United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Before the court are the second amended petition for writ of habeas corpus (#27),  respondents' answer (#58), and petitioner's reply (#63). The court finds that petitioner is not entitled to relief, and the court denies the petition.
The facts of the case are not disputed. Petitioner entered a Clark County Social Services office in Henderson, Nevada, looking for rental assistance. He did not have an appointment, but the staff told him to wait. Around lunch time, it was announced that the office would be closing for lunch and that those who were waiting would need to come back after lunch. A staff member told petitioner that the announcement did not apply to him and that a social worker would see him shortly. Petitioner went to the restroom. When he returned, he produced a knife and started attacking people. Three were stabbed multiple times, one had his head split open with a chair thrown by petitioner, and others were hit. Henderson police responded shortly and took petitioner into custody.
Petitioner was charged with three counts of attempted murder with the use of a deadly weapon, for the three stabbing victims, one count of battery with the use of a deadly weapon, for the victim who was hit by a chair, and one count of burglary while in possession of a deadly weapon. Ex. 47 (#29). The prosecution also gave notice that it intended to seek adjudication of petitioner as a habitual criminal pursuant to Nev. Rev. Stat. § 207.010, because six times previously petitioner had been convicted of felonies. Petitioner went to trial. The defense was lack of intent, and for the charges of attempted murder with the use of a deadly weapon, petitioner asked the jury to find him guilty of the lesser-included offenses of battery with the use of a deadly weapon. The jury found him guilty as charged. Ex. 54 (#29). At sentencing, the judge noted that petitioner qualified for habitual-criminal adjudication, but the sentences authorized for the underlying crimes themselves were sufficient to imprison petitioner for the time that the judge felt appropriate. Ex. 61 at 19-20 (#29). The state district court entered a judgment of conviction on all the charges. Ex. 63 (#29). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 88 (#30).
Petitioner then filed his first state habeas corpus petition while his direct appeal still was pending. Ex. 80 (#30). This petition never received a ruling. Petitioner filed another petition. Ex. 102 (#30). The state district court held a hearing on the matter without appointing counsel for petitioner. Ex. 112 (#30). The state district court then denied the petition. Ex. 114 (#30). Petitioner appealed. The Nevada Supreme Court reversed, holding that the district court needed to appoint counsel for petitioner. Ex. 120 (#31). Counsel was appointed, and he filed a supplemental petition. Ex. 123 (#31). The state district court held an evidentiary hearing. Ex. 125 (#31). The court then denied the petition. Ex. 130 (#31). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 137 (#32).
Petitioner then commenced this action. The court appointed counsel, who filed the second amended petition (#27). Respondents moved to dismiss (#44) ground 5 in full and ground 1, as expanded from what petitioner presented in his first state habeas corpus petition, were unexhausted. Meanwhile, petitioner had filed a second state habeas corpus petition. Ex. 165 (#49). The state district court dismissed the petition. It held that ground 1 of that petition, which is equivalent to ground 1 in the second amended petition before this court, was barred by the law of the case. The state district court also held that the petition in general was untimely under Nev. Rev. Stat. § 34.726, successive under Nev. Rev. Stat. § 34.810, and barred by laches under Nev. Rev. Stat. § 34.810. Ex. 169 (#49). Petitioner appealed. The Nevada Supreme Court determined that the petition was procedurally barred under Nev. Rev. Stat. §§ 34.726, 34.800, and 34.810. Ex. 175 at 1 (#63) The Nevada Supreme Court also held that the dismissal under the law-of-the-case doctrine was an incorrect reason, but that the result was correct. Id. at 2-3 (#63).
After the Nevada Supreme Court's ruling, this court denied the motion to dismiss. Order (#57). The court concluded that ground 5 was exhausted. The court concluded that ground 1 was exhausted by the Nevada Supreme Court's ruling on the appeal from the dismissal of the second state habeas corpus petition. The court anticipated that respondents would argue that ground 1, in its current form, is procedurally defaulted, and that petitioner would argue that ineffective assistance of his first state habeas corpus counsel was good cause to excuse the default. The court directed the parties to address those arguments in the answer and reply.
Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.
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). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).
Richter, 562 U.S. at 100. "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Id . (citation omitted). "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." Id . (citation omitted).
[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.
Richter, 562 U.S. at 102.
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Id., at 103.
Ground 1 is a claim that petitioner's trial counsel provided ineffective assistance because trial counsel did not present a defense of voluntary intoxication. If successful, that defense would have meant that petitioner lacked the specific intent to kill, which is an element of the crime of attempted murder. Consequently, for the three counts of attempted murder, the jury would have found petitioner guilty of the lesser-included crimes of battery with the use of a deadly weapon. Petitioner did present this claim in his first state habeas corpus petition, but in his amended federal petition he presented four affidavits from people who stated that petitioner had smoked methamphetamine the night before the attack at the social services office or that he appeared high on drugs during or shortly after the attack.
The court disagrees with petitioner that the Nevada Supreme Court reached the merits of the expanded ground 1. It held that the second state habeas corpus petition was procedurally barred by Nev. Rev. Stat. §§ 34.726, 34.800, and 34.810. Ex. 175 at 1 (#63). It held that the district court's decision on the law of the case reached the correct result, but for the wrong reason. Id. at 2-3 (#63). This is not a case in which the Nevada Supreme Court had alternative grounds for dismissal; the Nevada Supreme Court had only one ground, a procedural bar. Ground 1, as expanded, is procedurally defaulted.
As anticipated, petitioner argues that the ineffective assistance of the counsel in his first state habeas corpus petition is good cause to excuse the procedural default of ground 1.
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability to issue).
Martinez v. Ryan, 132 S.Ct. 1309 (2012) (emphasis added). In Nevada, unless the district court conducted an evidentiary hearing before the direct appeal, which did not happen in this case, a claim of ineffective assistance of counsel must be raised in a post-conviction habeas corpus petition. Gibbons v. State, 634 P.2d 1214, 1216 (Nev. 1981).
Also as anticipated, the question of whether the expansion of ground 1 presents a substantial claim of ineffective assistance of counsel collapses into the evaluation of ground 1 as presented to the state courts in the first state habeas corpus proceedings.
A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness, " Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
Strickland expressly declines to articulate specific guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the duty to communicate with the client over the course of the prosecution. 466 U.S. at 688. The court avoided defining defense counsel's duties so exhaustively as to give rise to a "checklist for judicial evaluation of attorney performance.... Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 688-89.
Review of an attorney's performance must be "highly deferential, " and must adopt counsel's perspective at the time of the challenged conduct to avoid the "distorting effects of hindsight." Strickland, 466 U.S. at 689. A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id . (citation omitted).
The Sixth Amendment does not guarantee effective counsel per se, but rather a fair proceeding with a reliable outcome. See Strickland, 466 U.S. at 691-92. See also Jennings v. Woodford, 290 F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. The petitioner must also show that the attorney's sub-par performance prejudiced the defense. Strickland, 466 U.S. at 691-92. There must be a reasonable probability that, but for the attorney's challenged conduct, the result of the proceeding in question would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The Nevada Supreme Court summarily affirmed the state district court on this ground. Ex. 137 (#32). The state district court held:
Nevada Revised Statute 193.220 provides that "whenever the actual existence of... intent is a necessary element... the fact of [the defendant's] intoxication may be taken into account. No physical evidence support's [sic] Mr. McLaughlin's claim of intoxication. Trial counsel testified as to the risks inherent in portraying a criminal defendant to a jury as a drug addict. Based on that testimony, this Court finds trial counsel's failure to raise the defense of voluntary intoxication to be a strategic decision, made intentionally and effectively. Even if it were ineffective, there was overwhelming evidence brought against Mr. McLaughlin, and there is no reasonable likelihood the defense would have changed the outcome at trial. Mr. McLaughlin's first claim for ineffective assistance of counsel is denied.
Ex. 130 at 3 (#31). To establish a defense of voluntary intoxication, "the evidence must show not only the defendant's consumption of intoxicants, but also the intoxicating effect of the substances imbibed and the resultant effect on the mental state pertinent to ...