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High v. Neven

United States District Court, D. Nevada

June 19, 2017

ROBERT ANTHONY HIGH, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         Petitioner's counseled, first-amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court for final disposition on the merits (ECF No. 21).

         I. Procedural History and Background

         On October 30, 2008, a jury found petitioner guilty of count 1: first-degree kidnapping; counts 2, 3, 4, 6, 7, and 10: lewdness with a child under age fourteen; count 5: sexual assault of a minor under age fourteen; and count 9: administration of a drug to aid commission of a felony; and not guilty of count 8: attempted lewdness with a child under age fourteen. Exhs. 66-67.[1]

         On January 15, 2009, the state district court sentenced petitioner as follows: count 1: five years to life; counts 2, 3, 4, 6, 7, 10: ten years to life on each count, to run concurrently with each other and with count 1; count 5: twenty years to life, consecutive to count 1; and count 9: sixteen to seventy-two months, to run concurrently with counts 1-7. Exh. 69 at 12-14. The court filed the judgment of conviction on January 27, 2009. Exh. 71.

         Petitioner appealed. Exh. 73. The Nevada Supreme Court affirmed his convictions on February 3, 2010, and remittitur issued on March 2, 2010. Exhs. 94, 95.

         On June 10, 2010, petitioner filed his first proper person state postconviction petition for writ of habeas corpus. Exh. 103. On September 16, 2010, the state district court orally denied the petition, and the court filed findings of fact, conclusions of law and order denying the petition on November 22, 2010. Exhs. 2, 112. The Nevada Supreme Court affirmed the denial of the first state postconviction petition on April 6, 2011, and remittitur issued on July 6, 2011. Exhs. 118, 123.

         Meanwhile, on or about March 23, 2011, petitioner dispatched his first federal habeas petition. 2:11-cv-0454-JCM-LRL, ECF No. 1-1. On April 1, 2011, the district court dismissed the petition without prejudice as wholly unexhausted; petitioner's appeal of the denial of his first state postconviction petition was pending at that time. 2:11-cv-0454-JCM-LRL, ECF No. 7. The court also denied petitioner's motion for stay and abeyance and denied a certificate of appealability. Id. at 2-3.

         The Ninth Circuit granted petitioner a certificate of appealability on two issues:

         (1) [W]hether the district court improperly determined that the petition was wholly unexhausted, and, if not, (2) whether the district court has discretion to use the stay and abeyance procedure outlined in Rhines v. Weber, 544 U.S. 269 (2005), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), to stay and hold in abeyance a habeas petition containing only unexhausted claims. Case No. 11-16139, ECF No. 2-1 at 1.

         Also while the appeal of the denial of the first state postconviction petition was pending, petitioner filed a second proper person state postconviction petition on April 4, 2011. Exh. 116. The state district court denied the petition as untimely pursuant to NRS 34.726 and successive pursuant to NRS 34.810(1)(b)(2). Exh. 127. On April 11, 2012, the Nevada Supreme Court affirmed the denial of the second state postconviction petition as untimely and successive and an abuse of the writ, and concluded that petitioner failed to demonstrate good cause to excuse the procedural bars. Exh. 134. Remittitur issued on May 8, 2012. Exh. 136.

         Before the Nevada Supreme Court issued the order affirming the denial of the first state postconviction petition and while the second state postconviction petition was pending, petitioner dispatched the instant second federal petition on May 27, 2011 (ECF No. 7). The Ninth Circuit granted petitioner's motion to defer briefing on the appeal of his first federal petition pending resolution of his second federal petition. Case No. 11-16139, ECF Nos. 8, 9.

         Petitioner filed a counseled amended federal petition on May 30, 2012 (ECF No. 21). The court granted petitioner's motion for leave to conduct discovery (ECF No. 32, 39). Following discovery, petitioner filed supplemental exhibits but did not further amend his petition (ECF Nos. 45, 46). On March 2, 2015, this court granted in part respondents' motion to dismiss (ECF No. 57). Respondents have now answered the remaining grounds (ECF No. 62), and High replied (ECF No. 68).

         II. Legal Standard - AEDPA

         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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.

         The AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This Court's ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 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 state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.

         III. Remaining Grounds

         The remaining claims in grounds 2, 5 and 6 are claims of ineffective assistance of trial or appellate counsel. Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that (1) the attorney made errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant 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. A reasonable probability is “probability sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the attorney's performance must be “highly deferential” and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.

         Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, “with performance being measured against an objective standard of reasonableness, . . . under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted). When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

         If the state court has already rejected an ineffective assistance claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

         The United States Supreme Court has described federal review of a state supreme court's decision on a claim of ineffective assistance of counsel as “doubly deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential' look at counsel's performance . . . through the ‘deferential lens of § 2254(d).'” Id. at 1403 (internal citations omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim is limited to the record before the state court that adjudicated the claim on the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has specifically reaffirmed the extensive deference owed to a state court's decision regarding claims of ineffective assistance of counsel:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at __, 129 S.Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at __, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of counsel must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 U.S. at 689). “The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Id. (internal quotations and citations omitted).

         Ground 2

         High alleges that trial counsel rendered ineffective assistance in violation of his Sixth and Fourteenth Amendment rights when counsel failed to present expert testimony regarding the reliability of the Las Vegas Metropolitan Police Department's crime laboratory and its test results in this case. At trial, the state's forensic analyst testified that shortly before trial some typographical errors in in her DNA report were brought to her attention, and therefore she issued a corrected report on the day trial started, and issued a second corrected report ten days later. High argues that counsel also failed to effectively object to the evidence (ECF No. 21, pp. 22-28).

         Affirming the denial of this claim in his state postconviction petition, the Nevada Supreme Court stated that

appellant claimed that trial counsel was ineffective for failing to call an expert witness regarding the DNA evidence. Appellant failed to demonstrate that trial counsel was deficient or that he was prejudiced. Trial counsel consulted with an expert regarding the DNA evidence and decided not to present his testimony. Tactical decisions of counsel are virtually unchallengeable absent extraordinary circumstances. See Ford v. State, 784 P.2d 951, 953 (Nev. 1989). Therefore, the district court did not err in denying this claim.

Exh. 118, p. 3.

         Julie Marschner, forensic scientist with the Las Vegas Metropolitan Police Department (Metro) Forensic Laboratory, testified at trial for the State. Exh. 62, pp. 8- 71. Marschner explained the her testing process and stated that the victim's DNA was identified in the swabs from High's nipples.[2] Id. at 25. She also testified that some typographical errors in her April 2007 report were brought to her attention in October 2008. Id. at 28. She stated that she mistakenly wrote JM-4 instead of JM-5 as the sample designator when the report was discussing a sample from the victim. Id. at 29-30. In that instance, Marschner indicated that the victim's DNA was found on the swabs from High's nipples-but the report listed the victim's name but with sample JM-4. JM-4 was the sample designator from one of High's samples. Marschner explained that DNA from the nipple swabs was female, thereby eliminating High as a contributor of the DNA found on his nipples. Id. at 22-24, 52, 61-63. She testified that she subsequently also discovered that at one point in the report she referred to the victim's vaginal swab as 6B instead of 6A. Id. at 31. She testified that High's DNA was not found on the vaginal swab, and that neither typographical error had any effect on the conclusions of the report. She stated that her manager, the director of the forensic lab, reviewed the report again after the corrections. The main, relevant conclusions of the report were that the victim's DNA was found on the swabs from High's nipples; the victim's DNA was not found in any other samples from High, and High's DNA was not found in any samples taken from the victim. No semen and no DNA from High was detected on any component of the sexual assault kit. Id. at 90-91.

         Defense counsel elicited the following testimony on cross-examination: the swabs are wooden swabs with cotton on the end and look essentially identical to each other and Marschner works with large numbers of swabs in many different ongoing cases at the same time. Id. at 35, 55-56. Defense counsel questioned Marschner about another difference in the final report from the April 2007 report; she explained that she erred in including two hair samples in a list of samples tested because she had decided not to attempt to further test the hair samples. When she reviewed the report in October 2008, she removed the reference to the two hair samples. Id. at 39-40.

         Defense counsel raised a fourth error contained not in the reports, but in Marschner's notes, which incorrectly referred to “JM-1C” as a photograph of the victim's underpants when “JM-1C” was actually swabs from the victim's mouth and lips. Id. at 43-45. Marschner testified these were merely typographical that did not affect the results of the DNA analysis or any other scientific conclusions or results. Id. at 32, 45, 47, 48, 61-64. Defense ...


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