Hogan v. Filson

• Decision Date: 23 March 2018
• Docket Number: Case No. 2:97-cv-00927-JCM-PAL
• Parties: MICHAEL RAY HOGAN, Petitioner, v. TIMOTHY FILSON, et al., Respondents.
• Court: U.S. District Court — District of Nevada

MICHAEL RAY HOGAN, Petitioner, v. TIMOTHY FILSON,¹ et al., Respondents.

Case No. 2:97-cv-00927-JCM-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 23, 2018

ORDER

Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Michael Ray Hogan, a Nevada prisoner sentenced to death. ECF No. 139.

I. FACTUAL AND PROCEDURAL BACKGROUND

After a jury trial in May of 1985, Hogan was convicted in the Eighth Judicial District, Clark County, of first-degree murder and attempted murder. The Nevada Supreme Court would later recount the facts underlying Hogan's convictions as follows:

In the afternoon of November 19, 1984, after a weekend marked by quarrels and death threats, appellant Michael Hogan shot and killed his female companion, Heidi Hinkley. Hogan also fired five bullets into the victim's teenage daughter, who nevertheless survived and was able to testify at trial.

Hogan v. State, 732 P.2d 422, 423 (Nev. 1987).

In the penalty phase of Hogan's trial, the jury found two aggravating circumstances: (1)Hogan was previously convicted of a felony involving the use or threat of violence - i.e., an Iowa manslaughter conviction, and (2) he knowingly created a great risk of death to more than one person. The jury found no mitigating circumstances sufficient to outweigh the aggravating circumstances and imposed a sentence of death.

On June 18, 1985, the state district court entered a judgment of conviction and one week later, on June 25, 1985, entered a supplemental judgment of conviction which specifically spelled out Hogan's sentence. Hogan appealed. On February 6, 1987, the Nevada Supreme Court issued an order affirming Hogan's conviction and sentence. The United States Supreme Court denied certiorari on October 5, 1987.

On November 9, 1987, Hogan filed a pro se petition for post-conviction relief in the Eighth Judicial District and requested appointment of counsel. The trial court appointed attorney Christopher Maglaras to represent Hogan in those proceedings. On March 10, 1988, the trial court dismissed the petition. Hogan appealed.

After the district court denied his motion to withdraw as counsel, Maglaras represented Hogan on appeal. On December 21, 1988, the Nevada Supreme Court dismissed the appeal.

On January 9, 1989, Hogan filed a pro se petition for writ of habeas corpus in this court and, thereafter, requested appointment of counsel. After the brief appointment of the Federal Public Defender's office, retained counsel Annette Quintana undertook representation of Hogan.

Hogan filed a first amended petition on April 28, 1989, then a second amended petition on March 9, 1990. On September 7, 1990, pursuant to Hogan's motion, the court granted a stay of the proceedings to allow Hogan to exhaust claims in state court.

With Quintana as counsel, Hogan filed, on November 20, 1990, a petition for writ of habeas corpus in the Seventh Judicial District, White Pine County. When that petition was dismissed on April 6, 1992, Hogan appealed. On September 29, 1993, the Nevada Supreme Court issued a decision affirming the lower court's dismissal of the petition

In October of 1993, the Nevada Supreme Court entered an order removing Quintana from the case and appointing the Nevada Appellate and Postconviction Project to represent Hogan for any remaining appellate proceedings. Michael Pescetta, then with the appellate project, filed apetition for rehearing on Hogan's behalf. On May 3, 1996, that petition was denied by the Nevada Supreme Court. A petition for writ of certiorari was denied by the United States Supreme Court on October 15, 1996.

In August of 1997, this court reopened federal habeas proceedings and assigned this case a new case number (the current one). Represented by Glynn Cartledge and Richard Cornell, Hogan filed a third amended federal petition for writ of habeas corpus on March 2, 2001. Pursuant to a stipulation between the parties, this court entered an order on December 30, 2003, staying these proceedings to allow Hogan the opportunity to exhaust the unexhausted claims in the third amended petition.

On February 2, 2004, Hogan initiated exhaustion proceedings in the Eighth Judicial District Court. On August 26, 2004, the state court granted an evidentiary hearing on one issue in Hogan's state petition. The State filed a petition with the Nevada Supreme Court, asking that court to prevent the evidentiary hearing. The Nevada Supreme Court denied the State's petition on November 15, 2004. An evidentiary hearing was held on August 5, 2005.

On November 2, 2005, the state district court denied the petition. Hogan appealed. The Nevada Supreme Court entered an order affirming the denial on November 15, 2006. The court denied rehearing on May 31, 2007, and denied rehearing en banc on July 26, 2007.

Although counsel had been ordered in the 2003 stay order to notify this court within 30 days of the conclusion of state court proceedings, counsel failed to do so. Instead, in January of 2008, counsel moved to withdraw from representing Hogan. On February 22, 2008, this court appointed the Federal Public Defender's office to represent Hogan.

On June 27, 2008, Hogan moved this court to continue the stay of proceedings. With no opposition from the State, this court entered an order on August 14, 2008, extending the stay of federal proceedings to allow Hogan to present unexhausted claims to the state courts.

On September 10, 2008, Hogan filed a state petition for writ of habeas corpus in the Eighth Judicial District Court. Without holding an evidentiary hearing, the state court entered an order dismissing the petition on May 19, 2009. Hogan appealed. The Nevada Supreme Court affirmed the denial of relief in an order entered on January 20, 2012. Remittitur issued on March8, 2012.

On May 18, 2012, this court vacated the stay and reopened the federal proceedings. On October 18, 2012, Hogan filed a fourth amended petition for writ habeas corpus. On March 19, 2014, pursuant to respondents' motion to dismiss, this court dismissed several of Hogan's claims as procedurally defaulted.

On September 28, 2015, this court entered an order granting Hogan's motion for evidentiary hearing with respect to his remaining ineffective assistance of counsel claim (Claim Two(H)). In that order, the court directed Hogan to identify what, if any, evidence he intended to present at an evidentiary hearing beyond the materials he had already submitted herein. In accordance with Rule 7(c) of the Rules Governing Habeas Corpus Cases Under Section 2254, the court also gave respondents the opportunity to admit or deny the correctness of the materials Hogan submitted.

Hogan responded by identifying (and providing copies of) 71 exhibits in support of Claim Two(H). Respondents did not specifically admit or deny the correctness of any those exhibits. Thus, the court has considered them as part of the record in deciding Claim Two(H).²

II. STANDARDS OF REVIEW

This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

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.

28 U.S.C. § 2254(d).

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

"[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines...