Higgs v. Neven

• Decision Date: 15 October 2013
• Docket Number: 3:10-cv-00050-RCJ-WGC
• Parties: CHAZ HIGGS, Petitioner, v. DWIGHT NEVEN, et al., Respondents.
• Court: U.S. District Court — District of Nevada

CHAZ HIGGS, Petitioner, v. DWIGHT NEVEN, et al., Respondents.

3:10-cv-00050-RCJ-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: October 15, 2013

ORDER

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

I. Procedural History

On September 28, 2006, the State charged Petitioner in Reno Justice Court by criminal complaint with open murder in violation of NRS 200.010 and 200.030. (Exhibit 2).¹ Following a preliminary hearing, Petitioner was bound over to the district court for trial. (Exhibit 14, at p. 136).

On December 12, 2006, the state charged Petitioner in the Second Judicial District Court, County of Washoe, State of Nevada, by information with open murder in violation of NRS 200.010 and 200.030. (Exhibit 16). Petitioner pleaded not guilty. (Exhibit 17, at p. 3).

On January 12, 2007, Petitioner filed a pretrial petition for a writ of habeas corpus on the basis that there was insufficient evidence to support the justice court's finding of probable cause. (Exhibit 18). After briefing and argument, the trial court denied the petition. (Exhibit 31, at pp. 26-27).

Trial commenced on June 18, 2007. (Exhibit 87). After a two-week trial, the jury convicted Petitioner of the first-degree murder of his wife, Kathy Augustine. (Exhibit 97, at p. 1583). Following a brief penalty hearing, the jury selected a sentence of life in prison with the possibility of parole after 20 years. (Id., at pp. 1620-21). The trial court confirmed the sentence. (Id., at p. 1623). Judgment was entered on June 29, 2007. (Exhibit 98).

Petitioner pursued a direct appeal. (Exhibit 107). Petitioner, by way of counsel, filed his opening brief with the Nevada Supreme Court. (Exhibit 117). On September 16, 2008, the Nevada Supreme Court issued its unpublished order of affirmance. (Exhibit 134). Petitioner filed a petition for rehearing, which was denied. (Exhibits 137 & 141). The Nevada Justice Association requested that the court's decision be published, and on January 14, 2010, the Nevada Supreme Court filed a published opinion affirming Petitioner's conviction. (Exhibit 144; Higgs v. State, 126 Nev. _, 222 P.3d 648 (2010)). Remittitur issued on February 9, 2010. (Exhibit 145).

Petitioner filed his federal habeas petition on January 27, 2010. (ECF No. 1). The petition contains five grounds for relief. Petitioner claims that his rights under the United States Constitution were violated because: (1) the trial court denied his request for a continuance; (2) the trial court failed to adopt the standard for admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); (3) the trial court declined to give a spoliation instruction; (4) there is insufficient evidence to sustain his conviction; and (5) he was prejudiced by the cumulative effect of plain errors at trial. (ECF No. 1).

Respondents previously filed a motion to dismiss certain grounds as unexhausted. (ECF No. 5). By order filed March 24, 2011, this Court denied the motion to dismiss and directed therespondents to file an answer to all grounds of the petition. (ECF No. 17). Respondents have filed an answer (ECF No. 19) and Petitioner has filed a traverse (ECF No. 22). The Court now addresses the merits of each claim of the federal petition.

II. Federal Habeas Corpus Standards

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:

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.

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)). 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 correctionthrough 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 (9^th 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).

III. Discussion

A. Ground 1

Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial and due process were violated by the trial court's denial of a continuance. (ECF No. 1, at pp. 3, 18-34). On direct appeal, the Nevada Supreme Court addressed this issue as follows:

Higgs argues that the district court violated his rights under the Fifth, Sixth, and Fourteenth Amendments when it denied his motion to continue the trial. He asserts that his defense expert did not have adequate time to evaluate the conclusions of the FBI's toxicologyreport that confirmed the presentence of succinylcholine in Augustine's urine. Specifically, he asserts that FBI toxicologist Montgomery defied the court order instructing her to provide discovery. Without the full FBI report, Higgs argues that his expert witness, Chip Walls, could not testify as to the validity of the FBI report and the defense could not adequately cross-examine Montgomery.

"This court reviews the district court's decision regarding a motion for continuance for an abuse of discretion." Rose v. State, 123 Nev. 194, 206, 163 P.3d 408, 416 (2007). Each case turns on it own particular facts, and much weight is given to the reasons offered to the trial judge at the time the request for a continuance is made. Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978). This court has held that generally, a denial of a motion to continue is an abuse of discretion if it leaves the defense with inadequate time to prepare for trial. Seeid. In other instances, we have held that a denial of a motion to continue was an abuse of discretion if "a defendant's request for a modest continuance to procure witnesses . . . was not the defendant's fault." Rose, 123 Nev. at 206, 163 P.3d at 416. However, if a defendant fails to demonstrate that he was prejudiced by the denial of a continuance, then the district court's decision to deny the continuance is not an abuse of discretion. Id.

We conclude that the district court did not abuse its discretion when it denied Higgs' motion to continue the trial because Higgs has failed to demonstrate that he was prejudiced by the denial.

By defense counsel's own admission, there was no explanation for the delay in asking for more information regarding the FBI's toxicology report. Higgs' expert witness, Chip Walls, had approximately six months to question, evaluate, and determine whether additional information about the toxicology report would be necessary for his consideration. During the hearing on the motion to continue, the State explained that Walls had received the toxicology report on December 7, 2006, yet Higgs failed to ask for additional information about the report until May 2007. In regard to the delay, defense counsel stated, "The fault, unfortunately, really doesn't lie anywhere." Defense counsel, Walls, the State, and Montgomery all worked together to compile the list of materials, which constituted part of the discovery orders signed by Judge Polaha. In addition,

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