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O'Neill v. Baker

United States District Court, D. Nevada

January 6, 2020

RENEE BAKER, et al., Respondents.



         I. SUMMARY

         Petitioner Christopher O'Neill's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the Court for adjudication of the merits of his remaining claims. As further explained below, the Court denies Petitioner's habeas petition, but grants him a certificate of appealability for Ground One Part A and Ground Two, and directs the Clerk of Court to enter judgment accordingly.


         Petitioner's convictions are the result of events that occurred in Washoe County, Nevada on September 22, 2004. (ECF No. 14-6.) In its order affirming Petitioner's second state habeas appeal, the Nevada Supreme Court described the crime, as revealed by the evidence at Petitioner's trial, as follows:

The jury was presented with evidence that appellant possessed two forged checks and yellow pages listing check-cashing services and that another forged check and ten blank checks from the same account were found in an envelope in his car. [Petitioner] told the police that he received the checks as collateral for work that he had done, but the account owner denied writing or authorizing the checks.

(ECF No. 22 at 4.)

         On June 7, 2005, a jury found Petitioner guilty of three counts of possession of a forged instrument. (ECF Nos. 14-24, 14-25, 14-26.) On August 25, 2005, Petitioner was adjudicated a habitual criminal, and was sentenced to life with the possibility of parole, with eligibility for parole after ten years, on all three counts, to be served concurrently. (ECF No. 15-2.) Petitioner appealed, and the Nevada Supreme Court affirmed Petitioner's judgment of conviction and the adjudication of habitual criminality but remanded the “matter for entry of an amended judgment of conviction vacating the special sentence of lifetime supervision.” (ECF No. 15-22 at 17-18.) Remittitur issued on April 3, 2007. (ECF No. 15-23.) An amended judgment of conviction was filed on April 5, 2007. (ECF No. 15-24.)

         On April 30, 2007, Petitioner filed his first state habeas petition. (ECF No. 15-25.) Petitioner filed a counseled, supplemental petition on December 28, 2007. (ECF No. 16.) Following an evidentiary hearing, the state district court denied the petition on July 21, 2010. (ECF Nos. 17-5, 17-17, 18-7, 18-9, 18-13.) The Nevada Supreme Court affirmed the denial of the petition on November 17, 2011, and remittitur issued on December 13, 2011. (ECF Nos. 21-5, 21-7.)

         On June 6, 2007, Petitioner moved for a new trial, which the state district court denied. (ECF Nos. 15-29, 15-32.) On November 19, 2008, the Nevada Supreme Court affirmed the denial, and remittitur issued on December 16, 2008. (ECF Nos. 22-5, 22-6.)

         On June 25, 2010, Petitioner moved to correct or modify his sentence, which the state district court denied on September 1, 2010. (ECF Nos. 18-10, 19-13.) The Nevada Supreme Court affirmed the denial on February 9, 2011, and remittitur issued on March 7, 2011. (ECF Nos. 20-21, 20-26.)

         On August 24, 2010, Petitioner filed his second state habeas petition. (ECF No. 19-9.) The state district court dismissed the petition on October 19, 2011. (ECF No. 20-40.) The Nevada Supreme Court affirmed the dismissal of the petition on June 13, 2012, and remittitur issued on July 10, 2012. (ECF Nos. 22, 22-1.)

         Petitioner dispatched this federal habeas petition on or about December 3, 2011. (ECF No. 4.) Petitioner filed a counseled, first-amended petition on November 21, 2012. (ECF No. 13.) Respondents moved to dismiss the first-amended petition on November 7, 2013. (ECF No. 44.) The Court determined that Grounds 1(B), 5(A) and 5(B) of the first-amended petition were unexhausted and Grounds 1(A), 1(C), and 3 were exhausted. (ECF No. 56.) Petitioner moved for a stay and abeyance of the unexhausted grounds- Grounds 1(B), 5(A), and 5(B). (ECF No. 57.) The Court granted that request and administratively closed this action. (ECF No. 62.)

         Petition filed a third state habeas petition on May 19, 2015. (ECF No. 64-1.) The state district court dismissed the petition based on a failure of Petitioner to file a response to the motion to dismiss. (ECF No. 64-7.) The Nevada Court of Appeals affirmed the denial on July 27, 2016, and remittitur issued on August 22, 2016. (ECF No. 64-16, 64-17.)

         On October 3, 2016, Petitioner moved to reopen his federal habeas case. (ECF No. 63.) The Court granted the request. (ECF No. 66.) Respondents moved again to dismiss the first-amended petition. (ECF No. 68.) The Court dismissed Grounds 5(A) and 5(B) as procedurally barred, deferred a decision on Ground 1(B), and found Ground 6(A) to be exhausted. (ECF No. 74.) Respondents answered the remaining claims in the first-amended petition on May 2, 2018. (ECF No. 76.) Petitioner replied on July 30, 2018. (ECF No. 78.)

         In the remaining grounds for relief, Petitioner asserts the following violations of his federal constitutional rights:

1A. His trial counsel failed to communicate and investigate the case prior to trial.
1B. His trial counsel failed to challenge the admissibility of the handwriting expert's testimony.
1C. His trial counsel failed to timely move to suppress the evidence seized by his parole officers.
2. The prosecution failed to disclose exculpatory, material evidence.
3. The state district court failed to conduct an appropriate inquiry into his motion to replace his appointed counsel with new appointed counsel.
4. The state district court failed to appropriately canvass him regarding his request to represent himself.
6A. His habitual criminal sentence was improper because the state district court did not find the required number of prior convictions before imposing the enhanced sentence.
6B. His habitual criminal sentence was improper because the sentencing analysis conducted by the state district court should have been conducted by a jury.

(ECF No. 13.)


         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 One

         In Ground One, which contains three subparts-A, B, and C-Petitioner argues that his trial counsel was ineffective. In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the attorney's “representation fell below an objective standard of reasonableness, ” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

         Where a state district court previously adjudicated the claim of ineffective assistance of counsel, under Strickland, establishing that the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United States Supreme Court instructed:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles[ v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonably argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as ‘doubly deferential.'”).

         The Strickland standard is also utilized to review appellate counsel's actions: a petitioner must show “that [appellate] counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them” and then “that, but for his [appellate] counsel's unreasonable failure to file a merits brief, [petitioner] would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000).

         1. Part A

         In Ground One Part A, Petitioner alleges that his federal constitutional rights were violated when his trial counsel failed to communicate with him and present a full defense at trial. (ECF No. 13 at 19.) Petitioner elaborates that as a result of his trial counsel's deficiencies, he was unable to present the following defense regarding his possession of the forged checks: he ran a landscaping business and Geraldine Mesker, who hired him to do landscaping work, gave him the checks, which belonged to her roommate, as collateral while she came up with the money to pay him. (Id. at 22.) In addition to failing to adequately investigate Mesker and present her as a witness in order to support this defense, Petitioner asserts that his trial counsel failed to investigate or question Brent Cooper, Petitioner's parole officer, about his history with Petitioner. (Id. at 24-25.)

         In Petitioner's first state habeas appeal, the Nevada Supreme Court held:

[Petitioner] argues that counsel was ineffective for not presenting to the jury his defense that he was merely holding the forged check as collateral without the intent to utter it. Specifically, [Petitioner] claimed that the roommate of the person whose checks were forged gave [Petitioner] one check to hold as collateral for work he had done at the house and the roommate must have forged the checks. [Petitioner] further claimed that he would have been acquitted had counsel presented to the jury fingerprint evidence that he had only touched the one check, a handwriting expert to prove the roommate-not [Petitioner]-had forged the checks, and the roommate to confirm [Petitioner]'s version of events. [Petitioner] failed to demonstrate prejudice. The district court found that [Petitioner] presented no credible evidence that he had performed any work. Moreover, [Petitioner] presented no fingerprint or handwriting experts to support his claims. Because [Petitioner] did not demonstrate by a preponderance of the evidence the facts underlying his claim, we conclude that the district court did not err in denying this claim.
Third, [Petitioner] argues that counsel was ineffective for failing to communicate with him and, as a result, counsel failed to file the motion to suppress or to present the check-as-collateral defense. For the reasons stated above, [Petitioner] failed to demonstrate prejudice. We therefore conclude that the district court did not err in denying this claim.

(ECF No. 21-5 at 4-5.) The Nevada Supreme Court's rejection of Petitioner's Strickland claim was neither contrary to nor an unreasonable application of clearly established federal law.

         Petitioner testified at the post-conviction evidentiary hearing that Mesker gave him the checks as payment for work he did at her residence: painting, cleaning the backyard, emptying the garbage, and transporting items to a storage unit. (ECF No. 17-5 at 10, 18-21.) Petitioner explained that he “knew it was a crap check when [Mesker] gave it to [him]” but he “had no intention of cashing the damn thing.” (Id. at 51.) Accordingly, Petitioner's defense was that he was “a legitimate businessman holding property for work done.” (Id. at 99; see also ECF No. 21-18 at 2 (business license issued by the City of Sparks to Petitioner on May 21, 2004 for his business specializing in yard services).) Petitioner testified that he thought that his trial counsel knew about this defense, in part, but did not know whether his trial counsel knew about his business. (ECF No. 17-5 at 23-24.)

         Petitioner testified that he had communication issues with his trial counsel: “I never talked to [trial counsel]. [Trial counsel] never came to see me, refused all my phone calls, wouldn't answer any letters. I never talked to the guy.” (Id. at 22.) Petitioner elaborated that he tried to speak with his trial counsel during three or four pretrial hearings, “and every time [he] did [trial counsel] would either shush [him] or a deputy would shush [him].” (Id. at 22-23, 92.) Petitioner's trial counsel would then falsely promise to visit him. (Id. at 23.) Petitioner even requested that his mother call his trial counsel because his trial counsel's office “kept hanging up on [him].” (Id. at 27; see also ECF No. 17-5 at 148-149 (testimony of Elizabeth Logan, Petitioner's mother, during the post-conviction evidentiary hearing that “[she] tried numerous times to reach [Petitioner's trial counsel]” and the response she received “was only to inform [her] that he didn't need to talk to [Petitioner] before going to trial and he didn't need to talk to any other witnesses or anybody else that he didn't feel was important to the case”).) Petitioner's trial counsel's only visit to the jail to meet Petitioner took place three days before the trial commenced and lasted for five minutes. (ECF No. 17-5 at 49; see also ECF No. 21-27 at 2 (Washoe County Detention Facility visitor report showing Petitioner's trial counsel visited him on June 3, 2005).)

         Petitioner testified that if his trial counsel had spoken to him, he would have told his trial counsel about his defense, his business, an employee who could have testified as a witness, and his issues with Officer Cooper, who was extorting him for money. (ECF No. 17-5 at 30, 48, 51, 118.) Petitioner testified that his trial counsel may have learned some of this information when Petitioner tried to discuss things during pretrial hearings, but because he kept getting “shushed, ” he was not sure what his trial counsel actually heard. (Id. at 56.) Petitioner's trial counsel informed Petitioner that he “didn't need to talk to [him] to represent [him]” and “didn't need to speak to any witnesses.” (Id. at 64.)

         Petitioner's trial counsel testified at the post-conviction evidentiary hearing that he would sometimes speak to Petitioner when he called and that he believed he spoke with Petitioner six or seven times, excluding court appearances, before his visit to the jail three days before trial. (ECF No. 17-17 at 136, 150, 153, 162.) Petitioner's trial counsel explained that Petitioner's story varied slightly each time they spoke and that he did not speak to Petitioner every time he called because he thought Petitioner was “crazy like a fox.” (Id. at 154, 162.) Petitioner's trial counsel testified about his theory of the case: “I had an issue with the possession of the check, and I had an issue with Ms. Mesker not being present.” (Id.) Petitioner's trial counsel elaborated that he used an “empty chair theory, ” arguing that the checks were written by somebody else. (Id. at 159-60.) Petitioner's trial counsel testified that he remembered Petitioner “claiming there was some work he had done for somebody that had paid him those checks, ” but did not remember Petitioner saying that he was a landscaper or had a business license. (Id. at 148-49.)

         Regarding Mesker, Petitioner's trial counsel did make some effort to try and find her, but he never met her and did not subpoena her because there was nothing that led him to believe that her testimony would be important. (Id. at 141-43, 160.) Petitioner's trial counsel also explained that although Petitioner mentioned that Mesker was the one that gave him the check, “[s]ometimes [he] actually prefer[s] not to have the other person there because it gives [him] something to wave around in front of the jury. (Id. at 143.) Petitioner's trial counsel explained that Mesker's testimony could have been risky if she failed to accept responsibility for writing the checks. (Id. at 160.) Petitioner's trial counsel testified that he did not remember a conversation with Petitioner that Mesker was present at the trial. (Id. at 152.)

         Regarding Officer Cooper, Petitioner's trial counsel did not remember Petitioner saying that Officer Cooper was extorting money from him. (Id. at 141.) Petitioner's trial counsel made a telephone call to inquire about Officer Cooper's actions, but he did not learn anything about Officer Cooper supporting any allegations that Petitioner made against him. (Id. at 153.) Because he did not have any substantiated evidence that Officer Cooper was a dirty officer at the time of trial, as Petitioner claimed, Petitioner's trial counsel did not question Officer Cooper about issues with his testing and reporting: “if I don't have some solid evidence, I am not going to go up there and besmirch some person's character without the appropriate backup.” (Id. at 146.)

         Defense counsel has a duty to “consult with the defendant on important decisions and to keep the defendant informed of important developments.” Strickland, 466 U.S. at 688. Defense counsel also has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. And “[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. This investigatory duty includes investigating the defendant's “most important defense, ” Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994), and investigating and introducing evidence that demonstrates factual innocence or evidence that raises sufficient doubt about the defendant's innocence. See Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). When the record demonstrates that trial counsel was well-informed, and the defendant fails to provide what additional information would have been gained by the investigation he now claims was necessary, an ineffective assistance claim fails. See Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). “Moreover, ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.” Id.

         Although there does not appear to be a dispute that Petitioner's trial counsel only visited Petitioner in the jail on one occasion and that discussions during pretrial court appearances were stifled, it is unclear how many times Petitioner and Petitioner's trial counsel spoke on the telephone. Petitioner testified that his trial counsel never accepted his telephone calls, and Petitioner's trial counsel testified that he spoke with Petitioner approximately six or seven times. However, it is also clear that Petitioner's trial counsel was aware of Petitioner's defense. Indeed, Petitioner testified that his defense was that he was running a legitimate business, that the checks were forged by Mesker, and that he was simply holding the checks as collateral. This closely mirrors Petitioner's trial counsel's defense that Mesker had access to the checks and suspiciously disappeared prior to the trial. (ECF No. 14-20 at 7 (Petitioner's trial counsel's opening statement: “The evidence is also going to show that Geraldine Mesker had a key to Mr. James Honeyman's mailbox. The evidence is also going to show that Geraldine Mesker was the owner of a duffel bag that was found in a truck that was parked that was full of some of these forged instruments. Interestingly enough, she is on the witness list, but she's not going to testify. We don't know where she is.”); see also ECF No. 14-22 at 21 (Petitioner's trial counsel's closing statement: “Where is Ms. Mesker? She has the key to Mr. Honeyman's mailbox. Where is she? I don't know. The State doesn't know. And I would ask you to consider that. She's not here, and I wonder why?”); see also ECF No. 17-5 at 93 (acknowledgment by Petitioner that his trial counsel questioned the owner of the checks about the fact that Mesker had a key to his mailbox and, thus, access to the checks).)

         Petitioner alleges that his trial counsel failed to present the following evidence due to his trial counsel's lack of communication and lack of diligent investigation: Petitioner's business license, Petitioner's employee, and Officer Cooper's extortion. However, as the Nevada Supreme Court reasonably concluded, Petitioner fails to demonstrate prejudice. First, the presence of a business license does not establish that Petitioner performed any work for Mesker. Second, the record fails to demonstrate what Petitioner's alleged employee would have testified to at the trial if he had been called. See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not established by mere speculation.”). And third, Petitioner's trial counsel testified that he would not “besmirch some person's character without the appropriate backup.” (ECF No. 17-17 at 146.) Because Petitioner lacked support for his allegation that Officer Cooper was extorting money from him, it is unlikely that his trial counsel would have questioned Officer Cooper about this allegation even if he had known about it.

         Turning finally to Mesker, Petitioner contends that his defense that Mesker forged the checks and owed him money for legitimate work he had performed was supported by various evidence that his trial counsel failed to discover and present: Mesker was originally listed as a subject in the investigation, Mesker paid Petitioner's retainer fee to his initial trial counsel, and Mesker attended portions of the trial. (ECF No. 21-23 at 4 (Officer Brown's incident report listing Mesker as a subject); see also ECF No. 17-17 at 80-82, 97 (testimony by Dennis Cameron, Petitioner's initial trial counsel, at the post-conviction hearing that Mesker paid Petitioner's retainer fee and that Mesker told Cameron that she was fearful of being arrested); see also ECF No. 18-7 at 12 (testimony of Officer Joseph Lever that Mesker was present outside the courtroom during the trial).) Even if these facts are presumed true, as the Nevada Supreme Court again reasonably concluded, Petitioner cannot establish prejudice. Rather than presenting Mesker as a witness and running the risk that she would fail to testify in accordance with Petitioner's defense, Petitioner's trial counsel testified that he preferred to have Mesker absent from the trial because her lack of appearance “g[a]ve[ him] something to wave around in front of the jury.” (ECF No. 17-17 at 143, 160.) Because Petitioner's trial counsel was convinced that Petitioner would be better served by a defense highlighting the fact that Mesker failed to appear-thereby indicating that she was guilty of the offense and avoiding prosecution-instead of a defense resting on Mesker's uncertain testimony, it cannot be concluded Petitioner's trial counsel would have presented any of this miscellaneous evidence had he known of its existence. As such, Petitioner fails to demonstrate that his trial counsel would have presented a different defense, such that the result of his trial would have been different, if he had discovered or been told about the foregoing information. See Strickland, 466 U.S. at 694.

         Petitioner is denied habeas relief on Ground One Subpart A.

         2. Part B

         In Ground One Part B, Petitioner alleges that his federal constitutional rights were violated when his trial counsel failed to challenge the State's handwriting expert on authentication grounds. (ECF No. 13 at 26.) Specifically, Petitioner alleges that the State's handwriting expert compared the handwriting on one of the checks to a handwriting sample from Petitioner, but no witness authenticated that sample, making the expert's comparison inadmissible. (Id. at 26-27.) Respondents argue that Petitioner ...

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