Atkins v. Gittere

Decision Date10 July 2020
Docket NumberCase No. 2:02-cv-01348-JCM-BNW
PartiesSTERLING ATKINS, Petitioner, v. WILLIAM GITTERE, et al., Respondents.
CourtU.S. District Court — District of Nevada
ORDER
Introduction

This action is a petition for a writ of habeas corpus by Sterling Atkins, a Nevada prisoner sentenced to death. The case is fully briefed and before the Court for adjudication of the merits of the claims remaining in Atkins' fourth amended habeas petition, and for resolution of Atkins' motion for an evidentiary hearing. The Court will deny Atkins' motion for an evidentiary hearing and will deny his petition.

Background Facts and Procedural History

In its order on Atkins' direct appeal, the Nevada Supreme Court described the factual background of this case as follows:

On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered twenty-five feet from the road in an unimproved desert area of Clark County. The woman's body was found lying face down with hands extended overhead to a point on the ground where it appeared that some digging had occurred. A four-inch twig protruded from the victim's rectum. Three distinct types of footwear impressions were observed in the area as well as a hole containing a broken condom, a condom tip and an open but empty condom package.
In the opinion of the medical examiner, Mason died from asphyxia due to strangulation and/or from blunt trauma to the head. The autopsy revealed nine broken ribs, multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior surface of the neck. Mason's body also bore a number of patterned contusions consistent with footwear impressions on the skin of the back and chest.
Finally, the autopsy revealed severe lacerations of the head and underlying hemorrhage within the skull indicating a blunt force trauma.
A police investigation led to the arrest of appellant Sterling Atkins, Jr. ("Atkins") and Anthony Doyle in Las Vegas, Nevada. Atkins' brother, Shawn Atkins ("Shawn"), was also arrested, but his arrest took place in Ohio by agents of the Federal Bureau of Investigation ("FBI"). Upon his arrest, Shawn gave a voluntary statement to the FBI regarding the events leading up to Mason's death on January 15, 1994. Shawn stated that after returning to Atkins' apartment from a party that night, he, Atkins, and Doyle encountered Ebony Mason, a mutual acquaintance, who was intoxicated and/or high on drugs. Mason agreed to accompany the men to Doyle's apartment to have sex with them. According to Shawn, Mason had consensual sex with Atkins and oral sex with Shawn, but she refused Doyle when he attempted to have anal sex with her. After these activities, Doyle agreed to drive Mason to downtown Las Vegas. Doyle drove a pick-up truck with Shawn, Atkins and Mason accompanying him, but instead of driving downtown, Doyle drove to a remote area in Clark County. Doyle was angry with Mason and demanded that she walk home. When she refused, Doyle stripped her clothes off and raped her as Shawn and Atkins watched, and then both Atkins and Doyle beat and kicked her until she died.
The State charged Doyle, Atkins and Shawn with one count each of murder, conspiracy to commit murder, robbery, first degree kidnapping and sexual assault. The State also filed a notice of intent to seek the death penalty. Thereafter, the district court granted Doyle's motion to sever trials and dismissed the robbery count against all three men. At a separate trial, commencing January 3, 1995, Doyle was convicted on all counts and sentenced to death for the murder. See Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996).
On February 13, 1995, prior to trial, Shawn entered into a plea bargain agreement wherein he pleaded guilty to first-degree murder and first-degree kidnapping and was sentenced to two concurrent life sentences with the possibility of parole. As part of the bargain, Shawn agreed to testify at Atkins' trial.
On March 20, 1995, Atkins' jury trial commenced. As the State's only eyewitness, Shawn testified that Atkins was not involved in Mason's beating and murder, but the State impeached Shawn with his prior inconsistent statements to the FBI and to witness Mark Wattley. At the conclusion of the guilt phase of the trial on March 30, 1995, the jury found Atkins guilty of murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. At the conclusion of the penalty phase, the jury sentenced Atkins to death for the murder conviction.

Atkins v. State, 112 Nev. 1122, 1125-26, 923 P.2d 1119, 1121-22 (1996) (Respondents filed a copy of the opinion as Exh. 189 (ECF No. 93-12)). The judgment of conviction was entered on June 8, 1995. See Judgment of Conviction, Exh. 159 (ECF No. 92-21). Atkins was sentenced to death for the first-degree murder, a consecutive sentence of six years in prison for the conspiracy to commit murder, a consecutivesentence of life in prison without the possibility of parole for the first-degree kidnapping, and a consecutive sentence of life in prison without the possibility of parole for the sexual assault. See id.

Atkins appealed. On August 28, 1996, the Nevada Supreme Court reversed the sexual assault conviction, but affirmed the convictions of first-degree murder, conspiracy to commit murder, and first-degree kidnapping, as well as the death sentence. See Atkins, 112 Nev. at 1137, 923 P.2d at 1129. The Nevada Supreme Court denied rehearing on October 17, 1996. See Order Denying Rehearing, Exh. 195 (ECF No. 93-18). The United States Supreme Court denied certiorari on March 17, 1997. See Atkins v. Nevada, 520 U.S. 1126 (1997). The amended judgment of conviction, reflecting the reversal of the sexual assault conviction, was entered on April 30, 1997. See Amended Judgment of Conviction, Exh. 216 (ECF No. 93-39).

On April 18, 1997, Atkins filed a petition for writ of habeas corpus in the state district court. See Petition for Post-Conviction Relief, Exh. 211 (ECF No. 93-34); see also Supplemental Brief in Support of Petition, Exh. 232 (ECF No. 94-13). The state district court heard argument of counsel (Transcript of Proceedings, Exhs. 235, 236 (ECF Nos. 94-16, 94-17) and then denied the petition in an order filed on January 4, 2001. See Findings of Fact, Conclusions of Law and Order, Exh. 237 (ECF No. 94-18). Atkins appealed, and the Nevada Supreme Court affirmed on May 14, 2002. See Order of Affirmance, Exh. 261 (ECF No. 94-43).

Atkins initiated this federal habeas corpus action on October 11, 2002, by filing a pro se petition for writ of habeas corpus (ECF No. 1). Counsel was appointed for Atkins, and, with counsel, on May 19, 2005, Atkins filed what his counsel termed a "supplemental petition" (ECF No. 32). On December 10, 2007, Atkins filed a first amended petition (ECF No. 69), and on October 29, 2008, he filed a second amended petition (ECF No. 85).

Respondents filed a motion to dismiss on January 23, 2009 (ECF No. 88). The Court ruled on that motion on August 18, 2009 (ECF No. 105), dismissing certain ofAtkins' claims, and finding certain of his claims unexhausted in state court. Atkins moved for a stay to allow him to exhaust his unexhausted claims in state court (ECF No. 108). The Court granted that motion and stayed the case (ECF Nos. 116, 119), and granted Atkins leave to file a third amended petition (ECF Nos. 116, 117).

On November 4, 2009, Atkins initiated a second state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 283 (ECF No. 194-20). On March 22, 2012, the state district court dismissed that petition. See Findings of Fact, Conclusions of Law and Order, Exh. 289 (ECF No. 194-26). Atkins appealed, and on April 23, 2014, the Nevada Supreme Court affirmed, ruling that the claims asserted by Atkins in his second state habeas action were untimely filed under NRS 34.726, barred by laches under NRS 34.800, and successive and an abuse of the writ under NRS 34.810. See Order of Affirmance, Exh. 307 (ECF No. 195-17). The Nevada Supreme Court denied Atkins' petition for rehearing. See Order Denying Rehearing, Exh. 312 (ECF No. 195-22).

The stay of this action was lifted on January 19, 2015 (ECF No. 145), and Atkins filed a fourth amended petition for writ of habeas corpus—now the operative petition—on August 26, 2016 (ECF No. 183). In his fourth amended petition, Atkins asserts the following claims:

1(a). Atkins' federal constitutional rights were violated as a result of ineffective assistance of his trial counsel because his counsel "proceed[ed] to trial despite the fact that first chair counsel had been appointed only five days prior to trial and co-counsel was newly-admitted to the Nevada Bar and this was his first jury trial."
1(b). Atkins' federal constitutional rights were violated as a result of ineffective assistance of his trial counsel because of "ineffective assistance of counsel in voir dire and jury selection."
1(c). Atkins' federal constitutional rights were violated because his trial counsel were ineffective "for failure to assert a Batson challenge to the State's removal of Mr. Long, the only remaining African-American in the jury pool."
1(d). Atkins' federal constitutional rights were violated because his trial counsel were ineffective "for failure to argue that the trial court committed reversible error by excusing [Prospective Juror Number 1] ... and failure to question him regarding his attitude on the death penalty."
1(e). Atkins' federal constitutional rights were violated as a result of ineffective assistance of his trial counsel because of "cumulative ineffective assistance of counsel at the pre-trial phase."
2. Atkins' federal constitutional rights were violated because his trial counsel were ineffective "for failing to investigate and present evidence of Mr. Atkins' incompetency to stand trial."
3(a). Atkins' federal constitutional rights were violated because his trial counsel were ineffective "for failing to investigate and present psychological evidence at
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