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Hogan v. Filson

United States District Court, D. Nevada

March 23, 2018

MICHAEL RAY HOGAN, Petitioner,
v.
TIMOTHY FILSON, [1] et al., Respondents.

          ORDER

         Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Michael Ray Hogan, a Nevada prisoner sentenced to death. ECF No. 139.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         After a jury trial in May of 1985, Hogan was convicted in the Eighth Judicial District, Clark County, of first-degree murder and attempted murder. The Nevada Supreme Court would later recount the facts underlying Hogan's convictions as follows:

In the afternoon of November 19, 1984, after a weekend marked by quarrels and death threats, appellant Michael Hogan shot and killed his female companion, Heidi Hinkley. Hogan also fired five bullets into the victim's teenage daughter, who nevertheless survived and was able to testify at trial.

Hogan v. State, 732 P.2d 422, 423 (Nev. 1987).

         In the penalty phase of Hogan's trial, the jury found two aggravating circumstances: (1) Hogan was previously convicted of a felony involving the use or threat of violence - i.e., an Iowa manslaughter conviction, and (2) he knowingly created a great risk of death to more than one person. The jury found no mitigating circumstances sufficient to outweigh the aggravating circumstances and imposed a sentence of death.

         On June 18, 1985, the state district court entered a judgment of conviction and one week later, on June 25, 1985, entered a supplemental judgment of conviction which specifically spelled out Hogan's sentence. Hogan appealed. On February 6, 1987, the Nevada Supreme Court issued an order affirming Hogan's conviction and sentence. The United States Supreme Court denied certiorari on October 5, 1987.

         On November 9, 1987, Hogan filed a pro se petition for post-conviction relief in the Eighth Judicial District and requested appointment of counsel. The trial court appointed attorney Christopher Maglaras to represent Hogan in those proceedings. On March 10, 1988, the trial court dismissed the petition. Hogan appealed.

         After the district court denied his motion to withdraw as counsel, Maglaras represented Hogan on appeal. On December 21, 1988, the Nevada Supreme Court dismissed the appeal.

         On January 9, 1989, Hogan filed a pro se petition for writ of habeas corpus in this court and, thereafter, requested appointment of counsel. After the brief appointment of the Federal Public Defender's office, retained counsel Annette Quintana undertook representation of Hogan.

         Hogan filed a first amended petition on April 28, 1989, then a second amended petition on March 9, 1990. On September 7, 1990, pursuant to Hogan's motion, the court granted a stay of the proceedings to allow Hogan to exhaust claims in state court.

         With Quintana as counsel, Hogan filed, on November 20, 1990, a petition for writ of habeas corpus in the Seventh Judicial District, White Pine County. When that petition was dismissed on April 6, 1992, Hogan appealed. On September 29, 1993, the Nevada Supreme Court issued a decision affirming the lower court's dismissal of the petition.

         In October of 1993, the Nevada Supreme Court entered an order removing Quintana from the case and appointing the Nevada Appellate and Postconviction Project to represent Hogan for any remaining appellate proceedings. Michael Pescetta, then with the appellate project, filed a petition for rehearing on Hogan's behalf. On May 3, 1996, that petition was denied by the Nevada Supreme Court. A petition for writ of certiorari was denied by the United States Supreme Court on October 15, 1996.

         In August of 1997, this court reopened federal habeas proceedings and assigned this case a new case number (the current one). Represented by Glynn Cartledge and Richard Cornell, Hogan filed a third amended federal petition for writ of habeas corpus on March 2, 2001. Pursuant to a stipulation between the parties, this court entered an order on December 30, 2003, staying these proceedings to allow Hogan the opportunity to exhaust the unexhausted claims in the third amended petition.

         On February 2, 2004, Hogan initiated exhaustion proceedings in the Eighth Judicial District Court. On August 26, 2004, the state court granted an evidentiary hearing on one issue in Hogan's state petition. The State filed a petition with the Nevada Supreme Court, asking that court to prevent the evidentiary hearing. The Nevada Supreme Court denied the State's petition on November 15, 2004. An evidentiary hearing was held on August 5, 2005.

         On November 2, 2005, the state district court denied the petition. Hogan appealed. The Nevada Supreme Court entered an order affirming the denial on November 15, 2006. The court denied rehearing on May 31, 2007, and denied rehearing en banc on July 26, 2007.

         Although counsel had been ordered in the 2003 stay order to notify this court within 30 days of the conclusion of state court proceedings, counsel failed to do so. Instead, in January of 2008, counsel moved to withdraw from representing Hogan. On February 22, 2008, this court appointed the Federal Public Defender's office to represent Hogan.

         On June 27, 2008, Hogan moved this court to continue the stay of proceedings. With no opposition from the State, this court entered an order on August 14, 2008, extending the stay of federal proceedings to allow Hogan to present unexhausted claims to the state courts.

         On September 10, 2008, Hogan filed a state petition for writ of habeas corpus in the Eighth Judicial District Court. Without holding an evidentiary hearing, the state court entered an order dismissing the petition on May 19, 2009. Hogan appealed. The Nevada Supreme Court affirmed the denial of relief in an order entered on January 20, 2012. Remittitur issued on March 8, 2012.

         On May 18, 2012, this court vacated the stay and reopened the federal proceedings. On October 18, 2012, Hogan filed a fourth amended petition for writ habeas corpus. On March 19, 2014, pursuant to respondents' motion to dismiss, this court dismissed several of Hogan's claims as procedurally defaulted.

         On September 28, 2015, this court entered an order granting Hogan's motion for evidentiary hearing with respect to his remaining ineffective assistance of counsel claim (Claim Two(H)). In that order, the court directed Hogan to identify what, if any, evidence he intended to present at an evidentiary hearing beyond the materials he had already submitted herein. In accordance with Rule 7(c) of the Rules Governing Habeas Corpus Cases Under Section 2254, the court also gave respondents the opportunity to admit or deny the correctness of the materials Hogan submitted.

         Hogan responded by identifying (and providing copies of) 71 exhibits in support of Claim Two(H). Respondents did not specifically admit or deny the correctness of any those exhibits. Thus, the court has considered them as part of the record in deciding Claim Two(H).[2]

         II. STANDARDS OF REVIEW

         This 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; 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.

28 U.S.C. § 2254(d).

         A 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.

         The 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 omitted).

         "[A] 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 (2010).

         III. ANALYSIS OF CLAIMS

         Claim Two(H)

         In Claim Two(H), Hogan alleges that his constitutional right to effective assistance of counsel was violated because trial counsel failed to adequately investigate the legality and underlying factual circumstances of the Iowa manslaughter conviction that the State used as an aggravating circumstance. According to Hogan, effective counsel could have successfully challenged the State's use of the Iowa conviction on multiple grounds. For one, he claims the Iowa conviction was invalid under Iowa law and federal law. In addition, he claims that the conviction did not involve the use or threat of violence because Iowa law at the time did not distinguish between voluntary and involuntary manslaughter and, in addition, there was available evidence that the victim's death was accidental.

         Strickland v. Washington, 466 U.S. 668 (1984), provides the relevant federal law in determining whether counsel's assistance failed to meet constitutional standards. Under Strickland, a habeas petitioner must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the deficient performance was prejudicial. Strickland, 466 U.S. 668, 687-88 (1984).

         Hogan presented Claim Two(H) in his second state post-conviction proceeding. In that proceeding, the state district court dismissed his petition on procedural grounds, concluding that the Nevada Supreme Court had already determined that Hogan received effective assistance of trial and appellate counsel and that his petition was a successive petition under Nev. Rev. Stat. § 34.810. ECF No. 142-4, p. 181-85. On appeal, Hogan argued that lower court's imposition of the procedural bar was erroneous because he is “actually innocent” of the two aggravating circumstances on which his death sentence is based and that the law of the case doctrine did not apply because he was presenting a different factual and legal issue. ECF No. 143-4, p. 96-129.

         In support of this argument, he explained that, subsequent to the dismissal of his prior state post-conviction proceeding, he sought relief from the manslaughter conviction in the Iowa courts. Id. In that proceeding, an assistant county attorney representing the State of Iowa had stipulated that Hogan's guilty plea to the manslaughter charge was unconstitutional and violated Iowa law.[3] Even so, the Iowa Supreme Court determined that Hogan's challenge to the conviction was untimely and rejected it on that basis. Hogan v. State, 454 N.W.2d 360, 361 (Iowa 1990).[4]

         The Nevada Supreme Court determined that Hogan's claim that his guilty plea was defective failed because the Iowa Supreme Court, in denying Hogan's challenge as untimely, “found no factual basis for relieving Hogan of his felony conviction for manslaughter and there is no basis for presuming that the Iowa court ignored constitutional grounds for granting such relief.” Hogan v. Warden, Ely State Prison, 860 P.2d 710, 713 (Nev. 1993). The Nevada Supreme Court also noted, in a footnote, that it had previously held that the Iowa plea canvass met the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and had rejected Hogan's contention that his guilty plea was “constitutionally infirm.” Hogan, 860 P.2d at 713 n.5 (citing Hogan v. State, 732 P.2d 422, 424 n. 1 (Nev. 1987).

         As to whether the State had proved that the manslaughter conviction involved the use or threat of violence, the Nevada Supreme Court stated:

Hogan insists that irrespective of the constitutionality of his Iowa conviction, there was no evidentiary basis for finding that his crime involved the use or threat of violence on the person of the victim. Hogan is wrong. The record reflects that before the district court allowed evidence of the Iowa conviction to be introduced as an aggravating circumstance, the State provided the court with a transcript of the Iowa plea proceeding that conclusively demonstrated that Hogan resorted to violence in the commission of his crime.

Hogan, 860 P.2d at 713.

         And, although it determined that Hogan had not overcome the procedural default, the Nevada Supreme Court addressed Hogan's ineffective assistance of counsel claim:

Hogan's attempt to revisit the issue of ineffective assistance of counsel at the trial and appellate levels must also fail. We have previously determined, and it is now the law of the case, that Hogan's trial and appellate counsel were clearly effective and that the criteria for relief established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), have not been satisfied. The primary gravamen of Hogan's ineffective assistance of counsel claim relates to what he considers the failure to investigate the constitutional validity of his Iowa conviction. We have revisited the Iowa conviction in the instant case and have concluded from the evidence of record that any additional investigation of the circumstances of that conviction by defense counsel would have been unavailing. Hogan's contention is without merit.

Hogan, 860 P.2d at 716.

         This decision overlooked an important component of Hogan's ineffective assistance of counsel claim. The Iowa Supreme Court's rejection of Hogan's attempt to set aside his guilty plea was based entirely on a determination that he had failed to overcome Iowa's three-year time bar on petitions for post-conviction relief. Hogan, 454 N.W.2d at 361. Neither the Iowa Supreme Court, nor the Nevada Supreme Court in relying upon the Iowa decision, addressed whether Hogan's guilty plea was invalid under Iowa law.

         Hogan's ineffective assistance of counsel (IAC) claim is premised, in large part, on trial counsel's failure to timely challenge Hogan's manslaughter conviction in the Iowa courts. While perhaps not dispositive on the issue, the stipulation of the county attorney establishes at least a reasonable likelihood that such a challenge would have been successful, which, in turn, would have precluded the State of Nevada from using the conviction as an aggravating circumstance to support the death penalty. The Nevada Supreme Court's failure to recognize or address this point constituted an unreasonable application of the Strickland standard. Because Hogan has met the § 2254(d) requirement with respect to Claim Two(H), this court must conduct a de novo review of the claim. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).[5]

         As noted, Hogan's ineffective assistance of counsel claim premised on trial counsel's failure to investigate and challenge the State's use of the Iowa conviction as an aggravating circumstance is multifaceted. Hogan contends that trial counsel's performance was deficient due to the following errors or omissions: (1) counsel failed to cite to controlling U.S. Supreme Court authority in moving to strike the aggravating circumstance in the Nevada trial court, (2) counsel failed to timely challenge the conviction in the Iowa courts, (3) counsel failed to challenge the conviction on the ground that it was not a crime of violence under Nevada law, and (4) counsel failed to investigate the facts underlying the conviction.[6]

         a. Failure to adequately challenge the Iowa guilty plea in the Nevada trial court.

         The day before the penalty phase was to begin, Hogan's trial counsel filed a motion to strike the Iowa conviction as an aggravating circumstance, arguing that Hogan's guilty plea in that case was “constitutionally defective.” ECF No. 191-7, p. 29-39. In the brief supporting the motion, counsel argued that the Iowa state court record failed to affirmatively demonstrate that Hogan entered the plea “knowingly and understandingly.” Id. In particular, counsel noted in the brief, the record failed to establish that Hogan had been notified of the elements of manslaughter or that he made factual admissions that would satisfy the elements. Id.[7] While the brief did not cite to a U.S. Supreme Court case, it relied heavily on a Nevada case, Scott v. State, 630 P.2d 257 (Nev. 1981), that cited to Boykin for the relevant holding. See Scott, 630 P.2d at 258 (noting that the record “does not disclose that defendant's plea of guilty was entered ‘voluntarily and understandingly.' See Boykin, [395 U.S. at 244]”).

         In oral argument on the motion, defense counsel argued that the Iowa conviction was constitutionally defective under Nevada Supreme Court decisions interpreting the United States Constitution and the Nevada Constitution. ECF No. 191-8, p. 7. The trial judge denied the motion from the bench, finding that the transcript demonstrated the guilty plea was not defective. Id., p. 9-10.

         In addressing the validity of the Iowa guilty plea in Hogan's direct appeal, the Nevada Supreme Court held as follows:

Hogan was convicted of manslaughter in 1971, pursuant to a guilty plea in an Iowa prosecution. He now alleges that the Iowa court did not tell him the elements of that offense. There is no requirement that it do so; all that is necessary is that the accused actually be aware of the nature of the offense. It is proper to presume that counsel has explained the elements of the crime to the accused, Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258-59, 49 L.Ed.2d 108 (1976); see also Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986). Hogan has done nothing to rebut that presumption. Further, the transcript of the Iowa proceedings discloses that Hogan received adequate opportunity to consult with his attorneys and obtain their advice. In addition, the Iowa sentencing report states that the court informed Hogan of the nature of the crime and asked for his comments before pronouncing sentence. Hogan thereafter affirmed the propriety of his plea by serving his sentence for the manslaughter conviction without any challenge to its validity.1
1 Hogan also alleges that there was no adequate waiver of his rights, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We have reviewed the transcript and conclude that each of the rights enumerated in Boykin was waived, though the Iowa court referred to them rather obliquely. . . .

Hogan v. State, 103 Nev. 21, 24, 732 P.2d 422, 423-24 (1987).

         Hogan's IAC in relation to the motion strike has changed throughout these proceedings. In pleading Claim 2(H) in his petition, he claims merely that competent counsel would have “moved to strike” the Iowa conviction as an aggravating circumstance “due to its unconstitutionality, which was an available remedy under Nevada law.” ECF No. 139, p. 90. This vague allegation is an odd one given that Hogan's counsel did in fact file such a motion, as explained above.

         In arguing Claim 2(H) in his reply to the respondents' answer, Hogan does not specifically mention trial counsel's pretrial motion to strike, much less specify how it was deficient. ECF No. 178, p. 3-16. He does argue, however, the manner in which, according to him, the guilty plea was defective under Boykin. Id., p. 15-16. Specifically, he contends that the guilty plea ran afoul of Boykin because the Iowa trial judge “failed to admonish Mr. Hogan regarding the elements of manslaughter, the privilege against self-incrimination, and the right to confrontation.” Id. As explained above, trial counsel's motion to strike focused on the first alleged defect, but did not specifically mention the other two.

         Then, in a memorandum of points and authorities filed herein in April of 2016 (hereinafter referred to as the “April 2016 memorandum”), Hogan faults counsel for basing the motion to strike “entirely on Nevada case law” and for failing to present “controlling United States Supreme Court authority.” ECF No. ...


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