Bruno v. Donat, Case No. 3:09-cv-00165-RCJ-VPC

• Decision Date: 24 March 2015
• Docket Number: Case No. 3:09-cv-00165-RCJ-VPC
• Parties: VITO BRUNO, Petitioner, v. BILL DONAT, et al., Respondents.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

VITO BRUNO, Petitioner, v. BILL DONAT, et al., Respondents.

Case No. 3:09-cv-00165-RCJ-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 24, 2015

ORDER

This is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought by a Nevada state prisoner, who has since been released from the custody of the Nevada Department of Corrections (ECF #13).¹ Now before the court is respondents' answer to the remaining grounds for relief (ECF #36).

I. Procedural History and Background

On November 17, 2005, pursuant to a jury verdict, the state district court entered a judgment of conviction against petitioner of one count of felony grand larceny, one count of felony attemptingto obtain money under false pretenses, and two counts of felony burglary. Exhs. 23, 36.² Petitioner was convicted of stealing an expensive jacket from Nordstrom and attempting to return it to Neiman Marcus for cash. Exh. 23. The state district court additionally adjudicated petitioner a habitual criminal and sentenced him to four concurrent terms of five to twenty years. Exh. 36.

Petitioner appealed. Exh. 41. On June 30, 2006, the Nevada Supreme Court affirmed the convictions, and remittitur issued October 6, 2006. Exhs. 43, 45.

Petitioner filed a state postconviction petition for writ of habeas corpus on September 21, 2007. Exh. 48. The state district court conducted a hearing on December 6, 2007, and denied the petition in its order filed January 17, 2008. Exh. 55. The Nevada Supreme Court affirmed the denial of the petition on February 26, 2009, and remittitur issued on March 24, 2009. Exhs. 74, 75.

In the meantime, petitioner filed a motion to correct an illegal sentence on May 13, 2008. Exh. 60. The state district court denied the motion on June 7, 2008. Exh. 63. The Nevada Supreme Court construed petitioner's filing as an appeal from the denial of his motion for rehearing and dismissed the appeal for lack of jurisdiction on August 29, 2008. Exh. 71. Remittitur issued on September 23, 2008. Exh. 73.

Petitioner dispatched his original federal habeas petition on March 26, 2009 (ECF #8). Now before the court is the operative, second amended petition (ECF #13). Ground 6(H) of the second amended petition has been dismissed (see ECF #s 28, 29, 31). Respondents now answer the remaining grounds (ECF #36).

II. Legal Standards

A. 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.

28 U.S.C. § 2254(d).

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). 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 v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 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, 131 S.Ct. 770, 786 (2011).

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 v. Andrade, 538 U.S. 63 (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." Andrade, 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 orerroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Instant Petition

A. Insufficiency of the Evidence Claims Grounds 1, 2 & 9

In ground 1, petitioner alleges that his rights to due process and a fair trial under the Sixth and Fourteenth Amendments have been violated because insufficient evidence supported his conviction (ECF #13, pp. 3-5). Petitioner's wife and co-defendant attempted to return a black, cashmere Zegna jacket to Nordstrom, and petitioner later returned a black, cashmere Zegna jacket to Neiman Marcus. Id. at 3. Petitioner contends that while evidence was presented that a black, leather Zegna jacket that retailed for $1,995 was missing from Nordstrom, no evidence was presented to show that a black, cashmere Zegna jacket that retailed for $1,495 was missing. Id. In ground 2, petitioner asserts that the trial court erred by admitting a police officer's testimony that petitioner admitted that he took the jacket from Nordstrom as there was insufficient corpus delicti under Nevada's rule, which violated his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial. Id. at 7-8. In ground 9, petitioner claims that insufficient evidence supported the "intent element required for a conviction of burglary," stemming from additional charges that he stole a women's wallet from Nordstrom. Id. at 45-47.

"The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 309 (1979) (citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Id. at 324. "[T]he standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n.16.

Under Nevada law, corpus delicti must be demonstrated by evidence independent of the confessions or admissions of the defendant. See, e.g., Doyle v. State, 921 P.2d 901, 910-911 (Nev. 1996) (overruled on other grounds by Kaczmarek v. State, 91 P.3d 16, 29 (Nev. 2004); Sheriff v. Dhadda, 980 P.2d 1062, 1065-1066 (Nev. 1999). Confessions and admissions of the defendant may not be used to establish corpus delicti absent sufficient independent evidence. Once the state presents independent evidence that the offense has been committed, admissions and confessions may then be used to corroborate the independent proof. However, all other relevant evidence may be considered. The corpus delicti may be established by purely direct evidence, partly direct and partly circumstantial evidence, or entirely circumstantial evidence. Id.

In reviewing these claims, the Nevada Supreme Court affirmed [petitioner's] conviction, reasoning:

[a] review of the record on appeal reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. In particular, we note that although there was some confusion about the exact size and material, [petitioner] was observed carrying away an expensive black Zegna jacket from Nordstrom's sportswear department. There is no indication that [petitioner] returned with the jacket or paid for the missing jacket. The following day, [petitioner] attempted to return the black Zegna jacket to Neiman Marcus for a cash refund. [Petitioner] did not present a receipt for purchase of the jacket. Neiman Marcus took possession of the jacket, and [petitioner] was told that a check would be issued and mailed to him. Soon after, a loss prevention officer with Neiman Marcus verified that the jacket belonged to Nordstrom.

Based on the above, we conclude that the jury could reasonably infer from the evidence presented that [petitioner] committed the crimes of grand larceny [Nev. Rev. Stat. 205.220

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