Reberger v. Baker

• Decision Date: 23 March 2020
• Docket Number: Case No. 3:13-cv-00071-MMD-CLB
• Parties: LANCE REBERGER, Petitioner, v. RENEE BAKER, et al., Respondents.
• Court: U.S. District Court — District of Nevada

LANCE REBERGER, Petitioner, v. RENEE BAKER, et al., Respondents.

Case No. 3:13-cv-00071-MMD-CLB

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 23, 2020

ORDER

I. SUMMARY

Petitioner Lance Reberger filed a petition for writ of habeas corpus ("Petition") under 28 U.S.C. § 2254. This matter is before the Court for adjudication of the Petition's merits. For the reasons discussed below, the Court grants Reberger habeas relief on Ground One's Napue claim, and grants a certificate of appealability for Ground One's Brady claim, but denies Reberger relief on his remaining grounds.

II. BACKGROUND

Reberger's convictions are the result of events that occurred in Clark County, Nevada on November 4, 1990. (ECF No. 31-7 at 2.) Reberger and Amber Harvey entered an adult video and bookstore on the morning of November 4, 1990, at approximately 3:30 a.m. (ECF No. 29-2 at 13-14.) After speaking with the store clerk and watching some videos, Harvey stole some money and merchandise. (Id. at 17-20.) Reberger then took the store clerk into the back of the store and shot him three times in the head. (Id. at 21-22; see also ECF No. 28-3 at 75.) Reberger grabbed more money and the store's cameras, and Reberger and Harvey drove away. (ECF No. 29-2 at 22.) After disposing of the cameras, their clothing, and some of the merchandise in the desert, Reberger and Harvey eventually drove to Coos Bay, Oregon where they were apprehended by local law enforcement. (Id. at 22-23, 25-29.)

Following a jury trial, Reberger was found guilty of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon. (ECF No. 31-7 at 2.) Reberger was sentenced to six years for the burglary conviction; ten years for the robbery conviction with an additional ten years for the deadly weapon enhancement, to run consecutive to the burglary sentence; and life with the possibility of parole for the murder conviction with an additional life with the possibility of parole for the deadly weapon enhancement, to run consecutive to the robbery sentence. (Id. at 3.) Reberger appealed, and the Nevada Supreme Court dismissed the appeal on May 26, 1995. (ECF No. 32-1.) Remittitur issued on June 14, 1995. (ECF No. 32-2.)

Reberger filed a state habeas corpus petition on January 30, 1996. (ECF No. 32-5.) Following the appointment of "five different attorneys over the course of ten (10) years," Reberger filed a counseled, supplemental petition on June 25, 2007; however, this supplemental petition was later stricken. (ECF No. 32-43 at 2, 14.) Following nine evidentiary hearings, the state district court denied Reberger's petition on January 19, 2012. (ECF No. 38.) Reberger appealed, and the Nevada Supreme Court affirmed on December 12, 2012. (ECF No. 38-9.) Remittitur issued on January 7, 2013. (ECF No. 38-10.)

Reberger dispatched his federal habeas corpus petition on February 10, 2013. (ECF No. 1-2 at 36.) Reberger thereafter filed a counseled, first amended federal petition on January 6, 2014. (ECF No. 16.) On January 15, 2014, Reberger moved for a stay and abeyance to allow him to return to state court to exhaust Ground One of his federal petition. (ECF No. 41.) This Court granted the motion and stayed this action. (ECF No. 48 at 9.)

On January 14, 2014, Reberger filed a counseled, second state habeas petition. (ECF No. 42-1.) Reberger later filed a counseled, amended petition and a counseled, supplemental petition on May 12, 2014, and June 25, 2014, respectively. (ECF Nos. 54,54-7.) Following two evidentiary hearings, the state district court dismissed Reberger's petition. (ECF Nos. 55-5, 55-8, 56-3.) Reberger appealed, and the Nevada Supreme Court affirmed on January 12, 2017. (ECF No. 57-3.) Remittitur issued on February 6, 2017. (ECF No. 57-4.)

On March 22, 2017, Reberger moved to reopen this federal action. (ECF No. 51.) This Court granted the motion and ordered that the stay be lifted. (ECF No. 64 at 2.) Reberger then filed his counseled, second amended federal petition on April 19, 2017. (ECF No. 65.) Respondents moved to dismiss claims within Reberger's second amended petition. (ECF No. 66.) The Court granted the motion in part and denied it in part. (ECF No. 94.) Specifically, Ground 9I, 10A, 10B, and 10C were dismissed as procedurally defaulted; and Grounds 2 and 3 were dismissed as noncognizable. (Id. at 13.) Respondents answered the remaining claims on May 29, 2018. (ECF No. 96.) Reberger replied on October 25, 2018. (ECF No. 101.)

In his remaining claims, Reberger asserts the following violations of his federal constitutional rights:

1. The State suppressed evidence that Harvey had a deal to receive a reduced sentence in exchange for her testimony against him.

4. The state district court erred in allowing a jailhouse informant to testify.

5. There were cumulative errors of prosecutorial misconduct.

6. The testimony of Harvey was improper.

7. The jury engaged in premature deliberations.

8. The state district court erred in refusing to give two proposed jury instructions.

9A. His trial counsel failed to call Corrine Kemp.

9B. His trial counsel failed to investigate and call alibi witnesses.

9C. His trial counsel improperly waived his speedy trial rights.

9D. His trial counsel introduced incriminating evidence against him.

9E. His trial counsel failed to sufficiently challenge letters he allegedly wrote to Harvey.

9F. His trial counsel failed to challenge Detective Perkins' testimony.

9G. His trial counsel failed to challenge the search warrant.

9H. His trial counsel failed to object to Jury Instruction Number 16.

(ECF No. 65 at 21-93.)

III. LEGAL STANDARD

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75 (quoting Williams, 529 U.S. at 413). "The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

The Supreme Court has instructed that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a "difficult to meet" and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

IV. DISCUSSION

The Petition asserts seven remaining grounds for relief. (ECF No. 65 at 21-93.) The Court will address each ground in turn.

A. Ground One

In Ground One, Reberger alleges that his federal constitutional rights were violated when the state district court suppressed evidence that Harvey had a deal to receive a reduced sentence in exchange for her testimony. (ECF No. 65 at 21.) Reberger's claim is based on violations of Brady v. Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264, 269 (1959). (Id. at 48.) In Reberger's appeal of the denial of his second state habeas petition, the Nevada Supreme Court held:

Reberger contends that the district court erred in denying his claim that the State improperly withheld Brady [v. Maryland, 373 U.S. 83 (1963)] evidence that would have impeached the State's primary witness and his codefendant, Amber Harvey. "To prove a Brady violation, the accused must make three showings: (1) the evidence is favorable to the accused, either because it is exculpatory or impeaching; (2) the State withheld the evidence, either intentionally or inadvertently; and (3) prejudice ensured, i.e., the evidence was material." State v. Huebler, 128 Nev. 192, 198, 275 P.3d 91, 95 (2012) (internal quotation marks omitted). Demonstrating the second and third elements of a Brady claim satisfies the good cause and prejudice requirements to overcome the procedural bars. Id. The district court found that the State withheld favorable evidence but that the evidence was not material. We agree.

The district court's finding that the State withheld favorable evidence is supported by

...