Depasquale v. Mcdaniel

Decision Date07 March 2011
Docket Number3:07-cv-00472-ECR-VPC
PartiesVINCENT DePASQUALE, Petitioner, v. E.K. McDANIEL, et al., Respondents.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Vincent DePasquale, a Nevada state prisoner represented by counsel. This matter comes before the Court on the merits of the second amended petition for a writ of habeas corpus.

I. Procedural History & Background
A. Original State Court Proceedings

On August 10, 1988, petitioner Vincent DePasquale was charged by criminal complaint with open murder and possession of a dangerous weapon by a prisoner, concerning the murder of Ronald Cane at the Nevada State Prison, in Carson City, Nevada. (Exhibit).1

On September 1, 1988, a conditional waiver of preliminary hearing was executed so that petitioner could undergo a competency evaluation. (Exhibit 6). A criminal information was also filed reflecting the charges in the criminal complaint. (Exhibit 3).

On September 27, 1988, the district court ordered that petitioner be examined by two psychiatrists to determine his competency to stand trial. (Exhibit 8).

On November 29, 1988, the district court conducted a competency hearing. The court relied upon the opinion of two psychiatrists in finding that petitioner was competent to proceed to trial. The matter was then remanded to justice court for a preliminary hearing. (Exhibit 12).

A preliminary hearing was conducted on January 26, 1989. Following the presentation of testimony, petitioner was bound over to district court for trial on a charge of murder. (Exhibit 15). Prior to the presentation of testimony, the State dismissed the second count against petitioner, possession of a dangerous weapon by a prisoner. (Exhibit 15, at pp. 4-5). On January 18, 1989, an amended criminal information was filed charging petitioner with open murder. (Exhibit 18).

On January 24, 1989, the State notified the court of its intent to seek the death penalty and petitioner entered his pleas of not guilty and not guilty by reason of insanity. (Exhibit 19). On January 30, 1989, the State filed its formal notice of intent to seek the death penalty. (Exhibit 23).

On April 25, 1989, petitioner filed a motion to suppress regarding a statement he gave following the murder. (Exhibit 28). The state district court granted the motion to suppress the statement. (Exhibit 64, at pp. 91-92).

On May 3, 1989, the State filed a motion to have petitioner undergo a psychiatric evaluation. (Exhibit 31). The State also moved for an order requiring petitioner to undergo a neurological examination. (Exhibit 35). The court granted the motion on May 15, 1989. (Exhibit 42).

On June 13, 1989, the court conducted a second competency hearing, after which it suspended petitioner's trial dates and ordered further evaluation. (Exhibits 50, 51, and 53).

On September 5, 1989, the court conducted a further competency hearing, heard testimony from medical personnel, prison personnel, and questioned the defendant. (Exhibit 64). The courtthen issued an order finding the defendant competent to stand trial. (Exhibit 65).

Jury trial commenced on September 6, 1989. (Exhibits 66-76). At the conclusion of the guilt phase of the trial, the jury returned a verdict of guilty of murder in the first degree. (Exhibit 72, at pp. 155-156). At the conclusion of the penalty phase of trial, the jury found that the mitigating circumstances did not outweigh the aggravating circumstances, and set petitioner's penalty at death. (Exhibit 74).

On September 25, 1989, petitioner filed a motion for a new trial, alleging that the jury's verdict was illogical based on the evidence presented at trial. (Exhibit 77).

The judgment of conviction was entered on September 26, 1989, pursuant to which petitioner was adjudged guilty of first-degree murder and sentenced to death. (Exhibit 78).

On September 26, 1989, petitioner filed his notice of appeal. (Exhibit 81). On October 2, 1989, the trial court denied petitioner's motion for a new trial. (Exhibit 87). On April 10, 1990, petitioner filed his opening brief on direct appeal. (Exhibit 94). On December 7, 1990, the Nevada Supreme Court affirmed petitioner's conviction in a published opinion. (Exhibit 104, reported at DePasquate v. State, 106 Nev. 843, 803 P.2d 218 (1990)).

On December 24, 1990, petitioner filed his petition for rehearing. (Exhibit 105). The petition for rehearing was denied on March 12, 1991. (Exhibit 109). On March 27, 1991, petitioner filed a second petition for rehearing or to re-open briefing. (Exhibit 112). Petitioner's second petition for rehearing or to re-open briefing was denied on May 2, 1991. (Exhibit 116). On May 7, 1991, petitioner petitioned the United States Supreme Court for a writ of certiorari. (Exhibit 119). On October 7, 1991, the petition for a writ of certiorari was denied. (Exhibit 126). On October 23, 1991, remittitur issued from petitioner's direct appeal. (Exhibit 127).

On March 5, 1992, petitioner filed his state post-conviction petition for a writ of habeas corpus, in which he claimed trial counsel was ineffective. (Exhibit 130). On July 13, 1992, the court ordered an evidentiary hearing on the petition. (Exhibit 145). On January 6, 1993, the State and petitioner signed a memorandum of agreement in which petitioner agreed to dismiss his petition forwrit of habeas corpus, the State agreed to make an unspecified confession of error at the penalty hearing, and the parties agreed that, subject to court approval, petitioner's sentence would be converted from the death penalty to life without the possibility of parole. (Exhibit 152). Prior to petitioner signing the agreement, the court conducted a canvass of petitioner and made findings that petitioner was competent to sign the agreement and that he did so voluntarily. (Exhibit 153). On January 19, 1993, the court entered an amended judgment of conviction reflecting a new sentence of life without the possibility of parole. (Exhibit 154).

B. United States District Court Case No. 3:00-cv-0209-ECR-VPC

On March 13, 2000, petitioner dispatched his pro se federal habeas petition to this Court. The petition was received by this Court on April 14, 2000, and was opened as case number 3:00-cv-0209-ECR-PHA. On November 9, 2000, counsel was appointed to represent petitioner. (ECF No. 18). On April 22, 2002, the first amended petition was filed by petitioner's counsel. (ECF No. 47). On May 20, 2002, petitioner filed a statement of additional unexhausted claims. (ECF No. 50).

On June 28, 2002, respondents filed a motion to dismiss on grounds of untimeliness of the petition and failure to exhaust certain claims. (ECF No. 52). On March 4, 2003, this Court held an evidentiary hearing and heard expert testimony regarding petitioner's mental capacity during the time in which he did not have a valid federal or state petition pending, for purposes of determining the appropriateness of equitable tolling. (ECF No. 79). On March 7, 2003, this Court denied the motion to dismiss on timeliness grounds but granted the motion to dismiss on the remaining exhaustion grounds. (ECF No. 81). Pursuant to options given by this Court, on April 4, 2003, petitioner elected to dismiss his petition and return to state court to exhaust his unexhausted claims. (ECF No. 82). On April 11, 2003, the Court ordered the action dismissed without prejudice while petitioner returned to state court to exhaust his claims. (ECF No. 83).

C. Return to State Court

On July 15, 2003, petitioner filed a state habeas petition. (Exhibit 192). On January 20, 2005, the state district court entered an order dismissing the petition. (Exhibit 197). On February18, 2005, petitioner filed a notice of appeal. (Exhibit 199). On October 20, 2005, petitioner filed his opening brief on appeal from the dismissal of his state petition. (Exhibit 207). On May 2, 2006, the Nevada Supreme Court issued its order of affirmance. (Exhibit 212). Remittitur issued on May 30, 2006. (Exhibit 214).

D. Return to United States District Court: Case No. 3:07-cv-0472-ECR-VPC

On February 15, 2007, petitioner filed a second amended petition in this Court. (ECF No. 16). On October 10, 2007, this Court filed an order reopening the case under the above-captioned case number, 3:07-cv-0472-ECR-VPC. (ECF No. 1). The exhibits from the 2000 case were transferred to the new case. (ECF No. 1). On April 18, 2008, respondents moved to dismiss the second amended petition. (ECF No. 33). By order filed March 19, 2009, this Court determined that Grounds 1-6 of the second amended petition were procedurally defaulted in state court on adequate and independent state grounds. (ECF No. 64, at p. 9). The Court deferred ruling on the cause and prejudice issue and the fundamental miscarriage of justice issue until the merits were fully briefed. (Id., at pp. 9-10). In the same order, the Court denied petitioner's request for an evidentiary hearing. (Id., at pp. 10-11). The Court directed respondents to file an answer to the second amended petition, and petitioner to file a reply to the answer. (Id., at pp. 11-12).

On April 20 and April 21, 2009, respondents filed a motion for an extension of time to file an answer and a supplemental motion, in which the Court was informed of petitioner's anticipated motion for expansion of the record. (ECF No. 65 & ECF No. 66). On May 6, 2009, this Court granted respondents' motion for extension of time, and set a deadline by which petitioner could file a motion for expansion of the record. (ECF No. 67). On July 14, 2009, petitioner filed a motion to expand the record, and in the alternative, motion for an evidentiary hearing. (ECF No. 72). Respondents opposed the motion. (ECF No. 74). By order filed December 22, 2009, this Court denied petitioner's motion to expand the record. (ECF No. 79). The Court ordered stricken from the record petitioner's proposed exhibits G, H, I, J, and K, which were filed in support of...

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