Echols v. Beneditti
| Decision Date | 29 August 2013 |
| Docket Number | 3:10-cv-00340-LRH-VPC |
| Parties | ANTHONY DOUGLAS ECHOLS, Petitioner, v. JAMES BENEDITTI, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. This matter comes before the Court on the merits of the petition.
On October 23, 2000, the State charged petitioner in the First Judicial District for the State of Nevada, by information, with Count I, open murder with the use of a deadly weapon and Count II, burglary with the use of a deadly weapon. (Exhibit 7).1 Petitioner pleaded not guilty to both counts. (Exhibit 12, at p. 1).
On December 18, 2000, petitioner filed a motion to dismiss the charges and a pre-trial habeas petition on the basis that one of the State's theories of murder - felony murder based on burglary - was invalid. (Exhibits 18 & 19). After briefing and argument, the trial court denied the motion to dismiss but granted the pre-trial petition and ordered the State to file an amended petition. (Exhibit34). The State appealed. (Exhibit 39). The Nevada Supreme Court reversed the order of the state district court. (Exhibit 53).
A jury trial commenced on January 6, 2003. (Exhibit 60). After an eight-day trial, the jury convicted petitioner of burglary with the use of a deadly weapon and first-degree murder with the use of a deadly weapon. (Exhibit 71, at p. 101). On January 16, 2003, after a one-day penalty hearing, the jury sentenced petitioner to life in prison without the possibility of parole for first-degree murder. (Exhibit 79, at p. 71). That same day, the trial court sentenced petitioner to a consecutive term of life without the possibility of parole for the deadly weapon enhancement, and a concurrent term of 2 to 15 years for burglary while in possession of a firearm or deadly weapon. (Id., at pp. 73-74); Exhibit 78. The judgment of conviction was filed on January 16, 2003. (Exhibit 78).
Petitioner appealed from his conviction. (Exhibit 81). On September 3, 2004, the Nevada Supreme Court entered an order affirming petitioner's convictions. (Exhibit 101). Remittitur issued on December 7, 2004. (Exhibit 105).
On December 29, 2004, petitioner filed a motion for a new trial based on newly discovered evidence in the state district court. (Exhibit 106). On December 5, 2005, the district court denied the motion for a new trial. (Exhibit 125). Petitioner appealed. (Exhibit 127). On March 2, 2007, the Nevada Supreme Court affirmed the denial of the motion. (Exhibit 145).
On December 1, 2005, while the motion for a new trial was pending in the state district court, petitioner filed a post-conviction habeas petition in the state district court. (Exhibit 121). With the assistance of counsel, a supplemental petition was filed on July 24, 2006. (Exhibit 139). Following an evidentiary hearing (Exhibits 162 & 163), the state district court denied the petition on December 8, 2008. (Exhibit 164).
Petitioner appealed from the denial of his state post-conviction habeas petition. (Exhibit 165). On May 10, 2010, the Nevada Supreme Court affirmed the denial of the post-conviction petition. (Exhibit 173). Remittitur issued on June 4, 2010. (Exhibit 174).
Petitioner has filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 6). Petitioner alleges that his constitutional rights were violated by: (1) counsel's elicitation of opinion testimony from the venire and failure to object, request a cautionary instruction,move for mistrial, or seek individual voir dire; (2) counsel's failure to investigate or present expert testimony regarding Paxil during the guilt phase of trial; (3) counsel's failure to investigate or present expert testimony regarding Paxil during the penalty phase of trial; (4) the trial court's denial of a motion for new trial; (5) the trial court's admission of specific sentencing recommendations made by the victim's family; (6) the trial court gave an "executive clemency" instruction to the jury that was an improper statement of law; (7) the trial court erred when it denied a challenge for cause to a prospective juror who had prejudicial knowledge of the case from extrajudicial sources; (8) prosecutorial misconduct and trial counsel's failure to object to the same; (9) insufficiency of the evidence to support his convictions. (Petition, ECF No. 6). Respondents have filed an answer to the petition. (ECF No. 15). Petitioner has filed a traverse. (ECF No. 21). The Court now resolves the merits of the petition.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:
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 SupremeCourt's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (). The formidable standard set forth in section 2254(d) reflects the view that habeas corpus is "'a guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. __, __, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
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." Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). In determining whether a state court decision is contrary to, or an unreasonable application of 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), cert. denied, 534 U.S. 944 (2001).
In a federal habeas proceeding, "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). If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the burden set in § 2254(d) and (e) on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400 (2011).
Petitioner claims that his constitutional rights were violated by trial counsel's elicitation of testimonial opinions from the venire that "two shots to the head cannot be accidental," and counsel'sfailure to object, seek a cautionary instruction, move for a mistrial, or request individual voir dire beforehand. (Petition, at pp. 4-5, pp. 16-25).
Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that counsel's performance was unreasonably deficient and that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-391 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an 'objective...
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