Jernigan v. Baker

• Decision Date: 31 January 2012
• Docket Number: 3:08-cv-0104-ECR-WGC
• Parties: CHRISTOPHER P. JERNIGAN, Petitioner, v. RENEE BAKER, et. al., Respondents.
• Court: U.S. District Court — District of Nevada

CHRISTOPHER P. JERNIGAN, Petitioner,
v.
RENEE BAKER, et. al., Respondents.

3:08-cv-0104-ECR-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date: January 31, 2012

ORDER

This action is on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by pro se petitioner Christopher Jernigan. Before the Court is respondents' answer (ECF No. 30) and petitioner's reply (ECF No. 34) along with a second motion for relief from the Court's Order of October 22, 2009, (ECF No. 32).

I. Procedural History

On August 3, 2001, Petitioner was charged by criminal complaint in the Justice Court for Mina Township with murder with the use of a deadly weapon on a person sixty-five years of age or older. Exhibit 1.¹ After a preliminary hearing, petitioner was charged in the Fifth Judicial Circuit for Mineral County on October 5, 2001, with open murder with the use of a deadly weapon on a person over the age of sixty-five. Exhibits 4, 5, and 7. Petitioner entered a plea of not guilty to the

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charge. Exhibit 8. After a jury trial, petitioner was convicted as charged. Exhibits 27-32. Petitioner was sentenced to two consecutive life sentences without the possibility of parole. Exhibit 33. A judgment of conviction was entered on January 8, 2003. Exhibit 32.

Petitioner appealed, and the Nevada Supreme Court affirmed the conviction, but reversed for a new sentencing hearing. Exhibits 34 and 37. Remittitur issued on January 20, 2005. On remand, petitioner entered into a sentencing agreement, where he agreed to two consecutive life sentences with the possibility of parole. Exhibits 41 and 42. Petitioner also waived his right to appeal the re-sentencing. Id. The state district court sentenced him to two consecutive life sentences with parole eligibility in twenty years. Exhibit 42. A second amended judgment of conviction was entered on April 14, 2005. Exhibit 43.

Petitioner filed a state habeas corpus petition on August 22, 2005. Exhibit 44. Petitioner then filed an amended petition, and finally a second amended petition with the state district court, alleging seven grounds for relief, many of which contained numerous subparts. Exhibits 52 and 55. The state district court denied the petition without holding an evidentiary hearing. Exhibit 67. On appeal the Nevada Supreme Court affirmed the lower court's denial of the petition. Exhibit 69. Remittitur issued on March 13, 2008. Petitioner then filed a second habeas petition directly with the Nevada Supreme Court. Exhibit 72. The Nevada Supreme Court denied this petition without addressing the merits of the petition. Exhibit 73.

Petitioner mailed the instant federal petition on February 21, 2008 (ECF No. 6). Respondents moved to dismiss the petition, arguing some of the grounds contained in the petition were unexhausted and some were procedurally defaulted (ECF No. 14). Petitioner opposed the motion to dismiss (ECF No. 15). Thereafter, the Court found that grounds nine and ten were unexhausted and that ground one, subclaims nineteen through twenty-two, and ground five were procedurally defaulted (ECF No. 17). On petitioner's motion to reconsider, equitably toll, stay or remand (ECF No. 19), the Court denied reconsideration but stayed the proceedings to permit petitioner to return to state court to exhaust his unexhausted claims (ECF No. 22).

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The matter was reopened on August 1, 2011, and respondents have now filed their Answer, including any affirmative defenses that may apply (ECF No. 30). Petitioner has replied (ECF No. 34). In addition, respondents move to substitute parties to identify the current warden, Renee Baker, as a respondent in place of E.K. McDaniel, who is no longer warden of Ely State Prison. Petitioner moves under Fed. R. Civ. P. 60(b) for reconsideration of the dismissal of his procedurally defaulted grounds (ECF No. 32). Respondents have opposed this motion.

II. Miscellaneous Motions

A. Motion for Relief From Judgement or Order

Petitioner submits a second motion for reconsideration of the Court's determination that ground 1, subparts 19-22 are procedurally defaulted (ECF No. 32), contending that he was denied the opportunity to file a response to the state's motion to dismiss particular grounds of his second amended state post-conviction petition, as required by NRS 34.750(4).² The motion is opposed.

The order denying petitioner relief on his post-conviction petition was dated August 17, 2006, eight days after the State dated its Answer, Motion to Dismiss and Motion for Sanctions on August 8, 2006.³ Petitioner informs the Court that he had filed a motion for enlargement of time to respond, seeking an additional sixty days, received no order granting same, but assumed the motion was granted. Petitioner asserts that the state court's failure to follow the mandatory language of NRS 34.810(4) violated his constitutional rights to due process and equal protection.

The statute which addresses matters in state post-conviction proceedings such as the appointment of counsel, the pleadings allowed and the timing therefore provides in pertinent part:

4. The petitioner shall respond within 15 days after service to a motion by the State to dismiss the action.

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NRS 34.750(4). However, a violation of state law does not necessarily result in a federal constitutional violation, petitioner's citation to federal case law notwithstanding. Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258 (1948) ("We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.") Only when the state law error is so prejudicial that it renders the defendant's trial fundamentally unfair does a due process violation occur. Moore v. Borg, 911 F.2d 738 (9th Cir.1990) (citations omitted).

Here, the petition had been on file in the state court for almost a year, giving the court ample opportunity to review the petition. When the court received a document entitled "Answer, Motion to Dismiss and Motion for Sanctions," it apparently proceeded to expeditiously address the matter. Petitioner's response was untimely in the extreme, being filed some two months later, without leave of the court. Moreover, the arguments presented in that opposition conceded dismissal of ground one related to prosecutorial misconduct, so long as the court found all grounds to have been previously presented on direct appeal. See Opposition to Answer, Motion to Dismiss, and Motion for Sanctions, pp. 3-4, found at ECF No. 3-5. It further argues that the additional facts or grounds, if procedurally barred, should be allowed because they were not presented on direct appeal because of the oversight of appellate counsel. Id. at 4. These arguments have been presented to this Court before and were found to be inadequate. See ECF No. 22.

In order for attorney error to constitution cause to excuse a procedural default, it must rise to the level of a Sixth Amendment violation under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 (1986). Counsel's performance was found by the Nevada Supreme Court to have been adequate in this regard. See Order of Affirmance, Exhibit 69. Having reviewed the appellant's brief, this Court concludes that appellate counsel was more than effective. The brief was extensive and the claims thoroughly addressed. In fact, counsel attempted, at petitioner's insistence, to bring a claim to the Court's attention which he did not believe was appropriate, but which petitioner insisted be included. See Appellant's Opening

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Brief, p. 20, Exhibit 35. Finally, appellate counsel won petitioner relief in the form of a resentencing.

Petitioner's instant contention that the denial of his right to present his cause and prejudice arguments on post conviction denied him due process and equal protection are unpersuasive. The violation of state law in this instance does not constitute a due process or equal protection violation. Petitioner is not entitled to reconsideration of the Court's previous determination that ground 1, subparts 19-22 are procedurally barred. The motion shall be denied and no further such motions will be entertained by this Court.

b. Procedural Default - Grounds 9 and 10

Respondents move to dismiss the newly exhausted grounds 9 and 10 on the basis of procedural default. Ground 9 reads:

Petitioner was convicted for the crime of murder. Petitioner is not only Legally Innocent, but actually innocent of the crime. The conviction in this case violates Petitioner's rights under the 5th, 6th, 8th, and 14th Amendments to the United States Constitution.

Petition, p. 11B.

Ground 10 reads:

Due to bias expressed by the 5th Judicial District Court "JOHN P. DAVIS" Petitioner was denied his 5th, 6th and 14th Amendment rights under the United States Constitution. When he failed to address Petitioner's 6th Amendment Ineffective Assistance of Counsel claims [sic].

Petition, p. 12B (as originally set forth).

These two claims were presented for the first time to the Nevada Supreme Court in petitioner's second petition, which was filed on November 12, 2009. The Nevada Supreme Court found the claims to be untimely, successive and an abuse of the writ and...