Meegan v. State
| Decision Date | 27 December 2011 |
| Docket Number | No. 57447.,57447. |
| Citation | 373 P.3d 942 (Table) |
| Parties | James Francis MEEGAN, II, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Attorney General/Carson City
Clark County District Attorney
This is a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus .1 Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
In his petition, filed on September 10, 2010, appellant raised several claims of ineffective assistance of trial counsel. To prove ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must demonstrate (a) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness and (b) resulting prejudice in that there is a reasonable probability that, but for counsel's errors, petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)
; Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
First, appellant claimed that counsel was ineffective for instructing him to commit perjury; for not being able to give appellant an unbiased opinion or ensure a fair trial; for not obtaining the personal calendar of State's witness, D. Castro; for stipulating to “ ‘reusing’ of the prejudicial and fabricated” State's evidence; and for entering into a “continual stipulation” to allow into evidence a video that could have been prevented pursuant to the best evidence rule. Appellant's bare, naked claims failed to demonstrate deficiency or prejudice. See Hargrove v. State, 100 Nev. 498, 502–03, 686 P.2d 222, 225 (1984)
(). Appellant did not state what the alleged perjury would have been, how counsel was unable to render an unbiased opinion or ensure a fair trial, how the witness's calendar would have impeached her key testimony against appellant, or what the prejudicial and fabricated evidence was. Appellant also failed to identify any inaccuracies or modifications in the video that would have implicated the best evidence rule. See
Young v. Nevada Title Co., 103 Nev. 436, 440, 744 P.2d 902, 904 (1987) (). We therefore conclude that the district court did not err in denying these claims.
Second, appellant claimed that counsel was ineffective for not objecting to the denial of appellant's constitutional right to call witnesses at a pretrial hearing. Appellant failed to demonstrate deficiency or prejudice. Appellant's claim was bare and naked because he failed to identify which witnesses he wanted called, the hearing at which they were to be called, or why. To the extent appellant was referring to his May 24, 2005, hearing, appellant did not have a right to call witnesses because it was not an evidentiary hearing. Moreover, appellant failed to demonstrate that but for the alleged error, he would not have pleaded guilty and would have insisted on going to trial. We therefore conclude that the district court did not err in denying this claim.
Third, appellant claimed that counsel was ineffective for not arguing that the judge was biased against him. Appellant failed to demonstrate deficiency or prejudice. Appellant claimed that his attorneys warned him that if he continued to speak out in court, the judge would place appellant in a stun belt because she hated him. Appellant inferred from this exchange that the judge had stated that she hated appellant. Appellant's inference did not demonstrate that the judge had “closed his or her mind to the presentation of all the evidence.” Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998)
. Moreover, appellant failed to demonstrate that, but for his inference, he would not have pleaded guilty and would have insisted on a trial. We therefore conclude that the district court did not err in denying this claim.
Fourth, appellant claimed that counsel was ineffective for not objecting to the State's withholding of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
. Specifically, appellant claimed that by stating that witness M. Peet would be unable to testify at trial, the State was withholding exculpatory evidence. Appellant failed to demonstrate deficiency or prejudice. M. Peet's testimony was not withheld by the State because appellant admitted that defense investigators had spoken with M. Peet, and M. Peet had testified and was subject to cross-examination in appellant's earlier jury trial on the same charges. See
Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000) (). Moreover, because appellant had the benefit of observing the witness's testimony and cross-examination at appellant's first trial, he did not demonstrate a reasonable probability that but for the alleged error, he would not have pleaded guilty and would have insisted on going to trial. We therefore conclude that the district court did not err in denying this claim.
Fifth, appellant claimed that counsel was ineffective because counsel suffered from a conflict of interest because he had represented a State's witness and agreed to be “strategically aligned” with the State. This court previously held that counsel's representation of the State's witness was not a conflict of interest, Meegan v. State, Docket No. 49373 (Order of Affirmance, September 4, 2009), and that holding is the law of the case and cannot be reargued in the instant petition. Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975)
. Further, neither counsel's single alleged statement that the failure to grant a continuance would not be fair to the State nor, as discussed above, counsel's failure to make a futile objection to the assertion of witness unavailability demonstrated any “strategic alliance” between defense counsel and the State. We therefore conclude that the district court did not err in denying this claim.
Sixth, appellant claimed that counsel was ineffective for engaging in a conspiracy with the district court and the State to reconvict him. Appellant failed to demonstrate deficiency or prejudice. Appellant's substantive factual assertions that he claimed demonstrated the conspiracy were belied by the record such that he was not entitled to relief. Moreover, appellant did not demonstrate that, but for the alleged conspiracy, he would not have pleaded guilty and would have insisted on going to trial. To the extent appellant claimed that the appointment of post-conviction counsel and judge recusals and random reassignments were done outside his presence as a means to thwart his right to appeal such actions, we note that appellant had no right to appeal the recusal of a trial judge, Ham v. District Court, 93 Nev. 409, 412, 566 P.2d 420, 422 (1977)
, or to select his court-appointed counsel, Thomas v. State, 94 Nev. 605, 607, 584 P.2d 674, 676 (1978). We therefore conclude that the district court did not err in denying this claim.
Seventh, appellant claimed that counsel was ineffective for not arguing that appellant was being vindictively prosecuted. Appellant failed to demonstrate deficiency or prejudice. Because the State pursued the same charge before a different trial judge on retrial as it had in the prior proceedings, appellant failed to make out a prima facie case of vindictiveness. See Blackledge v. Perry, 417 U.S. 21, 25–26, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)
; U.S. v. Montoya, 45 F.3d 1286, 1299 (9th Cir.1995). We therefore conclude that the district court did not err in denying this claim.
Eighth, appellant claimed that counsel was ineffective for failing to argue that his previous sentence of life with the possibility of parole after ten years is the law of the case and that the State was collaterally estopped from arguing that it was not. Appellant failed to demonstrate deficiency or prejudice because his claims were belied by the record. Counsel in fact filed just such a motion, and the district court denied it. Moreover, because appellant was ultimately sentenced, pursuant to his guilty plea, to a term of life in prison with the possibility of parole after ten years, he failed to demonstrate that, but for the alleged error, he would not have pleaded guilty and would have insisted on going to trial. We therefore conclude that the district court did not err in denying this claim.
Ninth, appellant claimed that counsel was ineffective for failing to advise appellant and argue to the court that the State's retrying appellant for first-degree murder violated his rights under the Double Jeopardy Clause of the United States Constitution. Appellant failed to demonstrate deficiency. This court overturned appellant's first conviction, pursuant to a jury verdict, for first-degree murder because of unconstitutional jury instructions. Meegan v. State, Docket No. 40983 (Order of Reversal and Remand, December 22, 2004). Because the conviction was overturned for trial error and not insufficient evidence, appellant's retrial for first-degree murder did not implicate the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1, 15–16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)
. We therefore conclude that the district court did not err in denying this claim.
Tenth, appellant claimed that counsel was ineffective for failing to advise appellant and argue to the court that the State's reseeking a...
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