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Pinkston v. Foster

United States District Court, D. Nevada

January 15, 2020

SHERYL FOSTER, et al., Respondents.



         Barbara A. Pinkston's second-amended petition for writ of habeas corpus comes before the court for a decision on the remaining claims (ECF No. 69). This court previously granted a conditional writ of habeas relief on ground 3 - a claim that Pinkston was denied Fifth and Fourteenth Amendment due process because the trial court's jury instructions failed to adequately distinguish between the elements of malice aforethought, premeditation, and deliberation (ECF No. 42). The Ninth Circuit reversed in light of its decision several days earlier in Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013) (ECF No. 52). In sum, ground 3 was dismissed as procedurally barred, and the petition was remanded for consideration of the remaining claims (ECF Nos. 67).

         Pinkston's second-amended petition sets forth the nine grounds from her first amended petition (with placeholder, as instructed by this court) and adds ground 10 (ECF No. 69). As ground 10, Pinkston contends that the Nevada Supreme Court violated her Fifth and Fourteenth Amendment due process rights when it failed to apply the rule announced in Byford v. State, 994 P.2d 700, 712 (Nev. 2000) to her case because Byford narrowed the scope of conduct that could be defined as premeditated murder before Pinkston's conviction became final. Id. at 45-47.

         I. Procedural History and Background

         As set forth in its order granting habeas relief, Pinkston seeks to set aside her 1997 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon.

         Pinkston was convicted of the murder of Greg Payne on Father's Day, June 18, 1995. It was undisputed that Pinkston shot Payne twice with a .380 caliber semiautomatic handgun as he was walking toward his truck. The dispute at trial focused upon the circumstances leading up to the shooting, Pinkston's state of mind, and her defense that she was a domestic violence victim and reasonably believed that Payne intended to kill her.[1]

         Pinkston met Payne initially when he responded to her ad in October 1992 looking for a roommate to help with the rent on her house. The roommate relationship began as a platonic one, but Pinkston and Payne became romantically involved in November 1992. The romantic relationship was a rocky one, however, basically from its inception. The relationship also produced a daughter even as it initially unraveled. In addition to producing a child, the relationship lead to a number of judicial proceedings concerning, inter alia, protection orders and child visitation.[2]

         A court hearing was scheduled for Monday, June 19, 1995, to address custody and visitation of their daughter.[3]

         In personal journal entries in early June 1995, Pinkston discussed her frustration with the court proceedings and her belief that the presiding judge in the upcoming June 19, 1995 hearing had turned against her.[4] In an undated document prepared at some point after May 25, 1995 and before June 18, 1995, Pinkston outlined possible options as follows:

Option No. 1 is to do nothing, to let the courts place us in danger and have Kaitlyn scarred emotionally and probably physically abused, to willingly give her to someone who does not have her best interests at heart and who is now using her as a vehicle to further continue this very sick relationship.
Option No. 2 is to run away, to go underground, but if I'm located, I will be sent to prison for child stealing, and Greg will be given Kaitlyn permanently.
No. 3 is to commit suicide, but Kaitlyn will be given to Greg permanently.
And Option No. 4 is to kill Greg.

         Exh. 35, at 163-64, 221-24, & 230-31.

         Pinkston maintained at trial -- through her own testimony and in part through that of a nursing student counselor that she saw at the time - that this “options memo” was merely a self-counseling “problem solving exercise” where all alternatives, no matter how unrealistic, were written down. Pinkston had a bachelors in sociology, and at the time she was in a master's program for sociology at UNLV. She testified that she had been writing personal journals every year of her life since she was thirteen years old. Pinkston maintained that the option stated as to killing Payne did not reflect something that she actually intended to do and that each one of the options discussed was “absolutely impossible.”[5]

         At some point after 12:30 p.m. on the afternoon of the shooting, Pinkston went to a notarial service and had a guardianship document notarized. The document stated that it was Pinkston's desire to have her daughter remain in the custody and care of Pinkston's mother in the event of Pinkston's death “or under any unfortunate circumstance which would prevent me from taking care of” her daughter herself.[6]

         Pinkston maintained at trial that she had the guardianship document notarized because she was afraid that Payne was about to kill her, following an alleged threat by Payne on the Friday night before Father's Day. She testified that she planned to file the guardianship document at the court proceeding the next day on Monday. According to Pinkston, she stopped at a copy store and made copies of the notarized document, returned home and put one copy in her notebook, and then put the original and three copies in an envelope in preparation for filing the document the next day while at court.[7]

         On the afternoon of the shooting, Pinkston showed up at a facility called the Discovery Zone where Payne was having a supervised visitation of their then nineteen-month old daughter with Pinkston's mother present. Pinkston herself was not supposed to be present.

         Thomas Page testified as follows in regard to what he observed while taking two cigarette breaks outside the Discovery Zone. He saw Pinkston initially approach on foot from what he perceived to be the direction of the parking lot for a neighboring business, Mountasia. About 30 to 45 minutes later, he heard and saw Pinkston and Payne arguing outside the facility. While he was not trying to listen to their heated conversation, and heard only “bits and pieces, ” he heard references to protective orders and the fact that neither was supposed to be near the other. Page did not hear Payne make any threats toward Pinkston. Page did not see Payne make any combative or assaultive physical gestures toward her. Page, again, did not hear every exchange between the two.[8]

         Jack Wilkins walked out to and from his vehicle briefly during the time that Pinkston and Payne were arguing. Wilkins observed Pinkston standing over Payne who was sitting on the curb with his head down, fidgeting with grass or gravel on the ground. Wilkins perceived Pinkston to be acting aggressively and that Payne was not. Wilkins heard Payne say at one point: “That's why your father blew his f-ing head off.” Pinkston responded: “Come on, you know, ” with the intonation of “Give me a break.” Wilkins did not hear the specifics of any other part of the argument during the brief interval that he was within earshot.[9]

         Eventually, Thomas Page heard Payne state to Pinkston “something to the effect of, ‘I'm out of here. I'm leaving. You shouldn't be here.'” Payne walked toward his truck, and Page testified that it “appeared the he was putting his keys in his truck to leave.”[10]

         Pinkston testified that she thought Payne was going to his truck for a gun that she maintained that he kept under the seat. According to Pinkston, Payne kept trying during their discussion that day to get her to meet with him at a park in a remote area that she had been to the day before with her mother and daughter. Pinkston testified that Payne said to her immediately before walking toward the truck for her to “stand right there, ” that she was dead, and that he was going “to blow [her] f__ing head off.” She testified that she believed that he was going to follow through on multiple threats allegedly made to her starting in late October 1994.[11]

         Thomas Page saw Pinkston walk quickly up to about six to eight feet behind Payne, pull a gun, assume a stance with her feet shoulder width apart, and fire. Payne dropped or collapsed “like a sack of potatoes” after the shot. Page ran inside the Discovery Zone to tell someone to call 911 after the shot.[12]

         At one point after Thomas Page came back outside, he made eye contact with Pinkston, who was walking away, at which point she accelerated her pace back toward the neighboring business, Mountasia.[13]

         John Egbert testified as follows. He was working at Mountasia disposing of waste in the dumpster enclosure in the rear. He heard a loud noise like a gunshot or a tire blowout. He stepped outside the enclosure, looked around, and then returned inside to continue his task. About ten seconds after the first noise, he heard a second noise, and it became clearer that the two noises sounded like gunshots. About twenty seconds later, he stepped out of the enclosure again and observed a woman moving at a jog from the Discovery Zone toward the front of Mountasia.[14]

         Pinkston testified that as Payne walked toward his truck she was terrified. According to Pinkston, there was a very loud noise in her ears, and she felt “like pushing on my face.” She testified that she got the gun out of her purse but that she did not mean to pull the trigger. According to Pinkston, after the first shot, Payne “just stood there” and turned away from the truck door, and she thought that the shot had missed. She testified that she heard the second shot but did not remember when she fired it.[15]

         The apparent first shot hit Payne in the right back. The bullet traveled through his right lung, passed through the aorta, traveled through his left lung, and then exited his left chest before penetrating the driver's side window of his truck, possibly hitting and denting the painted headliner and coming to rest on the seat cushion on the passenger side. The apparent second shot entered through Payne's right cheek near the ear, passed through a number of nonvital tissues, exited on the back of his left neck, reentered his body in his upper left shoulder or back, and came to rest under the skin in his left back.[16]

         A lay witness who tried, unsuccessfully, to find a pulse before the police and medical responders arrived observed Payne laying on the ground with the left side of his face on the ground and the right side of his face up. The first responding fire rescue crew similarly found Payne, with no respiration, pulse or cardiac activity, laying with the left side of his face on the ground. The lividity, or blood pooling, and pattern of final blood flow from the wounds observed during the autopsy additionally tended to establish that Payne was laying on his back when he died.[17]

         The medical examiner opined that Payne was standing either next to his truck or fairly close to it when the apparent first bullet struck him, and he fell backwards. The examiner opined that the trajectory of the apparent second shot was consistent with Payne then being shot while he was laying on the ground, with the left side of his head turned toward the ground. The medical examiner acknowledged that this was not the only possible scenario as to Payne's position at the time of the second shot, but his conclusion based upon the physical evidence was that Payne was on his back when the second shot hit him. The defense expert opined that this scenario as to the second shot was only one of many possible scenarios reflected by the forensic evidence.[18]

         The State's evidence tended to establish that the apparent first shot killed Payne almost immediately, within a span of approximately twenty to thirty seconds, by penetrating the aorta. The apparent second shot did not pass through any vital structures, such as a major blood vessel or the spinal cord, before exiting the back of the neck and passing through similarly nonvital tissue in Payne's back.[19]

         A third unfired and ejected cartridge that matched the two fired rounds also was found at the scene. The tool markings on the ejected cartridge established conclusively only that the round had been loaded into and then cycled through the semiautomatic pistol (i.e., chambered and then extracted from the firing chamber) at some point without being fired. The markings were not inconsistent with the round having jammed during an unsuccessful firing attempt and having been cleared, but the markings did not conclusively establish that the round had jammed. The markings also were consistent with the cartridge simply having been loaded and then cycled through the pistol normally without firing. The markings thus also were not inconsistent with a person pulling the slide back and chambering a round when a cartridge already was in the firing chamber, which would result in the previously-chambered round being ejected without being fired. Neither the State nor the defense expert could opine as to whether the unfired cartridge was ejected before, between, or after the two shots that were fired.[20]

         At 4:24 p.m. on June 18, 1995, Pinkston left a message on her home answering machine for her infant daughter. Pinkston said, inter alia: “I didn't know what else to do.”[21]

         At approximately 5:00 p.m., Pinkston turned herself in at a police station in downtown Las Vegas. She responded affirmatively that she had committed a crime of violence and that the victim was at the Discovery Zone. She informed the desk sergeant that the weapon was in the trunk of her car. When her vehicle was later impounded and searched, the .380 handgun and a seven-round magazine holding four live rounds was found in a purse in the trunk of the vehicle. As of that time, there was nothing else in the purse other than the handgun and magazine. The hard gun case for the handgun was in a brown paper bag in the trunk.[22]

         When interviewed shortly thereafter by detectives, Pinkston stated, after learning that Payne had died, that she had shot Payne twice. According to the interviewing detective, she said that “she didn't think she knew what she was doing when she fired the first shot, but she did when she fired the second shot.” She stated that “she did not know what was going on in her mind.” According to the detective's testimony on direct examination, Pinkston did not state to the detectives at that time that she was in fear for her life, that Payne had threatened her prior to the shooting, that she believed that Payne had a gun, or that she fired to protect herself. According to the detective, Pinkston instead said that “she did not know what was going to happen when he got to the truck.”[23]

         However, when defense counsel went back through the transcript of the statement with the detective on cross-examination, there were numerous exchanges, including key exchanges presented as unequivocal statements on direct, where Pinkston did not complete sentences and/or her voice trailed off as she broke down. The detective testified that Pinkston appeared upset and was crying “on and off” throughout the interview, with the detective stating to Pinkston at the time that she was “acting devastated.” When defense counsel went back through the transcript, Pinkston's statements were not necessarily as unequivocal as the detective's testimony on direct indicated. Pinkston specifically stated: “I just felt, I did have a gun with me, and I just felt if he had gotten in that car that he was, that would be the end of me.”[24]

         The police did not find a gun in Payne's truck following the shooting. When the crime scene technicians continued processing the scene after examining and photographing Payne's body, both doors to the truck were locked and the keys were on the ground next to Payne's body. The driver's side window was broken apparently from a gunshot.[25]

         Nor did the police find a gun when they searched Payne's residence two days later. Las Vegas police records did not show that a gun was registered to Payne. A local ordinance requires handgun owners to register their weapons with the local police.[26] The State called a number of landlords, employers and/or friends who testified that they had not seen Payne with a gun and/or had not heard him speak of having a gun.[27]

         When the police executed a search warrant of Pinkston's residence, her mother unilaterally directed the police to a three-ring binder. The binder included materials pertaining to the domestic dispute litigation between Pinkston and Payne. The first page in the binder was dated June 16, 1995, and stated, inter alia:

To mom, my attorney or whoever has possession of this book .....
You may use any contents in my defense or in my behalf . . . .

         Exh. 35, at 152-55 & 215-16.

         Pinkston maintained that the cover page to the binder had been there continuously prior to June 1995 and that the binder contained “all the family court papers.” She testified that she had updated the cover page with a June 16, 1995, date because the prior cover page had worn out.[28]

         The binder included, inter alia, the guardianship document that Pinkston had notarized on June 18, 1995.[29]

         The police also found a spiral bound notebook that included the “options” memo in which Pinkston discussed various options.[30]

         At trial, the state district court instructed the jury, inter alia, as follows:

Murder of the first degree is murder which is perpetrated by any kind of willful, deliberate, and premeditated killing of another human being.
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.
The law does not undertake to measure in units of time the length of the period during which premeditation is formed. It may be as instantaneous as successive thoughts of the mind. The test is not the duration of time, but rather the actual formation of premeditation. If the State proves beyond a reasonable doubt that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder.

         Exh. 47, Instruction Nos. 7 and 8.

         The trial court rejected a proposed defense instruction that instead would have charged the jury as follows:

Premeditation is a design -- a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.
Deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed [course] of action.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
The true test is not the duration of the time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree.

         Exh. 45, at 7.

         During closing argument, the State relied upon evidence, such as the options memo, that the prosecution maintained established that Pinkston planned to murder Payne and went to the Discovery Zone specifically to carry out this purpose.

         The State further argued, however, pursuant to Jury Instruction No. 8, that Pinkston would be guilty of first-degree murder even if she had formed an intent to kill Payne instantaneously. The prosecutor argued:

Some lay persons come to court with the notion that premeditation requires extensive planning. Judge Leavitt clarifies this issue. He continues in Instruction No. 8, the law does not undertake to measure in units of time the length of the period during which premeditation is formed. It may be as instantaneous as successive thoughts of the mind.
I'd like to give you an example. I'm sure we've all been in this situation ..... We're going 45 miles an hour in a 35 zone, and we are confronted with a yellow light and you need to decide, do you go through the light or do you stop? But what happens? The first thing you do is look down at your speedometer. How fast am I speeding now? Do I speed up even more? You look around. Any cops here? You look in your rear-view mirror. Is there a big semi behind me? If I slam on my brakes, am I going to be in an accident?
That total thought process is done within a second. That is sufficient for premeditation .....

         Exh. 44, at 40-41.

         The prosecutor accordingly likened the amount of prior intention required to convict for first-degree murder to the literally split-second decision to speed through an intersection against a yellow light.

         In the rebuttal argument, the State again relied upon evidence that it maintained established preplanning. The prosecutor reiterated, however, four paragraphs from the end of the argument:

. . . . Premeditation and deliberation need not be for a day, an hour, or even a second. It can be as instantaneous as successive thoughts in the mind .....

         Exh. 44, at 162.

         On September 19, 1997, a jury convicted Pinkston of first-degree murder with a deadly weapon.[31] A separate penalty hearing was then held before a jury, and Pinkston was sentenced to life in prison with the possibility of parole, with a consecutive term of life with the possibility of parole for the deadly weapon enhancement. Judgment of conviction was entered on November 7, 1997.[32]

         The Nevada Supreme Court dismissed Pinkston's direct appeal on March 2, 2000. The state district court conducted an evidentiary hearing on Pinkston's state postconviction habeas corpus petition and ultimately denied the petition. On June 27, 2007, the Nevada Supreme Court affirmed the denial of the state postconviction petition.[33]

         Pinkston filed her federal habeas petition September 26, 2007 (ECF No. 1). This court appointed the Federal Public Defender as counsel for Pinkston (ECF No. 6).

         Ultimately, as discussed, this court granted a conditional writ of habeas relief on ground 3 -- an ineffective assistance of counsel claim-which the Ninth Circuit reversed and remanded in light of its decision several days earlier in Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013) (see ECF Nos. 42, 67).

         As explained, Pinkston's second-amended petition contains the nine grounds from her first amended petition (ECF No. 69). It adds ground 10, in which she contends that the Nevada Supreme Court violated her Fifth and Fourteenth Amendment due process rights when it failed to apply the rule announced in Byford v. State, 994 P.2d 700, 712 (Nev. 2000) to her case because Byford narrowed the scope of conduct that could be defined as premeditated murder before Pinkston's conviction became final. Id. at 45-47.

         Pinkston returned to state court and filed a counseled, state postconviction petition raising ground 10, and this court granted a stay and abeyance (ECF No. 81). The Nevada Supreme Court affirmed the denial of the second postconviction petition.[34]This court granted Pinkston's motion to reopen this action (ECF No. 84). Respondents have now answered all grounds that remain before the court, and Pinkston has replied (ECF Nos. 35, 40, 96, 98).

         II. Antiterrorism and Effective Death Penalty Act

         28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:

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.

         The AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). This Court's ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA 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 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] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.

         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.” Lockyer, 538 U.S. at 74 (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).

         To the extent that the state court's factual findings are challenged, the “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause requires that the federal courts “must be particularly deferential” to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more deference:

.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393 F.3d at 972.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.

         III. ...

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