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O'Keefe v. Williams

United States District Court, D. Nevada

October 17, 2019

BRIAN E. WILLIAMS, et al., Respondents.




         This 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.


         O'Keefe 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.

         On 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.

         The 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.

         O'Keefe 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.

         O'Keefe 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.

         O'Keefe 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.

         O'Keefe 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 matter jurisdiction.
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,' jeopardy terminated.”
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.

         The 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 No. 112.

         The 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.


         28 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 (“AEDPA”):

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.

         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.” 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 citation omitted).

         The 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 citations omitted)).


         A. Ground 1[1]

         O'Keefe 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, 416 (2007).

ECF No. 76-23 at 3-4.

         On 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 attorney” ...

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