United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
SUMMARY AND BACKGROUND
the Court are the second amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 14),
respondents' answer (ECF No. 35), and petitioner's
reply (ECF No. 38). The Court finds that relief is not
warranted, and the Court denied the second amended petition.
jury trial, petitioner was convicted of second-degree murder
with the use of a deadly weapon. (Exh. 1 (ECF No. 22-1).)
Petitioner appealed, and the Nevada Supreme Court affirmed.
(Exh. 9 (ECF No. 22-9).)
then filed a post-conviction habeas corpus petition in the
state district court. (Exh. 12 (ECF No. 22-12).) The state
district court appointed counsel, who filed a supplemental
petition. (Exh. 14 (ECF No. 22-14).) The state district court
denied the petition. (Exh. 16 (ECF No. 22-16).) Petitioner
appealed, and the Nevada Supreme Court affirmed. (Exh. 21
(ECF No. 22-21).)
then commenced this action. The second amended petition
originally contained fifteen numbered grounds for relief. The
Court dismissed ground 15 because it was a claim of error in
the state post-conviction proceedings, which is not
addressable in federal habeas corpus. (ECF No. 16.)
Respondents filed a motion to dismiss, and the Court found
that petitioner had not exhausted his available state-court
remedies for ground 3. (ECF No. 31.) Petitioner elected to
dismiss ground 3. (ECF No. 32.) Reasonable jurists would not
find the Court's conclusions on these two grounds to be
debatable or wrong, and the Court will not issue a
certificate of appealability for these two grounds.
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;
(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,
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.
petitioner's grounds repeat claims in other grounds.
Ground 5 is a claim of ineffective assistance of trial
counsel that sits between claims of trial-court error. For
ease of analysis, the Court will address petitioner's
grounds out of the order that he presents them.
Grounds 1 and 6
1 is a claim that the trial court erred in admitting evidence
of petitioner's uncharged criminal acts without first
holding a hearing. On this issue, the Nevada Supreme Court
Nichols argues that the district court erred in admitting
testimony about uncharged acts without conducting a hearing
pursuant to Petrocelli v. State, 101 Nev. 46, 692
P.2d 503 (1985), superceded by statute as stated in
Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818, 823-24
(2004). He asserts that the district court erred in admitting
testimony from Charles Guadagnoli that, while in custody with
Nichols, Nichols asked him to get one of the State's
witnesses drunk and take him on vacation so that he could not
testify at Nichols' trial.
We review the district court's decision for an abuse of
discretion. . . . There was no abuse of discretion because
evidence that a defendant threatened a witness is directly
relevant to the question of that defendant's guilt and
does not constitute evidence of collateral acts that require
a hearing prior to its admission, . . . and evidence of
attempts to bribe witnesses or procure false testimony is
admissible to show a consciousness of guilt . . . .
(Exh. 9 at 1-2 (ECF No. 22-9 at 2-3) (some citations
omitted).) The Nevada Supreme Court's decision cannot be
contrary to, or an unreasonable application of
clearly-established federal law as determined by the Supreme
Court of the United States because no such
clearly-established federal law exists on this issue.
Alberni v. McDaniel, 458 F.3d 860, 867 (9th Cir.
2006). See also Carey v. Musladin, 549 U.S. 70, 77
(2006). Ground 1 is without merit.
6 repeats ground 1. It, too, is without merit.
jurists would not find the Court's conclusions on grounds
1 and 6 to be debatable or wrong, and the Court will not
issue a certificate of appealability for these grounds.
Grounds 2 and 7
2 is a claim that the trial court erred in refusing
petitioner's proposed instructions. On this issue, the
Nevada Supreme Court held:
Nichols argues that the district court erred in refusing to
give his proposed heat-of-passion instruction and a modified
self-defense instruction. Although Nichols' proposes
instructions were correct statements of law, we conclude that
the principles of law described in Nichols' proposed
instructions were “fully, accurately, and expressly
stated in the other instructions.” . . . Therefore, we
concluded that the district court did not abuse its
discretion in denying the requested instructions.
(Exh. 9 at 4-5 (ECF No. 22-9 at 5-6).)
Court doubts whether the Supreme Court of the United States
has clearly established that the Constitution gives
petitioner the right to request a jury instruction on his
theory of defense. Mathews v. United States, 485
U.S. 58 (1988), which petitioner cited in his brief on direct
appeal (Exh. 2 at 14 (ECF No. 22-2 at 20)), came to the
Supreme Court through direct appeal from a judgment of
conviction in a federal district court. The Court held that
“a defendant is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor, ” but the