United States District Court, D. Nevada
BARBARA A. PINKSTON, Petitioner,
SHERYL FOSTER, et al., Respondents.
J. DAWSON, UNITED STATES DISTRICT JUDGE
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.
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.
Procedural History and Background
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
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.
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.
hearing was scheduled for Monday, June 19, 1995, to address
custody and visitation of their daughter.
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. 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
And Option No. 4 is to kill Greg.
35, at 163-64, 221-24, & 230-31.
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
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.
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
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.
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
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
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
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
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
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.”
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
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. 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
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 . . .
35, at 152-55 & 215-16.
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.
binder included, inter alia, the guardianship document that
Pinkston had notarized on June 18, 1995.
police also found a spiral bound notebook that included the
“options” memo in which Pinkston discussed
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
47, Instruction Nos. 7 and 8.
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.
45, at 7.
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.
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 .....
44, at 40-41.
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.
rebuttal argument, the State again relied upon evidence that
it maintained established preplanning. The prosecutor
reiterated, however, four paragraphs from the end of the
. . . . 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 .....
44, at 162.
September 19, 1997, a jury convicted Pinkston of first-degree
murder with a deadly weapon. 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.
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.
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).
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).
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
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.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).
Antiterrorism and Effective Death Penalty Act
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;
(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.
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).
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.
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).
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
.... [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.
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.