United States District Court, D. Nevada
DANIEL A. RAMET, Petitioner,
ROBERT LeGRANDE, et. al, Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court for a decision on the merits is an application for
a writ of habeas corpus filed by Daniel A. Ramet, a Nevada
prisoner. (ECF No. 9.)
4, 2007, a jury in the state district court for Clark County,
Nevada, found Ramet guilty of first degree murder. After a
sentencing hearing the following day, the jury imposed a
sentence of life without possibility of parole. The court
entered a judgment of conviction on August 31, 2007. Ramet
4, 2009, the Nevada Supreme Court affirmed the conviction in
an opinion that discussed in detail only one of Ramet's
claims of error, that being his claim that testimony
concerning his refusal to consent to a search of his home,
coupled with the prosecutor's reference to it in closing
argument, violated his Fourth Amendment rights. The Nevada
Supreme Court found any error in admission of that evidence
harmless, and it summarily denied the remainder of
Ramet's claims in a footnote.
December 11, 2009, Ramet filed a proper person state habeas
petition, which the state district court ultimately denied
without appointing counsel to represent Ramet. The Nevada
Supreme Court reversed the district court, finding the state
district court erred in failing to appoint counsel, and
remanded to the district court for further proceedings.
Appointed counsel filed a supplemental petition. The state
district court held an evidentiary hearing and subsequently
denied the petition. Ramet appealed. On July 22, 2014, the
Nevada Supreme Court affirmed the denial of relief.
August 28, 2014, this Court received Ramet's federal
habeas petition. With the assistance of appointed counsel,
Ramet filed an amended petition on May 11, 2015. On October
2, 2015, respondents filed a motion to dismiss, which the
Court granted in part and denied in part - that is, the Court
concluded that Claim Ten was unexhausted and that claims for
relief in Claim Four that are not premised on ineffective
assistance of counsel (IAC) must be dismissed as procedurally
addition, the Court concluded that the IAC claims in Claims
Four and Six are also procedurally defaulted, but reserved
judgment as to whether Ramet could demonstrate cause and
prejudice to overcome the default of those claims.
Thereafter, Ramet abandoned Claim Ten and the parties briefed
the remaining claims on the merits.
Nevada Supreme Court gave this summary of the facts of
Ramet's case in its opinion deciding his direct appeal:
Ramet killed his 20-year-old daughter, Amy Ramet, in the home
they shared. Ramet strangled Amy for a minute or two and then
stopped; she moved, and he checked for a pulse, and then he
strangled her for “another couple of minutes.” He
continued to live in his home with Amy's body for three
weeks, sending text messages from her cell phone to allay the
fears of his younger daughter, Delsie, and his ex-wife,
After not being able to speak with Amy for three weeks,
Bernadette and Delsie became so worried that they filed a
missing person's report. Three days later, unsatisfied
with the police's efforts, they decided to break into
Ramet's home. Bernadette broke a window with a baseball
bat and a foul smell came out, prompting them to call the
police. Shortly thereafter, the police arrived at Ramet's
home and the officers asked to perform a welfare check on
Amy. Ramet refused, claiming it was a “search and
seizure issue.” The police obtained a search warrant
and discovered Amy's badly decomposed body in Ramet's
home. Ramet was arrested and he confessed to killing his
Ramet v. State, 209 P.3d 268, 269 (Nev. 2009).
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
ANALYSIS OF CLAIMS
Claim One, Ramet alleges that he was denied his rights under
the Fourth and Fourteenth Amendment because the prosecutor
improperly elicited testimony about his invocation of his
Fourth Amendment rights. In addressing this issue, the Nevada
Supreme Court noted as follows:
At trial, the State presented testimony from two officers
regarding Ramet's refusal to consent to a search of his
home. On the stand, Officer Yant testified that Ramet's
statements that he did not want the police in his house
because “it would be a search and seizure issue”
made the police even more suspicious. Officer Yant repeated
Ramet's statement that “it would be a search and
seizure issue” two more times. Officer Bertges also
repeated Ramet's statement during his testimony.
In addition, evidence of Ramet's refusal to submit to a
search was used by the State to incriminate Ramet. During
closing argument, the prosecuting attorney commented on
Ramet's refusal: “[a]nd when the police come to the
house on two different occasions, he won't even let them
conduct a welfare check. He's hiding something.”
Ramet, 209 P.3d at 269.
Nevada Supreme Court then concluded that the admission of the
evidence and the State's argument violated Ramet's
constitutional rights under Griffin v. California,
380 U.S. 609 (1965). Id. at 269-70. The court also
held, however, the error was harmless under Chapman v.
California, 386 U.S. 18 (1967), due to the
“overwhelming evidence of Ramet's guilt.”
Id. at 270.
Griffin, the Court held that the trial court's
and the prosecutor's comments on the defendant's
failure to testify violated the self-incrimination clause of
the Fifth Amendment. 380 U.S. at 614. While Ramet's claim
alleges a violation of his rights under the Fourth Amendment,
respondents do not dispute the Nevada Supreme Court's
constitutional error determination. Instead, they argue that
this Court must defer to the state supreme court's
determination that the error was harmless under
determine whether a constitutional error is harmless under
Chapman, a reviewing court “must be able to
declare a belief that it was harmless beyond a reasonable
doubt.” Chapman, 386 U.S. at 24. If a state
court finds an error harmless, the federal habeas court
reviews that determination under the deferential AEDPA
standard, which means that relief is not available for the
error “unless the state court's harmlessness
determination itself was unreasonable.” Davis v.
Ayala, 135 S.Ct. 2187, 2199 (2015) (quoting Fry v.
Pliler, 551 U.S. 112, 119 (2007)).
even if the federal court determines the state court's
application of Chapman was unreasonable, the
petitioner is still not entitled to relief unless he can
establish that the constitutional error “resulted in
‘actual prejudice.'” Ayala, 135
S.Ct. at 2197 (quoting Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)). Under Brecht, the federal
court can grant relief only if it has “grave doubt
about whether a trial error of federal law had
‘substantial and injurious effect or influence in
determining the jury's verdict.'”
O'Neal v. McAninch, 513 U.S. 432, 436 (1995).
That is, “[t]here must be more than a ‘reasonable
possibility' that the error was harmful.”
Ayala, 135 S.Ct. at 2198 (quoting Brecht,
507 U.S. at 637).
finding the Fourth Amendment violation harmless, the Nevada
Supreme Court noted that “Ramet confessed during trial
that he strangled his daughter, stopped and checked her
pulse, and then continued to strangle her.”
Ramet, 209 P.3d at 270. Ramet argues that the state
court's decision was unreasonable and that he can meet
the Brecht standard because the error had a
“deep impact” on his defense and “was
particularly harmful because the evidence of first-degree
murder was weak.” (ECF No. 41 at 11.)
regard, he contends that evidence that he invoked his Fourth
Amendment rights suggested that he was being cold and
calculated, which undermined his defense that killing Amy was
the result of a spur-of-the-moment impulse and that he
immediately regretted it. Also damaging to that defense,
however, was evidence that Ramet kept Amy's corpse in the
house for several weeks and went to great lengths to conceal
her death from his other daughter and ex-wife. And, given
that Ramet now concedes that the evidence proved second
degree murder (ECF No. 41 at 23-25), this contention has
merit only if there was more than a reasonable probability
that the jury relied upon the invocation of his Fourth
Amendment rights to find that the murder was premeditated and
deliberate. See NRS § 200.030. The time lag
between the murder and Ramet's attempts to prevent the
police from entering his home precludes such a conclusion.
also points to the extensive amount of testimony the State
elicited on the subject, the fact that a juror submitted a
question to Ramet about it at the conclusion of his
testimony, and the prosecutor's references to it in
closing argument, all of which, according to him, demonstrate
the importance of the evidence to the State's case. This
is also unavailing. The State elicited the improper testimony
in its case-in-chief, prior to, and without knowing, that
Ramet would subsequently provide the incriminating testimony
cited by the Nevada Supreme Court in its harmless error
analysis. And while the prosecutor stated in closing argument
that Ramet's refusal to allow the police into his house
showed that he was “hiding something, ” the
prosecutor did not explicitly argue that it showed
premeditation or deliberation. There is no dispute that the
evidence was harmful to the defense, but here again, there is
not a reasonable probability that it prompted the jury to
find first degree murder rather than second degree murder.
summary, Ramet fails to convincingly demonstrate that
evidence and argument regarding the invocation of his Fourth
Amendment rights had a significant ...