Nelson v. McDaniel

• Decision Date: 17 October 2013
• Docket Number: 3:09-cv-00742-RCJ-VPC
• Parties: ANTHONY T. NELSON, Petitioner, v. E.K. McDANIEL, et al., Respondents.
• Court: U.S. District Court — District of Nevada

ANTHONY T. NELSON, Petitioner, v. E.K. McDANIEL, et al., Respondents.

3:09-cv-00742-RCJ-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: October 17, 2013

AMENDED ORDER

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

I. Background

On direct appeal, the Nevada Supreme Court found the following facts were determined at trial:

Carolyn Paquette and her friends, Jason Minkler and Alisha Chugg, were driving to Paquette's condominium after spending the evening at a club. As they entered Paquette's gated community, the group noticed that another vehicle followed them into the community before the gates closed. Minkler stopped the vehicle in front of Paquette's condominium; Paquette exited the vehicle and approached the front door to her home.

A black two-door vehicle with a red stripe and two people inside stopped behind Paquette. A man quickly exited the vehicle, approached Paquette, and demanded her purse. Paquette asked theman if he was kidding. The man replied that he was not kidding and held a handgun in front of Paquette's face.

Minkler and Chugg exited their vehicle. Chugg ran towards the man and inquired what was happening, but turned around and returned to her vehicle when the man displayed the gun to her. Minkler approached the man, pulled out his cell phone, and began dialing 911. After taking Paquette's purse, the gunman and the driver quickly drove out of the complex.

Shortly after the incident, an officer arrived on the scene and obtained statements from Paquette, Minkler, and Chugg. At trial, the officer testified that when he interviewed Minkler he did not notice the smell of alcohol on Minkler's breath and Minkler did not appear to be intoxicated. The officer testified that Paquette had been drinking that evening, but that she did not appear to be overly intoxicated. The officer also testified that Chugg had been drinking and appeared to be heavily intoxicated.

About 20-25 minutes after Paquette's purse was stolen, Officer Francis Shipp located a black Thunderbird with a red stripe parked on the shoulder of Boulder Highway that matched the description given by Minkler. Officer Shipp made a U-turn and positioned his vehicle almost three feet behind the Thunderbird when the vehicle began moving north on Boulder Highway. Officer Shipp then followed the Thunderbird with his lights off because he was alone and the vehicle was reportedly involved in an armed robbery. The Thunderbird eventually exited Boulder Highway and gradually increased speed as it traveled through housing developments. During this time, Officer Shipp reported to police dispatch that he was following a vehicle matching the description of the one used in Paquette's purse robbery, and he requested assistance.

The Thunderbird re-entered Boulder Highway traveling northbound when extra patrol cars joined the pursuit with lights and sirens activated. Officer Shipp recognized that he now had assistance so he activated his lights and sirens. However, the Thunderbird did not yield. Officer Shipp accelerated to approximately 90 miles per hour but was unable to keep pace with the Thunderbird. Another police vehicle, driven by Officer Jonathan Boucher, passed Officer Shipp as they both continued to pursue the Thunderbird. The Thunderbird proceeded to speed through two red lights before turning onto a road that terminated in a fence, which was erected at the edge of a construction site.

By the time Officer Shipp had stopped his vehicle, Officer Boucher had his gun drawn on Mathew Neifeld who was standing near the passenger side of the Thunderbird and Nelson who was lying on the ground near the driver side. The officers arrested both Nelson andNeifeld. During the arrest, Officer Boucher found a stocking in the front right pocket of Neifeld's pants. A search of the car recovered Paquette's cell phone, credit card, and three sets of black gloves. After the arrest, Officer Shipp retraced the path the Thunderbird traveled after he pulled his vehicle behind it. Officer Shipp searched for a discarded weapon, but never found one.

(Exhibit 40, at pp. 2-4); Nelson v. State, 534, 538-39; 170 P.3d 517, 520-17 (2007).¹

II. Procedural History

On November 17, 2004, petitioner and his co-defendant (Mathew James Neifeld) were charged with the following: Count 1, conspiracy to commit robbery; Count 2, robbery with the use of a deadly weapon; and Count 3, failure to stop on signal of police officer. (Exhibit 2).² Following a preliminary hearing, the justice court bound both defendants over to the district court on all counts. (Exhibit 3).

On December 8, 2004, the State filed an information containing Counts 1-4 of the criminal complaint. (Exhibit 5). Petitioner pled not guilty to the charges. (Exhibit 6).

On March 21, 2005, the State filed an amended information against petitioner, adding a habitual criminal enhancement on all three counts. (Exhibit 9). The amended information placed petitioner on notice that if found guilty, the State would seek to have him adjudicated a violent habitual criminal on robbery with the use of a deadly weapon charge (Count 2) under NRS 207.012, and a small habitual criminal on the conspiracy to commit robbery (Count 1) and/or to stop on the signal of a police officer (Count 3) under NRS 207.010. (Id.). The information listed two prior robbery convictions from 2001 in support of the habitual criminal determination.

The jury trial for petitioner and co-defendant Neifeld commenced on March 21, 2005. (Exhibit 10). Before jury selection, defense counsel raised a concern regarding Nelson's leg shackles. The court held that there was an indication of a criminal record and that the leg shackles would remain. (Id., at pp. 2-4). Jury selection began. (Id.).

Trial continued on March 22, 2005. (Exhibits 11 & 13). Defense counsel renewed the objection to petitioner's leg shackles, believing that prospective Juror No. 7 had gazed down at them the day before. (Exhibit 11, at pp. 3-8). Counsel requested a new jury panel. (Id.). Counsel further stated a different court services officer was present with petitioner, who had removed the shackles. The court found the first day of trial that the defendant was told to keep his feet under the table and the court did not see how any of the jury members could see his feet, as there were three people blocking the view and that there was a skirt surrounding the defense table. The court denied the request for a new jury panel. (Id.).

On the third day of trial, the parties settled jury instructions. (Exhibit 14). The defense noted several objections to jury instructions provided by the court and the State, and also discussed the three proposed and rejected defense instructions. (Id., at pp. 138-39). Following deliberations, the jury found petitioner guilty of Counts 1-3 and Neifeld guilty of Counts 1-2. (Exhibit 18).

On August 31, 2005, the State provided the court with documents to adjudge petitioner as a habitual criminal. (Exhibit 21).

On October 26, 2005, the court adjudged petitioner to be a violent habitual criminal as to Count 2. (Exhibit 23, at p. 12). Petitioner was sentenced as follows: Count 1, conspiracy to commit robbery, 60-90 months; Count 2, robbery with the use of a deadly weapon, life with the possibility of parole after 120 months, with a consecutive and like term for the weapon enhancement; and Count 3, failing to stop on signal of police officer, 60-190 months, all counts to run concurrent to one another. (Id.). A judgment of conviction was filed on November 4, 2005. (Exhibit 24).

Petitioner appealed the conviction to the Nevada Supreme Court. (Exhibit 25). On November 8, 2007, the Nevada Supreme Court affirmed the conviction. (Exhibit 40); Nelson v. State, 123 Nev. 534, 170 P.3d 517 (2007). Petitioner filed a notice for rehearing, which the Court denied. (Exhibits 41 & 42). Remittitur issued on March 21, 2008. (Exhibit 43).

On January 22, 2009, petitioner filed a post-conviction habeas petition in state district court. (Exhibits 46 & 47). On March 24, 2009, the state district court, ruling from the bench, denied the petition. (Exhibit 1). On April 9, 2009, the state district court filed a written denial of the petition. (Exhibit 51). The court found the claims raised in the petition were previously considered and rejected on direct appeal. Therefore, the claims were precluded by the doctrine of the law of the case. (Id.). Petitioner appealed the denial of his state habeas petition. (Exhibit 53). On October 7, 2009, the Nevada Supreme Court affirmed the dismissal of the petition. (Exhibit 56). The Nevada Supreme Court found that most of the claims were identical to claims raised on direct appeal, and therefore were barred by the doctrine of the law of the case. (Id.) (citing Halt v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975)). The Court further found all remaining claims barred as second or successive pursuant to NRS 34.810(1). (Id.). Petitioner filed a notice for rehearing, which the Court denied. (Exhibits 57 & 58). Remittitur issued on December 1, 2009. (Exhibit 59).

On December 15, 2009, petitioner dispatched his federal habeas petition to this Court. (ECF No. 1 & 5). The federal petition contains six grounds for relief. (Id.). Respondents moved to dismiss the petition as unexhausted. (ECF No. 7). By order filed February 25, 2011, the Court denied the motion as to Grounds 1-5, allowing those claims to proceed, but dismissed Ground 6 for failure to state a cognizable claim. (ECF No. 17). Respondents were directed to file an answer to Grounds 1-5 of the petition. Respondents have filed an answer. (ECF No. 23). The Court now addresses the merits of the remaining grounds of the petition.

III. 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...