United States District Court, D. Nevada
For Jack David Getz, Petitioner: Debra Bookout, LEAD ATTORNEY, Federal Public Defender, Las Vegas, NV; Jonathan M Kirshbaum, LEAD ATTORNEY, Law Offices of the Federal Public Defender, Las Vegas, NV.
For Jack Palmer, Attorney General of the State of Nevada, Respondents: Dennis C. Wilson, LEAD ATTORNEY, Nevada Attorney General's Office, Las Vegas, NV.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
Before the Court for a decision on the merits is an application for a writ of habeas corpus filed bye Jack David Getz, a Nevada prisoner. (Dkt. no. 68.)
I. FACTUAL AND PROCEDURAL HISTORY
This case stems from the December 25, 1997, shooting death of Rayburn Ware. The Nevada Supreme Court recounted some of the facts of the case as follows:
. . . [A]ccording to Getz's own testimony, he shot Ray. Although Getz claimed that the shooting was in self-defense, testimony at his trial showed otherwise. Testimony showed that Getz had previously made statements threatening to kill Ray and his friends, as well that he was unhappy that his daughter was dating Ray, who was the likely father of her unborn child. Testimony also showed that Getz had owned and received training on how to use handguns; whereas Ray who was afraid of guns, had never been seen with one.
Moreover, expert testimony showed that Ray was brutally shot four times at close range. These shots included one to the top of the head, one to the neck/chin, and two in the shoulder while he [Ray] was on the ground. This shooting occurred while Ray was outside a parking lot late on a particularly cold Christmas night without a coat.
We find the following testimony particularly relevant: Getz was out driving late on Christmas night for no logical reason; Getz and his family were planning to move out of state within a number of days; even though Getz was a trained private detective, he did not immediately report the shooting to police or call 9-1-1 for help; instead, Getz drove home to change his clothes and then drove from Las Vegas to Arizona to dispose of the bloody clothes he wore during the shooting; according to Getz, he just left the gun and Ray's body lying on the parking lot; the gun was never found; and Getz was not entirely forthcoming to police about the night's events.
Dkt. no. 32-4, p. 4-5.
In March 1998, an indictment was filed charging Getz with one count of murder with use of a deadly weapon. In pretrial proceedings, Getz waived a separate penalty hearing before the jury should he be found guilty. The case proceeded to trial, which occurred
February 9, 2000, through February 14, 2000. The jury found Getz guilty of first degree murder with use of a deadly weapon. On April 27, 2000, a judgment of conviction was entered. Getz was sentenced to two consecutive terms of life without the possibility of parole.
On May 8, 2000, Getz filed a direct appeal of his conviction. On March 13, 2002, the Nevada Supreme Court filed an order of affirmance. On March 13, 2003, Getz filed his state post-conviction petition for a writ of habeas corpus. The district court held an evidentiary hearing. On June 23, 2004, the district court filed a written order dismissing the state habeas petition. Getz timely appealed that decision. On March 24, 2006, the Nevada Supreme Court filed an order affirming the dismissal. Remittitur issued on April 25, 2006. Getz mailed his federal habeas petition to this Court on June 2, 2006. On June 20, 2006, the Federal Public Defender's office was appointed as Getz's counsel. Getz's counsel filed a first amended petition on January 31, 2007.
On December 14, 2007, this Court granted respondents' motion to dismiss, in part, finding that Ground Three of the petition was unexhausted. The Court gave Getz the option of abandoning his unexhausted claim and proceeding on his exhausted claims, or in the alternative, to seek a stay under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). Getz chose the latter. By order filed July 21, 2008, this Court granted Getz's motion for a stay, allowing Getz to return to state court to exhaust his unexhausted claim.
When Getz's further state-court proceedings concluded, Getz filed a motion to reopen this action. By order filed April 1, 2010, this Court granted Getz's motion to reopen the case. On April 28, 2010, Getz filed a second amended petition for writ of habeas corpus containing three (3) grounds for relief. Respondents filed a motion to dismiss Ground Three of the petition. On May 24, 2011, the Court entered an order granting the motion. Pursuant to this Court's order, both parties filed, on February 24, 2014, a supplemental brief addressing the impact of Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), on this Court's analysis of Ground Two.
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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) ( quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (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, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) ( citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (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, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (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 ...