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Bruno v. Donat

United States District Court, D. Nevada

March 24, 2015

VITO BRUNO, Petitioner,
v.
BILL DONAT, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a Nevada state prisoner, who has since been released from the custody of the Nevada Department of Corrections (ECF #13).[1] Now before the court is respondents' answer to the remaining grounds for relief (ECF #36).

I. Procedural History and Background

On November 17, 2005, pursuant to a jury verdict, the state district court entered a judgment of conviction against petitioner of one count of felony grand larceny, one count of felony attempting to obtain money under false pretenses, and two counts of felony burglary. Exhs. 23, 36.[2] Petitioner was convicted of stealing an expensive jacket from Nordstrom and attempting to return it to Neiman Marcus for cash. Exh. 23. The state district court additionally adjudicated petitioner a habitual criminal and sentenced him to four concurrent terms of five to twenty years. Exh. 36.

Petitioner appealed. Exh. 41. On June 30, 2006, the Nevada Supreme Court affirmed the convictions, and remittitur issued October 6, 2006. Exhs. 43, 45.

Petitioner filed a state postconviction petition for writ of habeas corpus on September 21, 2007. Exh. 48. The state district court conducted a hearing on December 6, 2007, and denied the petition in its order filed January 17, 2008. Exh. 55. The Nevada Supreme Court affirmed the denial of the petition on February 26, 2009, and remittitur issued on March 24, 2009. Exhs. 74, 75.

In the meantime, petitioner filed a motion to correct an illegal sentence on May 13, 2008. Exh. 60. The state district court denied the motion on June 7, 2008. Exh. 63. The Nevada Supreme Court construed petitioner's filing as an appeal from the denial of his motion for rehearing and dismissed the appeal for lack of jurisdiction on August 29, 2008. Exh. 71. Remittitur issued on September 23, 2008. Exh. 73.

Petitioner dispatched his original federal habeas petition on March 26, 2009 (ECF #8). Now before the court is the operative, second amended petition (ECF #13). Ground 6(H) of the second amended petition has been dismissed ( see ECF #s 28, 29, 31). Respondents now answer the remaining grounds (ECF #36).

II. Legal Standards

A. Antiterrorism and Effective Death Penalty Act

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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).

The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). 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, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011).

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 (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." Andrade, 538 U.S. at 74 (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).

In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct, " and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Instant Petition

A. Insufficiency of the Evidence Claims Grounds 1, 2 & 9

In ground 1, petitioner alleges that his rights to due process and a fair trial under the Sixth and Fourteenth Amendments have been violated because insufficient evidence supported his conviction (ECF #13, pp. 3-5). Petitioner's wife and co-defendant attempted to return a black, cashmere Zegna jacket to Nordstrom, and petitioner later returned a black, cashmere Zegna jacket to Neiman Marcus. Id. at 3. Petitioner contends that while evidence was presented that a black, leather Zegna jacket that retailed for $1, 995 was missing from Nordstrom, no evidence was presented to show that a black, cashmere Zegna jacket that retailed for $1, 495 was missing. Id. In ground 2, petitioner asserts that the trial court erred by admitting a police officer's testimony that petitioner admitted that he took the jacket from Nordstrom as there was insufficient corpus delicti under Nevada's rule, which violated his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial. Id. at 7-8. In ground 9, petitioner claims that insufficient evidence supported the "intent element required for a conviction of burglary, " stemming from additional charges that he stole a women's wallet from Nordstrom. Id. at 45-47.

"The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 309 (1979) (citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. "[T]he standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n.16.

Under Nevada law, corpus delicti must be demonstrated by evidence independent of the confessions or admissions of the defendant. See, e.g., Doyle v. State, 921 P.2d 901, 910-911 (Nev. 1996) (overruled on other grounds by Kaczmarek v. State, 91 P.3d 16, 29 (Nev. 2004); Sheriff v. Dhadda, 980 P.2d 1062, 1065-1066 (Nev. 1999). Confessions and admissions of the defendant may not be used to establish corpus delicti absent sufficient independent evidence. Once the state presents independent evidence that the offense has been committed, admissions and confessions may then be used to corroborate the independent proof. However, all other relevant evidence may be considered. The corpus delicti may be established by purely direct evidence, partly direct and partly circumstantial evidence, or entirely circumstantial evidence. Id.

In reviewing these claims, the Nevada Supreme Court affirmed [petitioner's] conviction, reasoning:

[a] review of the record on appeal reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. In particular, we note that although there was some confusion about the exact size and material, [petitioner] was observed carrying away an expensive black Zegna jacket from Nordstrom's sportswear department. There is no indication that [petitioner] returned with the jacket or paid for the missing jacket. The following day, [petitioner] attempted to return the black Zegna jacket to Neiman Marcus for a cash refund. [Petitioner] did not present a receipt for purchase of the jacket. Neiman Marcus took possession of the jacket, and [petitioner] was told that a check would be issued and mailed to him. Soon after, a loss prevention officer with Neiman Marcus verified that the jacket belonged to Nordstrom.
Based on the above, we conclude that the jury could reasonably infer from the evidence presented that [petitioner] committed the crimes of grand larceny [Nev. Rev. Stat. 205.220(1)], burglary [Nev. Rev. Stat. 205.060(1)], and attempt to obtain money under false pretenses [Nev. Rev. Stat. 205.380(1)(a); Nev. Rev. Stat. 193.330(1)]. It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury's verdict will not be disturbed on appeal where, as here, sufficient evidence supports the verdict. Moreover, we note that circumstantial evidence alone may sustain a conviction. Therefore we conclude that the State presented sufficient evidence to sustain the convictions. And finally, because there was sufficient evidence, we also conclude that the corpus deficit rule was not violated by the admission of [petitioner's] confession to the crimes.

Exh. 43 (citations omitted).

Here, sufficient evidence supports petitioner's convictions. The record demonstrates that on November 26, 2004, Nordstrom had two black Zegna jackets in their inventory: a leather jacket that retailed for $1995.00 and a cashmere jacket that retailed for $1495.00. Exh. 19 at 47-49. A Nordstrom employee saw petitioner take the escalator from the first to the second floor in Nordstrom carrying a black Zegna jacket. Id. at 47-48, 72. The next day, petitioner's wife and co-defendant tried to return a black cashmere Zegna jacket at Nordstrom, but Nordstrom employee's refused to accept the return because petitioner's wife did not have proof of purchase and the jacket matched the description of one that was missing from Nordstrom since the day before. Id. at 81-87. Shortly thereafter, petitioner attempted to return a black cashmere Zegna jacket at Neiman Marcus in the same mall; because petitioner had no proof of purchase, Neiman Marcus employees accepted the return and told petitioner that the store would mail him a check for the purchase price. Id. at 158-167, 176, 181. A Neiman Marcus employee who processed the return testified that he was suspicious because the jacket had no tags to indicate where it had been purchased and because petitioner changed his story and contradicted himself, including as to who bought the jacket, why he did not have the receipt, and whether it was a gift and from whom. Id. at 176-179. After petitioner made the return, loss prevention officers from Nordstrom and Neiman Marcus confirmed that the Zegna jacket that petitioner returned to Neiman Marcus belonged to Nordstrom. Id. at 196-200.

The record further shows that on November 28, 2004, petitioner exited a van at a ground level Nordstrom entrance, while his wife remained in the driver seat with the engine running. Exh. 19 at 213-216; Exh. 21 at 19-20. Alerted by Nordstrom loss prevention personnel, employees recognized the van as the same one that petitioner's wife entered after she tried to return a black Zegna jacket the day before, and therefore, they monitored petitioner via surveillance cameras once he entered Nordstrom. Exh. 19 at 213-223. A Nordstrom loss prevention officer observed petitioner place a women's wallet under his arm, take the escalator from the first to the second floor, and exit the store on the second floor. Id. Petitioner then turned and re-entered the store. Id. Petitioner walked out of the surveillance camera's frame; subsequently the camera captured him exiting Nordstrom, without a women's wallet. Id. Petitioner struggled with loss prevention officers and was then taken into custody. Id. A Nordstrom loss prevention officer recovered the wallet from a table just inside the Nordstrom entrance. Id.

Petitioner is correct that the record demonstrates some confusion over the size and material of the black Zegna jacket. Exh. 19 at 49, 55, 59; Exh. 20 at 47. However, as the Nevada Supreme Court observed, such a question of evidentiary weight fell within the jury's province. Exh. 43 at 2. Where the record gives rise to conflicting inferences the court is required to conclude that the jury resolved the conflict in favor of the prosecution. Jackson, 443 U.S. at 324. With respect to the wallet, the record gives rise to a reasonable inference that petitioner formed the intent to steal something before he exited the running van and entered Nordstrom.

The Nevada Supreme Court reasonably applied Jackson. Accordingly, petitioner has failed to demonstrate that the Nevada Supreme Court's decision is contrary to, or involves an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or 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). Moreover, Nevada's formulation of the corpus delicti rule in this context is a matter of state law and petitioner fails to show that his conviction violated any federal constitutional right. See Evans v. Lubbers, 371 F.3d 438, 442 (8th Cir. 2004) (concluding that petitioner's corpus delicti claim did not implicate federal constitutional rights); Gerlaugh v. Lewis, 898 F.Supp. 1388, 1410 (D.Ariz.1995) (rejecting corpus delicti claim in federal habeas action as raising a matter of state law). "[I]t is not the providence of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, grounds 1, 2 and 9 are denied.

B. Alleged Trial Court Errors

Ground 3

Petitioner claims that the trial court's ruling that his co-defendant's statement to police was admissible violated his Fifth, Sixth and Fourteenth Amendment rights to confrontation, due process and a fair trial (ECF #13, pp. 10-11).

In Bruton, the U.S. Supreme Court held that the admission of a non-testifying defendant's statement that inculpates his co-defendants as participants in the underlying criminal offense violates the non-testifying defendant's Sixth Amendment confrontation clause rights. Bruton v. United States, 391 U.S. 123, 126 (1968). However, if the co-defendant's statement is redacted to eliminate all reference to the non-testifying defendant, and an inference as to the non-testifying defendant's identity as a participant in the underlying offense only arises when the statement is taken in context with other evidence admitted at trial, no Bruton error has occurred. Richardson v. Marsh, 481 U.S. 200 (1987). A Bruton error is subject to a harmless error analysis, which may include the consideration of any of the non-testifying defendant's own statements admitted into evidence. Harrington v. California, 395 U.S. 250 (1969).

Here, prior to trial, defense counsel raised a concern to the court that expected testimony from a police sergeant that petitioner's wife and co-defendant told the sergeant that she knew the Zegna jacket was stolen. Exh. 19 at 6-10. The State offered to instruct the sergeant to testify only to the fact that the co-defendant said that she knew the coat was stolen, not how she knew or who stole the coat. Id. at 7. Over defense counsel's continued objection, the court found that as long as the sergeant's testimony was limited as described above it would not run afoul of Bruton. Id. at 9.

At trial, the State elicited the following testimony from the sergeant:

Q: Did [co-defendant] indicate to you whether she had attempted to return that jacket herself?
A: Yes, she did. She said she had attempted to return the jacket.
Q: Did she indicate to you whether she knew if that jacket was stolen?
A: She did say she knew the jacket to be stolen.

Exh. 19 at 261. The State then elicited testimony by the sergeant that petitioner confessed to stealing and returning the jacket. Id. at 261-64.

In rejecting this claim in petitioner's direct appeal, the Nevada Supreme Court, citing Richardson and Harrington, determined:

[The sergeant's] testimony [did] not offend Bruton's protective rule: it is not facially inculpatory because it does not expressly refer to [petitioner]. Only when linked with other evidence introduced at trial could the codefendant's statement be considered inculpatory. Nevertheless, even assuming error we concluded it would have been harmless beyond a reasonable doubt. As noted above, there was substantial evidence of [petitioner's] guilt, including his confession, "and a defendant's own ...

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