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Nees v. Nevada Attorney General

United States District Court, D. Nevada

March 25, 2019

ERIC JOHN NEES, Petitioner,
NEVADA ATTORNEY GENERAL, et al., Respondents.



         I. SUMMARY

         This pro se habeas matter comes before the Court for consideration of the merits of the petition (ECF No. 45).[1] For the reasons explained below, the Court will deny the petition.


         Petitioner Eric Nees challenges his 2006 state court conviction, pursuant to a jury trial, of aiding and abetting the commission of robbery with the use of a deadly weapon, in connection with the robbery of Herman Buehler on April 20, 2006. (ECF No. 45 at 1 (Exhibit “Exh.” 43.)[2]

         Six weeks prior to the date in question, Buehler met Petitioner and began to occasionally purchase methamphetamine from him. (Exh. 33A (Tr. 27, 29).) Petitioner would come to Buehler's house for the transactions, often with someone else, but the other person always stayed in the car, which was typical of Buehler's experience with drug transactions. (Id. at 30, 35-36.) About a week before the incident, Petitioner asked Buehler for an eighth of an ounce from the drugs he had just sold Buehler, promising to return immediately with the money to pay him back. (Id. at 37.) Buehler gave Petitioner the eighth, but Petitioner never returned. (Id. at 37-38.)

         On April 20, 2006, Buehler was outside waxing his car when Petitioner walked up and apologized. (Id. at 36.) Petitioner said he would give Buehler an extra eighth if Buehler would buy more methamphetamine; he did not offer to pay Buehler back. (Id. at 38-39.) Buehler did not really want to make another purchase but agreed to do so to get his money back. (Id. at 39.) Petitioner asked Buehler how much money he had, and Buehler, who “felt something was up, ” said he did not have much because he had just made a purchase. (Id. at 39-40.) After they went into the house, Petitioner said he was going to get his partner from the car while Buehler got his scale. (Id. at 40-41.) Buehler said he didn't like Petitioner bringing people along but to go ahead. (Id. at 41.)

         Buehler set up his scale and waited, and two to three minutes later Petitioner returned with two men Buehler had never seen before. (Id. at 42-44.) One of the men walked toward the back of the house; Buehler asked everyone to stay in the kitchen, but the men ignored him. (Exh. 33B (Tr. 45).) As the man who'd gone to the back finished looking around, the other man pulled out a gun and told Buehler to lay on the floor. (Id. at 46.) The gunman spoke angrily and appeared high or crazy. (Exh. 33C (Tr. 95).) Buehler did as directed. (Exh. 33B (Tr. 47).) Buehler looked at Petitioner and Petitioner's face was “like business, normal.” (Id.) The gunman stepped over Buehler to rifle through Buehler's things. (Id. at 48-49.) He then told Petitioner to get Buehler's wallet. (Id. at 49.) As Petitioner bent down to get Buehler's wallet, Buehler looked at Petitioner with a look of disgust, but there was no particular expression on Petitioner's face, “just business.” (Id. at 49-50.) The gunman asked Buehler if there were any more money or drugs, then said, “let's go, ” and the three men left. (Id. at 50.)

         After the men left, Buehler called his neighbor Faith Martin. (Id. at 131-33; Exh. 33B (Tr. 58).) Seconds before Buehler called, Faith had seen a silver car speeding down the alley with a man's legs and feet hanging out the driver's side door, the door open. (Exh. 33C (Tr. 127-30).) At Faith's urging, Buehler called the police (Exh. 33C (Tr. 134); Exh. 33B (Tr. 62).)

         Petitioner was arrested and charged with conspiracy to commit armed robbery and aiding and abetting the commission of an armed robbery. (Exh. 4.) At Petitioner's trial, defense counsel argued that there was no evidence that Petitioner participated in the robbery, that Petitioner was just as surprised as Buehler was when the gunman pulled out the gun, and that it was the gunman giving orders. (Exh. 33A (Tr. 17-20).) Counsel argued that Petitioner was acting under duress of the crazy, angry, meth-addled gunman. (Exh. 34 (Tr. 52-54).) She asserted that although Buehler had portrayed Petitioner as unfazed by the gun and direction to rob Buehler, Buehler's assessment of Petitioner's demeanor was not credible and could not be believed. (Id. at 43-46.)

         The jury ultimately found Petitioner guilty of aiding and abetting robbery with use of a deadly weapon but not guilty of conspiracy to commit armed robbery. (Exh. 37.) Petitioner was sentenced, judgment of conviction entered, and an appeal filed. (Exhs. 42-44.) The Nevada Supreme Court affirmed Petitioner's judgment and sentence. (Exh. 59.)

         Petitioner thereafter pursued two postconviction petitions for habeas relief in state court. (Exhs. 65, 92, 96, 100, 116.) His amended federal habeas petition now comes before the Court for consideration on the merits.


         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 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.

         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 fairminded 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.” Andrade, 538 U.S. 63 (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.” Andrade, 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 § 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.” Id. 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. See Cullen, 563 U.S. at 181. The state courts' decisions on the merits are entitled to deference under AEDPA and may not be disturbed unless they were ones “with which no fairminded jurist could agree.” Davis v. Ayala, -- U.S. --, 135 S.Ct. 2187, 2208 (2015).


         In the amended petition, which is the operative petition in this case, Petitioner asserts three grounds for relief: (1) trial counsel was ineffective for advising him not to testify; (2) trial counsel did not confer with Petitioner about his theory of defense, file pretrial motions on his behalf, or advise the trial court that a conflict existed and Petitioner wanted new counsel; and (3) insufficient evidence supported his conviction for aiding and abetting armed robbery with use of a deadly weapon. (ECF No. 45.) Several portions of Petitioner's claims have been abandoned by Petitioner after they were deemed unexhausted, so this order addresses only the surviving claims.

         A. Ground 1

         In Ground 1, Petitioner asserts that trial counsel was ineffective for advising him against, and barring him from, testifying. (ECF No. 45 at 3.) Petitioner asserts that testimony as to his state of mind was necessary to support his claim of duress and that without his testimony, the defense was an “empty shell.” (Id. at 4; ECF No. 91 at 7.) The trial court rejected Petitioner's claim as follows:

The defense strategy of trying to keep out criminal history was reasonable in light of the fact that Nees had a total of 22 convictions between the years 1990-2005, seven of which were felonies. Of these convictions, one was a felony conviction for Burglary, one was a gross misdemeanor conviction for Conspiracy to Commit Grand Larceny and Nees had three misdemeanor convictions for Petit Larceny/Theft. The other convictions involved drugs, child abuse, Contempt and Conspiracy to Commit the Crime of Cheating at Gambling.
The record also indicates that trial counsel sufficiently advised Nee[s] of his options. In a letter dated September 5, 2006, trial counsel wrote, “In deciding whether or not to testify, you will need to weigh the pros and cons. By testifying, you ensure the jury will hear your side of the story. ...

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