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Wright v. Legrand

United States District Court, D. Nevada

May 24, 2018

JAMES WRIGHT, JR., Petitioner,
ROBERT LEGRAND, et al., Respondents.



         Before the Court is state prisoner James Wright, Jr.'s first-amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 for final disposition on the merits of the remaining grounds. (ECF No. 38.)


         This case arises from an incident in May 2004, when two men wearing hooded sweatshirts and bandanas covering their faces robbed a Pizza Baron restaurant in Reno, Nevada with a handgun. As this court set forth in its Order granting Respondents' motion to dismiss certain claims, on January 24, 2006, a jury convicted Wright of count 1: robbery and count 2: eluding a police officer. (ECF No. 19-17.) The state district court adjudicated Wright a habitual criminal and sentenced him to a term of life without the possibility of parole for count 1, with a concurrent term of twenty-eight to seventy-two months for count 2. (ECF No. 19-19.) Judgment of conviction was entered on March 3, 2006. (ECF No. 19-20.) Wright filed a notice of appeal. (ECF No. 19-21.)

         On April 19, 2006, Wright filed a proper person state habeas petition but moved to voluntarily dismiss it without prejudice as premature. (ECF No. 15-3; ECF No. 16-8.) The state district court denied Wright's motion and ordered the state habeas petition stayed pending resolution of his direct appeal. (ECF No. 16-10.) On July 10, 2008, the Nevada Supreme Court affirmed the convictions, and remittitur issued on August 5, 2008. (ECF No. 16-11; ECF No. 16-12.)

         Wright filed a proper person amended state habeas petition on October 10, 2008, and a counseled supplemental petition on January 21, 2009. (ECF No. 16-16; ECF No. 16-17; ECF No. 16-19.) On April 17, 2009, the state district court issued an order dismissing several of the claims from the petition and ordering an evidentiary hearing on others. (ECF No. 17-2.) The court held the evidentiary hearing on March 3, 2010. (ECF No. 17-8; ECF No. 17-9; ECF No. 17-10.) On September 15, 2010, the court filed a written order adopting the April 17, 2009 order and denying the remaining grounds of the petition. (ECF No. 14-14.) The Nevada Supreme Court affirmed the denial of the petition on September 14, 2011, and remittitur issued on October 11, 2011. (ECF No. 18-8; ECF No. 18-10.)

         On May 24, 2012, Wright dispatched his federal habeas petition for filing. (ECF No. 6.) Ultimately, this Court appointed counsel, and Respondents filed a motion to dismiss Wright's counseled first-amended petition. (ECF No. 40.) This Court granted in part and denied in part the motion and concluded that grounds 2, 4, 6 and 7 were unexhausted. (ECF No. 55.) The Court granted Wright's motion for stay and abeyance. (Id.)

         Wright filed a second state habeas petition and raised the federal grounds 2, 4, 6 and 7. (ECF No. 58-1.) On April 14, 2015, the Nevada Supreme Court affirmed the dismissal of the petition as untimely pursuant to NRS § 34.726 as well as successive and an abuse of the writ pursuant to NRS §§ 34.810(1) and (2). (ECF No. 58-5.) The state supreme court held that Wright failed to demonstrate good cause or prejudice to overcome the procedural bars. (Id.) Remittitur issued on May 11, 2015. (ECF No. 58-6.)

         This Court granted Wright's motion to reopen his federal habeas proceedings and granted Respondents' motion to dismiss grounds 2, 4, 6 and 7 as procedurally barred. (ECF Nos. 60, 66.) Respondents have now answered the remaining grounds, and Wright replied. (ECF Nos. 68, 72.)


         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), provides the legal standards for this Court's consideration 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 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.

         The AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This Court's ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 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 state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694).

         A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Lockyer, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.


         A. Ground I

         Wright argues that the State's prosecutorial misconduct violated his Fifth, Sixth and Fourteenth Amendment rights when the prosecutor (1) failed to limit the use of the co-defendant's statement that implicated Wright; and (2) elicited prior bad act evidence. (ECF No. 38 at 11-16.)

         In reviewing prosecutorial misconduct claims, the narrow issue the federal habeas court may consider is whether there was a violation of due process, not whether there was misconduct under the court's broad exercise of supervisorial power. Darden v. Wainwright, 477 U.S. 168, 181 (1986). It is “not enough that the prosecutors' remarks were undesirable or even universally condemned, the relevant question is whether the prosecutors' comments so ‘infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (quoting Darden, 477 U.S. at 181). The ultimate question before the court is not whether misconduct denied a fair trial, but whether the state court's resolution of the claim was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999).

         The state-court record reflects the following. Wright did not make any statements to police. His co-defendant Kevin Gill implicated himself and Wright in his statement to police. (See ECF No. 14-13.) Originally, the state district court granted Wright's motion to sever. (ECF No. 14-18.) However, the State moved for reconsideration, stating that the police detective who would testify about the statement was well aware of the problems that could arise if his testimony regarding Gill's statement were to implicate Wright. (ECF No. 14-21 at 7.) The deputy district attorney said: “the State has no problem limiting the question in any way that is satisfactory to the Court, that affords cross-examination and confrontation rights.” (Id.) The state district court granted reconsideration: “on this condition, and that is that the counsel for State is instructed that counsel may not elicit during the State's case in chief any testimony from any source concerning any reference by Mr. Gill directly or indirectly to any other party implicated in the charged offense, except only Mr. Gill.” (Id.)

         Michelle Robinson testified to the following at trial: Wright was driving her and Gill around in Wright's vehicle on the night in question looking for an open Taco Bell. (ECF No. 19-15 at 5-37.) Robinson was on her phone and did not really look around to see where they were when Wright pulled off onto some street near Keystone Avenue. Both Wright and Gill got out of the car and were gone for about ten minutes. When they drove away a police car pulled up and told them to put their hands out the window. Instead, Wright drove away; after a high-speed chase he ultimately stopped and both he and Gill fled the vehicle. Robinson acknowledged on cross examination that she has probably given law enforcement four or five different versions of the events. (Id.)

         Police detective Jenkins testified as follows. (ECF No. 19-15 at 35-62; ECF No. 19-27 at 5-16.) Jenkins searched the white Cadillac that was involved in the incident. He found loose coin and coin wrappers on the back seat and several yellow pages from a local phone directory on the floor; a page that had been torn out bore a Pizza Baron restaurant advertisement. He discovered receipts and paperwork in the passenger compartment in the name of James Wright. In the trunk Jenkins found a bag with some dark-colored clothing, a blue bandana, a 40-caliber pistol, and dark-colored gloves. The afternoon after the crime was committed, Wright's wife contacted the police department to report the Cadillac stolen. When James Wright arrived at the police station to claim his vehicle he was arrested. Jenkins read Wright his Miranda warnings; Wright denied any involvement in the robbery. Wright provided Jenkins with written permission to search his house. Jenkins found a black nylon handgun holder between the mattress and box spring of the bed in the master bedroom.

         Detective Steve Leer testified that the bills and coin found in and around the vehicle totaled $552. (ECF No. 19-14 at 51.) The owner of Pizza Baron testified that about $560 was missing from the register after the incident. (ECF No. 19-13 at 47.) /// After the State finished its case-in-chief, Gill testified in his own defense. (ECF No. 19-27 at 25-53.) He testified that he was driving around Reno in the Cadillac with someone (whom he knew as DeShawn) driving and Michelle Robinson on the night of the incident. The three of them were smoking cocaine. He sold them ...

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