Friedman v. Palmer, 3:07-cv-0338-LRH-VPC

• Decision Date: 19 August 2013
• Docket Number: 3:07-cv-0338-LRH-VPC
• Parties: KENNETH FRIEDMAN, Petitioner, v. JACK PALMER, et al., Respondents.
• Court: U.S. District Court — District of Nevada

KENNETH FRIEDMAN, Petitioner, v. JACK PALMER, et al., Respondents.

3:07-cv-0338-LRH-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: August 19, 2013

ORDER

This action is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner, a Nevada state prisoner. Before the Court are several motions filed by petitioner. Also before the Court are the merits of the third amended petition and supplemental petition.

I. Background

In affirming the denial of petitioner's post-conviction state habeas petition, the Nevada Supreme Court summarized the factual background of petitioner's crimes, as follows:

Friedman contacted by telephone various businesses in Las Vegas pretending to be a woman named Paula who represented a local neighborhood watch group. Friedman informed the recipients of the calls that a sexual predator wearing a certain type of clothing was in the area. Shortly thereafter Friedman appeared at these businesses wearing the described clothing and engaged in lewd conduct in the presence of employees. Several employees from a Subway sandwich shop, Grumpy's and a 7-11 convenience store unequivocally identified Friedman as the individual who committed various acts of indecent exposure and lewdness at their respective businesses in their presence. One night, Friedman followed April Gagen, a Subway employee, after she left work. Friedman yelled obscenities at Gagen and threatened to harm her.

(ECF No. 64, at pp. 1-2).¹

II. Procedural History

On February 27, 2004, the State filed an amended information in the Eighth Judicial District Court for the State of the Nevada charging petitioner with one count of aggravated stalking, four counts of indecent exposure, and seven counts of open or gross lewdness. (Exhibit 19).² After a jury trial, the jury returned a verdict finding petitioner guilty of all counts. (Exhibit 21). The state district court adjudicated petitioner a habitual criminal and sentenced petitioner to life without the possibility of parole for the aggravated stalking count. (Exhibit 23). The state district court sentenced petitioner to terms of twelve months for each of the other counts, with each count concurrent to the life sentence and each other. (Id.). The court issued its amended judgment of conviction on May 7, 2004. (Exhibit 27). Petitioner appealed. (Exhibit 26). On November 16, 2005, the Nevada Supreme Court affirmed petitioner's convictions. (Exhibit 42).

During the pendency of his direct appeal, petitioner filed two pro se petitions for a writ of mandamus with the Nevada Supreme Court (Exhibits 29 & 33), both of which were denied (Exhibits 30 & 36).

On February 8, 2006, petitioner filed a pro se post-conviction habeas petition and "addenda" in the state district court. (Exhibits 44 & 45). Without holding an evidentiary hearing, the state district court denied post-conviction relief on December 23, 2006. (Exhibits 49 & 55). Petitioner appealed the denial of his state habeas petition to the Nevada Supreme Court. (Exhibit 54). On March 24, 2008, the Nevada Supreme Court affirmed the state district court's denial of the post-conviction habeas petition. (Exhibit 64).

During the pendency of his appeal from the state district court's denial of his post-conviction petition, petitioner filed a pro se petition for writ of habeas corpus in the Nevada Supreme Court. (Exhibit 57). On July 5, 2007, the Nevada Supreme Court denied the petition. (Exhibit 58).

Petitioner filed his federal petition for writ of habeas corpus in this Court on July 31, 2007. (ECF No. 1). On January 11, 2010, the Court appointed counsel to represent petitioner. (ECF No. 130). Through counsel, petitioner filed his third amended petition on October 1, 2010. (ECF No. 139). By order filed February 7, 2011, the Court granted petitioner's counsel's motion to withdraw due to an irreconcilable conflict. (ECF No. 165). Subsequently, the Court allowed petitioner to file a pro se supplement to his petition (ECF No. 172), which is located in the court's record at ECF No. 166.

Respondents filed a motion to dismiss the third amended petition and the supplemental petition. (ECF No. 220). By order filed July 30, 2012, this Court found the third amended petition and the supplemental petition to be "mixed," in that some claims were exhausted and some claims were not exhausted. (ECF No. 266, at pp. 26-27). The grounds found to be unexhausted were as follows: Ground 5; Ground 6, in part; Ground 7(C), in part; Ground 7(D); Ground 7(E), in part; Ground 7(F), in part, and Ground 12(B)(2), in part. (ECF No. 266, at pp. 26-27). On August 6, 2012, petitioner filed a sworn declaration abandoning his unexhausted claims and expressing his desire to proceed on only the exhausted claims of the third amended petition and the supplemental petition. (ECF No. 267). As such, this action proceeds on the exhausted grounds of the third amended petition and the supplemental petition.

III. Motions to Expand the Record and for Discovery

Petitioner has filed two motions to expand the record (ECF Nos. 269 & 270). Petitioner has filed a motion for discovery. (ECF No. 271). Petitioner later filed additional motions to expand the record (ECF Nos. 290, 291, 300, 305, 310, 311 & 318). Petitioner filed motions for the issuance of subpoenas. (ECF Nos. 293, 298, 299). Respondents have opposed all of petitioner's motions.

The United States Supreme Court, in Cullen v. Pinholster, — U.S. — ,131 S.Ct. 1388, 1398-1400 (2011), held that when a claim is reviewed under the deferential standard of § 2254(d) by a federal court, for claims that were considered by the state courts, new evidence not presented to thosecourts cannot be received. "If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court." Id. at 1400. This conclusion flows from the express language of the AEDPA:

We first consider the scope of the record for a § 2254(d)(1) inquiry. The State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.

* * *

If an application includes a claim that has been "adjudicated on the merits in State court proceedings," § 2254(d) , an additional restriction applies. Under § 2254(d), that application "shall not be granted with respect to [such a] claim . . . 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."

This is a "difficult to meet," Harrington v. Richter, 562 U.S. —, — , 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011), and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt, Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curium) (citation and internal quotation marks omitted). The petitioner carries the burden of proof. Id., at 25, 123 S.Ct. 357.

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at the same time, i.e. the record before the state court.

Cullen v. Pinholster, 131 S.Ct. at 1398. The claims that petitioner asserts in the third amended petition and the supplemental petition have been found to be exhausted by this Court. (ECF No.266; 267).³ Because this action proceeds on claims that were considered on the merits by the state courts, this Court may consider only those facts that were considered on the record by the state courts. Petitioner's motions to expand the record and motions for discovery violate the directive of Cullen v. Pinholster, 131 S.Ct. at 1398-1400, because petitioner seeks to introduce evidence that was not considered by the state courts when considering his exhausted habeas corpus claims. This Court will not consider new evidence that was not considered by the state courts, on the state court record, in this federal habeas proceeding. As such, petitioner's motions to expand the record, motion for discovery, and motions for the issuance of subpoenas are denied.

IV. Petitioner's Other Motions

In the course of this action, petitioner has filed several motions which the Court now addresses. First, petitioner's motion to proceed with unilateral reply briefing (ECF No. 275) and motion for an extension of time to file supplemental reply to the answer (ECF No. 284) are denied as moot.

Petitioner filed a motion for receipt of file materials. (ECF Nos. 289). Petitioner seeks exhibits previously filed at ECF No. 154, Exhibit 75, by his own counsel at the time. The motion is denied, as petitioner is in possession of the requested exhibit in full. Petitioner filed another motion for receipt of file materials, seeking a copy of the sentencing memorandum and its exhibits filed previously in this action, by petitioner's own counsel at the time, at ECF No. 45, Exhibit 23A. (ECF No. 321). Petitioner's motion is denied, as petitioner gives no reason why he is not already in possession of the materials he alleges were previously filed by his own counsel at the time.

Petitioner filed two motions seeking relief from the minute order filed ...