Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chao v. Neven

United States District Court, D. Nevada

June 20, 2019

GREG TAKUNG CHAO, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE

         This 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).

         I. Procedural History and Background

          In 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).[1] 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. Exh. 140.

         The 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. Exh. 273.

         In the 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).

         II. Legal Standards & Analysis

         a. Procedural Default

         28 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.

         “Procedural 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, 730-31 (1991).

         The Coleman Court explained the effect of a procedural default:

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).

         To 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.