Sherman v. Baker
| Decision Date | 16 December 2015 |
| Docket Number | 2:02-CV-1349-LRH-VCF |
| Parties | DONALD SHERMAN, Petitioner, v. RENEE BAKER, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Donald Sherman, a Nevada prisoner sentenced to death. ECF No. 103.
On June 1, 1994, the Las Vegas Police, in response to a call from a concerned neighbor, found the body of Lester Bauer (Bauer) lying face up on a blood-soaked bed in a blood-spattered room of his home in Clark County, Nevada. Bauer was the father of Sherman's ex-girlfriend Dianne Bauer (Dianne). An autopsy revealed that Bauer had died from several blows to the head with a hammer sometime between the night of May 29 and the early morning of May 30, 1994. In addition, Bauer's home had been ransacked and his car was missing.
On June 2, 1994, Sherman was arrested in Santa Barbara, California, when the police spotted Bauer's car with Sherman asleep inside. Sherman had two credit cards belonging to Bauer and a number of credit card receipts signed with Bauer's name. Sherman had used Bauer's American Express card to pay for escort services in Las Vegas on May 30 and 31, 1994, and a motel room in Santa Barbara on May 31, 1994.
After being moved to Idaho on a parole revocation, Sherman was returned to Nevada to face charges arising from the Bauer murder. On February 5, 1997, Sherman was convicted by a jury of first-degree murder, robbery, and burglary, in the Eighth Judicial District Court, Clark County, Nevada. After a penalty hearing, the jury imposed a sentence of death, finding the following aggravating circumstances: (1) Sherman had been convicted of another murder, (2) Sherman was under a sentence of imprisonment when he committed the murder, (3) the murder was committed during the course of a burglary, and (4) the murder was committed during the course of a robbery1. A judgment of conviction was entered on April 21, 1997. Sherman appealed.
On October 27, 1998, Sherman's conviction and sentence were affirmed on direct appeal by the Nevada Supreme Court. Sherman v. State, 965 P.2d 903 (Nev. 1998). The Nevada Supreme Court denied rehearing on December 29, 1998. On March 6, 1999, Sherman filed a petition for writ of certiorari with the United States Supreme Court. On May 17, 1999, the Supreme Court denied that petition.
On June 7, 1999, Sherman filed a proper person petition for writ of habeas corpus with the Eighth Judicial District Court. Approximately a year after being appointed counsel, Sherman filed, on June 27, 2000, a supplemental petition for writ of habeas corpus. On December 12, 2000, the district court denied the petition. Sherman appealed. The Nevada Supreme Court affirmed the denial of relief in an unpublished order on July 9, 2002, and issued its remittitur on August 5, 2002.
On October 11, 2002, this court received Sherman's initial petition for writ of habeas corpus, which was filed in propria persona. The court conditionally appointed the Federal Public Defender(FPD) to represent Sherman on October 21, 2002, but the need to resolve potential conflicts of interest delayed permanent appointment until April 10, 2003. On November 2, 2005, Sherman filed an amended petition for writ of habeas corpus. Shortly thereafter, on December 12, 2005, he filed a petition for writ of habeas corpus (post-conviction) in the Eighth Judicial District Court for Nevada. On January 3, 2006, the respondents filed a motion to dismiss the federal petition on the ground that it asserted claims not exhausted in state court.
Sherman opposed that motion, and sought a stay of the action so that he could exhaust his unexhausted claims. On May 22, 2006, this court denied respondents' motion to dismiss and granted Sherman's motion for a stay. The state district court dismissed the state petition on the ground that it was filed by the FPD, and not by counsel appointed in Sherman's prior state post-conviction proceedings. Sherman successfully appealed that decision; and, on January 9, 2007, the Nevada Supreme Court remanded the case for further proceedings.
On October 22, 2007, the state district court entered an order dismissing Sherman's petition without an evidentiary hearing. Sherman appealed. On May 17, 2010, the Nevada Supreme Court struck two of the aggravating circumstances against Sherman (the burglary and robbery circumstances), but affirmed the denial of relief. A petition for rehearing was denied and remittitur was issued on August 16, 2010. On October 8, 2010, this court vacated the stay and reopened the proceedings. On November 8, 2010, Sherman filed his second amended petition for writ of habeas corpus.
On May 23, 2011, the respondents filed a motion to dismiss the second amended petition for writ of habeas corpus arguing that all the claims in the petition are time barred by 28 U.S.C. § 2244(d) or, alternatively, that several claims are unexhausted or procedurally barred. On March 23, 2012, this court entered an order dismissing Claims Four, Six, Seven, Eight, Ten, Twelve, Thirteen(A), Thirteen(C), Fifteen, Sixteen, Seventeen and Eighteen as procedurally barred. The court also denied the petitioner's motion for evidentiary hearing and motion for leave to conduct discovery, but ordered additional briefing as to whether Claim Two should be dismissed asprocedurally defaulted in light of the then-recent Supreme Court opinion in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Following supplemental briefing, this court concluded that Sherman failed to demonstrate cause pursuant to Martinez to overcome the state procedural bars applied to Claim Two, except for Claim Two(Y), and, therefore, dismissed all sub-claims within Claim Two, except for Claim Two(Y). The court also denied Sherman's request for discovery and an evidentiary hearing on Claim Two.
On July 19, 2013, the respondents filed their answer to Sherman's remaining habeas claims. Briefing on the merits of those claims concluded on July 19, 2014. On September 26, 2014, this court denied petitioner's motion for an evidentiary hearing and related request for leave to conduct discovery.
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:.
28 U.S.C. § 2254(d).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the SupremeCourt] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
With respect to an "unreasonable determination of the facts" under § 2254(d)(2), "[t]his is a daunting standard—one that will be satisfied in relatively few cases." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). It is satisfied where a state court fails to make an obvious factual finding, where it makes a factual finding under an incorrect legal standard, where it plainly misapprehends or misstates the record, where it ignores evidence that supports the petitioner's claim, and where the fact-finding process itself is defective. Id. at 1001-02. However, the factual determinations of the state court cannot be overturned unless they are "objectively unreasonable in light of the evidence presented." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Id. The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "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 emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (2011) (describing the AEDPA 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).
"[R]eview under § 2254(d)(1) is limited to the record that was before the state court thatadjudicated the claim on the merits." Pinholster, 563 U.S. at 181. In Pinholster, ...
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