This action is a petition for writ of habeas corpus by Jeremy Turner, an individual incarcerated at Nevada's Lovelock Correctional Center. Respondents have filed an answer to Turner's amended petition, and the case is before the Court for adjudication of Turner's claims. The Court will deny the amended petition and deny Turner a certificate of appealability.
In an order in Turner's state habeas action, the district court described the murder that is the subject of this case, as follows:
On August 31, 2010, Mr. Turner was with his sister, Jamie Hulsey, and her husband, Ronald Hulsey, at the Hulsey residence. The group was joined by friends—Carolyn Faircloth, her boyfriend John Clymer, and her son Carl Roberts—for a barbecue. Everyone drank heavily. At approximately 7:00 p.m., Mr. Turner and Mr. Roberts became involved in a dispute, a punch was thrown, and a violent physical altercation erupted involving all adults present. Mr. Turner and Mr. Hulsey attacked Mr. Roberts, repeatedly kicking him about his head and body. Ms. Faircloth and Ms. Hulsey fought with each other, punching each other in the face. After beating Mr. Roberts, Mr. Turner allegedly came upon the two women, grabbed Ms. Faircloth by the hair, and punched her in the head. Mr. Hulsey then kicked Ms. Faircloth in the head while she lay on the ground.
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Mr. Clymer found Ms. Faircloth without a pulse. A neighbor called 911, and Ms. Faircloth was pronounced dead upon arrival at the hospital. Mr. Roberts was beaten so severely his face was unrecognizable. Mr. Turner fled the scene with Ms. Hulsey and her minor children before officers responded, but he was later apprehended at the Gold Dust West casino. He was transported to the Sheriff's office and gave a statement. He told officers he did not like Mr. Roberts because he was African American. He also stated he did not remember hitting Ms. Faircloth. (ECF No. 14-5 at 2-3 (Order filed June 9, 2014 (citations to trial transcript omitted)).) Following a jury trial in Nevada's Second Judicial District Court (Washoe County), Turner was convicted on November 17, 2011, of second degree murder and battery causing substantial bodily harm, and he was sentenced to life in prison with the possibility of parole after ten years, and a consecutive term of two to five years in prison. (See ECF No. 21-10 (Judgment of Conviction).) The Nevada Supreme Court affirmed the judgment of conviction on January 16, 2013. (See ECF No. 13-25 (Order of Affirmance).)
Turner filed a petition for writ of habeas corpus in the state district court on December 13, 2013. (See ECF No. 13-29 (Petition for Writ of Habeas Corpus (Post-Conviction).) The court held an evidentiary hearing (see ECF No. 14-10 (Transcript of Evidentiary Hearing)), and then denied Turner's petition on September 14, 2015 (see ECF No. 14-12 (Order Denying Post-Conviction Relief).) Turner appealed, and the Nevada Supreme Court affirmed on February 16, 2017. (See ECF No. 14-25 (Order of Affirmance).)
Turner submitted his original pro se federal habeas corpus petition for filing, initiating this action, on March 6, 2017. (ECF No. 6.) Respondents filed a motion to dismiss on June 5, 2017. (ECF No. 10.) That motion was rendered moot, and was denied on that ground, on October 17, 2017, when the Court granted Turner's motion to amend his petition. (ECF No. 26.) Turner filed his amended habeas petition, which is now his operative petition, on December 18, 2017. (ECF Nos. 27, 27-1.) The Court reads Turner's amended petition to include the following claims:
Ground 1A: Turner's federal constitutional rights were violated because his trial counsel was ineffective because he "conceded to a fist strike upon the victim."
Ground 1B: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing "to have the jury properly instructed on aiding and abetting, and/or specific intent," and because his appellate counsel was ineffective for failing to raise the issue on his direct appeal.
Ground 1C: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to file a motion to sever his trial fromthe trial of his co-defendant, and because his appellate counsel was ineffective for failing to raise the issue on his direct appeal.
Ground 1D: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to file a motion for a mistrial based on jury misconduct, and because his appellate counsel was ineffective for failing to raise the issue on his direct appeal.
Ground 1E: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to file a motion to suppress his statements to law enforcement.
Ground 1F: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to meaningfully cross-examine prosecution witnesses.
Ground 1G: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to investigate and prepare for the testimony of prosecution witnesses.
Ground 1H: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to prepare for his sentencing hearing.
Ground 1I: Turner's federal constitutional rights were violated because his trial counsel was ineffective for failing to object, or "argue against" the restitution order imposed as part of his sentence.
Ground 1J: Turner's federal constitutional rights were violated because his appellate counsel failed to raise the following issues on his direct appeal:
(i) the jury instructions regarding aiding and abetting, and/or specific intent;
(ii) juror misconduct;
(iii) cruel and unusual punishment;
(iv) insufficiency of the evidence;
(v) the restitution order;
(vi) cumulative error.
Ground 1K: Turner's federal constitutional rights were violated because of the cumulative errors of his trial counsel.
Ground 2: Turner's federal constitutional rights were violated because there was insufficient evidence to prove that he acted with the malice necessary for the crime of second degree murder.
Ground 3: Turner's federal constitutional rights were violated as a result of the cumulative effect of the errors he alleges.
Ground 4: Turner "is entitled to habeas relief for [the] reason [that] he is actually and/or factually innocent of the second degree murder charge."
(See ECF No. 27.)
On March 21, 2018, Respondents filed a motion to dismiss Turner's amended petition (ECF No. 29), arguing that all his claims are unexhausted in state court, and that some are not cognizable in this federal habeas corpus action. The Court ruled on that motion, granting it in part and denying it in part, on August 20, 2018. (ECF No. 34.) The Court dismissed: the claim of ineffective assistance of appellate counsel in Ground 1C; the claim of ineffective assistance of appellate counsel in Ground 1D; and Grounds 1J(ii), 1J(iii) and 1J(iv). In all other respects, the Court denied Respondents' motion to dismiss.
Respondents filed an answer on March 21, 2019. (ECF No. 53.) Turner filed replies on July 23 and August 26, 2019. (ECF Nos. 57, 59.) Respondents filed a response to Turner's replies on September 18, 2019. (ECF No. 60.)
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that a state prisoner who fails to comply with the state's procedural requirements in presenting his claims is barred by the adequate and independent state ground doctrine from obtaining a writ of habeas corpus in federal court. Coleman, 501 U.S. at 731-32 ("Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance."). Where such a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if "a constitutional violation has probably resulted in the conviction of one who is actually innocent," or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).
To demonstrate cause for a procedural default, the petitioner must "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Id. at 488. For cause to exist, the external impediment must haveprevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears "the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause, to overcome the procedural default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court noted that it had previously held, in Coleman, that "an attorney's negligence in a postconviction proceeding does not establish cause" to excuse a procedural default. Id. at 15 (citing Coleman, 501 U.S. at 746-47). The Martinez Court, however, "qualif[ied] Coleman by recognizing a narrow exception: inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of...
