United States District Court, D. Nevada
ROBERT C. JAMES, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by William Witter, a Nevada prisoner sentenced to death. ECF No. 167.
I. FACTUAL AND PROCEDURAL HISTORY
On June 28, 1995, a jury in the Eighth Judicial District Court for Nevada found Witter guilty of first degree murder with use of a deadly weapon, attempted murder with use of a deadly weapon, attempted sexual assault with use of a deadly weapon, and burglary. The facts of Witter's case are recounted in the Nevada Supreme Court's decision on Witter's direct appeal:
On November 14, 1993, Kathryn Cox (Kathryn) was working as a retail clerk for the Park Avenue Gift Shop located in the Luxor Hotel in Las Vegas, Nevada. James Cox (James), Kathryn's husband, drove a taxicab in the Las Vegas area. At about 10:25 p.m., Kathryn called James and informed him that she was having trouble with her car and needed assistance. James told her that he would be over to pick her up in about twenty-five to thirty minutes. Kathryn returned to her car, got in, locked her door, and began to read a book.
About five to ten minutes later, the passenger side door opened, and William Witter got into the car. Witter demanded that Kathryn drive him out of the lot. When Kathryn informed him that she could not, Witter stabbed her just above her left breast. Witter pulled Kathryn closer to him and told her that he was going to kill her. After stabbing Kathryn several more times, Witter became quiet, unzipped his pants and ordered Kathryn to perform oral sex. Kathryn attempted to comply with his demands, but because she had a punctured lung, she kept passing out. Witter pulled Kathryn into a sitting position and told her, "You're probably already dead." Kathryn managed to open her door and attempted to run away, but was only able to get about ten or fifteen feet before Witter caught her. Witter forced Kathryn back into the car and forced her to kiss him. He then used his knife to cut away Kathryn's pants and began to fondle her vaginal area with his finger.
Kathryn observed her husband's cab pull up next to the driver's side of her car. Witter, not knowing that James was Kathryn's husband, held Kathryn close and stated, "Don't say anything. I'm going to tell him that you're having a bad cocaine trip." James opened the driver's side door of Kathryn's car and told Witter to get out. Witter got out of the car, walked over to James, and stabbed him numerous times. James fell backwards and into Kathryn, who had gotten out of the car, knocking her to the ground. Kathryn got up and ran for a bus stop. Once again, Witter caught Kathryn and carried her back to her car. After pulling the rest of Kathryn's clothes off, Witter attempted to stuff James' body underneath James' cab. Kathryn then heard hotel security approaching her vehicle.
A security officer in charge of patrolling the Excalibur Hotel's employee parking lot approached Kathryn's car and confronted Witter. After a short standoff, the security officer's backup arrived, and Witter was subdued. Paramedics arrived a short time later, and Kathryn was taken to the hospital where she eventually recovered from her injuries. James was already dead when the paramedics arrived.
Witter v. State, 921 P.2d 886, 890-91 (Nev. 1996).
On July 13, 1995, the jury imposed a sentence of death for the murder. On August 11, 1995, the state district court filed the amended judgment of conviction. Witter appealed.
On July 22, 1996, the Nevada Supreme Court affirmed Witter's conviction and sentence. After the Nevada Supreme Court denied Witter's petition for rehearing, he petitioned the United States Supreme Court for a writ of certiorari. On May 12, 1997, the Court denied Witter's petition. On October 27, 1997, Witter filed a petition for writ of habeas corpus in the state district court. On February 26, 1999, the state district court held an evidentiary hearing on the petition. On September 25, 2000, the court entered a written order denying relief. Witter appealed.
On August 10, 2001, the Nevada Supreme Court affirmed the lower court's decision. On September 4, 2001, this court received Witter's initial petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 5. Though nominally filed in propria persona, the petition appears to have been prepared by, or with the assistance of, state post-conviction counsel, David Schieck.
On September 17, 2001, this court appointed the Federal Public Defender's office (FPD) to represent Witter. The FPD entered a notice of appearance on February 2, 2002. On November 23, 2005, after protracted discovery litigation and several extensions of time, Witter filed an amended petition for writ of habeas corpus advancing twelve grounds for relief. ECF No. 67.
From November 30, 2006, to April 7, 2011, proceedings were stayed to allow Witter to exhaust state court remedies in relation to the claims contained in his amended petition for habeas corpus relief (ECF No. 67). ECF Nos. 139-163.
During that stay, Witter returned to state district court and filed a second state habeas petition on February 14, 2007. The state district court denied Witter's second state habeas petition. Witter appealed. The Nevada Supreme Court affirmed the denial of the petition. In its order of affirmance, the Nevada Supreme Court found that Witter's petition was procedurally barred as untimely under Nev. Rev. Stat. § 34.726(1) and successive under Nev. Rev. Stat. § 34.810(1).
During the pendency of his second state habeas petition, Witter filed a third state habeas petition on April 28, 2008. The state district court also denied this petition. Witter appealed. On November 17, 2010, the Nevada Supreme Court affirmed the denial of Witter's third state habeas petition in an unpublished opinion. In its order of affirmance, the Nevada Supreme Court found that Witter's third state habeas petition was procedurally barred because the claim raised therein was appropriate for direct appeal and thus subject to dismissal under Nev. Rev. Stat. § 34.810, and because Witter had in fact raised the claim on direct appeal and it was denied on the merits.
As noted, proceedings were reopened in this case on April 7, 2011. ECF No. 163. Witter filed a second amended federal petition for writ of habeas corpus on July 22, 2011. ECF No. 167. On September 13, 2011, respondents filed a motion to dismiss claims in the petition on procedural grounds. ECF No. 173. Pursuant to that motion, this court dismissed several claims from the second amended petition. ECF No. 213. Claims One(A), Two, Four, Five(B), Seven(A), Ten(C), and Fourteen remain before the court for a decision on the merits.
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:.
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 (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 (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 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (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, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (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 (2003)); 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).
"[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 existence at that same time, i.e., the record before the state court." Id.
For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is de novo where a state court does not reach the merits, but instead denies relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 S.Ct. at 1401 ("Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief."); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo ).
Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review habeas claims by conducting a de novo review prior to applying the "contrary to or unreasonable application of" limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, however, the Court did not preclude such an approach. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id.
III. ANALYSIS OF CLAIMS
Claim One(A) and (C)
In Claim One(A) and (C), Witter alleges that his sentence is unconstitutional because the State presented false evidence that he was a member of a street and prison gang called the Nortenos. In the sentencing phase of Witter's trial, the State elicited testimony from two San Jose police officers about the Nortenos and indicia that Witter may have been affiliated with that gang.
In Claim One(B), Witter alleges that the State knowingly withheld information contradicting its assertion that Witter was a member of this gang. As explained in a prior order (ECF No. 213), however, that portion of Claim One is barred by the statute of limitations and the doctrine of procedural default. To the extent that Witter insists the allegations contained in One(B) be made part of the court's analysis here, all of Claim One is subject to dismissal on procedural grounds.
The Nevada Supreme Court adjudicated Witter's claim regarding gang evidence as follows:
Witter also contends that the district court erred in admitting evidence showing that he is a member of a street gang. According to Witter, the evidence lacked any probative value and was offered only to inflame the passions of the jury.
NRS 48.035(1) states that "[a]lthough relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues or of misleading the jury." While this court has cautioned that the introduction of gang membership during a penalty hearing may be unfairly prejudicial, see Young v. State, 103 Nev. 233, 737 P.2d 512 (1987); Lay v. State, 110 Nev. 1189, 886 P.2d 448 (1994); see also Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), this court has held that "[f]rom Dawson, we derive the following rule: Evidence of a constitutionally protected activity is admissible only if it is used for something more than general character evidence." Flanagan v. State, 109 Nev. 50');"> 109 Nev. 50, 53, 846 P.2d 1053, 1056 (1993). In Dawson, the United States Supreme Court reasoned that "[a] defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future." 503 U.S. at 166 , 112 S.Ct. at 1098.
In this case, the State presented testimony from the arresting officers indicating that Witter told them that he could heighten his reputation if he were to kill police officers, and from a second officer who stated that from the clothing Witter was wearing and from the tatoos on his arm, he believed that Witter was a member of a violent California gang known as the "Nortenos." We conclude that this evidence tends to show that Witter posed a threat of future violence to the community. Moreover, we conclude that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, or confusion of the issues or of misleading the jury. Accordingly, we conclude that the district court properly
admitted evidence of Witter's affiliation with a street gang. Witter, 921 P.2d at 895.
The Nevada Supreme Court's decision is not contrary to, nor an unreasonable application of, Supreme Court precedents, and therefore habeas relief is not warranted on this claim. The evidence Witter relies upon to argue that the officers' testimony was false or inaccurate was not before the Nevada Supreme Court when it adjudicated this claim. Thus, it cannot be part of the analysis here. See Pinholster, 131 S.Ct. at 1398. And, the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)
In Dawson v. Delaware, 503 U.S. 159 (1992), the Supreme Court held that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Dawson, 503 U.S. at 165. However, the information presented to the jury at Dawson's trial - i.e., merely that the Aryan Brotherhood was a white racist prison gang that originated in California without any proof that the gang had committed, or even endorsed, any unlawful or violent acts - was so narrow as to be irrelevant to any legitimate sentencing issue. Id. at 166. Because the evidence of membership proved nothing more than Dawson's abstract beliefs, the Court held that the admission of that evidence violated Dawson's First Amendment rights. Id. at 167.
The Nevada Supreme Court correctly picked up on the distinction between the evidence at issue in Dawson and evidence that bears upon an issue properly before the jury, such as whether or not the defendant "represents a future danger to society." Dawson, 503 U.S. at 166. The Nevada Supreme Court reasonably concluded that the gang evidence presented at Witter's trial did not implicate his constitutional rights because there was a relevant connection between Witter's affiliation with the Nortenos and the likelihood he would pose a threat to the community.
claim One(A) and (C) is denied.
In Claim Two, Witter alleges that he was deprived of his constitutional right to effective assistance of counsel in the penalty phase due to his counsel's failure to present certain mitigating evidence, primarily evidence related to fetal alcohol exposure, and to rebut evidence presented at trial regarding Witter's alleged gang affiliation. Other evidence that Witter claims counsel should have presented includes the criminal records of certain family members, family court records showing the abuse and neglect endured by Witter and his siblings, letters from Witter's co-workers, the ...