handguns, a.38 and a.22, both equipped with silencers. Byrl testified that Homick brought a number of pieces of jewelry to him in order to use his portable grinder to clean the items and remove identifying markings. Homick explained to Byrl that the jewelry came "from a good job." Also included among the items taken to Byrl were several rings, a lady's blue Piaget wristwatch, and a man's Rolex watch later identified as belonging to David and Bobbie Jean Tipton. Byrl testified that Homick had also asked him to store eight handguns.
As previously stated, it is unnecessary to recite fully the evidence of Homick's guilt. The qualitative and quantitative magnitude of the evidence against Homick leaves slight room for doubt concerning the verity of his guilt. [Footnote: A pen register device monitoring Homick's phone line had been secured by the FBI in connection with a prior investigation. The device revealed that Homick had placed a call to the Tipton residence on December 2, 1985, and on the evening of the date of the murders. Homick had also asked a friend in the police department to run a check on the registration of two vehicles; both vehicles were registered to the Tiptons.]

Homick v. State, 108 Nev. 127, 129-32, 825 P.2d 600, 602-03 (1992).

The Nevada Supreme Court affirmed the judgment of conviction, and Homick's sentences, on January 27, 1992. See Homick, 108 Nev. at 142, 825 P.2d at 610. The Nevada Supreme Court denied Homick's petition for rehearing on May 18, 1992. See Petitioner's Exhibit 99 (ECF No. 342).[1]

Homick then filed a state-court post-conviction habeas corpus petition on May 14, 1993. See Respondents' Exhibit 3 (ECF No. 305). The state district court held an evidentiary hearing, and, on November 14, 1994, denied Homick's petition. See Respondents' Exhibit 4 (ECF No. 305). Homick appealed, and, on April 3, 1996, the Nevada Supreme Court affirmed. See Homick v. State, 112 Nev. 304, 913 P.2d 1280 (1996). Homick's petition to the United States Supreme Court for a writ of certiorari was denied on December 2, 1996. See Petitioner's Exhibit 180 (ECF No. 256).

On April 22, 1997, Homick filed, in this court, a federal habeas petition, which was designated case number CV-N-97-0240-DWH(PHA). See Petitioner's Exhibit 42 (ECF No. 255). That action was dismissed without prejudice on June 23, 1997. See Petitioner's Exhibit 43 (ECF No. 255).

Meanwhile, on May 28, 1997, Homick filed a second state-court habeas petition. See Petitioner's Exhibit 103 (ECF No. 342). The state district court dismissed that petition on November 24, 1997. See Petitioner's Exhibit 124 (ECF No. 342). Homick appealed, and, on January 15, 1999, the Nevada Supreme Court dismissed the appeal. See Petitioner's Exhibit 3 (ECF No. 283).

On June 3, 1999, Homick initiated this action. See Petition for Writ of Habeas Corpus (ECF Nos. 1, 6). Counsel was appointed for Homick, and discovery proceedings ensued. On March 13, 2008, Homick filed an amended petition (ECF No. 248). The case was then stayed, on July 10, 2008, to allow Homick a third round of state-court habeas litigation (ECF No. 268).

Homick then filed his third state-court habeas petition. See Petitioner's Exhibit 3 (ECF No. 293). After holding an evidentiary hearing, the state district court denied the petition on October 13, 2009. See Petitioner's Exhibit 128 (ECF No. 342). Homick appealed, and, on October 18, 2011, the Nevada Supreme Court affirmed. See Petitioner's Exhibit 4 (ECF No. 283).

The stay of this action was lifted on November 15, 2011 (ECF No. 278). Thereafter, on January 20, 2012, Homick filed his second amended habeas petition, which is now the operative petition in the case (ECF No. 282).

On August 1, 2012, respondents filed a "Motion for Compliance with Rule 2 of the Rules Governing Section 2254 Cases in the United States District Court, LSR 3-1, and Docket # 61" (ECF No. 292), asserting that Homick had not, in his second amended petition, provided sufficient detail regarding exhaustion of his claims in state court, and asserting that Homick had improperly included multiple discrete claims within each numbered claim in the second amended petition. The court denied that motion on October 25, 2012 (ECF No. 297). The court declined to require Homick to reorganize his claims, and ruled that - at least in his opposition to respondents' motion - Homick provided sufficient detail regarding his position with respect to his exhaustion of claims in state court. See Order entered October 25, 2012 (ECF No. 297).

On March 19, 2012, respondents filed their motion to dismiss (ECF No. 303). On September 20, 2013, Homick filed his opposition to the motion to dismiss (ECF Nos. 350, 351). A redacted version of the opposition, and several exhibits, were filed normally (ECF No. 350); an unredacted version of the opposition, and other exhibits, were filed under seal, with leave of court (ECF No. 351). See Order entered September 25, 2013 (ECF No. 349). Homick served a copy of the sealed material on respondents' counsel, under the condition that the Attorney General not disclose the contents of that material to anyone outside the Attorney General's Office or in any public filing. See id. The court invited respondents to respond, setting forth their position concerning the sealing of the unredacted opposition to the motion to dismiss and related exhibits, and the restrictions placed upon respondents with respect to their handling of those materials, and the court invited Homick to reply. See id. The parties filed that briefing (ECF Nos. 357, 360). On December 2, 2013, the court directed Homick to serve upon respondents certain other sealed material. See Order entered December 2, 2013 (ECF No. 363). Respondents then filed their reply in support of the motion to dismiss on January 10, 2014 (ECF No. 167).

With his response to the motion to dismiss, on September 20, 2013, Homick filed a motion for evidentiary hearing (ECF No. 346). Respondents filed an opposition to that motion on January 9, 2014, (ECF No. 365). Homick filed a reply in support of his motion for evidentiary hearing on February 18, 2014 (ECF No. 371).

The Court's Handling of The Current Motions and Further Litigation of this Action

Homick's second amended petition for writ of habeas corpus includes 23 claims. See Second Amended Petition (ECF No. 282). In their motion to dismiss, respondents assert that parts of Claim 1, and all of Claims 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, are barred by the statute of limitations and should be dismissed. Motion to Dismiss (ECF No. 303), pp. 68-90. Respondents also assert that Homick's claims that his state post-conviction counsel was ineffective, which according to respondents, are found in Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, are not grounds for habeas corpus relief and should be dismissed. Id. at p. 91. Respondents also assert that Homick's submission, in support of his second amended petition, of exhibits not presented in state court, renders his claims in part or completely unexhausted in state court and subject to dismissal on that basis as well. Id. at 92-95. Respondents next assert that, aside from the question of Homick's submission of new evidence in federal court, based on a comparison of Homick's claims in his second amended petition to the claims he presented to the Nevada Supreme Court, all of Homick's claims are in part or completely unexhausted in state court and subject to dismissal. Id. at 95-125. Respondents assert next that Claim 5 is frivolous and must be dismissed. Id. at 125-26. Finally, respondents assert that parts of Claims 1, 11, and 23, and all of Claims 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 are procedurally defaulted and subject to dismissal on that ground as well. Id. at 127-32.

In his motion for evidentiary hearing, Homick states several reasons why he believes an evidentiary hearing is necessary to the resolution of much of the motion of dismiss. In the briefing of that motion, Homick suggests a course of action with respect to the management of the further litigation of this complex action. See Reply in Support of Motion for Evidentiary Hearing (ECF No. 371), pp. 5-13. Homick suggests that the court should structure the remainder of the proceedings such as to first resolve Claim 1 of his second amended habeas petition. Id. Homick appears to believe that Claim 1 includes relatively strong claims, the resolution of which, in his view, might moot the remainder of his claims. Id. Homick takes the position that the motion to dismiss with respect to Claim 1 alone can be resolved without need for an evidentiary hearing. Id.

The court generally agrees with Homick's suggestion with respect to the management of the further litigation of this action. The court agrees that certain portions of Claim 1 should be resolved, on their merits, without further delay, and, in particular, without the delay that would be caused by an evidentiary hearing relative to the resolution of respondents' procedural defenses to Homick's other claims. In light of the complexity and age of this action, in the interests of justice, and in the interests of judicial economy, the court will accept Homick's suggestion and will move this case to the resolution of certain portions of Claim 1 on their merits.

The court will, however, limit further than is suggested by Homick, the claims that will be litigated first. Claim 1 includes three sorts of claims: claims that the prosecution wrongfully suppressed exculpatory evidence, under Brady v. Maryland, 373 U.S. 83 (1963); claims that the prosecution knowingly used false testimony, under Napue v. Illinois, 360 U.S. 264 (1959); and claims of ineffective assistance of trial counsel, under Strickland v. Washington, 466 U.S. 668 (1984). The court will move this case, forthwith, toward resolution of the Brady claims in Claim 1; the Napue and Strickland claims in Claim 1, and all Homick's other claims, will be addressed subsequently, at an appropriate time, if necessary.

By handling Homick's claims in this order, the court reaches as efficiently as possible the merits of what Homick appears to believe are his strongest claims. Moreover, this approach will allow the court to obtain briefing, and what factual development is warranted, with respect to the merits of Homick's Brady claims, which are at the heart of his claims of actual innocence, before addressing, if necessary, whether Homick can, by means of those claims of actual innocence, overcome the procedural defenses asserted by respondents in response to his other claims for relief. See Opposition to Motion to Dismiss, pp. 56-81. The court finds this to be the most efficient, and most just, way forward in this case.

In this order, then, the court resolves - and denies with prejudice - the motion to dismiss with respect to Homick's Brady claims in Claim 1. The court denies the remainder of the motion to dismiss, with respect to Homick's Napue and Strickland claims in Claim 1, and all of Claims 2 through 23, without prejudice. Respondents will be allowed to re-assert their procedural defenses to Homick's Napue and Strickland claims in Claim 1, and all of Claims 2 through 23, if necessary, at an appropriate time, after the Brady claims in Claim 1 are resolved on their merits.

Statute of Limitations

The AEDPA Statute of Limitations, and It's Application to this Case, Generally

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), there is a one-year statute of limitations applicable to federal habeas ...


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