Tiffany v. Legrand
Decision Date | 13 August 2020 |
Docket Number | No. 19-15796,19-15796 |
Parties | DAVID TIFFANY, Petitioner-Appellant, v. ROBERT LEGRAND, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA Respondents-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*On Appeal from the United States District Court for the District of Nevada
Submitted August 10, 2020** San Francisco, California
Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.
David Tiffany appeals the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Tiffany's petition challenged his convictions for lewdness with a child under the age of 14, sexual assault of a minor under the age of 14, solicitation of a minor, and child abuse and neglect. The sole basis of Tiffany's appeal is whether his due process rights were violated when the trial court denied his request for investigative funds. On direct appeal in the state court system, the Nevada Supreme Court held that the trial court abused its discretion in denying the funds, but it concluded the error was harmless beyond a reasonable doubt. On habeas review, the district court held that the decision from the Nevada Supreme Court was neither contrary to nor an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
1. Tiffany argues that the trial court's denial of investigative funds should be deemed a structural error and, thus, that prejudice must be presumed. Tiffany principally relies on Ake v. Oklahoma, 470 U.S. 68 (1985), to support this position. The Constitution requires courts to ensure that indigent defendants have "a fair opportunity to present [their] defense," and the Supreme Court has held that indigent defendants are entitled to psychiatric experts under some circumstances. Id. at 76, 83. However, the Supreme Court has not determined whether indigent defendants are entitled to non-psychiatric experts. See Caldwell v. Mississippi, 472U.S. 320, 323 n. 1 (1985) ( ). Thus, the trial court's denial of funds was neither contrary to nor an unreasonable application of clearly established federal law. See White v. Woodall, 572 U.S. 415, 426 (2014) .
2. Even if Ake extended beyond non-psychiatric assistance, there is no clearly established Supreme Court authority to suggest that an Ake violation is structural in nature. Indeed, there is a split of authority on the question of whether an Ake violation constitutes a trial error subject to harmless error inquiry or a structural error in which prejudice should be presumed. Compare McWilliams v. Comm'r, Alabama Dep't of Corr., 940 F.3d 1218, 1224-26 (11th Cir. 2019) ( ), with White v. Johnson, 153 F.3d 197, 201 (5th Cir. 1998) ( ), Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir. 1996) (same), and Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995) (same). Because there is no clearly established Supreme Court authority, we need not resolve this issue and Tiffany is not entitled to relief on this basis.
3. Alternatively, Tiffany requests remand to the district court for an evidentiary hearing on the issue of harmlessness. Habeas petitioners are not entitled to relief unless they can establish that a trial error resulted in actual prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) . During Tiffany's trial, the government presented overwhelming evidence of his guilt. And, on appeal, the record discloses no...
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