Nevius v. Sumner

• Citation: 105 F.3d 453
• Decision Date: 11 December 1996
• Docket Number: Nos. 86-2878,96-80322 and 96-99015,s. 86-2878
• Parties: 96 Cal. Daily Op. Serv. 9223, 96 Daily Journal D.A.R. 14,865 Thomas NEVIUS, Petitioner, v. George SUMNER, Director, Department of Prisons, et al., Respondents. Thomas NEVIUS, Petitioner, v. E.K. McDANIEL, Warden, Nevada State Prison at Ely, et al., Respondents. (Two Cases.) CA
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 453

105 F.3d 453

96 Cal. Daily Op. Serv. 9223, 96 Daily Journal

D.A.R. 14,865

Thomas NEVIUS, Petitioner, v. George SUMNER, Director, Department of Prisons, et al., Respondents.

Thomas NEVIUS, Petitioner, v. E.K. McDANIEL, Warden, Nevada State Prison at Ely, et al.,

Respondents. (Two Cases.)

CA Nos. 86-2878, 96-80322 and 96-99015.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 21, 1996.

Decided Dec. 11, 1996.

Michael Pescetta, Assistant Federal Public Defender, Las Vegas, NV, for petitioner.

Keith Munro, Deputy Attorney General, Carson City, NV, for respondents.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding.

Before CANBY, BOOCHEVER and KLEINFELD, Circuit Judges.

OPINION

CANBY, Circuit Judge:

Thomas Nevius, a Nevada state prisoner under sentence of death, brings three matters before this court. First, he appeals the district court's denial of his motion to file a petition for writ of habeas corpus. No. 96-99015. Second, he moves this court to recall its eight-year-old mandate in Nevius v. Sumner, 852 F.2d 463 (9th Cir.1988) ("Nevius I "), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). No. 86-2878. Third, he moves this court for authorization to file a second petition for writ of habeas corpus in the district court--an authorization now required by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(b)(3)(A). ¹ No. 96-80322.

We affirm the district court's denial of Nevius' motion to file a petition for writ of habeas corpus and deny Nevius' motion to recall our mandate. ² By separate order, however, we have granted Nevius leave to file a second petition for writ of habeas corpus.

I. BACKGROUND

In 1982, Thomas Nevius, a black man, was convicted of first-degree murder and sentenced to death by an all-white jury. For a statement of the facts surrounding the murder, see Nevius v. State, 101 Nev. 238, 699 P.2d 1053, 1054-57 (1985).

At trial, the prosecutor used his peremptory challenges to remove all of the prospective minority jurors. In response to defense objection, the prosecutor voluntarily placed in the record his ostensibly race-neutral reasons for challenging the minority jurors. According to one of Nevius' trial counsel, it was common knowledge at the time that the district attorney's office engaged in a practice of removing black jurors in cases involving black defendants, but defense counsel did not obtain or present evidence of that practice to bolster Nevius' claim that the prosecutor's use of his peremptory challenges violated Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and our decision in Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). ³

Some months after trial, one of Nevius' trial counsel had a conversation with the prosecutor about Nevius' case. According to trial counsel, the prosecutor said at some point in the conversation: "[Y]ou don't think I wanted all those niggers on my jury, did you?" Nevius' counsel did not, however, seek to place this statement before the trial court in a motion for new trial, nor did counsel attempt to place the statement before the Nevada Supreme Court, in which Nevius' direct appeal was then pending.

On direct appeal, the Nevada Supreme Court affirmed Nevius' conviction and sentence. The court held that Nevius' Swain claim was insufficiently supported, because, contrary to the requirements of Swain, it relied solely on the exclusion of minority jurors in Nevius' own case. The court also held that the prosecutor's asserted reasons for challenging all of the prospective minority jurors were proper. Nevius, 699 P.2d at 1058-59, 1059 n. 3.

Following the Nevada Supreme Court's denial of his petition for rehearing, Nevius attempted to obtain collateral relief in state court. The state district court summarily dismissed Nevius' petition for writ of habeas corpus on the merits and because it was filed in the wrong venue. Nevius then filed another petition, correcting the venue problem. That petition was also summarily dismissed on the merits.

Nevius then appealed the denial of his two post-conviction petitions to the Nevada Supreme Court and also petitioned for a writ of mandamus. The Nevada Supreme Court dismissed his appeals and denied his petition for a writ of mandamus.

The same day that the Nevada Supreme Court rejected his appeals and mandamus petition, Nevius filed a petition for writ of habeas corpus with the United States District Court for the District of Nevada. In his petition, Nevius sought discovery to establish that the prosecutor had made the statement about not wanting "all those niggers on my jury." ⁴ The state opposed discovery on the ground that counsel--the same counsel who had represented Nevius at trial, on direct appeal, and in all of the state post-conviction proceedings--had waived reliance on that evidence by failing to assert it in the earlier state proceedings. No claim of ineffective assistance of trial and appellate counsel was raised before the district court. The district court denied Nevius' motion for discovery without holding an evidentiary hearing, and denied Nevius' petition for writ of habeas corpus.

On appeal, we affirmed the district court's denial of Nevius' petition on the ground that the prosecutor's reasons for challenging all of the minority jurors at Nevius' trial satisfied the requirements of Weathersby. Nevius I, 852 F.2d at 467-68. We noted, however, the existence of "serious allegations" concerning the prosecutor's statements that, if proven, "might have presented in a different light the factual issues concerning the motivation of the prosecutor in exercising his peremptory challenges." Id. at 469-70. Because those statements were not in the record, however, they were not before us. We held that they would have to be presented to the state courts and a record made before we could consider them. Id.

Following our decision, Nevius filed a petition for writ of habeas corpus in the state district court, in which he attempted to use the prosecutor's statements to bolster his Swain-Weathersby claim. Although ordered to answer the petition by August 23, 1989, the state did not file an answer, and took no action with respect to the petition, for almost five years. Then, on April 11, 1994, the state filed a motion to dismiss the petition on procedural grounds. Without conducting an evidentiary hearing, the state district court then denied Nevius' petition.

Nevius appealed the state district court's decision to the Nevada Supreme Court. He also filed an original petition for habeas corpus in that court; it raised similar issues and was consolidated with his appeal. In addition to the Swain-Weathersby claim, the appeal and petition raised claims of ineffectiveness of counsel at trial and on appeal, as well as one claim that was entirely new: the reasonable-doubt instruction given at Nevius' trial was unconstitutional in light of the Supreme Court's decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The Nevada Supreme Court held that all claims were procedurally defaulted either because they had been raised before or because they were new claims that ought to have been raised in previous proceedings. To excuse the default, Nevius was required to show cause and prejudice, and he could not show prejudice. The primary claim of ineffective assistance of counsel was in failing to make an issue of the prosecutor's comments, but the Nevada Supreme Court ruled that counsel's statements that the comments had been made were not credible and would have made no difference in the result. The court further ruled that the issue of the reasonable-doubt instruction should have been raised earlier, and also stated that the instruction was not unconstitutional. The Nevada Supreme Court stated that it discussed the merits of Nevius' claims "strictly for the purpose of demonstrating that appellant cannot overcome his procedural defaults by a showing of actual prejudice." Nevius v. McDaniel, No. 29028, Order Dismissing Appeal and Denying Petition for Writ of Habeas Corpus, at 3-4 (Nev. Oct. 9, 1996).

While Nevius' consolidated appeal and petition were still pending in the Nevada Supreme Court, Nevius returned to the United States District Court and moved for leave to file a petition for habeas corpus. ⁵ The motion acknowledged that, pursuant to the new 28 U.S.C. § 2244(b)(3), Nevius would have to obtain leave of this court to file a second federal habeas petition. Nevius argued in his motion, however, that under the principles that this court established in Deutscher v. Angelone, 16 F.3d 981 (9th Cir.1994), his second petition should be treated as his first petition because his counsel filed the first petition without Nevius' authorization.

On August 30, 1996, Nevius filed in this court a motion to recall our mandate in Nevius I. Nevius argues that recalling the mandate is necessary to prevent injustice in his case, because, had Nevada not ignored for nearly five years the state district court's order to answer his 1989 state habeas petition, he could have returned to this court before the Supreme Court decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). McCleskey 's limits on successive habeas petitions thus would not have prevented us from considering the merits of Nevius' second habeas petition. Nevius would therefore have us recall our mandate and deal with his present claims as part of his first federal habeas appeal.

On September 3, 1996, the district court denied Nevius' motion to file a petition for writ of habeas corpus. The district court also denied a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Fed.R.App.P. 22(b), both as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Nevius...