United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This represented habeas matter comes before the Court on petitioner's motion for leave to conduct discovery (dkt. no. 35), respondents' motion to dismiss for lack of exhaustion and relation back (dkt. no. 37), and an outstanding motion for an extension (dkt. no. 39).
Petitioner Ronald Lennon seeks to set aside his 2006 Nevada state conviction, pursuant to a jury verdict, of one count of first-degree murder of a victim 65 years of age or older and one count of robbery of a victim 65 years of age or older. It appears from the aggregate mandatory minimum sentence structure and petitioner's current age that he faces incarceration into his nineties.
In the motion for discovery, petitioner seeks, inter alia, to conduct DNA testing of certain evidence that was collected in the investigation but that was not tested by either the State or the defense or was not tested to the extent now sought. All of the discovery sought is sought in support of claims of alleged ineffective assistance of trial counsel in Ground 5 of the counseled amended petition.
In the motion to dismiss, respondents contend that the claims in Ground 5 of ineffective assistance of counsel are unexhausted and further are untimely for failure to relate back to a timely claim in the original petition. Both defenses are based on the added factual specificity in the amended petition compared to the prior pro se state and federal pleadings.
In broad brush, the evidence at trial tended to establish, inter alia, the following.
Ronald Lennon knew the victim, Mary Moore. They were friends who both were "down on their luck, " addicted to gambling and each leading largely homeless lives in Las Vegas.
Lennon was with Moore for a large part of the day on August 1, 2003, including later in a low-rent motel room in downtown Las Vegas that she rented for a week starting that afternoon. The next day, August 2, 2003, Lennon took a bus apparently to Salt Lake City.
A week later, on August 8, 2003, Mary Moore's body was found in the room by motel staff. Investigators observed that her body was in an advanced state of decomposition. Moore had been strangled to death with a number of ligatures - a strap from her purse, a curtain pull cord, and the lace from one of her shoes. The forensic medical evidence could not establish the time of death with any degree of medical certainty. That is, the forensic medical evidence - standing alone - could not establish that Mary Moore was strangled at a time when Lennon necessarily was the person who strangled her.
As discussed further below, the evidence that Lennon was the person who strangled Moore, in a low-rent motel room in the middle of downtown Las Vegas, exclusively was circumstantial.
Moreover, the evidence did not wholly exclude the possible presence of another individual in the room at the time that Moore was strangled. For example, a washcloth with semen on it was recovered from an indeterminate location that may or may not be under the bed on which Moore's body lay. The semen on the washcloth was not Lennon's semen.
The testimony of the crime scene analyst who personally recovered the washcloth was not definitive as to the specific location at which the washcloth was first observed:
A. [responding to a question about the actual original location versus the photographed location] If we can't see the item, it's very customary - like you saw the contents of the waste basket pulled out. It's very customary to move something to show it.
I don't recall exactly how these particular photos were taken, but if it's under the - if we said it was under the bed [in the report], it was probably out of view or partially under it [the bed].
Dkt. no. 26, Ex. 21, at 266 (emphasis added).
The washcloth was found - at the indeterminate location under or partially under the bed - close to three empty Styrofoam cups, a plastic lid for one of the cups, and a napkin. The crime scene analyst suggested a possible connection to items in the trash. He testified that "[t]here was a lid associated with the - the cups under the bed, and the one in the trash, I would - I would - actually there was a lid in the trash." Only one other washcloth was found in the unit, in the bathroom, in addition to the semen-stained washcloth near the bed.
The state supreme court's summary of the evidence of petitioner's guilt reflects the degree to which the conviction was based upon circumstantial evidence:
In reaching our conclusion [that an error was harmless error], we note that the other abundant evidence establishing Lennon's guilt beyond a reasonable doubt, among other things, includes: Lennon having possession of the victim's purse after the time of the victim's death; the strap from this purse, among other ligatures, being tied around the victim's neck; the victim being known to be protective of her purse to the extent that she would never have given her purse to anyone in order to help her find a new one; video footage from the purported day of the victim's death showing the victim having a meal with Lennon and showing the victim wearing the same clothes that she was wearing when her body was found; DNA ...