United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Robert Eugene Allen, a Nevada prisoner convicted of first degree murder with the use of a deadly weapon and sentenced to two terms of life in prison with the possibility of parole. The case is before the court for resolution of procedural default issues, and on the merits of the claims in Allen's amended petition. The court will deny all the claims in the amended petition. The court will grant Allen a certificate of appealability with respect to one of Allen's claims (Ground 3).
Factual Background and Procedural History
In its January 9, 2007, order affirming Allen's conviction in sentence, the Nevada Supreme Court summarized the facts of the case as follows:
The evidence showed that Allen believed that his wife [Laurel] was having an affair with another man. On August 18, 2003, the night of the murder, Laurel received a telephone call. Suspicious, Allen checked the caller identification function on the telephone and recognized the number as being one that had been received several times previously. Later that evening, after eating dinner and after Laurel showered, Allen applied lotion to her back for a skin condition she had. Allen testified that as he applied the lotion, he thought about the telephone call and became increasingly upset. He testified that he snapped and struck Laurel in the head with an antique iron. Allen further testified that he did not remember retrieving a knife from the kitchen and stabbing Laurel. After the attack, Allen drove to a friend's house and told his friend that he hit Laurel with an iron, crushing her skull, and that he had stabbed her.
Laurel's autopsy revealed that she suffered multiple lacerations on her scalp and fractures of her skull. Her most significant injury and the one that caused her death was a 4- to 5-inch-deep stab would that extended from her neck, across her jugular vein, and into her chest cavity, piercing her lung.
Order of Affirmance, Exhibit 38, pp. 1-2.
Allen was charged in a criminal complaint with open murder with use of a deadly weapon (Exhibit 2), and a preliminary hearing was held on October 1, 2003. See Transcript of Preliminary Hearing, Exhibit 4. Following the preliminary hearing, Allen was held to answer the charge in the state district court, and on October 10, 2003, he was charged by information. See Information, Exhibit 5. On October 23, 2003, Allen pled not guilty. See Transcript of Proceedings of October 23, 2003, Exhibit 6.
Following a jury trial, conducted between June 27 and July 1, 2005, Allen was convicted of first degree murder with the use of a deadly weapon, and he was sentenced to a term of life in prison with the possibility of parole, plus an equal and consecutive term on the deadly weapon enhancement. See Transcript of Jury Trial, Exhibit 19, pp. 40-44 (jury's return of verdict); Verdict, Exhibit 21; Transcript of Sentencing Hearing, Exhibit 22; Judgment of Conviction, Exhibit 23.
Allen appealed. See Notice of Appeal, Exhibit 24. The Nevada Supreme Court affirmed the judgment of conviction on January 9, 2007. See Order of Affirmance, Exhibit 38; Judgment, Exhibit 39. The Nevada Supreme Court issued its remittitur on February 6, 2007. Remittitur, Exhibit 41.
On September 26, 2007, Allen initiated this federal habeas corpus action by submitting a pro se habeas corpus petition (ECF No. 8). The court initially denied Allen's motion for appointment of counsel (ECF Nos. 19, 20). Allen then filed a pro se amended habeas petition (ECF No. 22). Allen also filed a new motion for appointment of counsel; the court reconsidered the question of appointment of counsel and granted that motion, and appointed the federal public defender (FPD) to represent Allen (ECF Nos. 21, 23, 25, 26). On February 2, 2009, counsel filed, on Allen's behalf, a further amended habeas petition (ECF No. 27). Then, on February 9, 2009, counsel filed a stipulation (ECF No. 33), whereby the parties agreed to a stay of this action pending Allen's exhaustion of claims in state court. The court approved that stipulation, and ordered the case stayed on February 10, 2009 (ECF No. 35).
On March 6, 2009, Allen, acting pro se, filed a petition for writ of habeas corpus in the state district court. Petition for Writ of Habeas Corpus, Exhibit 50. On April 8, 2009, the State filed a motion to dismiss that action, contending it was untimely filed. State's Response and Motion to Dismiss, Exhibit 52. Allen did not file a timely response to that motion to dismiss, but had included in his state petition his excuse for his late filing: he asserted that there was good cause for the late filing because he did not timely receive trial transcripts from the attorneys who had represented him on his direct appeal. See Petition for Writ of Habeas Corpus, Exhibit 50, pp. 7-9. On May 21, 2009, the state district court dismissed Allen's habeas petition as barred by the statute of limitations at NRS 34.726(1). See Findings of Fact, Conclusions of Law, and Order, Exhibit 54; see also Transcript of Proceedings of May 7, 2009, Exhibit 53.
On June 2, 2009, Allen, then represented by the FPD, filed a motion to reconsider the dismissal of that action. See Memorandum of Points and Authorities in Support of Motion for Reconsideration, Exhibit 55. On June 4, June 24, and July 8, 2009, the state district court held hearings regarding the motion for reconsideration, and ultimately denied the motion. See Transcript of Proceedings of June 4, 2009, Exhibit 57; Transcript of Proceedings of June 24, 2009, Exhibit 58; Transcript of Proceedings of July 8, 2009, Exhibit 62.
While the motion for reconsideration was pending, Allen appealed. See Notice of Appeal, Exhibit 59. Allen also filed, in the Nevada Supreme Court, an emergency motion for stay and for order of remand. See Emergency Motion for Stay and Order Directing Remand, Exhibit 60. The Nevada Supreme Court denied that motion. See Order Denying Motion, Exhibit 61.
On September 10, 2010, the Nevada Supreme Court affirmed the state district court's ruling that Allen's state habeas petition was time-barred, and also ruled that certain of his claims were barred by NRS 34.810(1)(b), because they could have been raised on his direct appeal. See Order of Affirmance, Exhibit 67.
The stay of this federal habeas corpus action was lifted on August 9, 2011. See Order entered August 9, 2011 (ECF No. 39).
On October 4, 2011, respondents filed a motion to dismiss, arguing that Grounds 3, 4, 5, 6, and 7 of Allen's amended habeas petition are barred by the doctrine of procedural default (ECF No. 42). On September 13, 2012, the court denied respondents' motion to dismiss, without prejudice, and directed the parties to file an answer and a reply addressing the merits of Allen's claims, and also further addressing the procedural default issues. See Order entered September 13, 2012 (ECF No. 49).
Respondents filed an answer (ECF No. 52) on November 16, 2012, and Allen filed a reply (ECF No. 54) on February 14, 2013.
Analysis of Allen's Claims
In Ground 1 of his amended petition, Allen claims that he "is in custody in violation of his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution because no rational jury could have concluded beyond a reasonable doubt that Allen was guilty of first-degree murder." Amended Petition, p. 3.
Allen raised this claim before the Nevada Supreme Court on his direct appeal ( see Appellant's Opening Brief, Exhibit 35, pp. 4-8), and the Nevada Supreme Court ruled as follows:
When reviewing for sufficiency of the evidence, "[t]he relevant inquiry for this Court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" [Footnote: Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).] Here, Allen testified that the telephone call that precipitated his attack on Laurel occurred two to three hours before the killing. Further, during the attack he ceased beating Laurel with the iron, retrieved a knife from the kitchen, returned to the bedroom, and stabbed her in the neck, delivering the fatal wound.
A conviction for first-degree murder requires proof beyond a reasonable doubt that the killing was willful, i.e., with the intent to kill, deliberate, and premeditated. [Footnote: NRS 200.030; Byford v. State, 116 Nev. 215, 234, 994 P.2d 700, 713 (2000).] Deliberation connotes "a dispassionate weighing process and consideration of consequences before acting." [Footnote: Byford, 116 Nev. at 235, 994 P.2d at 714.] Premeditation "is a design, a determination to kill, distinctly formed in the mind." [Footnote: Id. at 237, 994 P.2d at 714.] We conclude that the jury could have found that the killing was willful, deliberate, and premeditated from the evidence showing that Allen beat his wife several hours after she received the telephone call he claims enraged him and that he ceased the beating long enough to retrieve a knife from the kitchen and inflict the fatal wound. Therefore, we conclude that the evidence sufficiently supports the jury's finding of first-degree murder.
Order of Affirmance, Exhibit 38, pp. 2-3.
28 U.S.C. § 2254(d) provides the standard of review applicable to this claim under the Antiterrorism and Effective Death Penalty Act (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 state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
The Supreme Court has further instructed that "[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, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (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)).
The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
The United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307 (1979), sets forth the test governing a claim that there was insufficient evidence to support a conviction. In Jackson, the Supreme Court held, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).
This court agrees with the ruling of the Nevada Supreme Court. There was ample evidence upon which rational jurors could have found Allen's killing of Laurel to be willful, deliberate, and premeditated, including: the number and nature of the wounds Allen inflicted upon Laurel ( see Testimony of Dr. Gary Telgenhoff, Exhibit 17, pp. 4-20; Autopsy Report, Exhibit 44); the evidence that their marital problems - including Allen's suspicions that Laurel was having an affair - had been going on for at least six months before Allen killed her ( see Testimony of Herbert Brown, Exhibit 17, pp. 99-100, 103-04, 114; Testimony of Melvin Grant, Exhibit 18, pp. 31-33, 40; Testimony of Robert Eugene Allen, Exhibit 18, pp. 49-53, 56; Allen's Statement to Police, Exhibit 47, pp. 2-3); the evidence that there had been, before the night of the killing, many telephone calls that Allen found to be suspicious ( see Testimony of Herbert Brown, Exhibit 17, p. 96; Testimony of Robert Eugene Allen, Exhibit 18, pp. 82-83); the evidence that significant time - at least two to two and a half hours - passed between the telephone call and the killing ( see Testimony of Robert Eugene Allen, Exhibit 18, pp. 64-66, 83-84); the evidence that the police found, at the scene, a kitchen drawer open, with blood drops in it, and blood drops on the floor beneath it, suggesting that, after Allen beat Laurel with the antique iron, he went to the kitchen to get a knife to use to deliver the fatal blow ( see Testimony of Stephanie Fox, Exhibit 18, p. 13); and the detailed description of the killing that Allen gave to Herbert Brown ( see Testimony of Herbert Brown, Exhibit 17, p. 102; Testimony of Robert Eugene Allen, Exhibit 18, p. 87).
The Nevada Supreme Court's determination that there was sufficient evidence that the killing in this case was willful, deliberate, and premeditated, was neither contrary to, nor an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d).
In Ground 2, Allen claims that he "is in custody in violation of his right to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments because the State was allowed to admit irrelevant and highly prejudicial evidence about a prior domestic assault." Amended Petition, p. 5
Allen raised this claim on his direct appeal. See Appellant's Opening Brief, Exhibit 35, pp. 8-13. The Nevada Supreme Court ruled as follows:
Allen next argues that the district court erred in admitting prior bad act evidence. Although such evidence is generally inadmissible, it may be introduced to show, for example, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." [Footnote: NRS 48.045(2).] Prior to admitting prior bad act evidence, the district court must conduct a Petrocelli [footnote: Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985)] hearing to establish whether "(1) the [prior bad act] is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." [Footnote: Rosky v. State, 121 Nev. 184, 195, 111 P.3d 690, 697 (2005) (quoting Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997)).]
Here, the district court held a Petrocelli hearing to determine the admissibility of evidence of a domestic violence incident between Allen and Laurel that occurred several weeks before the murder. The evidence presented at the hearing revealed that on June 27, 2003, Laurel's son, Aaron Dahl, heard banging noises emanating from Laurel and Allen's bedroom. Dahl heard his mother repeatedly scream, "Help me." Dahl dialed 9-1-1 and then successfully gained entry into the locked bedroom. He observed Laurel sitting on the floor in the corner of the bedroom. Allen exited the bedroom and waited outside for the police to arrive. Henderson Police Officer Mitchell Wilson testified that when he arrived, Laurel was crying, "visibly afraid, " and shaking. He stated that Laurel told him that earlier in the evening she and Allen had discussed their marital problems, including his suspicion that she was having an affair. Allen became upset, and as she got out of bed, Allen grabbed her wrist and pulled her back on the bed. Laurel screamed for help, and Allen let go of her, grabbed a three-inch buck knife, and threatened to kill himself. Officer Wilson stated that Laurel told him that she attempted to exit the bedroom but Allen grabbed her and, for a short time, prevented her from leaving. Officer Wilson testified that he observed physical injuries to Laurel's wrist and arms. He further stated that he issued Allen a citation for domestic battery.
After considering the evidence presented, the district court concluded that the incident on June 27 was relevant to demonstrate ill will and motive, that it was proven by clear and convincing evidence, and that its probative value exceeded any prejudice. We will not reverse on appeal a district court's decision to admit or exclude prior bad act evidence absent manifest error. [Footnote: Id. ] Allen's defense at trial was that after Laurel received a suspicious telephone call, he became enraged by the thought of her having an affair and killed her. The evidence shows that the physical altercation on June 27 also erupted as a result of marital discord because Allen suspected Laurel of being unfaithful. We conclude that the prior bad act was relevant to show Allen's motivation for killing Laurel and satisfied the other Tinch factors necessary for its admission. Therefore, we conclude that the district court did not err in admitting this evidence.
Order of Affirmance, Exhibit 38, pp. 3-5.
Allen cites no controlling United States Supreme Court precedent, in support of this claim, and he makes no assertion that the Nevada Supreme Court's ruling was contrary to any such precedent. See Amended Petition, pp. 5-7; Reply (ECF No. 54), pp. 8-9. In fact, Allen recognizes that in Alberni v. McDaniel, 458 F.3d 860 (9th Cir.2006), the court of appeals stated that "the Supreme Court has not clearly established' the principle that introduction of propensity evidence may violate due process' for purposes of habeas review, " and Allen states that he "would respectfully present the claim to preserve it for further review." Reply, p. 9, citing Albierni, 458 F.3d at 864-67.
Given the standard of review applicable to this claim under 28 U.S.C. § 2254(d), and given the dearth of United States Supreme Court precedent supporting this claim, the court finds Ground 2 to be meritless. As the Supreme Court has never squarely addressed the issue raised in Ground 2 ( see Alberni, 458 F.3d at 864-67), the state supreme court's rejection of this claim was not contrary to, and did not ...