Matthews v. Neven

• Decision Date: 31 March 2017
• Docket Number: 2:14-cv-00472-GMN-PAL
• Parties: Jemar D. MATTHEWS, Petitioner, v. Dwight NEVEN, et al., Respondents.
• Court: U.S. District Court — District of Nevada

250 F.Supp.3d 751

Jemar D. MATTHEWS, Petitioner,

v.Dwight NEVEN, et al., Respondents.

2:14-cv-00472-GMN-PAL

United States District Court, D. Nevada.

Signed March 31, 2017

Todd M. Leventhal, Leventhal and Associates, Las Vegas, NV, for Petitioner.

Victor H. Schulze, II, Nevada Attorney General's Office, Las Vegas, NV, for Respondents.

ORDER

UNITED STATES DISTRICT JUDGE

Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Jemar D. Matthews, a Nevada prisoner. The court concludes that Matthews' trial was rendered unfair by improper comments made by the prosecutor in her rebuttal closing arguments, and that the prosecutorial misconduct was not harmless. The court grants Matthews a writ of habeas corpus.

Background

Matthews was convicted on July 17, 2007, following a jury trial in Nevada's Eighth Judicial District Court, in Clark County, of conspiracy to commit murder, murder with use of a deadly weapon, three counts of attempted murder with use of a deadly weapon, possession of a sawed off rifle, conspiracy to commit robbery, two counts of robbery with use of a deadly weapon, and two counts of assault with a deadly weapon. See Judgment of Conviction, Exhibit H (ECF No. 20–3) (The exhibits referred to in this order were filed by respondents, and are found in the record at ECF Nos. 17, 18, 19 and 20.). He was sentenced to the following prison terms, to be served concurrently:

Count 1     conspiracy to commit murder            26 to 120 months
                Count 2     murder with use of a deadly weapon     two consecutive sentences of
                                                                   20 years to life
                Count 3     attempted murder with use of a         two consecutive sentences of
                            deadly weapon                          48 to 240 months
                Count 4     attempted murder with use of a         two consecutive sentences of
                            deadly weapon                          48 to 240 months
                Count 5     attempted murder with use of a         two consecutive sentences of
                            deadly weapon                          48 to 240 months
                Count 6     possession of a sawed off rifle        12 to 48 months
                Count 7     conspiracy to commit robbery           12 to 72 months
                Count 8     robbery with use of a deadly weapon    two consecutive sentences of
                                                                   40 to 180 months
                Count 9     robbery with use of a deadly weapon    two consecutive sentences of
                                                                   40 to 180 months
                Count 10    assault with a deadly weapon           16 to 72 months
                Count 11    assault with a deadly weapon           16 to 72 months
                

See id.

In its order affirming the judgment of conviction, the Nevada Supreme Court described the factual background of the case as follows:

In this case, appellant Jemar Matthews and three other young men walked up to a group of people standing outside a friend's house and opened fire, killing one victim with a shot to the head and injuring another. In attempting to flee the area, the shooters robbed a vehicle at gunpoint and a police chase ensued, resulting in Matthews' capture.

Order of Affirmance, Exhibit J, p. 1 (ECF No. 20–5, p. 2). The Nevada Supreme Court affirmed the judgment of conviction on June 30, 2009. See id. The court then denied Matthews' petition for rehearing and his petition for en banc reconsideration. See Order Denying Rehearing, Exhibit L (ECF No. 20–7); Order Denying En Banc Reconsideration, Exhibit N (ECF No. 20–9).

On December 14, 2010, Matthews filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit O (ECF No. 20–10); Amended Supplemental Points and Authorities in Support of Petition for Writ of Habeas Corpus (Post–Conviction), Exhibit P (ECF No. 20–11). The state district court held an evidentiary hearing (see Recorder's Transcript of Proceedings, Exhibit Q (ECF No. 20–12)) and then denied the petition in a written order filed on November 13, 2012. See Findings of Fact, Conclusions of Law and Order, Exhibit R (ECF No. 20–13). Matthews appealed and the Nevada Supreme Court affirmed on January 16, 2014. See Order of Affirmance, Exhibit T (ECF No. 20–15).

This court received Matthews' federal habeas petition, initiating this action, pro se , on March 28, 2014 (ECF No. 6). The court granted Matthews' motion for appointment of counsel, and appointed counsel to represent him. See Order entered August 29, 2014 (ECF No. 5); Order entered September 10, 2014 (ECF No. 9). With counsel, Matthews filed a first amended habeas petition (ECF No. 14) on January 9, 2015. Matthews' first amended petition asserts the following claims:

1. "Mr. Matthews' rights to [a] fair and impartial trial, due process, and equal protection of the law under the Fifth, Sixth and Fourteenth Amendments to the Constitution were violated in his state court prosecution because there was not sufficient evidence on which to convict him." First Amended Petition (ECF No. 14), p. 7.

2. "Mr. Matthews' rights to a fair trial, due process and equal protection of the law were abrogated in violation of [the] Fifth, Sixth and Fourteenth Amendment guarantees by the pervasive prosecutorial misconduct evidenced during trial and at rebuttal closing." Id. at 21. Claim 2 includes four subclaims:

(a) the prosecutor committed misconduct by urging the jurors to stare at Matthews and scrutinize his attire;

(b) the prosecutor committed misconduct by questioning Matthews' opposition to a key piece of evidence, gunshot residue found on a red glove;

(c) the prosecutor committed misconduct by "painting Mr. Matthews in the light of Mr. Joshlin's actions by referring to 'they' and 'them' " during trial and closing arguments; and

(d) the prosecutor committed misconduct by having a witness read from a SCOPE printout containing Matthews' criminal history to establish his height, and commenting that the printout contained arrest information.

3. "Mr. Matthews' constitutional rights under the Sixth, Fifth and Fourteenth Amendment guarantees to a fair trial, due process and equal protection under the law were violated when an unqualified expert was allowed to testify regarding gun residue on a red glove which was unconnected to any crime and which further was unconnected to Mr. Matthews as well as being unacceptable as unproven and was hypothetical not actual evidence." Id. at 31 (as in original).

4. "Mr. Matthews' Fifth, Sixth and Fourteenth Amendment rights to due process and equal protection were violated when the trial court allowed the prosecutor and his witness to vouch that they, in fact, had the 'right guy.' " Id. at 37.5. "The district court erred when it stated it had no discretion to allow additional peremptory challenges, and violated Mr. Matthews' Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial." Id. at 40.

6. "Mr. Matthews' conviction and sentence are unconstitutional, in violation of his Sixth Amendment right to effective assistance of counsel, and his Fourth and Fifth and Fourteenth Amendment right to due process, fair trial and equal protection." Id. at 42. Specifically, trial counsel was ineffective for not moving to sever the charges against him from the charges against his codefendant. Id. at 42–48.

On July 13, 2015, respondents filed a motion to dismiss, arguing that Claims 2c, 3, 4 and 5 are unexhausted in state court, and that Claims 1, 3, 4 and 5 fail to state claims cognizable in this federal habeas corpus action. See Motion to Dismiss (ECF No. 16), pp. 8–12. The court resolved the motion to dismiss on November 13, 2015, ruling that Claims 2c, 3 and 5 are unexhausted, and declining to reach, on the motion to dismiss, the question of the cognizability of Claims 1, 3, 4 and 5. See Order entered November 13, 2015 (ECF No. 24). With respect to Claims 2c, 3 and 5, the court granted Matthews an opportunity to make an election, to either abandon those claims, or, alternatively, file a motion for stay, requesting a stay of this action to allow him to return to state court to exhaust them. See id. at 9–10. Matthews elected to abandon the unexhausted claims. See Notice of Abandonment (ECF No. 25); Declaration of Jemar Matthews (ECF No. 26).

Respondents filed an answer on April 13, 2016, responding to Matthews' remaining claims (ECF No. 32). Matthews filed a reply on June 16, 2016 (ECF No. 33).

Discussion

28 U.S.C. § 2254(d)

A federal court may not grant an application for a writ of habeas corpus on behalf of a person in state custody on any claim that was adjudicated on the merits in state court unless the state court decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or (2) 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 state-court ruling is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). A state-court ruling is "an unreasonable application" of clearly established federal law, under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor , 529 U.S. 362, 407–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To obtain federal habeas relief for such an "unreasonable application," the petitioner must show that the state court's application of Supreme Court precedent was "objectively unreasonable." Id. at 409–10, 120 S.Ct. 1495 ; see also Wiggins v. Smith , 539 U.S. 510, 520–21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Or, in other words, habeas relief is warranted, under...