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Stiegler v. Neven

United States District Court, D. Nevada

November 13, 2017

GREGORY STIEGLER, Petitioner,
v.
WARDEN NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         This action is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. Before the court is the petitioner's motion for leave to file a supplemental petition and for an evidentiary hearing (ECF No. 29). Respondents have opposed (ECF No. 31).

         I. Factual and Procedural Background

         In this action, petitioner challenges his state court conviction of second degree murder with the use of a deadly weapon. In its order denying petitioner's direct appeal, the Nevada Supreme Court summarized the facts of this case as follows:

Stiegler was charged with killing his roommate, Robert Wilson, by “blunt force trauma and/or asphyxiation, ” with the use of a deadly weapon, “to wit: a metal pole and/or unknown blunt object.” Stiegler admitted to killing Wilson, albeit in self-defense, during the course of a fight in which he used a metal rod to hit Wilson. Stiegler, however, did not report the incident to the police, but instead wrapped a plastic sheet around Wilson's head and body, tied his hands and feet together, and placed the body in a hollow space under the floorboards of his apartment beneath a stairwell. Within days, Stiegler proceeded to pour concrete and tar over the body, and when it dried, covered the area with carpet. Stiegler disposed of the metal rod and excised a portion of the carpet were Wilson bled. After Wilson disappeared, Stiegler lied to several people, including Wilson's family, about Wilson's whereabouts. Several months later, after losing a contested eviction, Stiegler fled to Arizona and worked under an assumed name.
Dr. Rexene Worrell performed the autopsy on Wilson and testified at trial that he suffered approximately fourteen blows to the head, most of which were to the back of his skull, resulting in lacerations. Dr. Worrell stated that if the blows to the head did not kill Wilson, he may have died from asphyxiation after the plastic bag was placed over his head. Dr. Worrell also testified that the ligature marks around Wilson's wrists and the swelling of his hands indicated that Wilson was alive when his wrists were bound.

(Ex. 47, at pp. 2-3).[1] Following a jury trial, petitioner was found guilty of second degree murder with the use of a deadly weapon. (Exs. 37 & 39). Petitioner was sentenced on October 3, 2005 to a term of 10 years to life, with an equal and consecutive 10 years to life for the use of a deadly weapon, and judgment of conviction was entered on October 6, 2005. (Exs. 41 & 42). Petitioner filed a notice of appeal on November 3, 2005. (Ex. 43). On January 10, 2007, the Nevada Supreme Court affirmed petitioner's conviction. (Ex. 47). Remittitur issued on February 7, 2007. (Exhibit 48).

         On August 21, 2007, petitioner filed his post-conviction state habeas petition. (Exs. 49 & 49A). The state district court denied the petition, and petitioner appealed. (Exs. 52 & 53). On September 30, 2009, the Nevada Supreme Court entered an order affirming in part, reversing in part, and remanding. (Exhibit 54). The court affirmed the denial and dismissal of all but two of petitioner's claims. Regarding the two remaining claims, the Nevada Supreme Court stated:

Appellant's claims regarding whether trial counsel was ineffective for failing to secure experts to testify about forensic pathology and toxicology were not belied by the record. The testimony provided by the medical examiner regarding the cause and time of death was equivocal and experts in forensic pathology and toxicology may have provided support for appellant's defense theories of natural causes, insufficient evidence and self-defense. Therefore, we reverse the denial of these claims and remand to the district court for an evidentiary hearing. Further, given the complex nature of the issues being remanded and the fact that they require investigation of facts outside the record, the district court shall appoint counsel pursuant to NRS 34.750 to aid appellant in litigating these claims.

(Ex. 54 at 22).

         On remand, the state district court appointed counsel for petitioner's continued state habeas proceedings. (Ex. 58). After an evidentiary hearing and supplemental argument, the state district court denied the petition. (Exs. 64-67 & 71). Petitioner filed a notice of appeal on April 16, 2013. (Ex. 72). In his opening brief, filed October 29, 2013, petitioner raised the following claim: “Stiegler's state and federal constitutional rights were violated by the ineffectiveness of his trial counsel in their failure to consult or call a toxicologist at his trial.” (Ex. 73 at iii). On June 12, 2014, the Nevada Supreme Court filed an order affirming the denial of the post-conviction state habeas petition. (Ex. 76). Remittitur issued on July 10, 2014. (Ex. 77).

         Petitioner signed his federal habeas petition on July 30, 2014. (ECF No. 1). On November 6, 2014, the Court granted petitioner's motion to amend the petition with an additional claim of ineffective assistance of counsel. (ECF No. 7). On February 3, 2015, respondents filed a motion to dismiss, arguing that some of petitioner's claims were unexhausted and others were procedurally defaulted. (ECF No. 14).

         On August 5, 2016, the court granted in part and denied in part the motion to dismiss. (ECF No. 26). The court found unexhausted Ground 2(E)(1)(A), which asserted that trial counsel failed to retain a forensic pathologist to testify regarding the murder victim's cause of death, and Ground 2(E)(1)(O), which asserted that trial counsel was ineffective for failing to properly investigate the manner and cause of death in preparing for trial. The court further found four grounds procedurally defaulted: (1) Ground 2(A), which claimed the reasonable doubt instruction improperly minimized the State's burden of proof at trial; (2) Ground 2(B), which alleged that juror number 3 engaged in misconduct by discussing the case; (3) Ground 2(C), which alleged that juror number 10 engaged in misconduct by failing to disclose he had a business relationship with petitioner's wife; and (4) Ground 2(D), which alleged that the trial court erred by allowing the State to amend the information to include a deadly weapon enhancement. (ECF No. 26 at 9). Finding no cause for the default, the court dismissed those grounds as procedurally barred. (Id. at 10-11). Because the petition was mixed, the court directed petitioner to notify the court how he wished to proceed by either: (1) submitting a sworn declaration that he wished to abandon the unexhausted claims; (2) submitting a sworn declaration that he wished to dismiss this petition without prejudice in order to return to state court to exhaust his unexhausted claims; or (3) filing a motion to stay and abey.

         On October 21, 2016, petitioner filed a declaration electing to abandon his unexhausted claims. (ECF No. 30). At the same time, petitioner filed a motion to supplement his petition to include the unexhausted and procedurally defaulted claims re-framed as claims that post-conviction counsel was ineffective for failing to argue that trial and appellate counsel were ineffective with respect to those claims.

         II. ...


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