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Dewey v. Neven

United States District Court, D. Nevada

December 26, 2019

SHELLI ROSE DEWEY, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          LARK R. HICKS, UNITED STATES DISTRICT JUDGE

         Introduction

         This action is a petition for writ of habeas corpus by Nevada prisoner Shelli Rose Dewey, who was convicted in 2006, in Nevada's Fourth Judicial District Court, in Elko County, of second-degree murder with use of a deadly weapon. On August 10, 2018, this Court ruled on a motion to dismiss, and dismissed certain of Dewey's claims (ECF No. 69). The action is now before the Court for adjudication of Dewey's remaining claims. The Court will deny Dewey's petition and will deny Dewey a certificate of appealability.

         Background

         In its decision on Dewey's direct appeal, the Nevada Supreme Court described the factual background of the case, as revealed by the evidence presented at Dewey's ten-day jury trial, as follows:

In the early morning hours of September 12, 2004, Elko Police answered a hysterical “911” call from appellant Shelli Rose Dewey reporting that her husband, Steven, had been stabbed. During the call, Dewey commented three times that she did not know who stabbed Steven.
At the scene, Dewey appeared to be intoxicated and was marginally intelligible. Dewey told the police that her husband had been stabbed. The police looked inside the Deweys' pickup truck as well as the surrounding area for a weapon but could not locate one.
Several witnesses reported that Dewey and Steven had been drinking and creating a disturbance a few hours before the stabbing. At some point, the bartender asked the couple to leave. About thirty minutes thereafter, a witness reported seeing them arguing in the parking lot. Another witness also reported hearing a loud argument, followed by hysterical crying. This witness investigated the “ruckus” and saw Dewey draped over Steven, who was lying on his back next to or in close proximity to the couple's truck. According to this witness, Dewey was in obvious distress, frantically saying, “Please don't die! Please don't die on me!”
* * *
Ultimately, the State charged Dewey with open murder with the use of a deadly weapon.
* * *
At trial, the jury convicted Dewey of one count of second-degree murder with the use of a deadly weapon.

Dewey v. State, 123 Nev. 483, 485-87, 169 P.3d 1149, 1150-51 (2007) (a copy of the opinion is filed in the record at Exh. 72 (ECF No. 22-2)). Dewey was sentenced to two consecutive terms of life in prison with the possibility of parole after ten years. See Judgment of Conviction, Exh. 67 (ECF No. 21-10).

         The Nevada Supreme Court affirmed the judgment on November 1, 2007. See Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court denied Dewey's petition for rehearing. See Order Denying Rehearing, Exh. 74 (ECF No. 22-4).

         Dewey filed a post-conviction petition for writ of habeas corpus in the state district court on October 18, 2008. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhs. 77, 83 (ECF Nos. 22-7, 22-13). The court held a six-day evidentiary hearing (see Transcripts of Evidentiary Hearing, Exhs. 86-91 (ECF Nos. 22-16, 22-17, 23, 23-1, 23-2, 23-3)), entertained post-hearing briefing (Exhs. 93, 94, 95 (ECF Nos. 24-1, 24-2, 24-3)), and denied the petition on June 28, 2011. See Decision, Exh. 97 (ECF No. 24-5); Notice of Entry of Order, Exh. 98 (ECF No. 24-6). Dewey filed a motion for reconsideration. See Motion to Alter or Amend Judgment or in the Alternative, Motion for Reconsideration, Exh. 99 (ECF No. 24-7). The court ruled on that motion on October 17, 2011, issuing an addendum to its June 28, 2011, order, further explaining its denial of certain claims. See Addendum, Exh. 104 (ECF No. 24-12); Notice of Entry of Addendum, Exh. 105 (ECF No. 24-13). Dewey appealed, and the Nevada Supreme Court affirmed the denial of Dewey's state habeas petition on April 10, 2013. See Order of Affirmance, Exh. 112 (ECF No. 24-20). The court then denied Dewey's petition for rehearing. See Order Denying Rehearing, Exh. 114 (ECF No. 24-22).

         Dewey filed her initial, nominally pro se, federal habeas corpus petition, initiating this action, on June 13, 2013 (ECF No. 1). The Court appointed counsel for Dewey (ECF No. 4), and, with counsel, Dewey filed a first amended petition on November 7, 2014 (ECF No. 16).

         Respondents filed a motion to dismiss on May 28, 2015 (ECF No. 41), contending that certain of Dewey's claims were barred by the statute of limitations, that certain of her claims were unexhausted in state court, and that certain of her claims were not cognizable in this federal habeas corpus action. The Court ruled on that motion on October 29, 2015, ruling that Claims 5A, 5B, 5C and 5D of the first amended petition were unexhausted, and directing Dewey to elect, with respect to those claims, whether to abandon them or move for a stay to allow her to exhaust them in state court. See Order entered October 29, 2015 (ECF No. 47).

         Dewey filed a motion for stay on December 7, 2015 (ECF No. 50). The respondents did not oppose the motion (ECF No. 51), and the Court granted the motion and stayed this action on January 26, 2016, pending further proceedings in state court. See Order entered January 26, 2016 (ECF No. 52).

         The stay was lifted, upon a motion by Dewey, on July 20, 2017 (ECF No. 58). Dewey then filed a second amended petition for writ of habeas corpus (ECF No. 59) on September 18, 2017. The Court reads Dewey's second amended petition to include the following claims:

Ground 1: Dewey's “confession was taken in violation of her Fifth, Sixth and Fourteenth Amendment rights to silence, to the assistance of counsel, and to due process under the United States Constitution.”
Ground 2A: Dewey's federal constitutional rights were violated because her trial counsel was ineffective “for failing to present evidence from an audio expert as to whether [Dewey] invoked her right to counsel.”
Ground 2B: Dewey's federal constitutional rights were violated because her trial counsel was ineffective for failing “to present a battered women's syndrome defense to the murder charge.”
Ground 2C: Dewey's federal constitutional rights were violated because her trial counsel was ineffective for failing “to investigate and present an expert witness on linguistics to testify that [she] had not waived her right to an attorney.”
Ground 2D: Dewey's federal constitutional rights were violated because her trial counsel was ineffective “for failing to provide the defense crime scene analyst with all the available evidence and failing to properly question the analyst at trial.”
Ground 2E: Dewey's federal constitutional rights were violated because her trial counsel was ineffective “for failing to seek a spoliation instruction.”
Ground 2F: Dewey's federal constitutional rights were violated because her trial counsel was ineffective “for failing to present testimony from R. Goldie.”
Ground 3: Dewey's “Fourteenth Amendment right to due process was violated when she was convicted without sufficient evidence.”
Ground 4A: Dewey's federal constitutional rights were violated because “Instruction No. 13 regarding second degree murder reduced the State's burden of proof of the malice element.”
Ground 4B: Dewey's federal constitutional rights were violated because “Instruction 19 defining deadly weapon unconstitutionally relieved the State of its burden to prove an element of the deadly weapon enhancement.”
Ground 5A: Dewey's federal constitutional rights were violated because her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 1.
Ground 5B: Dewey's federal constitutional rights were violated because her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 3.
Ground 5C: Dewey's federal constitutional rights were violated because her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 4A.
Ground 5D: Dewey's federal constitutional rights were violated because her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 4B.
Ground 6: Dewey's federal constitutional rights were violated because “cumulative error rendered [her] trial and verdict inherently unreliable.”

See Second Amended Petition for Writ of Habeas Corpus (ECF No. 59).

         On March 9, 2018, Respondents filed a motion to dismiss Dewey's second amended petition, arguing: that Grounds 2A, 2B, 5A, 5B, 5C and 5D are barred by the statute of limitations; that part of Grounds 2B, 5A, 5B, 5C and 5D are barred by the procedural default doctrine; that Grounds 2A, 2D and 2E include allegations not exhausted in state court; and that Ground 6 is not procedurally viable for several reasons. See Motion to Dismiss (ECF No. 64). The Court ruled on that motion on August 10, 2018. See Order entered August 10, 2018 (ECF No. 69). The Court denied the motion to the extent it was based on the statute of limitations. See id. Regarding the questions of exhaustion and procedural default of Ground 2B, the Court denied the motion to dismiss, without prejudice to Respondents again raising the procedural default defense in their answer. See id. With respect to Grounds 5A, 5B, 5C and 5D, the Court granted the motion to dismiss and dismissed those claims as procedurally defaulted. See id. The Court denied the motion to dismiss with regard to Grounds 2A, 2D, 2E and 6. See id.

         Respondents filed an answer (ECF No. 77) on February 26, 2019, responding to the remaining claims in Dewey's second amended petition. Dewey filed a reply (ECF No. 82) on April 29, 2019. Respondents filed a response to the reply (ECF No. 83) on May 6, 2019.

         Discussion

         Standard of Review

         A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an unreasonable application” of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an “unreasonable application, ” however, a petitioner must show that the state court's application of Supreme Court precedent was “objectively unreasonable.” Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the “unreasonable application” clause of section 2254(d), only if the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         Ground 1

         In Ground 1, Dewey claims that her confession was taken in violation of her federal constitutional rights. See Second Amended Petition (ECF No. 59), pp. 23-33.

         Dewey was interviewed by police officers three times after she was taken into custody: first by Detective Larry Kidd and Officer Kamiah Hamilton at about 8:55 a.m. on September 12, 2004, the morning Steven was killed (see Transcript, Exh. 117 (ECF No. 24-25)); second, by Kidd, Detective Connie Bauers, and Detective Sergeant Randy Parks at 11:25 a.m. on September 12, 2004 (see Transcript, Exh. 118 (ECF No. 24-26)); and third, by Kidd and Bauers at 9:05 a.m. the next morning, September 13, 2004 (see Transcript, Exh. 126 (ECF No. 26-2)). In the first interview, while the officers were going over Dewey's rights with her, Dewey said she did not want to speak, and the interview was terminated. See Transcript, Exh. 117 (ECF No. 24-25). In the second interview, Dewey made several incriminating statements. See Transcript, Exh. 118 (ECF No. 24-26). In the third interview, Dewey requested an attorney, and the interview ceased before Dewey said anything of substance about the events of the previous morning. See Transcript, Exh. 126 (ECF No. 26-2).

         Dewey claims that the police violated her rights to counsel, to silence, and to due process of law, under the Fifth, Sixth and Fourteenth Amendments and Miranda v. Arizona, 384 U.S. 436 (1966). See Second Amended Petition (ECF No. 59), pp. 23-33; Reply (ECF No. 82), pp. 4-12. Specifically, Dewey claims that in the first interview she invoked her right to counsel - not just her right to remain silent - and, in interviewing her a second time without counsel present, the police violated her right to counsel. See Reply (ECF No. 82), pp. 5-8. In support of her argument, Dewey cites Edwards v. Arizona, 451 U.S. 477 (1981); Solem v. Stumes, 465 U.S. 638 (1984); Smith v. Illinois, 469 U.S. 91 (1984); Connecticut v. Barrett, 479 U.S. 523 (1987); McNeil v. Wisconsin, 501 U.S. 171 (1991); and Davis v. United States, 512 U.S. 452 (1994). Id. Dewey claims, further, that in commencing the second interview when and as they did, the police officers violated her right to remain silent; in support of this argument, Dewey cites Edwards; Michigan v. Mosley, 423 U.S. 96 (1975); and Arizona v. Roberson, 486 U.S. 675 (1988). See Reply (ECF No. 82), pp. at 8-10. Dewey also claims that her incriminating statements, made in the second interview, were involuntary, in violation of her constitutional rights, under Blackburn v. Alabama, 361 U.S. 199 (1960); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Colorado v. Connelly, 479 U.S. 157 (1986); and Withrow v. Williams, 507 U.S. 680 (1993). See Reply (ECF No. 82), pp. at 10-12.

         Before her trial, Dewey filed a motion to suppress her statements. See Motion to Suppress, Exh. 14 (ECF No. 17-14). That motion was briefed extensively, and was addressed at hearings, including three days of evidentiary hearings. See Opposition to Motion to Suppress, Exh. 15 (ECF No. 17-15); Offer of Proof Concerning Statements of the Defendant, Exh. 16 (ECF No. 17-16); Response to State's Offer of Proof, Exh. 22 (ECF No. 18-5); Supplement to Defendant's Motion to Suppress, Exh. 23 (ECF No. 18-6); Transcript of Hearing, April 7, 2005, Exh. 137 (ECF No. 26-12); Supplement to Opposition to Motion to Suppress, Exh. 24 (ECF No. 18-7); Transcript of Hearing, May 19, 2005, Exh. 139 (ECF No. 26-14); Second Supplement to Opposition to Motion to Dismiss, Exh. 27 (ECF No. 18-10); Transcript of Hearing, May 26, 2005, Exh. 144 (ECF No. 26-19). Dewey and the State presented expert witnesses (Tom Owen for Dewey, and Mark Carey for the State), who created enhanced recordings of the first interview, and who testified about what they could hear on the enhanced recordings. In two written orders, the trial court ruled that Dewey's rights were not violated, and her incriminating statements were admissible. See Order Denying Motion to Suppress, Exh. 40 (ECF No. 18-23); Order Re: Statements of the Defendant, Exh. 49 (ECF No. 18-32).

         After her conviction, Dewey raised these issues on her direct appeal. See Second Amended Petition (ECF No. 59), p. 23; Appellant's Opening Brief, Exh. 68, pp. 17-25 (ECF No. 21-11, pp. 40-48). The Nevada Supreme Court denied Dewey relief on these claims. See Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court described, as follows, the facts regarding Dewey's statements:

Although not a suspect at the time, Dewey was taken to the Elko Police Station for an interview on the morning of Steven's death. Once at the police station, Dewey was informed that the interview was being recorded. Detective Larry Kidd of the Elko Police Department advised Dewey of her Miranda rights and asked if she understood what Miranda rights were. Dewey answered, “I think so.” Detective Kidd then had Dewey read the Miranda rights card line by line. Dewey initialed each line.
Twice during the initial interview, Detective Kidd explained to Dewey that even if she decided to answer questions “without a lawyer present, ” she could still stop the interview at any time. After reading Dewey the Miranda rights, the detective again confirmed that she understood. Dewey then asked if she was a suspect. Detective Kidd told her that she was. During a brief colloquy, Dewey indicated that she did not want to speak to anyone:
Dewey: Am I a suspect?
[Detective] Kidd: Uh, yes ma'am you are a suspect. Would you just go ahead and write and read that again for me?
Dewey: (inaudible)
[Detective] Kidd: You don't want to talk to anybody?
Dewey: No (inaudible).
[Detective] Kidd: Okay, well if you don't want to answer any question then we won't talk about it. We can't ...

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