United States District Court, D. Nevada
ROBERT M. REIGER, Petitioner,
DWIGHT NEVEN, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court for decision is a habeas corpus petition under 28
U.S.C. § 2254 brought by Robert M. Reiger. (ECF No.
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.
appealed. In October 2008, the Nevada Supreme Court issued an
order affirming the convictions.
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.
appealed. In March 2012, the Nevada Supreme Court issued an
order affirming the denial of petitioner's
post-conviction habeas petition.
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.
STANDARDS OF REVIEW
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;
(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).
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.
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
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
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.
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.) 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.(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.
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.
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
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
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.
Reiger falls well short of satisfying the Jackson
standard, Ground One is denied.
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,  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.)
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.
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 ...