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McMahon v. Neven

United States District Court, D. Nevada

September 29, 2017

NEVEN, et al., Respondents.



         Johnny Edward McMahon's 28 U.S.C. § 2254 counseled, second-amended habeas corpus petition is before the court for disposition on the merits.

I. Background

         On May 7, 2008, a jury found McMahon guilty of three counts of sexual assault of a minor under age sixteen (counts 1, 3, 5), three counts of statutory sexual seduction (counts 2, 4, 6), and one count of open and gross lewdness (count 7). Exhibit 26.[1] The state district court sentenced McMahon on counts 1, 3, and 5 to three terms of twenty years to life; on count 7 to twelve months in the Clark County Detention Center; all counts to run concurrently. Exh. 33. The state district court imposed a sentence of lifetime supervision and struck counts 2, 4, and 6. Id. Judgment of conviction was entered on July 29, 2008. Id.

         McMahon's trial counsel, Paul Wommer, represented him on appeal. Exh. 3. The Nevada Supreme Court affirmed the convictions on October 16, 2009, and remittitur issued on December 22, 2009. Exhs. 57, 63.

         In the meantime, McMahon had filed a pro per petition for writ of mandamus with the Nevada Supreme Court on January 6, 2009. Exh. 47. McMahon argued, among other claims, that the state district court erred in re-appointing Wommer for the appeal and that such representation created a conflict of interest. The Nevada Supreme Court issued an order denying the petition on January 15, 2009. Exh. 48.

         McMahon filed a pro per state postconviction petition for writ of habeas corpus on May 21, 2010. Exh. 83. The state district court appointed Rochelle T. Nguyen to represent McMahon, and Nguyen filed a supplemental petition on March 22, 2011. Exhs. 98, 99, 100. After an evidentiary hearing, the state district court denied the petition on February 14, 2012. Exh. 109. On May 15, 2013, while McMahon's appeal was pending before the Nevada Supreme Court, Nguyen filed a motion to remand to state district court. Exh. 122. She cited to the April 19, 2013 federal conviction of former counsel Wommer of three counts of structuring financial transactions, one count of tax evasion and one count of making and subscribing a false tax return, statement or other document. Id. She also indicated that at his bench trial Wommer presented the defense that he had diminished mental capacity due to a 1991 skiing accident that left him unable to understand tax laws. Id.

         On June 13, 2013, the Nevada Supreme Court affirmed the denial of the state postconviction petition. Exh. 124. In the order, the state supreme court addressed the motion to remand and stated that the state district court had already resolved the state postconviction petition, and therefore, McMahon must bring a new petition in district court. Id. at n.1.

         McMahon filed a second pro per state postconviction petition on April 24, 2013. Exh. 121. He ultimately filed a second-amended petition on September 10, 2013. Exh. 138. In the amended petition he set forth numerous grounds, including his claim that newly discovered evidence indicated that Wommer lacked the mental capacity to effectively represent McMahon at trial and on appeal. Exh. 138 (ECF No. 23, pp. 9-34, 64-77). The Nevada Supreme Court affirmed the denial of the second state postconviction petition on September 16, 2014. Exh. 186. Remittitur issued on October 15, 2014. Exh. 187.

         McMahon dispatched his federal habeas petition for filing about January 10, 2014 (ECF No. 6). This court appointed counsel, and counsel ultimately filed a second-amended petition on August 4, 2014 (ECF No. 31).

         On September 28, 2015, this court granted respondents' motion to dismiss in part, concluding that grounds 3 and 5(B) were unexhausted (ECF No. 51, pp. 4, 6). McMahon thereafter filed a declaration of abandonment of those grounds (ECF No. 53). Respondents filed their answer to the second-amended petition (ECF No. 58), and McMahon replied (ECF No. 63).

         II. AEDPA Standard of Review

         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. Instant Petition

         Ground 1

         McMahon contends that the improper joinder of charges violated his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial (ECF No. 31, pp. 14-15). McMahon was charged in an information with three counts of sexual assault of a minor under sixteen years of age and three counts of statutory sexual seduction with respect to victim E.H. In the same information, he was charged with one count of open or gross lewdness with respect to victim S.K. Id.

         A court may grant habeas relief on a joinder challenge only “if the joinder resulted in an unfair trial. There is no prejudicial constitutional violation unless ‘simultaneous trial of more than one offense ... actually render[ed] petitioner's state trial fundamentally unfair and hence, violative of due process.'” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (quoting Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir.2001). As to prejudice, the court must ask “‘if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict.'” Davis, 384 F.3d at 638 (quoting Sandoval, 241 F.3d at 772); see also Bean v. Calderon, 163 F.3d 1073, 1086 (9th Cir.1998). The Ninth Circuit explained that it considers in particular the cross-admissibility of evidence and the danger of “spillover” from one charge to another, especially where one charge or set of charges is weaker than another. Davis, 384 F.3d at 638; see also, e.g., Sandoval, 241 F.3d at 772; Bean, 163 F.3d at 1084.

         E.H. testified at trial as follows. Exh. 21, pp. 38-56. When she was fourteen, she met McMahon and R., his four-year-old daughter, at a park in Las Vegas. McMahon asked her whether she babysat and also asked her if she was a virgin. Id. at 39-40. She thought the question was disturbing but was not really paying attention because she was “absentminded.” Id. at e.g., 52. She agreed to babysit for him and went back to his apartment. McMahon took E.H. into the bathroom, blocked her way out, locked the door, made her perform oral sex on him, and then he performed oral sex on her. Id. at 39-40.

         E.H. testified that her mother was pleased she had a job, so E.H. babysat for R. most weekends for three or four months. She testified to specific incidents when McMahon had sexual intercourse with her and stated that he had sexual intercourse with her between 10 and 20 times, he performed oral sex on her between 10 and 20 times, and her mouth was on McMahon's penis once or twice. Id. at 43, 50-52. The incidents occurred over about a four-month-period beginning in July 2004. Id. at 38, 45. She stated that about one year later, McMahon dropped a birthday card off for her with $20 in it. At that point, E.H. and her mother contacted police again; police told E.H. to set up a meeting with McMahon. She called McMahon and asked him to meet her at 7-Eleven. Police arrested McMahon when he arrived at 7-Eleven. Id. at 48-50.

         Defense counsel elicited testimony on cross-examination that when E.H. described the first incident to her mother and to police the first time she was interviewed she did not say that McMahon performed oral sex on her. Id. at 52-53.

         S.K. also testified at trial. Exh. 22, pp. 4-11. She stated that she usually babysat for McMahon's daughter R. at R.'s mother's apartment. The only time she babysat for R. at McMahon's apartment was during the summer of 2004; she was fourteen. She was tired, and McMahon told her to go into his bedroom and go to sleep. She fell asleep on McMahon's bed; when she woke up McMahon had his hand down her pants, underneath all of her clothing, and was rubbing her vagina. She stated that she had been sleeping soundly, and she was unsure how long this went on: “It felt like quite a while; I would say like 20 minutes, but it possibly could have gone on for two. But in my mind it felt like longer.” Id. at 6; see also id. at 9-10. S.K. picked up the phone to call her mother, she hung up when McMahon told her not to call. He gave her $20. Id. at 5-6.

         Affirming the convictions, the Nevada Supreme Court reasoned:

McMahon argues that the counts were improperly joined because the offenses relating to E.H. and S.K. were not part of a common scheme or plan. We disagree. NRS 173.115; Griego v. State, 893 P.2d 995, 998-999 (Nev. 1995), abrogated on other grounds by Koerschner v. State, 13 P.3d 451 (Nev. 2000), modified on other grounds by State v. Dist. Ct. (Romano), 97 P.3d 594, 600 (Nev. 2004), overruled by Abbott v. State, 138 P.3d 462 (Nev. 2006).
Pursuant to NRS 173.115, two or more offenses may be charged in the same information if the offenses are based on the same act or transaction or are part of a common scheme or plan. In Griego, this court found a common scheme or plan where the victims were all the same gender, were friends with Griego's children, and the assaults took place in the same place around the same time. Id. Here, both of the victims were 14 years of age, McMahon invited both victims to his residence to babysit his daughter and sexually assaulted or committed lewd acts with the victims, and the offenses occurred similarly close in time. Further, both victims testified that McMahon offered them $20 following sexual acts. Therefore, we conclude that the district court did not abuse its discretion in this regard because the offenses were part of a common scheme or plan.

Exh. 57, pp. 6-7.

         McMahon argues in his reply that the Supreme Court of Nevada made an unreasonable determination of fact, thus requiring this court to review the federal constitutional claim de novo (ECF No. 63, p. 14). Indeed, “where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.” Taylor, 366 F.3d at 1001; see also Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir. 2013). McMahon argues that a discrepancy regarding the import and timing of $20 payments to the alleged victims was an unreasonable determination of fact triggering de novo review. The Supreme Court of Nevada, while finding McMahon's molestation of both victims were part of a common scheme or plan, found that “McMahon offered [both fourteen-year-old victims] $20 following sexual acts.” Exh. 57, p. 6. McMahon counters that, while that is factually accurate, it is misleading because one victim received the $20 immediately following the sexual acts and the other received it almost a year later. See exh. 21, p. 205; exh. 22, p. 12. However, the Supreme Court of Nevada's factually correct statement did not “plainly misapprehend or misstate the record.” Taylor, 366 F.3d at 1001. McMahon did pay both victims $20. But even if this was a plain misstatement, it did not “go[] to a material factual issue, ” id., as the Supreme Court of Nevada rejected McMahon's federal constitutional claim because he failed to demonstrate prejudice, not because his molestation of both victims was part of a common scheme or plan-that was the state-law issue. See exh. 57, pp. 6-7, 7 n.2.

         Accordingly, this claim is not subject to de novo review; AEDPA deference applies to the Nevada Supreme Court's determination. McMahon has not shown that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court, or 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); see Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012) (no U.S. Supreme Court precedent exists for improper joinder or severance). Federal habeas relief, therefore, is denied as to ground 1.

         Ground 2

         McMahon asserts that insufficient evidence supported the convictions, in violation of his Fifth and Fourteenth Amendment due process rights (ECF No. 31, pp. 15-17).

         “The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979) (citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner “is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 324. “[T]he standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. On habeas review, this court must assume that the trier of fact resolved any evidentiary conflicts in favor of the prosecution and must defer to such resolution. Id. at 326. Generally, the credibility of witnesses is beyond the scope of a review of the sufficiency of the evidence. Schlup v. Delo, 513 U.S. 298, 330 (1995).

         The testimony of the two victims is described above with respect to ground 1. McMahon's former girlfriend, the mother of their daughter, R., testified that in the winter of 2005, when R. was five, she was putting her daughter to bed when R. started explaining to her mother what she had seen McMahon and E.H. doing. Exh. 23, pp. 10-11. R. put one of her dolls on top of the other and was moving them around. R. also told her mother that she had seen McMahon kissing E.H. on the mouth, and McMahon told her he did it because E.H. was like R.'s sister. Id. A police officer testified that R. told him in March 2005 that E.H. was McMahon's girlfriend and that she had seen E.H. laying on top of McMahon on the bed and had seen them “French” kissing and having sex. Exh. 23, pp. 18-19.

         R. was age eight at trial. She testified that she did not remember any of the incidents between E.H. and McMahon that she had recounted to her mother and police. She testified that E.H. spent the night at McMahon's apartment and that the three of them slept in the same bed together. Id. at 9-12.

         Evidence was also introduced that E.H.'s DNA was found on a comforter from McMahon's bed. Exh. 23, p. 24. A nurse practitioner who has testified in a number of court cases as a child sexual abuse expert testified that she examined E.H., and E.H. had injuries consistent with a child who has been sexually assaulted. Exh. 22, pp. 20-25.

         McMahon acknowledged at trial that within four days of his October 3, 2004 interview with police about the E.H. incidents, he dropped out of his final semester of school, rented a moving van, returned his rented computer, moved to Texas, and changed his phone number. He testified that he left Las Vegas abruptly to help his mother, who had suffered a fall, relocate to assisted living in Florida. Exh. 24, pp. 8-12, 28-31, 39.

         Rejecting the insufficiency of the evidence claim on direct appeal, the Nevada Supreme Court explained its conclusion that ...

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