United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the grounds that remain.
Petitioner Edwan Thurmond challenges his Nevada state conviction, pursuant to a jury verdict, of three counts of robbery with the use of a deadly weapon and two counts of conspiracy to commit robbery. Petitioner challenged the conviction on direct appeal and state post-conviction review.
Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that a decision was incorrect. 131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court based on the record presented to the state courts; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.
A state court decision on the merits is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference to the state court's determination:
.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 131 S.Ct. at 1398.
Ground 7: Availability of Wiretap Tapes During Jury Deliberation 
In Ground 7 of the second amended petition (#21), petitioner alleges that he was denied rights to confrontation, due process of law and a fair trial under the Fifth, Sixth and Fourteenth Amendments when the jury was allowed to deliberate while in possession of audio recordings and transcripts of wiretapped conversations that, while the jury heard portions during trial, "were never properly admitted into evidence and were prejudicial to Petitioner as they may have contained information regarding uncharged bad acts."
Respondents contend, belatedly, that the claim is unexhausted. The scheduling order in this case required that all procedural defenses be raised together in a single motion to dismiss. See #23, at 1-2. However, under 28 U.S.C. § 2254(b)(3), "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." While respondents have not waived the defense as a matter of substantive law, the Court will proceed to the merits. It is too late in the district court proceeding at this juncture to potentially be initiating additional proceedings under Rose v. Lundy, 455 U.S. 509 (1982), on allegedly unexhausted claims. An exhaustion defense is capable of being identified on the face of the state and federal pleadings, such that an exhaustion defense should not be embedded 32 pages into an answer following a motion to dismiss. Respondents instead must comply with the Court's scheduling orders in order to properly present issues for consideration in the district court, whether or not waived otherwise under the substantive law.
Ground 7 as alleged in the federal petition is belied by the state court record.
Petitioner's allegation that the recordings and transcripts never were admitted into evidence at trial is belied by the record. A disc with wiretap recordings from April 23, 2003, was admitted as State's Exhibit 70, over objection; and transcripts of calls on the disc were admitted without objection as Exhibits 80 through 82. A disc with wiretap recordings from April 24, 2003, was admitted as State's Exhibit 71 without objection; and transcripts of calls on the disc were admitted as Exhibits 83 through 85, over objection.
Petitioner bases his allegation that evidence that was not admitted nonetheless went to the jury upon a reference to a purported Exhibit "Z1" at lines 20-21, page 37, of the February 3, 2005, trial transcript. He urges that this Exhibit "Z1" "was the master with all the unredacted recordings, but it ended up in the jury room anyway." The claim thus is grounded on this allegedly unredacted purported Exhibit "Z1" with possible other crimes evidence.
On the cited page of the transcript, the jury had just returned to the courtroom off a break. Prior to the break, the State had played Exhibit 70 and published the associated transcripts. The State then played a recording and published a transcript of April 24, 2003, recorded telephone conversation between Thurmond and a Tavares Chandler, which corresponded to the Exhibit 71 and associated transcripts admitted previously. Immediately following the break, the prosecutor refers - in the passage relied upon by petitioner to establish the existence of Exhibit "Z1" - to playing an exhibit "which has been previously admitted, "and no objection was made that the exhibit had not been admitted. An audio was played, and the prosecutor then played a video without sound from an earlier July 10, 2002, robbery. The video showed Thurmond at the scene of the earlier robbery on a cell phone. It appears that the prosecutor was juxtaposing a recording of an April 24, 2003, conversation at an aborted robbery where another accomplice was reporting details back to Thurmond at another location with a videotape of Thurmond himself playing the same role of relaying information from the scene of an earlier July 10, 2002, robbery.
It thus appears that petitioner's "mystery" Exhibit "Z1" was Exhibit 71, the disc of the April 24, 2003, wiretap recordings that was admitted into evidence without objection. What appears as "Z1" on the extant copy of the transcript either is "71" from a decade old condensed transcript copied multiple times over - with the small sometimes misshapen letters and numbers often requiring effort to read - or just a simple typographical error. What the isolated purported "Z1" reference is not is a basis for a viable federal habeas claim. "Clutching at straws" does not even begin to describe petitioner's argument in this regard.
There is no record support for either petitioner's allegation that an exhibit was taken to the jury room without being admitted into evidence or his conjecture that such a nonexistent extra-record exhibit "may" have included other crimes evidence. The record reflects that the exhibits that clearly were introduced into evidence were selected by the State to avoid presentation of other crimes evidence, following a hearing on a motion to suppress directed to the wiretap evidence.
Accordingly, following a de novo review, Ground 7 does not provide a basis for federal habeas relief.
Ground 8: Sufficiency of the Evidence
In Ground 8, petitioner alleges that he was denied rights to due process and a fair trial in violation of the Fifth, Sixth and Fourteenth Amendments because there was insufficient evidence to convict him of conspiracy to commit robbery. Petitioner alleges, inter alia, as follows in the ground:
... The prosecution's theory is that Petitioner is guilty of the conspiracy with an unknown individual who both allegedly participated in a robbery of PT's bar. The prosecution never charged or revealed the name of the "unknown" person.
According to the prosecution there was no need to prove an agreement between Petitioner and the unknown individual.
Because the evidence failed to establish Petitioner and the unknown individual agreed to commit the crime of robbery, Petitioner's conviction for conspiracy to commit robbery with use of a deadly weapon should be vacated.
#21, at 25.
Ground 8 necessarily is directed to petitioner's conviction only of the conspiracy charge in Count I of the information. Count I charged that petitioner conspired with an unidentified individual to commit robbery with regard to the robberies charged in Counts 2 through 4 of the information, which charged three counts of robbery at the PT's Bar in question on July 10, 2002. Ground 8 therefore has no application to petitioner's conviction of the conspiracy charge in Count V of the information, which charged that he conspired with Tavaras Chandler to commit a robbery of two United Coin Company employees planned instead on April 24, 2003, at a different location.
The Court will conduct a de novo review of Ground 8. Respondents do not direct the Court to a decision on the merits of this substantive claim of insufficiency of the evidence. They do not raise a cogent exhaustion defense to the substantive claim,  which apparently was included in the state petition. Respondents have not interposed any procedural default defense to the substantive claim, which was not addressed on direct appeal. The scheduling order required that all procedural defenses be raised in a single motion to dismiss; and any such procedural default defense therefore now is waived. See, e.g., Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005)(" Unless a court has ordered otherwise, separate motions to dismiss may be filed asserting different affirmative defenses.")(emphasis added). De novo review therefore is required, because there is no state court decision on the merits of the substantive claim but the claim appears to be exhausted and not subject to a viable procedural default defense.
On a challenge to the sufficiency of the evidence, the habeas petitioner faces a "considerable hurdle." Davis v. Woodford, 333 F.3d 982, 992 (9th Cir. 2003). Under the standard announced in Jackson v. Virginia, 443 U.S. 307 (1979), the jury's verdict must stand if, 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 offense beyond a reasonable doubt. E.g., Davis, 333 F.3d at 992. Accordingly, the reviewing court, when faced with a record of historical facts that supports conflicting inferences, must presume that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution, even if the resolution by the state court trier of fact of specific conflicts does not affirmatively appear in the record. Id. The Jackson standard is applied with reference to the substantive elements of the criminal offense as defined by state law. E.g., Davis, 333 F.3d at 992.
Petitioner has not carried his burden on federal habeas review of demonstrating that there was insufficient evidence to support his conspiracy conviction on Count I. Petitioner has presented no apposite authority establishing that the State was required to prove the identity of the other individual or individuals in order to establish the existence of the conspiracy. Evidence supporting the conspiracy conviction included, inter alia: (a) a videotape showing Thurmond at the scene at the time of the July 10, 2002, robbery on his cell phone; (b) the recovery of money bags stolen during the robbery and clothes matching the description of clothes worn by the armed assailant during the July 10, 2002, robbery from Thurmond's vehicle after the robbery on July 10, 2002; (c) Thurmond's July 10, 2002, request to an employer to provide him an alibi; (d) Thurmond's later statements in wiretapped telephone conversations describing his role at a robbery scene of providing intelligence by phone from inside an establishment; and (e) Thurmond's later confession to the police that he was involved in the July 10, 2002, robbery. Petitioner proceeds on the erroneous premise that he can be convicted of conspiracy based on only direct evidence of a conversation with an identified specific individual agreeing to commit the robbery. He instead can be convicted, as he was, based upon, inter alia, circumstantial evidence of the conspiracy.
On de novo review, Ground 8 thus does not provide a basis for habeas relief.
Ground 9(b): Allegedly Defective Criminal Complaint
In Ground 9(b) of the second amended petition, petitioner alleges that he was denied rights to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments when he was charged by an allegedly defective and illegal criminal complaint. He alleges that the criminal complaint was defective because the complaint alleged a violation of a nonexistent statute, N.R.S. 103.165, rather than N.R.S. 193.165, denying him his right to be advised of the charges against him. Following the prior ruling made on this claim on respondents' motion to dismiss, the Court reviews the claim de novo as to issues of law.
While the Supreme Court of Nevada did not address the substantive claim directly, the court did address petitioner's related claim of ineffective assistance of appellate counsel. The court concluded, inter alia, as follows:
... [A]ppellant claimed that his appellate counsel was ineffective for failing to argue that the information was unconstitutionally vague. The information and the amended information listed the statute for the deadly weapon enhancement as "NRS 199.165" and the judgment of conviction listed the statute for the deadly weapon enhancement as "NRS 103.165." As the correct statute for the deadly weapon enhancement is NRS 193.165, appellant claimed that he was not given proper notice of the deadly weapon enhancement. Appellant further claimed that vagueness of the deadly weapon enhancement violated separation of powers.
Appellant failed to demonstrate that his appellate counsel's performance was deficient or that he was prejudiced. Pursuant to NRS 173.075(3), error in the citations in the information is not a ground for dismissal or reversal of conviction if the error "did not mislead the defendant to his prejudice." The correct statute for the deadly weapon enhancement was listed in the complaint. Further, during the Faretta canvass, the district court explained in detail how the deadly weapon enhancement would affect the sentence and gave appellant a hypothetical example of how the sentencing would work should appellant be found guilty. Faretta v. California, 422 U.S. 806 (1975). Appellant responded that he understood the penalties he faced, still wanted to represent himself, and believed he had sufficient time to learn how best to defend himself. As such, appellant failed to demonstrate that he was prejudiced by the error in the information. Further, appellant failed to demonstrate that the deadly weapon enhancement violated separation of powers. At the evidentiary hearing, appellant's appellate counsel testified that in her opinion the [statutes] were not vague; therefore, she did not raise this issue. "Tactical decisions [of counsel] are virtually unchallengeable absent extraordinary circumstances" and appellant failed to demonstrate any such circumstances here. See Ford, 105 Nev. at 853, 784 P.2d at 953. The district court concluded that appellate counsel was not ineffective for failing to raise this issue on direct appeal and substantial evidence supports that conclusion. Therefore, the district court did not err in denying this claim.[FN2]
[FN2] We note that an amended judgment of conviction was entered on January 18, 2007. The amended judgment of conviction lists the correct statute, NRS 193.165, for the deadly weapon enhancement.
#33-38, Ex. 128, at 7-8.
Review on this claim is de novo as to issues of law and mixed questions of law and fact. However, the factual findings made by the state courts are subject to deferential review under AEDPA. See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002). This deferential standard of review of historical factual determinations extends to factual findings made by state appellate courts based on a review of the record. See, e.g., Deere v. Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013), petition for certiorari filed (May 12, 2014).
The state supreme court found that: (a) the earlier complaint listed the correct statute for the deadly weapon enhancement but the later information and information did not; (b) the state district court explained in detail to petitioner personally during the Faretta canvass how the deadly weapon enhancement would affect the sentence and gave him a hypothetical example of how the sentencing would work if he was found guilty; (c) petitioner responded that he understood the penalties he faced, still wanted to represent himself, and believed he had sufficient time to learn how best to defend himself; and (d) petitioner had failed to demonstrate that he was prejudiced by the error in the information.
Petitioner neither has shown that the state supreme court's factual determinations constituted an unreasonable determination of fact nor has he rebutted the factual findings with clear and convincing evidence. The court's findings of historical fact thus are presumed to be correct.
The state supreme court's factual finding that the complaint correctly cited the deadly weapon enhancement statute - which is fully supported by the record - negates the claim that petitioner actually alleged in Ground 9(b). Petitioner alleged specifically that the complaint did not cite the correct statute, N.R.S. 193.165, but the complaint in fact did.
Petitioner in any event is not entitled to relief with regard to the typographical citation error as to the state statute in the information and amended information. The affirmative requirements of the Federal Rules of Criminal Procedure of course are not binding on the States. However, it is significant when the Rules expressly state that an error is not a basis for reversal of a conviction. Notably, Rule 7(c)(2) provides:
Citation Error. Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment or information or to reverse a conviction.
Fed. R. Crim Pro. 7(c)(2). The Advisory Committee Notes, dating back to the adoption of the Rules in 1944, reflect that the rule is based upon long-established law that a statutory citation is not part of the charging instrument and that a conviction thus can be sustained on the basis of a statute other than the one cited. See, e.g., United States v. Hutcheson, 312 U.S. 219, 229 (1941). Petitioner cites no apposite governing constitutional case authority to the contrary. Based upon the findings of historical fact by the state supreme court, petitioner cannot demonstrate the he was misled and thereby prejudiced by the typographical error in the statutory citation on the weapon enhancement. He clearly was on notice in the state district court that he was being charged with the weapon enhancement, on what factual basis, and with what potential exposure.
Ground 9(b) therefore does not provide a basis for federal habeas relief.
Ground 11: Alleged Failure to Record Proceedings
In Ground 11, petitioner alleges that he was denied rights to due process and a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments because the state trial court allegedly failed to properly record and transcribe all relevant judicial proceedings. He alleges that: (a) "the court failed to record or include reports/briefs entered into record;" (b) the transcripts failed to include "information pertaining to several bench conferences held in the courtroom on February 1, 2005;" (c) the court "was made aware of possible jury tampering occurring in the hallway outside the courtroom by Detective Clifford Mogg and other unknown detectives or police officers (February 2, 2005);" (d) "[i]t appears the jury was also subjected to a written brief' which was ultimately ordered destroyed' by the trial judge;" (e) the court nonetheless "failed to question the jurors of their possible exposure to irrelevant evidence;" and (f) the court "failed to properly record the above into the official court transcripts."
Respondents have not directed the Court to a decision on the merits of the substantive claim in Ground 11 and otherwise has not interposed any defense based upon lack of exhaustion or procedural default. The Court accordingly reviews the claim de novo.
Petitioner has presented a wholly bare claim of off-record impropriety with no corroboration. Petitioner cites to no on-record efforts where he in fact sought to establish a contemporaneous record that material was not being made of record and/or where he otherwise sought to memorialize on the record what he alleges was transpiring. There is no constitutional requirement in particular that bench conferences in a state criminal case be recorded. It was incumbent upon petitioner - who elected to represent himself at trial - to later make a record of any material discussion during a bench conference on a break outside the presence of the jury as to which he wished to make a record for review. If he failed to do so with regard to bench conferences and with regard to his other accusations, then he is left with only bare, uncorroborated accusations that have no even indirect record support.
For example, a bare allegation by a convicted defendant facing a substantial sentence that jurors were given an extra-record brief that was destroyed by the trial judge presents no basis for relief. Petitioner apparently premises this claim on the following exchange:
THE DEFENDANT: And it didn't specifically put all the facts in the counts. [Petitioner is arguing outside the presence of the jury for dismissal of the indictment as defective.]
THE COURT: It's sufficient, sir. I can tell you this is what we've been charging these things for 25 years, to my knowledge, and I don't think it's going to change. I find that your argument lacks merit.
Now Mr. Bailiff, I want to see this brief or report you made mention of.
Mr. Thurmond, I don't want you to have an item like this fork. I'll give you some clips or something to keep your documents.
THE DEFENDANT: I can't have those in the jail, Your Honor.
THE COURT: Well, you can't have this fork here. Now, if they need to trade off when you go to jail, then I'd rather have a clip than a fork.
Is there anything else outside the presence of the ...