Smith v. Baker, 052120 FED9, 14-99003

Docket Nº:14-99003
Opinion Judge:CHRISTEN, Circuit Judge
Party Name:Joseph Weldon Smith, Petitioner-Appellant, v. Renee Baker, Warden; Aaron D. Ford, [*] Attorney General of the State of Nevada, Respondents-Appellees.
Attorney:Robert Fitzgerald (argued), David Anthony, Heather Fraley, and Brad D. Levenson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada, for Petitioner-Appellant. Jeffrey Morgan Conner (argued), Deputy Assistant At...
Judge Panel:Before: N. Randy Smith, Mary H. Murguia, and Morgan Christen, Circuit Judges. N.R. SMITH, Circuit Judge, concurring:
Case Date:May 21, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Joseph Weldon Smith, Petitioner-Appellant,

v.

Renee Baker, Warden; Aaron D. Ford, [*] Attorney General of the State of Nevada, Respondents-Appellees.

No. 14-99003

United States Court of Appeals, Ninth Circuit

May 21, 2020

Argued and Submitted July 11, 2019 Seattle, Washington

Appeal from the United States District Court for the District of Nevada D.C. No. 2:07-cv-00318-JCM-CWH James C. Mahan, District Judge, Presiding

COUNSEL

Robert Fitzgerald (argued), David Anthony, Heather Fraley, and Brad D. Levenson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada, for Petitioner-Appellant.

Jeffrey Morgan Conner (argued), Deputy Assistant Attorney General; Victor-Hugo Schulze II, Senior Deputy Attorney General; Heidi Parry Stern, Chief Deputy Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

Before: N. Randy Smith, Mary H. Murguia, and Morgan Christen, Circuit Judges.

SUMMARY [**]

Habeas Corpus/Death Penalty

The panel affirmed the district court's judgment dismissing Joseph Weldon Smith's habeas corpus petition challenging his Nevada convictions for three murders and one attempted murder, and his death sentence for one of the murders.

The district court issued a certificate of appealability for Smith's argument that the procedural default of his ineffective-of-assistance-of-counsel claim should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). The panel held that Smith did not show that he was prejudiced by the lack of an evidentiary hearing, and that the district court did not abuse its discretion by dismissing the

Martinez claim without holding one. Applying Martinez and Strickland v. Washington, 466 U.S. 668 (1984), the panel held that Smith satisfied his burden of demonstrating a substantial argument that the performance of his second penalty-phase counsel was deficient for failing to investigate mental health mitigation evidence, but that Smith did not show that he was prejudiced by counsel's deficient performance.

The panel certified for appeal Smith's claim that the death verdict violated Stromberg v. California, 283 U.S. 359 (1931). The panel held that Smith demonstrated Stromberg error because it was impossible to tell whether the jury unanimously found mutilation, which was the sole basis to support the death verdict after the Nevada Supreme Court invalidated the trial court's depravity-of-mind jury instruction. The panel concluded that the error was harmless because the invalid instruction did not have a substantial and injurious effect on the jury's verdict.

The panel declined to certify Smith's remaining uncertified claims.

Concurring, Judge N.R. Smith would affirm the dismissal of Smith's ineffective-assistance-of-counsel claim as procedurally barred on a different ground-that counsel's performance during the second penalty-phase hearing was not deficient, and that the claim is therefore insubstantial.

OPINION

CHRISTEN, Circuit Judge

In 1992, a Nevada jury convicted Joseph Weldon Smith of three counts of first degree murder with use of a deadly weapon for beating and strangling his wife, Judith Smith, and his step-daughters, Wendy Jean Cox and Kristy Cox. The women were killed in a home the Smiths were renting in Henderson, Nevada. The jury also convicted Smith of attempting to murder Frank Allen with use of a deadly weapon. Allen owned the home the Cox family was renting. For Wendy's and Kristy's murders, Smith was sentenced to death. For Judith's murder, he was sentenced to life in prison without the possibility of parole.

Smith appealed his convictions and sentences. The Nevada Supreme Court affirmed the convictions, but it vacated the death sentences and remanded for a new penalty hearing. See Smith v. State, 881 P.2d 649 (Nev. 1994) (Smith I). After a second penalty hearing, Smith was again sentenced to death for Wendy's and Kristy's murders. On appeal, the Nevada Supreme Court vacated the death sentence for Kristy's murder and instead imposed a sentence of life without the possibility of parole, but it affirmed the death penalty for Wendy's murder. See Smith v. State, 953 P.2d 264 (Nev. 1998) (Smith II).

Smith filed a pro per habeas petition in state district court, which was denied, and the Nevada Supreme Court affirmed that ruling in an unpublished order. Smith then filed a pro per habeas petition in federal district court. That court appointed counsel for Smith and stayed the federal proceedings so Smith could return to state court to exhaust certain claims. The state district court denied Smith's second state habeas petition on procedural default grounds, and the Nevada Supreme Court affirmed that decision. Smith then returned to federal court, where the State's motion to dismiss was granted in part and denied in part. The federal district court later denied the remainder of Smith's petition but issued a certificate of appealability for his argument that the procedural default of his ineffective assistance of counsel (IAC) claim should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Smith appeals the denial of his federal habeas petition.

We affirm the district court's judgment dismissing Smith's IAC claim as procedurally barred. Although we conclude that his counsel's performance at the second penalty-phase hearing was deficient, Smith has not shown that he was prejudiced by his counsel's performance. Smith's IAC claim therefore remains procedurally defaulted, and cannot serve as a basis for federal habeas relief.

Smith also asserts nine uncertified claims on appeal. We may issue a certificate of appealability when a petitioner shows "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We certify Smith's eighth claim, which alleges violation of the rule set out in Stromberg v. California, 283 U.S. 359 (1931), but we ultimately conclude that this claim does not entitle Smith to habeas relief because the Stromberg error was harmless. The remaining uncertified claims do not raise substantial questions of law. We decline to certify them because we are not persuaded that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484). We therefore affirm the district court's order dismissing Smith's federal habeas petition.

I. Factual Background

The facts relating to the murders and to Smith's first trial and penalty-phase hearing were recounted by the Nevada Supreme Court in Smith I, as follows: During the trial Michael Hull, a police officer for the City of Henderson, testified as follows: On Saturday, October 6, 1990, at approximately 2:29 a.m., he was dispatched to the Fountains, a gated community in Henderson. While on his way, Hull was flagged down by a man who subsequently identified himself as Frank Allen. Allen appeared frantic and Hull observed blood on his shirt and blood running down the left side of his head. Allen told Hull that Smith had attacked him with a hammer or a hatchet.

After arriving at the Smiths' home, located at 2205 Versailles Court inside the gated community, Hull and two other officers observed a large broken window lying on the front porch outside the house. Allen had explained to the officers that he had left through that window. The officers entered the premises and, during a search of a bedroom, observed what appeared to be a figure beneath a blanket. After lifting the blanket, they discovered a dead body, subsequently identified as twelve-year-old Kristy Cox. In an adjacent bedroom they discovered a second body, also dead and covered with a blanket, later identified as twenty-year-old Wendy Cox. Under a blanket in the master bed, the officers found a third victim, Kristy and Wendy's mother and Smith's wife, Judith.

The officers also located some notes written by Smith. The first, found inside a briefcase in the upstairs den, and dated October 5, 1990, read:

A triple murder was committed here this morning. My wife, Judith Smith and my two stepdaughters, Wendy Cox and Kristy Cox, were assassinated. I know who did it. I know who sent them. I had been warned that this would happen if I did not pay a large sum of money to certain people. I have been owing it for a long time and simply could not come up with it. And I didn't believe the threat. I don't need any help from the police in this matter. I will take care of it myself. They will have to kill me, too. When and if you find me, I'm sure I will be dead, but that's okay. I already killed one of the murderers. And I am going to get the others and the man who I know sent them. There were three in all. You will probably find my body within a day or two.

Thank you, Joe Smith.

P.S.: I thought I had gotten away when we moved here, but it didn't work. When we moved, we were being watched. If I am successful in my task at hand, I will turn myself into (sic) the police.

The second letter stated, "Frank [Allen], look in the locked room upstairs for your package. The key is on the wet bar. Joe." Dr. Giles Sheldon Green, Chief Medical Examiner for Clark County, testified that he performed the autopsies on the bodies of the three victims. Green stated that all three victims died from asphyxia due to manual strangulation. He also opined that the pattern of injuries found on the three victims could have been inflicted with a carpenter's hammer. On Kristy, Green...

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