Nevius v. McDaniel

• Decision Date: 01 May 2000
• Docket Number: No. 00-99009,00-99009
• Parties: (9th Cir. 2000) THOMAS NEVIUS, Petitioner-Appellant, v. E.K. MCDANIEL, Warden, ORDER Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 940

218 F.3d 940 (9th Cir. 2000)

THOMAS NEVIUS, Petitioner-Appellant, v. E.K. MCDANIEL, Warden, ORDER Respondent-Appellee.

No. 00-99009

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted May 1, 2000¹ San Francisco, California

Filed May 31, 2000

Michael Pescetta, Assistant Federal Public Defender, Las Vegas, Nevada, for the petitioner-appellant.

Dorothy Nash Holmes, Deputy Attorney General, Carson City, Nevada, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding; D.C. No. 96-0085-HDM(RAM)

Before: William C. Canby, Jr., Robert Boochever, and Andrew J. Kleinfeld, Circuit Judges.

ORDER

Thomas Nevius, a Nevada prisoner under sentence of death, seeks a certificate of appealability to permit him to appeal the district court's denial of his successive petition for habeas corpus, filed pursuant to 28 U.S.C. S 2254. Because Nevius seeks to appeal after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), he can- not appeal unless a circuit justice or circuit or district judge issues a certificate of appealability pursuant to 28 U.S.C. S 2253(c). See Slack v. McDaniel, 120 S. Ct. 1595, 1600 (2000); Fed. R. App. P. 22(b)(1). The district court denied a certificate, and Nevius then applied to this court for one. See Fed. R. App. P. 22(b)(2); 9th Cir. R. 22-1(c), 22-4. We deny the certificate.

I. Nevius's Prior Appeals.

Because most of the claims that Nevius now attempts to appeal have been foreclosed by earlier decisions, it is necessary to set forth at some length the course of Nevius's litigation. Nevius was convicted of murder in Nevada state court in November 1982, and was sentenced to death. The facts of the offense are set out in the opinion of the Nevada Supreme Court, which affirmed his conviction. See Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). Nevius next sought collat- eral relief in state court, which was denied at the trial level and, without opinion, on appeal. Nevius then filed a petition for habeas corpus in federal district court, which denied the petition. Nevius appealed to us and we affirmed. See Nevius v. Sumner, 852 F.2d 463 (9th Cir. 1988) (" Nevius I"), cert. denied, 490 U.S. 1059 (1989).

Among the contentions we rejected in Nevius I was the claim that the prosecution's use of peremptory challenges to remove black jurors from the jury violated the Sixth and Fourteenth Amendments. Nevius's conviction and direct appeal had become final before the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), and Batson was not retroactive, see Allen v. Hardy, 478 U.S. 255 (1986). We therefore addressed Nevius's claim under the standard of Swain v. Alabama, 380 U.S. 202 (1965), and held that Nevius had not shown that the prosecutor's use of peremptory challenges violated his constitutional rights as delineated in Swain. See Nevius I, 852 F.2d at 466-69. We noted that, in oral argument, Swain's counsel referred to alleged post-trial remarks of the prosecutor that were cause for concern, but those remarks appeared nowhere in the record. We accordingly could not address them. See id. at 469-70. Finally, we held that the prosecutor's emotional final argument, which had not been objected to, did not violate Nevius's constitutional rights. There was no showing of cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977), and "any error could have been cured by contemporaneous objection." Nevius I, 852 F.2d at 470.

Nevius then returned to state trial court and sought a writ of habeas corpus. He restated his Swain claim of discriminatory peremptory challenges, and sought to bolster his case with the alleged oral post-trial statements of the prosecutor. The state trial court denied his petition, and Nevius both appealed to, and filed an original habeas petition with, the Nevada Supreme Court. That Court consolidated the proceedings. In addition to his Swain contention, Nevius claimed ineffective assistance of counsel at trial and on appeal, and also challenged the constitutionality of the reasonable doubt instruction given to the jury at his trial. The Nevada Supreme Court rejected all three claims, holding that they were defaulted because they had either been raised and decided previously or were new claims that should have been raised in previous proceedings. In addressing Nevius's attempt to show cause and prejudice for his default, the Nevada Supreme Court ruled that Nevius had failed to show prejudice: Nevius's counsel's assertions concerning the prosecutor's post- trial statements were not credible, and any alleged ineffective- ness of counsel had caused no harm. Nevius v. McDaniel, No. 29028, Order Dismissing Appeal and Denying Petition for Writ of Habeas Corpus (Nev. Oct. 9, 1996).

While these matters were pending in the Nevada Supreme Court, Nevius returned to federal district court and attempted to file a second federal habeas corpus petition. Because Congress had enacted AEDPA by this time, the district court held that Nevius could not file the petition without the permission of this court. See 28 U.S.C. S 2244(b)(3). The district court also denied a certificate of appealability. Nevius then: (1) filed a notice of appeal of the district court's decision and requested a certificate of appealability from this court; (3) moved this court to recall the mandate it had issued eight years previously in Nevius I, and (4) in the alternative, requested this court's permission to file a successive petition.

We granted the certificate of appealability, but held that the district court had been correct in holding that Nevius's peti- tion was successive, and could not be filed without leave of this court. See Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996) ("Nevius II"), cert. denied, 119 S. Ct. 2344 (1999). We rejected Nevius's contention that his first petition should be disregarded because it was filed by his original trial counsel, who had a conflict of interest that prevented him from assert- ing ineffectiveness of trial counsel in that first habeas proceeding. Nevius relied on Deutscher v. Angelone , 16 F.3d 981 (9th Cir. 1994), in which we held that a petition that had been filed by a prisoner's lawyer without notice to, or authorization by, the prisoner was a nullity, and that a later petition was therefore the prisoner's first petition. Nevius's first petition, we held, was fully authorized and not a nullity. See Nevius II, 105 F.3d at 458-59. We also rejected Nevius's argument that he should be able to raise the ineffectiveness claim in his second petition because that was the first opportunity in which he was represented by counsel who had not represented him at trial. That argument, we held, was foreclosed by our decisions in Bonin v. Calderon, 77 F.3d 1155 (9th Cir. 1996), and Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996).

We also denied Nevius's motion to recall our mandate so that we could address the claims now set forth in his second federal habeas petition. We held that recall of the mandate, which was neither infirm when issued nor rendered infirm by subsequent decisions of the Supreme Court, was inappropriate. Such a recall would be an evasion of the limits placed on successive petitions by the Supreme Court in McCleskey v. Zant, 499 U.S. 467 (1991), and by Congress in AEDPA, 28 U.S.C. S 2244(a), (b). Nevius II, 105 F.3d at 461.

We did, however, authorize Nevius to file a second habeas petition in the district court. Id. at 462. We held that Nevius had made a prima facie showing that his claim concerning the reasonable doubt instruction "relie[d] on a new rule of consti- tutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. " 28 U.S.C. S 2244(b)(2)(A). Nevius's prima facie case was based on the Supreme Court's decision in Cage v. Louisiana, 498 U.S. 39 (1990), holding that due process did not permit reasonable doubt instructions that "suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard." Id. at 41. It was at least arguable that the Supreme Court made Cage retroactive when it vacated a decision of the Eleventh Circuit holding Cage not retroactive. See Adams v. Evatt, 511 U.S. 1001 (1994) (vacating and remanding for reconsideration in light of Sullivan v. Louisiana, 508 U.S. 275 (1993)). On this prima facie showing, we authorized Nevius's second federal petition "[w]ithout intimating any view concerning the merits of Nevius' Cage claim, or any view regarding whether he has in fact met the requirements of 28 U.S.C. S 2244(b)." Nevius II, 105 F.3d at 462.

In a separate order, we held that, because 28 U.S.C. S 2244(b)(3) refers to our permitting the district court to consider a second or successive application, our grant of permission to file a second petition authorized the filing of the entire petition, not just the reasonable-doubt-instruction claim that met the requirement of S 2244(b)(2)(A). See Nevius v. McDaniel, 104 F.3d 1120 (1996) ("Nevius III"). The district court, however, had the duty under S 2244(b)(1) and (2) to examine each claim of the second petition and to dismiss the claims that did not meet the requirements of those subsections. See id. at 1121.²

Shortly after our remand to the district court, Nevius sought to file a supplemental petition for original habeas corpus in the Nevada Supreme Court. The Nevada Supreme Court addressed and rejected Nevius's claim that the scheduling of his execution three times, with stays granted shortly before the execution date, constituted cruel and unusual punishment in violation of the Eighth Amendment. Nevius v. Warden, Order Denying Rehearing, Nos. 29027, 29028 (Nev. July 17, 1998).

II. Nevius's Current (Second) Habeas Petition .

The district court followed our mandate in Nevius II and examined in light of AEDPA...