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Duke v. Howell

United States District Court, D. Nevada

November 13, 2019

DAVID VAN DUKE, Petitioner
v.
JERRY HOWELL, et al., Respondents.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         David Van Duke, a Nevada prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. I deny Duke's habeas petition, deny him a certificate of appealability, and direct the Clerk of the Court to enter judgment accordingly.

         I. BACKGROUND

         Duke's convictions are the result of events that occurred in Clark County, Nevada on June 26, 2007. ECF No. 9-12. In its order affirming Duke's convictions, the Nevada Supreme Court described the crime, as revealed by the evidence at Duke's trial, as follows:

Officer Fullington testified that he initially stopped Duke for an expired license plate. When Duke and the passenger of the vehicle began looking back at Officer Fullington in an “unusual, fidgety manner, ” Officer Fullington called for backup. Officer Fullington told Duke and the passenger to put their hands on the steering wheel and dashboard, respectively. When Duke and the passenger continued to act in an unusual manner, Officer Fullington pulled out his taser, turned the taser on, held the taser down towards his side, and told Duke to “not do anything” or he would tase Duke. Officer Hirschi responded to the call for backup, exited his vehicle, and began to walk towards Officer Fullington. At that time, Duke sped off in his car. Officer Hirshi and Officer Fullington returned to their patrol vehicles and began pursuit of Duke with their lights and sirens on. Duke drove into an apartment complex parking lot, followed by Officer Hirshi, while Officer Fullington drove to the next entrance to the apartment complex to block Duke's exit. Because he was concerned that Duke was going to ram his car, Officer Fullington exited his vehicle. Duke stopped his car before ramming Officer Fullington's patrol car and was boxed in by Officer Hirshi. Officer Fullington saw a beer bottle being thrown out of the passenger's window and what appeared to be a bar of soap being thrown out of Duke's window. The beer bottle and “bar of soap” were collected, and a field test and laboratory test determined that the “bar of soap” was cocaine and weighed 36.34 grams.

ECF No. 10-11 at 3.

         On January 15, 2008, following a jury trial, Duke was found guilty of “stop required on signal of police officer, ” trafficking in a controlled substance of 28 grams or more, and transporting a controlled substance. ECF No. 9-16. Duke was sentenced to a term of 13 to 60 months for “stop required on signal of a police officer, ” a consecutive term of 10 to 25 years for trafficking, and a concurrent term of 13 to 60 months for transporting a controlled substance. ECF No. 10. The Nevada Supreme Court affirmed Duke's convictions. ECF No. 10-11.

         Duke, acting in pro se, filed a post-conviction state habeas petition on January 27, 2010, and an amended petition on April 15, 2010. ECF Nos. 10-20, 10-23. With the assistance of counsel, Duke filed a supplemental post-conviction state habeas petition on January 5, 2011. ECF No. 11-2. After an evidentiary hearing, see ECF Nos. 11-12, 11-14, 11-15, the state district court denied Duke's post-conviction state habeas petition. ECF No. 11-22. The Nevada Supreme Court affirmed the denial. ECF No. 12-21.

         Duke, acting in pro se, dispatched a post-conviction federal habeas petition on or about April 18, 2013. ECF No. 6. The respondents moved to dismiss the petition on September 5, 2013. ECF No. 8. Duke moved to amend his petition on September 30, 2013; moved for a stay on October 30, 2013; moved for leave to amend on October 30, 2013; and supplemented his petition on January 28, 2014. ECF Nos. 16, 18, 19, 24.

         While his federal habeas petition was still pending, Duke, acting in pro se, filed a second post-conviction state habeas petition and two supplements to the petition on December 26, 2013. ECF No. 32-1, 32-3, 32-4. The state district court dismissed Duke's second post-conviction state habeas petition as untimely under Nev. Rev. Stat. § 34.726 and successive under Nev. Rev. Stat. § 34.810 on March 31, 2014. ECF No. 32-8. The Nevada Supreme Court affirmed the dismissal on September 16, 2014. ECF No. 32-18.

         On June 30, 2014, I denied Duke's motion to amend the petition, denied Duke's motion for stay without prejudice, and granted the respondents' motion to dismiss, in part. ECF No. 25. Specifically, I dismissed Ground One as conclusory and found portions of Grounds Two and Three to be unexhausted. Id. I ordered Duke to either abandon his unexhausted grounds for relief and proceed on the exhausted grounds, dismiss his petition without prejudice in order to return to state district court to exhaust his unexhausted claims, or file a motion for stay. Id.

         Duke moved for a stay and thereafter moved to lift the stay, asserting that he had exhausted the portions of the grounds that I previously found unexhausted due to the Nevada Supreme Court's order filed September 16, 2014, which affirmed the dismissal of Duke's second post-conviction state habeas petition. ECF No. 26, 28. I granted the motion for stay and denied the motion to lift the stay as moot on March 19, 2015. ECF No. 33. However, because some of the claims I found to be unexhausted in my June 30, 2014 order may have been procedurally defaulted in light of the Nevada Supreme Court's September 16, 2014 order, I deferred the stay until the parties filed supplemental briefing. Id. The respondents filed a supplemental brief, and Duke filed his response. ECF No. 38, 39.

         Following supplemental briefing, I explained that Duke's second state habeas petition exhausted only claims that were not part of Duke's federal petition and, with one possible exception, none of the claims I previously found unexhausted. ECF No. 41. I ordered that to the extent Ground Three asserts a substantive sufficiency-of-the-evidence claim as to the transportation conviction, that part of Ground Three was dismissed as procedurally barred. Id. Accordingly, I vacated my prior order deferring entry of the stay, denied Duke's motion for stay without prejudice, and ordered Duke to either file a motion to dismiss seeking partial dismissal only of the unexhausted claims, a motion to dismiss the entire petition without prejudice in order to return to state court to exhaust the unexhausted claims, or a motion for other appropriate relief. Id. Duke filed a motion indicating that he wished to dismiss the unexhausted claims. ECF No. 42. I granted the motion. ECF No. 43.

         The respondents filed an answer to the remaining grounds in Duke's petition on May 16, 2018. ECF No. 50. Duke moved for reconsideration of my prior decision that a portion of Ground Two of his petition was unexhausted. ECF No. 51. I denied that motion. ECF No. 54. Duke filed a reply in support of his petition on June 27, 2018. ECF No. 52. Duke then filed a supplement to his reply on October 22, 2018, which was termed a “reply on collect memory of preliminary hearing that would aid me in a defense for writ of habeas corpus.” ECF No. 55.

         II. STANDARD OF REVIEW

         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 ...

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