United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
Before the court are the second amended petition for writ of habeas corpus (#42), respondents' motion to dismiss (#50), and petitioner's opposition (#57). The court finds that ground 5(c) and part of ground 4 of the second amended petition are procedurally defaulted, and the court grants the motion in part.
In its earlier order (#35), the court determined in relevant part that ground 5(c) and the double-jeopardy claim in ground 4 of the first amended petition (#20) were not exhausted. The court then stayed the action while petitioner exhausted those claims in state court. Order (#40). Ultimately, the Nevada Supreme Court determined that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726 and successive and abusive of the writ pursuant to Nev. Rev. Stat. § 34.810. Ex. 89 (#43).
Petitioner then returned to this court with his second amended petition (#42). Respondents first argue that ground 5(c) and the double-jeopardy claim in ground 4 are procedurally defaulted.
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). The grounds for dismissal upon which the Nevada Supreme Court relied in this case are adequate and independent state rules. Vang v. Nevada , 329 F.3d 1069, 1074 (9th Cir. 2003) (Nev. Rev. Stat. § 34.810); Loveland v. Hatcher , 231 F.3d 640 (9th Cir. 2000) (Nev. Rev. Stat. § 34.726); Moran v. McDaniel , 80 F.3d 1261 (9th Cir. 1996) (same).
Regarding ground 4, petitioner was charged with six counts of sexual assault with a minor under the age of sixteen, among other charges. At trial and on direct appeal he contended that the trial court should have given the jury an advisory instruction of acquittal on three of the counts, because the evidence showed only three sexual acts. That part of ground 4 is exhausted and not procedurally defaulted. Petitioner also contends that the convictions on all six counts of sexual assault violate the Double Jeopardy Clause of the Fifth Amendment. That part of ground 4 is now exhausted, but it also is procedurally defaulted.
On direct appeal, the Nevada Supreme Court summarized the facts and arguments behind ground 4:
At trial, Newberg contended that under Townsend v. State [n.14 , 103 Nev. 113, 734 P.2d 705 (1987)] the district court should give an advisory verdict that the jury consider only three counts of sexual assault of a minor under the age of 16. Newberg further requested a jury instruction on the matter, which the district court agreed to give to the jury. Newberg argued that the evidence depicted only three sexual acts: fellatio, sexual intercourse, and an additional act of fellatio. Newberg argued that the jury should not consider each distinct sexual act as a separate offense. Newberg contended it was improper to consider three additional charges of sexual assault, each instituted anew when Newberg was engaged in a single act of sexual conduct, stopped to adjust the recorder, and resumed the conduct.
Ex. 66, at 7-8 (#28).
Petitioner presents an argument of actual innocence. The court can excuse the application of a procedural bar if a constitutional error in the criminal proceedings "resulted in the conviction of one who is actually innocent." Murray v. Carrier , 477 U.S. 478, 496 (1986). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo , 513 U.S. 298, 324 (1995). Petitioner can present such a claim "if all the evidence, including new evidence, makes it more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Gandarela v. Johnson , 286 F.3d 1080, 1086 (9th Cir. 2002) (quoting Schlup , 513 U.S. at 327). "[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States , 523 U.S. 614, 623 (1998).
The court is not persuaded. Petitioner is not arguing that the events depicted in the recording did not actually occur. He is arguing that he could have been convicted on only three counts based upon those events. This is an argument that the legal consequences of his acts should have been different; it is not an argument for factual innocence. Petitioner has not demonstrated actual innocence within the meaning of Bousley. The court dismisses the double-jeopardy claim in ground 4.
Regarding ground 5(c), before trial, petitioner had moved to suppress recordings of telephone conversations between petitioner, who at the time of the conversations was a pre-trial detainee at the Clark County Detention Center, and other people. In an evidentiary hearing, petitioner argued that the prosecution had given him copies of the recordings on the eve of trial, without enough time to review the recordings. The judge denied the request to suppress the recordings and instead continued the trial to give petitioner time to review the recordings. Ex. 27, at 136-37 (#23). In a written motion, petitioner argued that the recordings ...