United States District Court, D. Nevada
CHRISTOPHER W. CONNORS, Petitioner,
BRIAN E. WILLIAMS, SR., et al.,  Respondents.
JAMES C. MAHAN, District Judge.
This habeas corpus action is before the court on the merits of the three claims in the third amended petition of Christopher W. Connors, a Nevada prisoner. The court denies Connors' third amended habeas petition, grants Connors a certificate of appealability, and directs the clerk of the court to enter an amended judgment.
Procedural History and Factual Background
In its May 1, 1996, order on Connors' direct appeal, the Nevada Supreme Court succinctly described the background of the case as follows:
On December 14, 1990, Tim and Chris Connors borrowed a.357 caliber revolver from James Fetting and drove Kelly Vandlandingham to a remote location outside of Las Vegas, Nevada. Tim shot Vandlandingham nine times (seven times in the head, and once in each arm), then took Vandlandingham's gun, money, and most of his drugs. Prior to the shooting, Chris had told Katrina Giancontieri that he and Tim were going to attack Vandlandingham, and offered her marijuana in exchange for an alibi. After the shooting, Chris and Tim returned the gun to Fetting. Tim told Fetting that he killed Vandlandingham.
The next day, after Fetting informed the police of Tim's confession, the police arrested Chris and Tim. Chris and Tim were charged with one count of murder with the use of a deadly weapon.
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After a month-long trial, the jury found Tim and Chris guilty of both charges. The jury sentenced Chris to life with the possibility of parole for the murder, and a consecutive fifteen year term for the robbery with the use of a deadly weapon.
Order Dismissing Appeal, Exhibit 147, pp. 1-2. The Nevada Supreme Court dismissed the appeal on May 1, 1996. Id. at 4.
On May 7, 1997, Connors filed a pro se post-conviction petition for writ of habeas corpus in state court. See Petition for Writ of Habeas Corpus, Exhibit 150. The state district court entered an order denying Connors habeas corpus relief on December 14, 2006. Findings of Fact, Conclusions of Law and Order, Exhibit 166. Connors appealed, and the Nevada Supreme Court affirmed on April 6, 2007. Order of Affirmance, Exhibit 173.
Connors initiated this federal habeas corpus action by mailing a pro se petition for writ of habeas corpus (ECF No. 1) to this court on May 8, 2007. Connors filed a first amended habeas petition on July 5, 2007 (ECF No. 6). The court then appointed counsel to represent Connors (ECF No. 10), and, with counsel, Connors filed a second amended habeas petition (ECF No. 20) on January 5, 2009.
On May 19, 2010, this court denied Connors' second amended petition in its entirety, and denied Connors a certificate of appealability. See Order entered May 19, 2010 (ECF No. 37). Judgment was entered the same day (ECF No. 38).
Connors appealed. The court of appeals initially denied Connors' request for a certificate of appealability (ECF No. 42), but apparently reconsidered and granted Connors a certificate of appealability with respect to Ground 1 of his second amended petition, a claim that his trial counsel was ineffective for failing to object to a jury instruction regarding the elements of first degree murder. See Second Amended Petition (ECF No. 20), pp. 6-8; see also Motion for Leave to Amend (ECF No. 44), p. 2 ("The Ninth Circuit initially denied the application, but later reconsidered its decision, and granted a certificate of appealability on one issue, presented as Ground One in the Second Amended Petition: whether appellant's trial counsel rendered ineffective assistance by failing to object to a jury instruction that unconstitutionally blurred the distinction between first and second degree murder.'"); Answer (ECF No. 63), p. 7.
On August 15, 2012, Connors filed, in this court, a motion for leave of court to amend his petition. See Motion for Leave to Amend Petition (ECF No. 44). In that motion, Connors requested a ruling by this court: "that it would grant, or at least entertain, a Motion to Amend the Second Amended Petition to reincorporate claims that (a) the premeditation jury instruction presented at Connors' trial was unconstitutional because it did [not] apprise the jury of the statutory elements of first-degree murder, as per Polk v. Sandoval, 503 F.3d 903 (9th Cir.2007) and Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008), and that (b) Connors' appellate counsel was ineffective for not challenging this instruction on direct appeal." Id. at 12. On January 23, 2013, this court ruled: "should the Ninth Circuit Court of Appeals remand this matter pursuant to Fed.R.App.P. 12.1, the petitioner's motion to amend the petition (ECF No. 44) would be granted." Order entered January 23, 2013 (ECF No. 49), p. 5. Respondents filed a motion for reconsideration (ECF No. 50). On May 2, 2013, the court of appeals remanded the action to this court for consideration of Connors' motion for leave to amend. See Order of Court of Appeals filed May 2, 2013 (ECF No. 52). On May 8, 2013, Connors filed a further motion to amend (ECF No. 53). On July 5, 2013, this court granted Connors' motions to amend, and denied respondents' motion for reconsideration. See Order entered July 5, 2013 (ECF No. 54).
On July 19, 2013, Connors filed his third amended petition for writ of habeas corpus (ECF No. 58), setting forth, as Ground 3 of the third amended petition, what was Ground 1 of his second amended petition, and adding, as Grounds 1 and 2 of the third amended petition, the two new related claims. Respondents filed an answer, responding to the three claims in the third amended petition, on October 1, 2013 (ECF No. 63). Connors filed a reply on December 2, 2013 (ECF No. 67).
Standard of Review
Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). 28 U.S.C. § 2254(d) sets forth the primary 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 ...