United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
case is a petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2254, by Brian Kerry O'Keefe, a Nevada
prisoner. This case is before the Court for adjudication of
the merits of O'Keefe's remaining claims. The Court
will deny O'Keefe's habeas petition, will deny him a
certificate of appealability, and will direct the Clerk of
the Court to enter judgment accordingly.
was tried in state district court three times on charges of
murder with the use of a deadly weapon. The first jury
convicted him of second-degree murder with the use of a
deadly weapon, and the judgment of conviction was entered on
May 8, 2009. ECF No. 59. On April 7, 2010, the Nevada Supreme
Court reversed O'Keefe's conviction and remanded the
matter for a new trial reasoning that:
the district court abused its discretion when it instructed
the jury that second-degree murder includes involuntary
killings that occur in the commission of an unlawful act
because the State's charging document did not allege that
O'Keefe killed the victim while he was committing an
unlawful act and the evidence at trial did not support this
theory of second-degree murder.
ECF No. 59-20.
August 19, 2010, a second-amended information was filed,
charging O'Keefe with murder in the second degree with
the use of a deadly weapon. ECF No. 61. The jury deadlocked,
and the court declared a mistrial. ECF No. 61-18 at 8.
Following a third trial, the jury convicted O'Keefe on
June 15, 2012. ECF No. 63-29. The state district court
sentenced him to a term of 120 to 300 months, with a
consecutive term of 8 to 20 years for the deadly weapon
enhancement. ECF No. 76-7. The judgment of conviction was
entered on September 5, 2012. Id.
Nevada Supreme Court affirmed O'Keefe's conviction on
April 10, 2013. ECF No. 76-23. The Nevada Supreme Court
denied O'Keefe's petition for rehearing, and
remittitur issued on July 23, 2013. ECF No. 64, 76-25.
filed a motion to modify and/or correct his illegal sentence
on January 27, 2014. ECF No. 64-15. The state district court
denied the motion on March 25, 2014. ECF No. 65-3. The Nevada
Supreme Court affirmed the denial of the motion on July 23,
2014. ECF No. 65-19. O'Keefe filed a state
post-conviction habeas corpus petition and a counseled,
supplemental petition. ECF No. 66-8, 67-7. The state district
court denied O'Keefe's petition on October 2, 2015,
without an evidentiary hearing. ECF No. 68-18. The Nevada
Supreme Court affirmed the denial of the petition as
procedurally barred on June 22, 2016. ECF No. 70-7.
Remittitur issued on December 16, 2016. ECF No. 70-27.
dispatched his federal habeas petition for filing on or about
September 15, 2014. ECF No. 1-1. O'Keefe filed an amended
petition on December 1, 2014, and a notice of supplemental
authorities on February 2, 2015. ECF No. 7, 10. This Court
dismissed O'Keefe's amended petition without
prejudice for failure to exhaust state remedies. ECF No. 14.
Judgment was filed on February 11, 2015. ECF No. 15.
O'Keefe filed a motion for a certificate of
appealability, a notice of appeal, and a motion for this
Court to reconsider its order. ECF Nos. 17, 18, 19. This
Court denied the motion to reconsider and the motion for a
certificate of appealability. ECF No. 23. O'Keefe filed
an amended notice of appeal. ECF No. 24. Counsel was
appointed for O'Keefe. ECF No. 28. The Ninth Circuit
vacated this Court's order and remanded the case for
further proceedings after determining that at least one of
O'Keefe's claims was exhausted. ECF No. 30.
moved to withdraw counsel. ECF No. 39. O'Keefe's
appointed counsel filed a response indicating that he did not
oppose O'Keefe's request to represent himself. ECF
No. 40. This Court granted O'Keefe's motion to
withdraw counsel. ECF No. 49.
filed a pro se second-amended petition. ECF No. 50.
O'Keefe's second-amended petition asserts that his
federal constitutional rights were violated due to the
following alleged violations:
1. The state district court failed to stay his trial despite
having notice of a writ order.
2. The state district court conducted a trial without subject
3. His right to be free from double jeopardy was violated
because the state district court ruled contrary to Schad
v. Arizona and because “when the Nevada Supreme
Court stated that the ‘evidence presented at trial did
not support this theory of second degree murder,'
4. The state district court denied his proposed implied
malice jury instruction, and as such, the jury was not
properly instructed on the elements of second-degree murder.
5. His rights to “law of the case[ and] access to the
court actual innocence” were violated.
Respondents filed a motion to dismiss the second-amended
petition. ECF No. 56. O'Keefe filed a motion for summary
judgment. ECF No. 94. O'Keefe also filed a petition for a
writ of mandamus in the Ninth Circuit asking that this Court
be compelled to rule on his motion for summary judgment, the
Respondents' motion to dismiss, and the habeas petition.
ECF No. 95. This Court granted the Respondents' motion to
dismiss in part. ECF No. 106. Specifically, this Court held
that “[t]he portion of ground 1 that alleges an equal
protection claim and the portion of ground 3 that claims a
violation of petitioner's rights pursuant to Shad v.
Arizona are unexhausted. Grounds 2 and 5 are
dismissed.” Id. at 8. This Court also denied
O'Keefe's motion for summary judgment. Id.
at 10. O'Keefe filed a declaration of election to abandon
“only [the] equal protection claim in Ground 1”
and “only [the] Shad [portion] from (exh. 228,
pp 7-11) Ground 3.” ECF No. 107 at 2. The Ninth Circuit
denied O'Keefe's request for a writ of mandamus. ECF
Respondents filed an answer to the second-amended habeas
petition on June 1, 2018. ECF No. 115. And O'Keefe filed
a reply on June 28, 2018. ECF No. 116. O'Keefe filed an
errata to his reply, a notice of supplemental authorities,
and a second notice of supplemental authorities on July 6,
2018, July 16, 2018, and August 14, 2018, respectively. ECF
No. 118, 119, 121.
STANDARD OF REVIEW
U.S.C. § 2254(d) sets forth the standard of review
generally applicable in habeas corpus cases under the
Antiterrorism and Effective Death Penalty Act
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;
(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.
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.” Lockyer v. Andrade,
538 U.S. 63, 73 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000), and citing Bell v.
Cone, 535 U.S. 685, 694 (2002)). 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.” Id. at 75
(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 409-10) (internal
Supreme Court has instructed that “[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists
could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has stated “that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. at 102 (citing
Lockyer, 538 U.S. at 75); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (describing the
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
argues that his Fifth and Fourteenth Amendment rights to due
process and a fair trial were violated because the
“trial court failed to stay [his] trial despite notice
of [the] writ order.” ECF No. 50 at 17. O'Keefe
appears to be claiming that the state district court erred by
failing to postpone his state trial when he had a pending
issue in federal court regarding a double jeopardy violation.
In O'Keefe's direct appeal following his third trial,
the Nevada Supreme Court held that:
O'Keefe argues that the district court abused its
discretion by denying his request to stay or continue trial
for approximately nine months because he had pending
proceedings in federal court and was unprepared for trial.
The district court rejected O'Keefe's assertion that
his federal proceedings in any way limited his ability to
prepare for trial and noted that O'Keefe asked to
represent himself and was given ample time to do so
effectively. We conclude that the district court did not
abuse its discretion by denying O'Keefe's request for
an extended continuance where the delay was his fault.
See Rose v. State, 123 Nev. 194, 206, 163 P.3d 408,
ECF No. 76-23 at 3-4.
December 16, 2011, approximately six months prior to his
third trial, a hearing was held before the state district
court pursuant to Faretta v. California, 422 U.S.
806 (1975). ECF No. 63 at 2-3. At the beginning of the
hearing, O'Keefe stated that he wished to represent
himself. Id. at 3. The state district court
canvassed O'Keefe's on his request, and then
“f[ou]nd that [O'Keefe was] competent to waive
[his] constitutional right to be represented by an