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Reiger v. Neven

United States District Court, D. Nevada

May 22, 2017

ROBERT M. REIGER, Petitioner,
DWIGHT NEVEN, et al., Respondents.



         Before the Court for decision is a habeas corpus petition under 28 U.S.C. § 2254 brought by Robert M. Reiger. (ECF No. 15-1.)


         Reiger seeks habeas relief from a judgment of conviction entered in the Eighth Judicial District Court in Clark County, Nevada. In February 2007, after a two-day trial, a jury found Reiger guilty of trafficking in a controlled substance and possession of a controlled substance with the intent to sell. At sentencing, the state district court adjudicated Reiger a habitual offender and, with respect to the trafficking count, imposed a sentence of life in prison with parole eligibility after serving ten years. With respect to the possession count, the court imposed a maximum term of 180 months, with parole eligibility beginning after a minimum term of 60 months, to be served concurrently with the other sentence.

         Reiger appealed. In October 2008, the Nevada Supreme Court issued an order affirming the convictions.

         In October 2009, with the assistance of retained counsel, Reiger filed a post-conviction petition for a writ of habeas corpus in the state district court. After substituting himself in place of his attorney, he filed a pro per document entitled “Memorandum of Points and Authorities in Support of Petitioner's Amended Petition for Writ of Habeas Corpus and an Evidentiary Hearing.” In the memorandum, petitioner raised additional claims. In August 2010, the state district judge entered an order denying the petition.

         Reiger appealed. In March 2012, the Nevada Supreme Court issued an order affirming the denial of petitioner's post-conviction habeas petition.

         Reiger sent his original federal habeas petition to this Court in April 2012. In November 2012, this Court granted Reiger leave to file an amended petition. In February 2014, this Court granted, in part, respondents' motion to dismiss and dismissed Grounds Ten, Eleven, and Twelve as untimely, and portions of Ground Six as procedurally defaulted. In May 2014, respondents filed their answer, addressing the merits of Reiger's remaining habeas claims. Reiger filed his reply in July 2014.


         This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the 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 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).

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. “[A] federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

         The Supreme Court has explained that “[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

         “[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also Miller-El, 537 U.S. at 340 (“[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).”). Because de novo review is more favorable to the petitioner, federal courts can deny writs of habeas corpus under § 2254 by engaging in de novo review rather than applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).


         A. Ground One

         In Ground One, Reiger alleges that his constitutional right to due process was violated because there was insufficient evidence presented at trial to find him guilty of trafficking in a controlled substance. Specifically, he alleges that the State failed to present evidence to prove beyond a reasonable doubt that the quantity of methamphetamine in his possession was 28 grams or more.[2]

         At trial, a forensic scientist for the Las Vegas Metropolitan Police Department (“LVMPD”) testified about testing and weighing the substances in question. (ECF No. 32-7 at 14-27.)[3] According to her testimony, one package (Exhibit 1-B-3) contained a mixture of methamphetamine and dimethyl sulfone, a cutting agent, and weighed 15.23 grams.[4](Id. at 22-24.) Eleven other packages (Exhibit 1-B) weighed a total of 61.19 grams. Id. at 24-25. With respect to those 11 packages, the forensic scientist testified that 9 of them tested positive for methamphetamine and that she only tested 9 of them because, according to the LVMPD's statistical approach to analysis, that number was sufficient to establish that all 11 contained methamphetamine. Id.

         Reiger argues that, without evidence that the two untested packages contained methamphetamine or that the weight of the nine tested packages exceeded 12 grams, the State failed to prove that the total amount of methamphetamine in his possession exceeded 28 grams.

         The Nevada Supreme Court did not explain its reasons for rejecting Reiger's sufficiency of evidence claim. (ECF No. 33-7 at 2 n.1.) Even so, this Court must presume that the state supreme court adjudicated his federal law claim on the merits for the purposes of 28 U.S.C. § 2254(d). See Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.”).

         The standard used by the federal habeas court to test whether sufficient evidence supports a state conviction is the “rational factfinder” standard established in Jackson v. Virginia, 443 U.S. 307 (1979). Mikes v. Borg, 947 F.2d 353, 356 (9th Cir. 1991). Under that standard, the court inquires as to “whether, 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 crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (citation omitted). And because this Court must review the Nevada Supreme Court's sufficiency of evidence determination under AEDPA, “there is a double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). That means that even if this Court “think[s] the state court made a mistake, ” the petitioner is not entitled to habeas relief unless the state court's application of the Jackson standard was “‘objectively unreasonable.'” Id.

         Here, Reiger's argument would, contrary to the Jackson standard, require this Court to view the evidence in the light most favorable to the defense, not the prosecution. Beyond that, the argument is premised on the extremely unlikely scenario that (1) the LVMPD scientist happened to omit from testing the only two (out of 11) packages that did not contain methamphetamine and (2) those two packages outweighed the nine tested packages by a factor of nearly four to one. Certainly, a rational factfinder could find beyond a reasonable doubt that the nine tested packages totaled at least 12.78 grams (i.e. enough to total more than 28 grams when combined with Exhibit 1-B-3), when all eleven packages totaled 61.19 grams.

         Because Reiger falls well short of satisfying the Jackson standard, Ground One is denied.[5]

         B. Ground Two

         In Ground Two, Reiger claims that he received ineffective assistance of counsel, in violation of his constitutional rights, due to counsel's failure to challenge the trial testimony of the LVMPD forensic scientist. In particular, Reiger argues that effective counsel would have objected to her testimony based on the State's failure to comply with NRS § 174.234(2), which imposed notice requirements when a party intended to call an expert witness in a criminal case, [6] and would have impeached her testimony with inconsistent testimony from a different State's expert at Reiger's preliminary hearing. With respect to the latter, the State's expert testified at the preliminary hearing that his test of the package later admitted as Exhibit 1-B-3 at trial did not indicate the presence of methamphetamine. (ECF No. 31-13 at 10-11.)

         Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must satisfy two prongs to obtain habeas relief - deficient performance by counsel and prejudice. 466 U.S. at 687. To meet the performance prong, a petitioner must demonstrate that his counsel's performance was so deficient that it fell below an “objective standard of reasonableness.” Id. at 688. As to the prejudice prong, the court “must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent [counsel's] errors.” Strickland, 466 U.S. at 696. Put another way, a habeas petitioner “must show 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.

         In addressing Reiger's ineffective assistance of counsel (“IAC”) claims in his state post-conviction proceeding, the Nevada Supreme Court correctly identified Strickland as the governing standard. (ECF No. 34-4 at 2-3.) The Nevada Supreme Court addressed the claim contained in Ground Two as follows:

[A]ppellant claimed that trial counsel was ineffective for failing to object to the State's failure to properly provide notice of the forensic scientist pursuant to NRS 174.234(2). Appellant failed to demonstrate that trial counsel's performance was deficient or that he was prejudiced as he failed to demonstrate any bad faith on the part of the State. See NRS 174.234(3)(b) (providing that the court should prohibit an expert from testifying if the court determines that the party acted in bad faith by not disclosing the information required pursuant to NRS 174.234(2)). The record indicates that the first forensic chemist to analyze the drugs was unavailable to testify. The State informed the court and opposing ...

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