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Myers v. Filson

United States District Court, D. Nevada

March 29, 2019

JOSHUA CARY MYERS, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         This counseled habeas petition comes before the Court for consideration on the merits.[1] (ECF No. 38.) Petitioner challenges his 2009 state court conviction, pursuant to a guilty plea, of first degree murder with a deadly weapon. Petitioner is currently serving a sentence of life without the possibility of parole, with a consecutive sentence for the deadly weapon enhancement.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The charges against Petitioner arose out of the murder of George Eden in November or December 2008. (Exhibit “Exh.” 4.)[2] Eden was found decomposing in his bathtub on December 16, 2008. (Exh. 2.) Petitioner confessed to his friend Jessica Tate that he had murdered Eden, and Tate contacted police. (Id.)

         Petitioner was interviewed on December 29, 2008, and denied involvement in Eden's death. (Id.) Officers conducted a consensual search of Petitioner's residence and located a pair of sneakers with blood spots on them and treads that appeared to match a shoeprint left at the crime scene. (Id.) Petitioner was interviewed a second time that day, and this time stated he had found Eden's dead body about a week-and-a-half prior. (Id.) He said that he fled the residence upon finding Eden's body, but returned a few days later to take some of Eden's belongings, including his car. (Id.)

         On January 2, 2009, Petitioner was interviewed again. (Id.) This time he claimed to have witnessed Eden's murder through Eden's sliding glass door, and pointed out where Eden was stabbed, which corresponded with Eden's injuries. (Id.) Petitioner stated that he later went inside and found Eden's body in the bathroom. (Id.) Later during the interview, however, Petitioner said that he actually found Eden's body in the living room, wrapped it in a rug and dragged it to the bathroom. (Id.) Petitioner then changed his story again, stating that he was inside when Eden was murdered, but that he could not remember everything and was not sure if he killed Eden. (Id.)

         On March 19, 2009, police interviewed an acquaintance of Petitioner, who implicated Petitioner in Eden's murder. (Id.) That same day, police interviewed Petitioner. This time, Petitioner admitted to murdering Eden after Eden refused to pay Petitioner for methamphetamine and had reached out to strike Petitioner. (Id.)[3] Petitioner was thereafter arrested. (Id.)

         On April 2, 2009, Roger Whomes appeared on Petitioner's behalf. (Exh. 7.) On April 29, 2009, Petitioner waived his preliminary hearing with a handwritten notation that indicated he would enter a plea of guilty. (Exh. 8.) The plea agreement provided that the parties would jointly recommend a sentence of life with the possibility of parole after twenty years on the murder charge but acknowledged that the court could sentence Petitioner up to life in prison without the possibility of parole. The agreement also left the parties free to argue a sentence for the deadly weapon enhancement. (Exh. 11.)

         On May 19, 2009, Petitioner entered his guilty plea. (Exh. 12.) During the canvass, Petitioner indicated that he had read the plea memorandum and understood that while the parties were recommending life with the possibility of parole after twenty years, the court could sentence him differently. (Exh. 12 (Tr. 6-9).) Asked whether he was satisfied that he had enough time to speak to his lawyer and any other person who he believed important to making the decision to plead guilty to first degree murder, Petitioner responded “yes.” (Id. at 9.) Petitioner also responded “yes” when asked whether he'd had an opportunity to read the police reports, look at any crime scene photos, and consider all of the evidence that would form the basis for any defense that he might want to assert. (Id.) When asked whether he was receiving any medical or psychiatric treatment, Petitioner indicated that he had been on “Cylaris” since shortly after being arrested. (Id. at 10.) He indicated that he did not know why he was being given that medication and denied any mental health issues. (Id. at 11.) The court asked whether the medication affected Petitioner's ability to understand the proceedings, and Petitioner answered “no.” (Id. at 11-12.) Petitioner indicated he was satisfied with his legal representation and again indicated he had had sufficient opportunity to discuss the charges and any potential defenses with his attorney. (Id. at 16.) He denied that anyone had made any threats to force him to plead guilty. (Id. at 18.) Again asked whether he had sufficient time to make his decision, Petitioner responded “yes.” (Id.)

         On September 3, 2009, Petitioner submitted a letter to the court seeking to withdraw his plea. (See Exh. 13.) Petitioner asserted he had been under the influence of medications that put him in a fog-like state, that he did not have sufficient time to read his discovery and consider the plea, and that his attorney had coerced him into pleading guilty. (Exh. 14.) The court granted Whomes' request to withdraw and appointed new counsel. The court also ordered that Petitioner's medical records be subpoenaed. The court advised Petitioner that new counsel would meet with him and file a written motion but also warned that attorneys had no obligation to file fruitless motions or do everything Petitioner asked. (Exh. 13.)

         On September 24, 2009, John Ohlson was appointed to represent Petitioner. (Exh. 16.) However, Ohlson refused to file a motion to withdraw the guilty plea, asserting that he could not ethically do so because the plea was in Petitioner's favor and he believed Petitioner was likely to be convicted if he chose to go to trial, which would likely result in a higher sentence. (Exh. 33.) The court ordered Ohlson to appear as standby counsel and assist Petitioner with the filing of his motion. (Id.) But Ohlson did not do so; Petitioner filed his own pro se motion, which indicated that Ohlson never provided him with any legal materials that he had requested. (Exh. 17.) In his motion, Petitioner indicated that while Ohlson was initially supportive of moving to withdraw, after reviewing the discovery he told Petitioner “you're screwed” and advised him against withdrawing his plea. (Id.)

         On February 5, 2010, an evidentiary hearing took place. (Exh. 19.) At the hearing, Whomes testified that he reviewed all the discovery, that Petitioner had all the discovery, and that they discussed things extensively before Petitioner entered his plea. (Id. at 74, 83-84.) Although Petitioner frequently brought up self-defense, Whomes did not believe it was a viable defense and repeatedly explained to Petitioner why. (Id. at 78-80.) Petitioner also wondered whether he could obtain relief under Miranda, but counsel explained to him that Miranda did not apply to most of his police interviews and that while there was a potential Miranda issue with respect to the last interview, suppressing those statements would do little good in light of all the other admissible incriminating statements Petitioner had made before that time. (Id. at 80.)

         By the time he entered his plea, Whomes felt, Petitioner understood why self-defense was not a viable defense and he fully understood what was going on. (Id. at 88.) Whomes testified that he and Petitioner had a fine and amicable relationship and he denied ever coercing or threatening Petitioner to plead. (Id. at 77, 82, 86-87.) Ohlson's cross-examination of Whomes focused not on this last issue but instead on Whomes' history, and possible future, as a prosecutor. (See Id. at 93-96.)

         Whomes' supervisor, Jennifer Lunt, testified that she met with Petitioner several times regarding his request to withdraw his guilty plea and that she had strongly counseled him against doing so in light of the strength of the state's case. (Id. at 53-55.) Lunt also advised Petitioner she did not believe he would be successful with a self- defense because the victim was a 61-year-old man who was ill and had trouble walking. (Id. at 56.) Lunt testified that their office did investigate before the plea and continued to do so afterward. (Id. at 59-60.)

         Finally, the defense investigator, Rocco Lovetere, testified. He confirmed that Petitioner received all the discovery they had and that he and Whomes went over it with Petitioner and explained what they thought would happen at trial. (Id. at 101-02.) Lovetere never felt that Petitioner was unable to comprehend what he was saying or understand what was going on. (Id. at 104.) But Petitioner did repeatedly bring up self-defense, and Whomes and Lovetere had to explain why it wasn't viable several times, “to the point of exasperation.” (Id. at 106.) Lovetere admitted he got exasperated after the third or fourth time of explaining why self-defense was not an option, and by the third time of explaining the issue to Petitioner Whomes told Petitioner to “shut up.” (Id. at 106-09.) Petitioner did shut up and was visibly disturbed-as was Lovetere-as well as a bit intimidated. (Id. at 109, 113.) After this happened, Lovetere took over the conversation and explained things more calmly. (Id. at 111.) Lovetere testified that Whomes yelled at Petitioner twice and slammed his hand on the table, but that this occurred before any plea negotiations and that Whomes never yelled at Petitioner that he must plead. (Id. at 108-09, 112-13, 118.) Despite Whomes' behavior, Lovetere felt that most of the time Petitioner and Whomes were able to discuss the case rationally, and Lovetere did not believe Petitioner was coerced into his plea. (Id. at 111-12.) Petitioner was told a number of times that the decision was his. (Id. at 117.) And in the end it was Petitioner's decision to enter the plea. (Id. at 107.)

         Petitioner argued that he had been trying to get his attorneys to withdraw his plea since about a month after he entered his plea, but they kept trying to talk him out of it. (Id. (Tr. 11-12).) When the court asked what defense he might have to the charges, Petitioner said he wanted to save that for trial, but later said he no longer wanted to pursue self-defense and would “more for going towards not murder one.” (Id. at 120.)

         On the stand, and later in a written order, the trial court denied the motion. (Id. at 126-29; Exh. 23.) In relevant part, the court found credible Lovetere's testimony that Whomes yelled at Petitioner but that the yelling did not occur during discussions about a plea. (Exh. 19 (Tr. 128).) The court also noted that every single attorney who testified said the plea was the best outcome for Petitioner because it gave him the opportunity to attain freedom at some point. (Id. at 128-29.)

         At the end of the hearing, Ohlson was allowed to withdraw and new counsel was appointed. New counsel, Lidia Stiglich, assisted Petitioner in drafting a motion to withdraw the guilty plea or for reconsideration on the grounds that Petitioner did not have meaningful assistance of counsel with respect to his previous motion and that new evidence showed Petitioner had begun to seek withdrawal of his plea within a month of entering it. (Exh. 25.) The trial court denied the motion prior to sentencing, concluding that nothing in the motion persuaded it to reconsider its decision, even in light of the new evidence. (Exh. 28 (Tr. 23).)

         Petitioner was sentenced, judgment entered, and a notice of appeal filed. (Exhs. 28, 31, 32.) Petitioner pursued state postconviction habeas proceedings and, thereafter, this federal habeas action.

         III. LEGAL STANDARD

         A. 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] ...


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