Walker v. Neven

Decision Date05 June 2018
Docket NumberCase No. 2:13-cv-01099-APG-VCF
PartiesRICHARD ALLEN WALKER, Petitioner, v. DWIGHT NEVEN, et al., Respondents.
CourtU.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 Richard Allen Walker, a Nevada prisoner. ECF No. 55.


With his petition, Walker is challenging a January 1995 judgment of conviction in the state district court for Clark County, Nevada, on charges of first degree murder with use of a deadly weapon and robbery with use of a deadly weapon. The Supreme Court of Nevada recounted the facts of Walker's case and the testimony presented at his trial as follows:

On April 14, 1992, at 2:47 a.m., Thomas Harmon ("Harmon"), a Las Vegas Metropolitan Police Department ("LV Metro") officer, found the body of Kevin Marble ("Marble") in an alleyway behind Boston Avenue in Las Vegas. The body was lying in a large pool of blood. Footwear impressions from two different sets of shoes appeared in the blood. A survival-type knife lay on the nearby sidewalk. Marble had been stabbed once in the neck and once in the chest.
Appellant Richard Allan Walker ("Walker") was charged with first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon. A jury trial commenced on May 31, 1994.
At trial, John McDonald ("McDonald") testified that in April 1992, David Riker ("Riker") and Walker were working for him as "carnies" in Blythe, California. McDonald testified that on April 10, 1992, at approximately 8:00 p.m., Walker quit. Soon thereafter, Riker also quit.
Philip Quinn ("Quinn"), also a carnie, testified that he shared a motel room in Blythe with Riker and Walker. Quinn testified that they had discussed leaving the carnival, and Riker had mentioned going to Las Vegas. Quinn testified that Riker owned a pair of brown or black boots with red laces (the "Colorado boots"), and Walker owned one or two pairs of tennis shoes.
Melvin Bergman ("Bergman"), of the National Oceanic and Atmospheric Administration ("NOAA"), and his crew were also working in Blythe in April 1992. On April 11, 1992, a Suburban van used by the NOAA crew (the "NOAA van") was stolen. Four days later, when Bergman recovered the NOAA van in Las Vegas, he noticed that parts of it had been spray-painted red. Bergman testified that upon recovery, a survival knife and its sheath were missing from a box in the van. At trial, Bergman identified photographs of the knife and sheath, and noted that the knife was bent in the photographs.
Thomas Thowsen ("Thowsen"), a LV Metro officer, testified that the NOAA van was recovered on South Highland in Las Vegas. Trans Sierra Communications ("TSC") was located nearby at 3347 South Highland.
Joseph Matvay ("Matvay"), a LV Metro senior crime analyst, testified that the NOAA van appeared to have been spray-painted in an attempt to obliterate latent fingerprints. Matvay identified a fingerprint on the driver's seat belt buckle as Walker's, and also found Riker's fingerprints in the van.
Stephen Glen Kirk ("Kirk") testified that in April 1992 he was employed by TSC and was Marble's coworker. Kirk testified that on April 13, 1992, at about 8:30 p.m., Marble came to his house to pick up some keys and an identification card. Marble told Kirk that he was going to the TSC office to work on some blueprints for a school, and then Marble was going home. Kirk identified a van recovered in Barstow as the van Marble drove (the "TSC van"), and identified objects found in the van, including blueprints, keys, and Marble's wallet.
Kathy Marble, Marble's wife, testified that Marble's West Boston Avenue apartment was near the TSC office.
Louis DeFalco ("DeFalco") testified that in April 1992 he ran security at the Primadonna Hotel and Whiskey Pete's at Stateline, Nevada. On April 14, 1992, between 1:20 and 1:30 a.m., he was notified about a confrontation between a drunk white male and a security guard in the parking lot. The white male was near a white van with "RC or TC Communications" printed on the side. DeFalco described the man as clean-shaven and having shoulder-length blondish-brown hair. DeFalco observed the man get into the passenger side of the van, and the van leave the parking lot in a reckless manner. A PBX operator notified the Nevada Highway Patrol and the California Highway Patrol ("CHP") about the van.
William Flowers ("Flowers"), a CHP officer, testified that at 1:33 a.m. on April 14, 1992, CHP dispatch notified him and his partner, Officer Nester ("Nester"), of a possible drunk driver involved in breaking a car window in the Whiskey Pete's parking lot. Dispatch said that the driver was a male with long hair and a beard. Flowers and Nester received a second call at 3:16 a.m., when the vehicle passed the agricultural check station. Personnel at the agricultural station had reported that the parties within the van smelled of alcohol, and that a bearded male was passed out in the back of the van. Flowers and Nester saw thevan, confirmed the license plate number, and called for assistance to stop the vehicle. Flowers testified that he observed the van weaving within its lane, and stated that drunk drivers display these types of maneuvers due to a lack of coordination. Flowers and Nester followed the van for over six miles before Flowers signalled for it to pull over. Flowers testified that the van accelerated to 90 m.p.h. before it exited at Main Street in Barstow.
Barry Hazelett ("Hazelett"), a Barstow police officer, testified that at 3:27 a.m. he was involved in chasing a TSC van down Main Street in Barstow. The van ultimately crashed into an embankment. Both Riker and Walker were injured. Riker was removed from the driver's seat. Hazelett found a knife near Riker's foot, and Marble's driver's license outside the vehicle on the driver's side. When Walker was pulled out of the passenger side, he was wearing a knife sheath on his belt. At trial, Bergman identified this sheath as the mate for the survival knife. Hazelett described Walker as half-white, half-Asian, with long black hair.
Donald Dibble, formerly a LV Metro detective, testified that he impounded Riker's and Walker's clothes. The clothes associated with Walker included a pair of white Jordache athletic shoes, and a black vinyl knife sheath.
Terry Cook ("Cook"), a criminalist for the LV Metro Crime Lab, tested items retrieved from the TSC van for Riker's, Walker's and Marble's blood types. Cook testified that blood found on a set of black boots with red laces, on a pair of blue jeans, on a black-handled knife, and on a glove was consistent with Marble's blood type, to the exclusion of Riker and Walker. Cook found a small amount of Type A blood on a pair of Jordache athletic shoes consistent with either Riker's or Marble's blood type. The amount of blood on a knife with a compass and a bent handle was not enough to test. Blood on other items corresponded with either Walker's or Riker's blood types.
Richard Good ("Good"), an expert in footwear impression comparison, testified that several impressions in Marble's blood trail corresponded to the Jordache athletic shoes in evidence, although not to the exclusion of all other athletic shoes. Two impressions corresponded to the Colorado boots.

Walker v. State, 944 P.2d 762, 766-67 (Nev. 1997).

Prior to the beginning of Walker's trial, David Riker was convicted and sentenced to death for Marble's murder. The State sought the death penalty against Walker as well, alleging as aggravating circumstances that the murder was committed while Walker was engaged in a robbery or attempted robbery and that the murder was committed at random or without apparent motive.

The jury verdicts supporting Walker's convictions were returned on June 21, 1994. Before the penalty phase hearing, Walker filed a motion for new trial. After a penalty phase hearing in October 1994, the jury, having found no aggravating circumstance and found his lackof a significant criminal history as a mitigating circumstance, sentenced Walker to life without possibility of parole with respect to the first degree murder.

The judgment of conviction entered on January 10, 1995 sentenced Walker to two consecutive life sentences without possibility of parole for the first degree murder with use of a deadly weapon to be followed by two consecutive sentences of 15 years for the robbery with use of a deadly weapon. The trial court held hearings on Walker's motion for new trial in February 1995 and entered an order denying the motion in August 1995.

The Supreme Court of Nevada affirmed the judgment conviction in August 1997.

On September 10, 1999, Walker filed a petition for post-conviction relief in the state district court. That proceeding did not conclude in until June 2013, with the Supreme Court of Nevada affirming the lower court's denial of collateral relief.1 On June 20, 2013, Walker filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 that initiated this action. This court appointed counsel for Walker. On May 27, 2014, he filed an amended petition.

In a September 29, 2014 order, this court dismissed Grounds N and O from the amended petition. Respondents then filed a motion to dismiss. On September 30, 2015, the court entered an order dismissing Ground D, G, Q(1), S, and A (to the extent it raised a stand-alone claim of actual innocence). That order also found Grounds B and J unexhausted. On December 28, 2015, Walker filed a notice of election to proceed on the exhausted claims but reserving the right to request a certificate of appealability regarding the exhaustion of Grounds B and J. This order addresses Walker's remaining claims on the merits.

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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:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of

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