United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is before the court on respondents' motion to
dismiss two grounds in Greg Takung Chao's petition (ECF
No. 25). Chao filed a response (ECF No. 34), and respondents
replied (ECF No. 37).
Procedural History and Background
June 2005, Chao went on trial for robbery with use of a
deadly weapon and murder with use of a deadly weapon (see
exhibits 11, 55). The jury deadlocked, and the court
declared a mistrial. Exh. 55, p. 7. Chao's second trial
commenced in May 2007, and the jury found him guilty of count
1: robbery with use of a deadly weapon and count 2:
first-degree murder with use of a deadly weapon. Exh. 131.
After a penalty hearing, the jury returned a verdict of life
in prison without the possibility of parole on the murder
count. Exh. 136. In September 2007, the state district court
sentenced Chao to 72 to 180 months on count 1, plus an equal
and consecutive term for the deadly weapon and to life in
prison without the possibility for parole on count 2, plus an
equal and consecutive term for the deadly weapon. Exh. 139.
Judgment of conviction was entered on September 12, 2007.
Nevada Supreme Court affirmed Chao's convictions in June
2010. Exh. 194. The state supreme court affirmed the denial
of Chao's state postconviction petition in March 2017.
meantime, petitioner dispatched his federal petition for
filing on December 1, 2014 (ECF No. 11). This court granted
Chao's motion to stay his federal petition pending the
completion of his state-court proceedings (ECF No. 7). In
November 2017, this court granted petitioner's motion to
reopen the case and granted his motion for counsel (ECF No.
12). Chao filed a first-amended petition (ECF No. 21).
Respondents now move to dismiss grounds 2(A) and 2(B) as
procedurally defaulted (ECF No. 25).
Legal Standards & Analysis
U.S.C. § 2254(d), a provision of the Antiterrorism and
Effective Death Penalty Act (AEDPA), provides that this court
may grant habeas relief if the relevant state court decision
was either: (1) contrary to clearly established federal law,
as determined by the Supreme Court; or (2) involved an
unreasonable application of clearly established federal law
as determined by the Supreme Court.
default” refers to the situation where a petitioner in
fact presented a claim to the state courts but the state
courts disposed of the claim on procedural grounds, instead
of on the merits. A federal court will not review a claim for
habeas corpus relief if the decision of the state court
regarding that claim rested on a state law ground that is
independent of the federal question and adequate to support
the judgment. Coleman v. Thompson, 501 U.S. 722,
Coleman Court explained the effect of a procedural
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v.
Carrier, 477 U.S. 478, 485 (1986). The procedural
default doctrine ensures that the state's interest in
correcting its own mistakes is respected in all federal
habeas cases. See Koerner v. Grigas, 328 F.3d 1039,
1046 (9th Cir. 2003).
demonstrate cause for a procedural default, the petitioner
must be able to “show that some objective factor
external to the defense impeded” his efforts to comply
with the state procedural rule. Murray, 477 U.S. at
488 (emphasis added). For cause to exist, the external
impediment must have prevented ...