Whitesell v. Williams

• Decision Date: 12 February 2013
• Docket Number: 2:09-cv-2172-PMP-NJK
• Parties: ROBERT LEE WHITESELL, JR., Petitioner, v. BRIAN WILLIAMS, et al., Respondents.
• Court: U.S. District Court — District of Nevada

ROBERT LEE WHITESELL, JR., Petitioner,

v.BRIAN WILLIAMS, et al., Respondents.

2:09-cv-2172-PMP-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: February 12, 2013

ORDER

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. This matter comes before the Court on the merits of the petition.

I. Procedural History

On April 25, 2002, the Eighth Judicial District Court for the State of Nevada entered a judgment of conviction against petitioner. (Exhibit 51).¹ Pursuant to a jury verdict of guilt, petitioner was convicted of Count 1 (burglary), Count 2 (robbery with use of a deadly weapon, victim 65 years of age or older, Count 3 (murder with the use of a deadly weapon, victim 65 years of age or older), and Count 4 (possession of stolen property). (Exhibit 51). Petitioner was sentenced to the following: Count 1, 22-96 months; Count 2, 35-156 months with an equal and consecutive term of 35-156 months for the use of a deadly weapon and victim 65 years of age or older; Count 3, lifewithout the possibility of parole with an equal and consecutive term of life without the possibility of parole for the use of a deadly weapon and victim 65 years of age or older; and Count 4, 12 to 48 months. (Exhibit 51). Counts 1 through 4 were imposed concurrent to one another. (Id.).

On May 14, 2002, petitioner filed a notice of appeal from the conviction. (Exhibit 52). On February 11, 2004, the Nevada Supreme Court affirmed petitioner's conviction. (Exhibit 57). Remittitur issued on March 9, 2004. (Exhibit 60).

On December 17, 2004, petitioner filed a pro per post-conviction habeas petition in state court. (Exhibit 62). On December 6, 2005, a stipulation and order was entered, allowing counsel to file a supplemental petition. (Exhibit 79). The supplemental petition was filed on December 23, 2005. (Exhibit 80). On July 7, 2006, counsel filed a supplement to the supplemental post-conviction petition. (Exhibit 87). An evidentiary hearing was held on July 7, 2006. (Exhibit 88). The evidentiary hearing was continued to August 14, 2006. (Exhibit 89). On September 1, 2006, petitioner filed a post-hearing brief on his supplemental petition. (Exhibit 92). Supplemental exhibits were filed on September 28, 2006. (Exhibit 94). On November 13, 2006, petitioner filed supplemental authority in support of his post-conviction petition. (Exhibit 95). On December 28, 2006, petitioner filed additional supplemental authority in support of his post-conviction claims. (Exhibit 98).

On March 9, 2007, the state district court held a hearing on the post-conviction habeas petition. (Exhibit 104). At the hearing, the court vacated petitioner's conviction for possession of stolen property because it was a lesser-included offense to robbery. (Exhibit 104, at pp. 7-8). On April 5, 2007, the state district court issued findings of fact, conclusions of law, and order, denying the habeas petition on all other grounds. (Exhibit 105). Petitioner filed a notice of appeal on April 10, 2007. (Exhibit 107). On April 12, 2007, the state district court filed a second findings of fact, conclusions of law, and order. (Exhibit 108). An amended notice of appeal was filed on April 20, 2007. (Exhibit 112).

Petitioner filed his opening brief in the Nevada Supreme Court on July 13, 2007. (Exhibit 117). On November 3, 2009, the Nevada Supreme Court issued its order of affirmance. (Exhibit 133). Remittitur was issued on December 1, 2009. (Exhibit 134).

This Court received petitioner's pro se federal habeas petition on November 12, 2009. (ECF No. 1-1). The petition contains eleven grounds for relief. (ECF No. 7). Respondents filed a motion to dismiss, asserting that Grounds One and Nine were unexhausted. (ECF No. 15). On January 20, 2011, this Court entered an order denying the motion to dismiss and directing respondents to file an answer to the petition. (ECF No. 26). Respondents have filed an answer. (ECF No. 29). Petitioner has filed a reply. (ECF No. 33). The Court now turns to the merits of the petition.

II. Federal Habeas Corpus Standards

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materiallyindistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), cert. denied, 534 U.S. 944 (2001). Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Discussion

A. Ground One

In Ground One, petitioner claims the following that his Sixth Amendment right to confrontation was violated because he was denied the right to a full and fair cross-examination of a witness. Petitioner claims that the State did not meet the standard for showing that police informant Stephen Patzig was unavailable at the time of trial. Petitioner also asserts that appellate counsel was ineffective for failing to file a writ of certiorari after the Crawford decision was issued. (Petition, ECF No. 7, at p. 3).

1. Unavailability of Witness

In Ground One, petitioner alleges fault in the prosecution's use of a witness' preliminary hearing testimony when that witness became unavailable for trial. Petitioner contends that the State failed to meet the standard for showing the unavailability of a witness before allowing the introduction of witness Patzig's preliminary hearing testimony. (ECF No. 7, at p. 3). The Nevada Supreme Court rejected this claim on direct appeal, as follows:

Whitesell next claims that the district court erred by admitting Patzig's preliminary hearing testimony into evidence at trial when the State could not locate him to testify at trial. Under Nevada law, a witness's preliminary hearing testimony "may be received in evidence at the trial if three preconditions exist: first, that the defendant was represented by counsel at the preliminary hearing; second, that counsel cross-examined the witness; third, that the witness is shown to be actually unavailable at the time of trial." Whitesell argues that the second and third factors were not met in this case. We disagree.

Whitesell argues that the second factor was not satisfied because his counsel could not adequately cross-examine Patzig during the preliminary hearing. Whitesell makes a bald allegation that the district court limited the scope and conditions of Patzig's preliminary hearing cross-examination. However, the only limit he identifies was on the use of Patzig's name. But Whitesell fails to show how the inability to use Patzig's name during the preliminary hearing could limit an adequate cross-examination. Whitesell had the opportunity to cross-examine Patzig at the preliminary hearing and did cross-examine Patzig at the preliminary hearing. We conclude that the second factor was met in this case.

Whitesell claims that the State failed to satisfy the third factor - that Patzig was unavailable. Specifically, Whitesell argues that the State failed to demonstrate that Patzig was "beyond the jurisdiction of the court to compel appearance" under NRS 51.055(1)(d). We conclude that this claim lacks merit. As we explained in Funches v. State, the district court may look to the provisions of NRS 171.198(6)(b), NRS 51.055, "and the more general provisions of the evidence code when determining a witness's unavailability." The State need only demonstrate that the witness is unavailable under one of those provisions, not all of them. Here, the record reflects that the

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