Cooper v. McDaniel
| Decision Date | 28 March 2013 |
| Docket Number | 3:97-cv-0222-JCM-WGC |
| Parties | RICKEY DENNIS COOPER, Petitioner, v. ELDON K. McDANIEL, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by Rickey Dennis Cooper, a Nevada prisoner represented by counsel. Pending before the court is respondents' motion to dismiss (ECF No. 121).
Petitioner was charged in the Eighth Judicial District Court, Clark County, Nevada, with count I, attempted robbery with the use of a deadly weapon; count 2, attempted murder with the use of a deadly weapon, count 3, battery with the use of a deadly weapon; and count 4, murder with the use of a deadly weapon. (Exhibit 4).1 Petitioner plead not guilty on all four counts. A jury trial was held November 1-4, 1983. (Exhibit 15). The jury returned guilty verdicts on all counts. (Exhibit 17). On November7, 1983, a penalty hearing was held. The jury imposed a sentence of life without the possibility of parole. (Exhibit 20). A sentencing hearing was held on January 5, 1984, at which petitioner was sentenced as follows: On count 1, 7½ years for the robbery and a consecutive 7½ for the use of a deadly weapon; on count 2, to a term of 20 years for attempted murder and a consecutive term of 20 years for the use of a deadly weapon, with said sentence to run consecutive to the sentence imposed in count 1; on count 3, to a term of 10 years for battery, with the sentence to run consecutive to the sentences imposed in count 2; on count 4, to life without the possibility of parole for first degree murder and a consecutive term of life without the possibility of parole for the use of a deadly weapon, said sentence to run consecutive to the sentence imposed in count 3. (Exhibit 22). The judgment of conviction was filed on January 20, 1984. (Exhibit 25). Petitioner appealed his conviction. (Exhibit 26). Petitioner filed his opening brief on December 31, 1984. (Exhibit 28). On May 15, 1986, the Nevada Supreme Court dismissed the appeal. (Exhibit 30).
On December 8, 1986, petitioner filed his first post-conviction state habeas corpus petition in the Eighth Judicial District Court. (Exhibit 33). Petitioner filed an amended petition on May 22, 1987. (Exhibit 34). The state district court denied petitioner's state habeas petition. (Exhibits 39 & 40). Petitioner appealed from the denial of his state habeas petition. (Exhibit 42). On September 21, 1988, the Nevada Supreme Court filed its order dismissing petitioner's appeal. (Exhibit 46).
On July 12, 1990, petitioner filed a second post-conviction state habeas petition. (Exhibit 54). On November 2, 1990, the state district court dismissed the petition. (Exhibit 56). Petitioner appealed. (Exhibit 57). On June 27, 1991, the Nevada Supreme Court dismissed the appeal. (Exhibit 67).
On December 26, 1996, petitioner, filed a pro per document entitled "original petition for a writ of habeas corpus, or in the alternative, petition for a writ of supervisory control" with the Nevada Supreme Court. (Exhibits 70 & 71). Petitioner alleged a violation of his due process rights when the trial court improperly permitted introduction of evidence that petitioner was a gang leader and precluded mitigating evidence at sentencing, and raised a claim of ineffective assistance of appellate counsel. (Id.).On February 24, 1997, the Nevada Supreme Court denied the petition. (Exhibit 72).
On November 16, 1993, petitioner filed his first pro se federal habeas petition, initiating case number CV-N-93-685-DWH. On February 21, 1995, the petition was denied without prejudice. (ECF No. 16 in CV-N-93-685-DWH). An amended petition was received by this court on May 3, 1995. (ECF No. 21). On May 21, 1995, the court ordered the amended petition filed. (ECF No. 26). On February 29, 1996, this court adopted the recommendation of the magistrate judge and dismissed the amended petition without prejudice. (ECF No. 37).
On March 18, 1997, petitioner signed a federal habeas petition, which was received by this court on April 16, 1997, and filed under the case number CV-N-97-0222-DWH-RAM. (ECF No. 4). This court ordered the petition to be filed on April 23, 1997, and appointed the federal public defender to represent petitioner. (ECF No. 3). In the same order, this court directed the clerk of court to remove exhibits A-T and exhibits 1-67 from the prior action CV-N-93-685-DWH (at ECF Nos. 9, 19, and 20 in CV-N-93-685-DWH) and file those exhibits in the instant action. (ECF No. 3). Exhibits A-T and 1-67 were filed in the instant action at ECF Nos. 5, 6, 7.
Through counsel, petitioner submitted an amended petition to this court on July 11, 1997. (ECF No. 11). Following respondents' motion for compliance with Rule 2, a second amended petition was filed on February 17, 1998, again through petitioner's counsel. (ECF No. 23). Respondents brought a motion to dismiss the second amended petition. (ECF No. 28). On October 7, 1998, the magistrate judge filed a report and recommendation, concluding that all claims presented in the second amended petition were unexhausted. (ECF No. 37). On February 23, 1999, the district judge adopted the recommendation of the magistrate judge, and the petition was dismissed without prejudice. (ECF No. 41).
With the assistance of counsel, petitioner returned to state court to exhaust his unexhaustedclaims. On August 21, 1997, petitioner, filed a third post-conviction state habeas petition. (Exhibit 73). The state district court denied the petition. (Exhibit 76). Petitioner appealed the denial of the petition. (Exhibit 80). On July 24, 2000, the Nevada Supreme Court found the petition to be untimely, as it was filed more than 11 years after remittitur issued from the direct appeal. (Exhibit 81, at p. 2). The court also found the petition was successive. (Exhibit 81, at p. 2). The court held that the petition was procedurally barred absent a demonstration of cause and prejudice. (Id.). The Nevada Supreme Court affirmed the state district court's judgment, except in regard to petitioner's allegations that an eyewitness to the murder, Donnell Wells, had recanted his trial testimony and that the prosecutor withheld evidence that Wells had alleged that he had been paid by the police to testify at trial. (Exhibit 81, at p. 3). The Nevada Supreme Court concluded that this claim, if true, might provide cause to excuse procedural defects and entitle petitioner to relief. (Exhibit 81, at pp. 3-4). As to the remaining contentions, the court concluded that petitioner had failed to demonstrate cause and prejudice to excuse the procedural defects. (Exhibit 81, at p. 3, fn.1).
On remand, the state district court conducted an evidentiary hearing on February 27, 2004, regarding petitioner's allegations that Donnell Wells had recanted his trial testimony and that the prosecutor withheld evidence that Wells had alleged that he had been paid by the police to testify at trial. (Exhibit 100). Petitioner's evidentiary hearing brief, appendix, and exhibits were filed on February 27, 2004. (Exhibits 99). The state district court ultimately denied the petition, finding that the petition was procedurally defaulted. (Exhibits 107 and 113).
Petitioner appealed the state district court's denial of the petition. (Exhibit 115). On March 2, 2006, the Nevada Supreme Court affirmed the denial of the state habeas petition. (Exhibit 124). Remittitur issued on May 16, 2006. (Exhibit 128).
On May 12, 2006, petitioner filed a motion to re-open this action. (ECF No. 45). On June 13, 2006, the instant case was reassigned to the undersigned. (ECF No. 46). By order filed September 27, 2006, this action was re-opened. (ECF No. 50). Petitioner, through counsel, filed a third amendedpetition on November 9, 2006. (ECF No. 51). Shortly thereafter, on November 14, 2006, petitioner filed exhibits 1-133. (ECF Nos. 52-66).
Respondents filed a motion to dismiss the third amended petition. (ECF No. 72). Petitioner filed an opposition. (ECF No. 80). Respondents filed a reply. (ECF No. 88). Petitioner filed a supplemental briefing to the reply consisting of a table of contents and table of authorities to the opposition to the motion to dismiss. (ECF No. 90). By order filed August 11, 2008, this court entered an order granting respondents' motion to dismiss the third amended petition on the sole ground that all claims in the third amended petition were procedurally defaulted and petitioner had not shown cause and prejudice, or a fundamental miscarriage of justice to excuse the default. (ECF No. 91). Judgment was entered that same date. (ECF No. 92).
Following dismissal of the third amended petition and the entry of judgment, petitioner filed a notice of appeal. (ECF No. 93). On November 3, 2009, the Court of Appeals for the Ninth Circuit granted petitioner's request for a certificate of appealability on the following issue: "Whether the district court properly dismissed appellant's third amended habeas petition as procedurally defaulted." (ECF No. 98, at p. 1). In a published memorandum opinion, filed April 1, 2011, the Ninth Circuit affirmed in part, reversed in part, and remanded the case to this court for further proceedings. (ECF No. 103; Cooper v. Neven, 641 F.3d 322 (9th Cir. 2011)). Regarding grounds 3A and 4 of the third amended petition, the Ninth Circuit affirmed this court's dismissal of these grounds as procedurally defaulted. (ECF No. 103, at p. 11; Cooper v. Neven, 641 F.3d at 330). As to grounds 7A(3), 8(5)...
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