Neuschafer v. Whitley, No. 88-1688

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS, ALARCON and HALL; CYNTHIA HOLCOMB HALL; CHAMBERS; ALARCON
Citation860 F.2d 1470
PartiesJimmy NEUSCHAFER, Petitioner-Appellant, v. Harol WHITLEY; Attorney General for the State of Nevada, Respondents- Appellees.
Docket NumberNo. 88-1688
Decision Date03 November 1988

Page 1470

860 F.2d 1470
Jimmy NEUSCHAFER, Petitioner-Appellant,
v.
Harol WHITLEY; Attorney General for the State of Nevada,
Respondents- Appellees.
No. 88-1688.
United States Court of Appeals,
Ninth Circuit.
Argued Feb. 29, 1988.
Submitted May 6, 1988.
Decided Nov. 3, 1988.

Page 1471

Mary E. Boetsch, Mooney & Boetsch, Ltd., Reno, Nev., for petitioner-appellant.

Brian McKay, Attorney General and David Sarnowski, Deputy Atty. Gen., Carson City, Nev., for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before CHAMBERS, ALARCON and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Jimmy Neuschafer appeals from the dismissal of his petition for writ of habeas corpus on abuse of the writ grounds. We reverse and remand.

I.

Jimmy Neuschafer was sentenced to death on April 12, 1983 for killing fellow inmate Johnnie Johnson. He appealed his conviction to the Nevada Supreme Court which affirmed it on August 27, 1985. Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985). On October 7, 1985 the state trial court held a hearing during which Neuschafer's counsel was relieved. No new counsel was appointed and the court set an execution date of November 5, 1985.

On October 22, 1985, with some assistance from the state public defender's office, Neuschafer filed a pro se state habeas petition, requested a stay of execution, and requested counsel. Neuschafer's state petition raised two issues: (1) Neuschafer's fifth and sixth amendment rights were violated because a confession was obtained after he requested counsel, and (2) there might be other grounds that would come to light once a lawyer was appointed.

On October 24, 1985 the state trial court held a hearing on this petition at which Neuschafer was present. The court denied relief and dismissed the petition without prejudice because it was conclusory and because the first ground had been decided by the Nevada Supreme Court on direct appeal. The court cautioned Neuschafer that if he filed another petition he should raise all issues that challenged the validity of his sentence and conviction in that single petition; otherwise he would not be able to assert them in a subsequent habeas petition. See Nev.Rev.Stat. Sec. 177.380 (1987).

At a hearing in the state trial court on October 30, 1985 a state public defender was appointed to represent Neuschafer at his request. Counsel asked for a 120 day stay of execution in order to obtain the record, review it thoroughly, and determine what issues could be raised in a habeas petition. One issue that counsel believed existed was an ineffective assistance of counsel claim. At this hearing counsel acknowledged, in Neuschafer's presence, that the state trial court previously had informed Neuschafer "that each and every possible allegation and error must be raised in this petition or it is forever barred in the State court. And, of course, that would mean to be forever barred in going anywhere, because the Federal Court is going to look whether or not Mr. Neuschafer exhausted his State remedies." The state trial court denied the stay of execution.

Page 1472

A state public defender appealed from both the denial of the stay and the denial without prejudice of Neuschafer's pro se state habeas petition. At oral argument before the Nevada Supreme Court, counsel argued the ineffective assistance of counsel claim without having amended Neuschafer's petition to raise the claim. On November 1, 1985 the supreme court denied the stay and dismissed the appeal without prejudice to Neuschafer filing an amended state habeas petition, as permitted by the state trial court's order.

Neuschafer did not return to the state trial court. Instead, on that same day and with some help from the federal public defender's office, Neuschafer filed a pro se federal habeas petition, moved for appointment of counsel, and requested a stay of execution. This petition raised only one ground: it challenged the admissibility of a confession Neuschafer made after he requested counsel.

The district court appointed a federal public defender to represent Neuschafer and held a hearing on November 4, 1985 to consider the application for a stay. Neuschafer was not present. At the hearing counsel expressed his belief that there were additional issues that might be raised in state court that had not been raised in the federal petition: "There are dozens of issues that could be raised pending a more complete review of the record by an attorney at law." Counsel specifically mentioned the availability of an ineffective assistance of counsel claim and that that claim had not been exhausted.

Counsel also suggested to the district court the possibility of holding the federal petition in abeyance, granting a stay of execution, and allowing a state public defender to develop in state court any additional unexhausted claims that the federal public defender found after reviewing the record. 1 In this way, counsel thought he could avoid what he perceived as the problem of getting a stay from the state courts if Neuschafer returned there.

The district court was reluctant to issue a stay on the ground that a review of the record might disclose unexhausted issues. However, because Neuschafer's petition raised a facially valid constitutional claim, the district court granted a stay to deal with that issue. This allowed counsel to review the record for both exhausted and unexhausted claims without the threat of Neuschafer's imminent execution.

The district court also gave Neuschafer twenty-one days, until November 25, 1985, to file a supplemental federal petition to raise whatever other grounds for relief counsel could discern. The court cautioned counsel to raise all possible issues in the supplemental petition because Neuschafer might be precluded from raising them in a later federal petition. 2 Furthermore, the court indicated that if a review of the record indicated that there were unexhausted issues, the court would determine at that point whether it could issue a stay while Neuschafer proceeded in state court.

On November 25, 1985 Neuschafer filed his supplemental federal petition which raised three grounds for relief, all of which had been presented to the Nevada Supreme Court on direct appeal: (1) his confession was obtained after he requested counsel, (2) insufficient evidence was presented to support the death sentence, and (3) the death sentence was a disproportionate penalty. The petition did not raise any of the unexhausted claims that counsel was sure existed on November 4, including the ineffective assistance of counsel claim. Notably, Neuschafer did not request that the district court issue a stay and hold the federal petition in abeyance so he could return to state court to exhaust state remedies.

Page 1473

The district court denied the federal petition on March 1, 1986. Neuschafer v. Whitley, 630 F.Supp. 897 (D.Nev.1986).

Neuschafer appealed to this court and we remanded for an evidentiary hearing on the issue of his confession and whether he waived his right to counsel. Neuschafer v. McKay, 807 F.2d 839 (9th Cir.1987). The district court held a hearing and made findings. Neuschafer v. Whitley, 656 F.Supp. 891 (D.Nev.1987). We then rejected Neuschafer's constitutional arguments and affirmed the denial of the petition by the district court. Neuschafer v. Whitley, 816 F.2d 1390 (9th Cir.1987). We also granted a stay of execution pending the filing of a petition for grant of certiorari by the Supreme Court. However, after a conscientious review of the record, the federal public defender moved to withdraw the stay because he thought a petition would not be granted and could be viewed as a dilatory tactic.

Neuschafer then returned to the state trial court. On July 21, 1987 all attorneys who had represented Neuschafer were notified of a hearing to be held on August 4, 1987 regarding the issuance of a warrant of execution. At that August 4 hearing Neuschafer asked the state trial court to release all his previous counsel from further responsibility because "they have done enough for me, your Honor. They were my trial lawyers and they can't help me no further." After canvassing counsel and Neuschafer, the court released all prior counsel including the state public defender's office. Neuschafer's execution date was set for August 20, 1987.

On August 5, 1987, the day after he requested to have counsel relieved, Neuschafer filed a second pro se state habeas petition that raised a number of new grounds. He also requested that an attorney be appointed to represent him in the habeas proceedings. The state public defender was again appointed. On August 10 counsel requested a stay of execution because counsel was not familiar with the record and needed time to prepare a supplemental state petition after reviewing the record.

On August 17, 1987 the state trial court held a hearing. At Neuschafer's request the court removed the state public defender's office as counsel because of conflicts of interest. The court also dismissed Neuschafer's habeas petition without prejudice because it was conclusory. The court offered to appoint independent counsel, without any connection to the state public defender's office, to assist Neuschafer with his appeal to the Nevada Supreme Court. Neuschafer replied, "I appreciate that, but it's not necessary."

On August 18, 1987, although expressly relieved from the case because of conflicts of interest, a state public defender filed a notice of appeal to the Nevada Supreme Court which included an affidavit stating the state public defender's belief that Neuschafer was not competent to discharge counsel, to waive appointment of other counsel, or to waive his appeal. The Nevada Supreme Court considered the appeal because of the gravity of the sentence, but dismissed it on August 19, 1987.

After vacillating on whether to request relief from federal court, Neuschafer filed a second...

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56 practice notes
  • Bonin v. Calderon, Nos. 92-56299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1995
    ...eight months later, the State filed a motion to compel Bonin to identify all possible claims or waive them. See Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). On April 19, 1991, the district court denied the moti......
  • Campbell v. Blodgett, No. 92-35360
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 8, 1993
    ...abuse of discretion. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). A court abuses its discretion when it bases its deci......
  • Farmer v. McDaniel, No. 95-99016
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 29, 1996
    ...Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Pursuant to this court's then-controlling decision in Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir.1988), the filing of a later petition in order to raise claims that had not been exhausted at the time a first federal petition was......
  • Hamilton v. Vasquez, Nos. 91-56251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 3, 1994
    ...of which were unexhausted (id. at 245-256). On June 21, 1990, following Judge Alarcon's concurring opinion in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989) (Alarcon, J., concurring), the district court ordered Ha......
  • Request a trial to view additional results
56 cases
  • Bonin v. Calderon, Nos. 92-56299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1995
    ...eight months later, the State filed a motion to compel Bonin to identify all possible claims or waive them. See Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). On April 19, 1991, the district court denied the moti......
  • Campbell v. Blodgett, No. 92-35360
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 8, 1993
    ...abuse of discretion. Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). A court abuses its discretion when it bases its deci......
  • Farmer v. McDaniel, No. 95-99016
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 29, 1996
    ...Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Pursuant to this court's then-controlling decision in Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir.1988), the filing of a later petition in order to raise claims that had not been exhausted at the time a first federal petition was......
  • Hamilton v. Vasquez, Nos. 91-56251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 3, 1994
    ...of which were unexhausted (id. at 245-256). On June 21, 1990, following Judge Alarcon's concurring opinion in Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989) (Alarcon, J., concurring), the district court ordered Ha......
  • Request a trial to view additional results

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