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Battle v. Byrne

United States District Court, D. Nevada

April 10, 2018

JACK J. BATTLE, Petitioner,
v.
WARDEN BYRNE, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes before the Court for consideration of the remaining grounds of the petition on the merits. (ECF No. 1.) Respondents have answered (ECF No. 14), and petitioner has replied (ECF No. 15).

         I. BACKGROUND

         On July 6, 2011, petitioner went to trial on one count of burglary and one count of robbery with use of a deadly weapon with assistance of a child for the theft of three items from a Toys ‘R' Us store on the evening of February 1, 2011. (Exhs. 10 & 11.)[1]

         At trial, store manager Wendy Martinez testified that on the night in question, petitioner came into the store by himself and headed into the electronics department. (Exh. 11 (Tr. 116-18).) A short time later, a group consisting of one adult woman and three or four younger girls ranging from 7 to 17 entered and walked into a different part of the store. (Id. at 122.)

         Petitioner returned to the front of the store with two large items. (Id. at 123.) Martinez offered him a cart, which he accepted and began pushing toward the door. (Id. at 123-25.) Petitioner remained standing by the cart, near the door, which made Martinez suspicious. (Id. at 125-27.) After asking Martinez why she was looking at him, petitioner said, “I can take anything I fucking really want to.” (Id. at 128-29.)

         Petitioner went back into the store and returned with the woman and girls. (Id. at 130-32.) The minors were carrying three items of store merchandise, and the group walked toward the entrance door. (Id. at 131-34.) The girls placed the items on a shelf. (Id. at 134-35.) As Martinez went to retrieve them, the girls grabbed the items back and said, “[w]e're going to go ahead and take this.” (Id. at 135-36.) The group, including petitioner, then started walking toward the entrance door again. (Id. at 136.) Martinez, who was between the group and the exit door, told them they had to go out the exit and that she “would like to have [her] merchandise back if they were not going to pay for it.” (Id.) As the group turned and walked toward the exit door, petitioner got in front, approached Martinez, and said, four times, “Don't touch my fucking girls.” (Id. at 137-38.) As petitioner approached, Martinez observed something silver or gray in his hand, which she “had no doubt in [her] mind” was a knife. (Id. at 138-41.) The rest of the group passed around Martinez and petitioner and out the door, merchandise still in hand. (Id. at 141.)

         Martinez followed the group as they left. (Id. at 141.) Petitioner told her, again, “I told you I could take whatever I fucking well wanted.” (Id. at 142.) The woman and children got into a car and left. (Id. at 143-44.) As they did, petitioner walked back into the store and stood between Martinez and the window, apparently in an attempt to block Martinez from seeing their car. (Id. at 144.) Petitioner said a third time, “I told you I could take whatever I fucking well wanted to.” (Id. at 145.)

         On cross-examination, Martinez testified that she was not 100% sure petitioner had had a knife; on redirect she stated she was only 35% sure. (Id. at 172-78, 185.) Following this testimony, the State amended the information to remove the deadly weapon enhancement. (Exh. 14.)

         Petitioner also took the stand. Before he did, a hearing took place in his presence about whether the State could ask him about an incident that occurred four days before the Toys ‘R' Us incident in which petitioner and his children had stolen items from a K-Mart. (Exh. 12 (Tr. 20).) The court held that the State could not go into the incident unless the petitioner opened the door by talking about it. (Id. at 21.) The court admonished petitioner to listen closely to his attorney's questions because if he started talking about something he was not asked, he might open the door. (Id.)

         On the stand, petitioner testified that he did not know his daughters were taking unpaid items out of the store and that he believed Martinez might put her hands on them. (Id. at 33-35.) He testified that after the confrontation with Martinez, he got into his car and sped home, where the girls had already arrived. (Id. at 38.) Counsel then asked petitioner, “[n]ow, when you arrived were the children - you said the children are already there. Were they - you said they were in the living room?” (Exh. 12 (Tr. 39).) Petitioner responded:

Yeah, my girlfriend made pozole, so everybody was making dinner for - bowls and they were all laughing and giggling and being kids. So I came through the door, first things first: what the hell's going on? are you guys idiots? I cursed at them, I did. And I was very upset, pissed off. Me and my oldest daughter, Raven, who was also with me at the Toys ‘R' Us, I was mad at her. I was yelling at her to the top of my lungs. We got in a fight. ‘Cause nobody has anything dad. Nobody has anything dad. We didn't take nothing dad. Right. So I'm very, very, very, very mad. So I go upstairs. I go into my bedroom. I shut the door so I could take a time out for me because I know I've never had any problems with my kids doing anything like this of this nature. They're kids. And I said, you know what, that's it man, now I'm pissed off. So I went to the room I laid down.”

(Id.) (emphasis added).

         Before cross-examination, the court conducted a bench conference in which the prosecutor argued that by claiming his children had never stolen anything, petitioner had opened the door to the K-Mart incident. (Id. at 49-50.) Defense counsel objected, arguing the evidence was not admissible because petitioner had not put his character at issue and the incident reflected only on the children's characters. (Id. at 52-53.) The court deferred its ruling but it indicated it would probably come in as impeachment evidence, not character evidence. (Id. at 53-54.)

         The prosecutor then began cross-examination, during which she asked the petitioner whether he had “ever been with [his] children walking down an aisle where they've stole something other than a grape.” (Id. at 125.) Petitioner answered no. (Id.) The prosecutor again asked the court, during a bench conference, whether she could go into the K-Mart case. (Id. at 126.) Petitioner's counsel indicated that he had never seen the police report for the case.[2] (Id. at 126-27.) The court again deferred ruling so that defense counsel could look at the report. (Id. at 127-30.)

         Following further cross-examination, the court held a hearing in petitioner's presence. (Id. at 135.) At the outset, the court advised petitioner not to interrupt. (Id.) Petitioner, nevertheless, interrupted several times. (Id. at 136, 138.) The court then ordered that he be removed from the courtroom for the duration of the hearing. (Id. at 138-39.)

         Before petitioner was removed, the prosecutor argued that, although the police report did not identify who was with petitioner during the K-Mart incident, evidence was introduced at his trial that the children were there and participated in the theft, and petitioner had moreover admitted their involvement in a statement to the police. The prosecutor made her offer of proof based on representations by the district attorney who had prosecuted the K-Mart case. (Id. at 137.) Petitioner, as he was being removed, interjected several times that the children were not involved. (Id. at 138-39.)

         Petitioner's counsel argued that the only evidence of the incident was the police report and that the report did not identify who was with petitioner. (Id. at 140.)

         The trial court held that the district attorney's representations were sufficient and concluded that the State could ask petitioner about the incident insofar as it involved use of his children during a theft and threats petitioner made to K-Mart employees that they could not stop him from taking anything. (Id. at 140-47.) The court barred presentation of any extrinsic evidence about the incident or questions regarding the use of a knife during it. (Id. at 142-47.)

         Petitioner was brought back into the courtroom, and the court admonished him about his conduct. As the court did, petitioner continued to interrupt. (See Id. at 148-53.) The jury was then brought back in and instructed that the evidence it was about to hear could be considered only insofar as it bore on petitioner's credibility. (Id. at 154.)

         The prosecutor asked petitioner whether he recalled being at K-Mart when one of his children, in his presence, took a bottle of perfume and he took a bottle of cologne and a jug of milk. (Id. at 155.) Petitioner said no, that he took the milk and the cologne, his kids weren't involved but that he did steal the jug of milk in front of one of the children, “which was not appropriate.” (Id. at 155-56.) When the prosecutor began to ask, “isn't it true that when employees confronted you and tried to stop you, that you told them that you would take - that, ” petitioner interrupted, stating, “Oh there was a knife involved in that one.” (Id. at 156.) Petitioner made several more comments about the knife, despite there being no questions about it and despite counsel trying to stop him. (Id. at 156-58). The court immediately struck everything petitioner said - including his several knife comments - as nonresponsive. (Id. at 156-58.)

         Following the three-day trial, petitioner was acquitted of burglary but convicted of robbery with use of a child. (Exh. 15.) The state court sentenced petitioner to a term of five to fifteen years on the robbery charge and a consecutive term of two to five years on the use-of-child enhancement. (Exh. 19.)

         Petitioner appealed. (ECF No. 20 & 21.) The Nevada Supreme Court affirmed. (ECF No. 23.) Thereafter, petitioner filed a state postconviction petition for habeas corpus relief. (ECF No. 25.) After the trial court denied the petition, the Nevada Supreme Court reversed and remanded for appointment of counsel.[3] (Exh. 33.) After counsel was appointed and filed a supplemental memorandum in support of the petition (Exhs. 34 & 36), the trial court again denied the petition (Exh. 39). On appeal, the Nevada Court of Appeals affirmed. (Exh. 43.)

         Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in May 2016. The petition asserted three grounds for relief. After respondents moved to dismiss Grounds 1(b), 2(b), 2(c) and 2(d) as unexhausted (ECF No. 9), petitioner filed a notice electing to “withdraw unexhausted grounds 1(b) and (2) . . . and . . . sole[l]y proceed on exhausted Ground 1(a), ” (ECF No. 11). The Court entered an order dismissing Ground 1(b) and Ground 2, after inferring that petitioner also wanted to proceed on exhausted Ground 3 in addition to Ground 1(a). (ECF No. 13.) Respondents thereafter answered the petition, and petitioner replied.

         As a preliminary matter, the Court concludes that Ground 2 was improperly dismissed in its entirety. Petitioner exhausted Ground 2(a) in state court. He moved to withdraw “unexhausted ground[] . . . 2.” Liberally construing the petitioner's filing, the Court concludes that his intent was to withdraw only the unexhausted portions of Ground 2 - Grounds 2(b), 2(c) and 2(d). Accordingly, the Court hereby reinstates Ground 2(a) and will consider that claim on the merits with the other surviving claims of the petition.[4]

         II. STANDARD

         28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits 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 ...

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