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Orth v. Warden, HDSP

United States District Court, D. Nevada

December 12, 2017

SEAN RODNEY ORTH, Petitioner,
v.
WARDEN HDSP, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         This pro se habeas petition comes before the Court on respondents' motion to dismiss (ECF No. 16). Petitioner has opposed (ECF No. 29), and respondents have replied (ECF No. 32).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner in this action challenges his 2007 convictions for trafficking in a controlled substance and ex-felon in possession of a firearm.[1] (ECF No. 15 at 2 & Exh. 47.[2]) The convictions arose out of petitioner's arrest on the night of August 21, 2006, during which police officers conducted a search of the rental vehicle he had been driving. During the search, officers located two loaded handguns in a duffel bag, a baggie of methamphetamine, and several empty baggies consistent with packaging used in the sale of narcotics. (Exh. 4.)

         Present during the arrest was Marla Barker, petitioner's girlfriend. (Exh. 32 (Tr. 203. 224-37).) Although Barker was subject to an outstanding warrant for failure to appear, officers did not arrest Barker on the warrant at that time. (See Exh. 45 (Tr. 15-17, 46 & 54).)

         Earlier in the evening, petitioner and Barker had been with petitioner's friend, Eric Meyer. (See Exh. 32 (Tr. 224-37).) The night before petitioner's trial, Meyer and petitioner had a conversation, which was recorded by the Washoe County Jail, in which it appeared that Meyer planned to testify that the guns found in the rental vehicle were his. (See Exh. 45 (Tr. 27-30)). After this conversation, Reno Police Officers Silver and Lever arrested Meyer on a misdemeanor warrant and brought him back to the station for an interview. (See Exh. 45 (Tr. 40-43)). Meyer did not say much during the interview but did make some comments to the effect that the guns were his. (Id. at 26-27, 48-49, 57-58.) Lever wrote a report about the interview, and Thomas swore out an affidavit aimed at securing a seizure order for Meyer's DNA. (Id. at 57-58; Exh. 64 (Tr. at 169-71).)

         Barker testified at trial. (Exh. 32 (Tr. 203).) Meyer, who was not disclosed until the night before trial, did not.[3] (See Exh. 52 at 6-9; Exh. 30 (Tr. 65-66).) At the conclusion of trial, the jury found petitioner guilty on all counts. (Exh. 35.)

         Petitioner moved for a new trial. Petitioner argued, in part, that the State had failed to disclose whether Barker had received a deal or leniency in exchange for her testimony. (Exh. 37 at 4.) At a hearing on the motion, Silver, Lever and Reno Police Officer Thomas were questioned as to why they did not arrest Barker on the outstanding warrant. All testified that they had discretion whether to do so and that under the circumstances they, or other officers, felt it was best not to arrest her. (Exh. 45 (Tr. 15-17, 46 & 54).) The officers were also questioned about the Meyer interview. (Id. at 26-27, 48-49, 57-58.) Officer Lever testified that the conversation had been tape recorded and that he had written a report about it. (Id. at 57-58.) Officer Thomas testified that he had come to the police station during Meyer's interview in order to collect Meyer's DNA, which seizure was authorized via a telephonic order that morning. (Id. at 24-25.)

         Petitioner's motion for new trial was denied.[4] (Id. at 95.) At sentencing on May 4, 2007, petitioner was adjudicated a habitual criminal and sentenced to three concurrent terms of life imprisonment with the possibility of parole after ten years. (Exhs. 46 & 47.)

         Petitioner appealed, and the Nevada Supreme Court affirmed. (Exhs. 48, 52 & 56.) On appeal, petitioner argued that the district court had erred in denying his motion for a new trial because the State had withheld evidence of (1) a “deal” between police and Barker and (2) a recording of the police interview with Meyer. (Exh. 52 at 25-28.) The Nevada Supreme Court rejected this argument, finding there was no evidence of a deal between police and Barker and that “nothing in the record . . . suggest[ed] any probability that earlier disclosure of [the] interview would have led to a different result at trial.” (Exh. 56 at 17-18.)

         On September 15, 2009, petitioner filed a state post-conviction habeas petition. (Exhs. 58, 59 & 61.) The district court conducted an evidentiary hearing. (Exhs. 64-67.) At the hearing, petitioner's counsel presented Lever and Thomas with a Reno Police Department general order requiring arrest of individuals with outstanding failure to appear warrants. (Exh. 64 (Tr. 92-94).) Lever testified that the general order was more of a guideline than a mandate. (Id. at 96-97.) When asked whether he had complied with the language of the general order, Thomas responded that he did not. (Id. at 171-72.)

         The district court denied the petition, and petitioner appealed. (Exhs. 68, 71 & 72.) On appeal, petitioner argued that the relief should have been granted based on the State's failure to disclose (1) Barker's favorable treatment, i.e., the fact she was not arrested on her warrant, and (2) the Meyer interview, Lever's report of the interview, and Thomas' affidavit supporting the application for seizure of Meyer's DNA. (Exh. 72.)

         In affirming the district court's decision, the Nevada Supreme Court found that petitioner's Brady v. Maryland, 373 U.S. 83 (1963) claims based on the Meyer interview and Barker's favorable treatment had been raised and rejected on direct appeal and therefore were subject to the doctrine of law of the case. (Exh. 74 at 1.) The court held that the doctrine could not be avoided by “a more detailed and precisely focused argument.” (Id.)

         Petitioner filed a motion for rehearing, arguing that the law of the case doctrine did not apply because the post-conviction appeal presented substantially different facts. (Exh. 75.) Specifically, the post-conviction appeal included the Meyer interview, which had not been included on the direct appeal. (Id.) While an interview had been attached to the direct appeal, it was an interview of Meyer by defense investigators - not the interview of Meyer by Officers Silver and Lever. The Nevada Supreme Court granted the motion and concluded that the law of the case doctrine was overcome with respect to the Meyer-evidence Brady claim because the Meyer police interview was substantially different from the Meyer defense interview. (Exh. 78.) However, the court also concluded, the claim was procedurally barred, as it could have been, but was not, raised on direct appeal, and petitioner failed to show cause and prejudice. (See id.)

         Petitioner thereafter filed his federal habeas petition in this case. On March 24, 2016, petitioner's first amended petition - the operative petition in this action - was received and filed by the Court. (See ECF No. 15.) The petition asserts eleven grounds for relief:

1. Ground 1: Ineffective assistance of appellate counsel for failing to consult with petitioner on appeal;[5]
2. Ground 2: Ineffective assistance of appellate counsel for failing to raise a claim of insufficient evidence on appeal;
3. Ground 3: Denial of petitioner's rights to compulsory process, fair trial, due process and effective cross-examination based on the State's withholding of the Meyer interview, Lever's report about the interview, and Thomas' affidavit supporting the application for seizure of Meyer's DNA;
4. Ground 4: Prosecutorial misconduct based on the prosecutor's presentation of arguments and evidence at trial that were undermined by the exculpatory Meyer evidence;
5. Ground 5: Denial of petitioner's rights to due process and fair trial based on the State's failure to disclose the Meyer interview;
6. Ground 6: Ineffective assistance of trial counsel for failing to timely notice Meyer as a defense witness;
7. Ground 7: Ineffective assistance of trial and appellate counsel for failing to object to or raise on appeal the exclusion of exculpatory DNA evidence at trial;
8. Ground 8: Ineffective assistance of trial counsel for failing to impeach Barker's testimony on the basis of her ...

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