United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss the first amended petition.
I. PROCEDURAL HISTORY
Petitioner was convicted, pursuant to a jury trial, of the following: (1) two counts of preventing and dissuading a person from testifying or producing evidence; (2) one count of first-degree kidnapping; (3) two counts of battery with intent to commit a crime; (4) six counts of sexual assault of a minor under fourteen years of age; (5) two counts of coercion; and (6) two counts of lewdness with a child under the age of fourteen. (Exh. 34.) Petitioner was sentenced to forty years to life in prison. (Exh. 39.)
Petitioner filed a direct appeal. (Exh. 40.) Petitioner's opening brief was filed on September 13, 2005. (Exh. 41.) On November 20, 2006, the Nevada Supreme Court published an en banc opinion, affirming in part, reversing in part, and remanding in part. (Exh. 47; Estes v. State, 146 P.3d 1114 (Nev. 2006).) The Nevada Supreme Court's opinion addressed the issue of allowing compelled defendant psychiatric treatment disclosures and clinical observations to be used by the prosecution at trial to establish defendant's guilt or otherwise combat an affirmative defense of insanity. Estes, 146 P.3d at 1120-39. The opinion finds against petitioner on this assignment of error and rejected several other claims. The court remanded the matter for dismissal of Count 4 (battery with intent to commit sexual assault), Count 12 (lewdness with a minor), and Count 13 (lewdness with a minor), and to vacate the attendant sentences. Id. at 1145. The Court further remanded the matter for further proceedings on the two dissuading of a witness counts. Id. The case was also remanded to have the judgment of conviction reflect that petitioner was convicted pursuant to a jury trial (instead of a guilty plea) and to correct the number of days credit for time served, if necessary. Id. Petitioner filed a petition for rehearing, which the Nevada Supreme Court denied by order filed December 28, 2006. (Exh. 52.) Remittitur was issued on March 29, 2007. (Exh. 54.) Petitioner sought a writ of certiorari, which was denied by the United States Supreme Court. (Exh. 56.)
On December 20, 2006, the state district court conducted a hearing implementing the order of the Nevada Supreme Court, dismissing Counts 4, 12, and 14 for lack of sufficiency of the evidence. The state district court also dismissed Counts 1 and 15, the dissuading a witness counts. (Exh. 1, State Court Minutes.) The state district court filed an amended judgment of conviction on January 12, 2007. (Exh. 51.) The state district court later filed a final second amended judgment of conviction, correcting credit for time served, on March 23, 2007. (Exh. 53.)
On November 28, 2007, petitioner, acting in pro per, filed a post-conviction habeas petition and accompanying memorandum of points and authorities in the state district court. (Exhs. 57 & 58.) The state district court appointed counsel to represent petitioner in the post-conviction proceedings. (Exh. 61.) On August 17, 2009, petitioner's attorney filed a supplemental brief in support of the post-conviction habeas petition. (Exh. 63.) On September 17, 2009, petitioner's attorney filed a second supplemental brief in support of the post-conviction habeas petition. (Exh. 64.)
On April 7, 2011, the state district court conducted an evidentiary hearing on the post-conviction petition and supplements. (Exh. 68.) The state district court entered findings of fact, conclusions of law, and order denying the post-conviction habeas petition on June 14, 2011. (Exh. 71.)
Petitioner appealed the denial of his post-conviction state habeas petition. (Exh. 69.) On December 22, 2011, petitioner filed his opening brief on appeal. (Exh. 73.) On December 12, 2012, the Nevada Supreme Court entered an order affirming the state district court's denial of the post-conviction habeas petition. (Exh. 76.) Remittitur issued on January 8, 2013. (Exh. 77.)
Petitioner dispatched his federal habeas petition to this Court on December 23, 2012. (Dkt. no. 1-1, at p. 1.) By order filed April 11, 2013, this Court appointed the Federal Public Defender to represent petitioner in this federal habeas corpus proceeding. (Dkt. no. 3.) The Office of the Federal Public Defender entered an appearance on behalf of petitioner on April 19, 2013. (Dkt. no. 7.) On June 6, 2013, this Court issued a scheduling order, directing the filing of an amended petition and a response to the same. (Dkt. no. 9.) The Court granted petitioner's motion for an extension of time in which to file an amended petition. (Dkt. no. 12.) Through counsel, petitioner filed a first amended petition on November 12, 2013. (Dkt. no. 20.) The first amended petition contains three grounds for relief, as follows:
Ground 1: The United States Constitutional rights to due process, the protection against self-incrimination, and the right to the assistance of counsel are violated when defendant is committed by court order to the state mental health facility and after he is found competent to proceed to trial and the prosecutor is allowed to use all the information gathered during this commitment to refute the basis for a plea of not guilty by reason of insanity and his defense to involuntary intoxication.
Ground 2: Petitioner Estes' United States Constitutional rights to due process and the right to present a defense were denied when the court refused to give an involuntary intoxication jury instruction.
Ground 3: Trial and appeal counsel for Estes failed to provide constitutionally adequate performance in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution when:
A. Trial counsel failed to obtain an expert and otherwise investigate and support Estes' defense theory and testimony that he suffered from mental illness in violation of the Fifth, Sixth, and ...