Jimmy Kirksey vs. Jackie Crawford, et al (DEATH PENALTY)

Filing 231

ORDER that 177 Fourth Amended Petition for Writ of Habeas Corpus is DENIED. The Clerk shall enter judgment accordingly. FURTHER ORDERED that a Certificate of Appealability is DENIED. Signed by Judge Larry R. Hicks on 9/13/13. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

JIMMY TODD KIRKSEY,

10

Petitioner,

11

vs.

12

RENEE BAKER, et al.,

13

Respondents.

14
15

)
)
)
)
)
)
)
)
)
)
/

2:97-CV-0333-LRH-PAL
ORDER

Before the court for a decision on the merits is an application for a writ of habeas corpus

16

(ECF No. 177) filed by Jimmy Todd Kirksey, a Nevada prisoner whose death penalty has been set

17

aside pursuant Atkins v. Virginia, 536 U.S. 304 (2002), and has yet to be re-sentenced in state court.1

18

I. FACTUAL AND PROCEDURAL HISTORY

19

On October 2, 1989, petitioner Kirksey entered a guilty plea to first degree murder in the

20

Eighth Judicial District Court of Nevada. In a subsequent appeal, the Nevada Supreme Court

21

recounted the facts of his case as follows:

22
23

In the late evening of May 3, 1988, and early morning of May 4, 1988,
appellant Jimmy Todd Kirksey and Jerry Wayne Jordan met Eva Marie Kearns.
Kearns had recently been beaten by her boyfriend, Michael Foxx. Kirksey told
Kearns and Jordan that he wanted to talk to Foxx and teach him a lesson.

24
25
26

The three went to Foxx's motel room and knocked on the door. When Foxx
opened the door, Kirksey forced his way in and began beating Foxx. Kirksey
immediately knocked Foxx onto the bed and then sat on Foxx's chest and hit him
about the face and head. Kirksey then dragged Foxx onto the floor and continued to
kick and beat Foxx about the face and head. The beating ruptured an aneurism in

27
28

1

The court is informed and believes that re-sentencing has been suspended pending the outcome
of this proceeding.

1

Foxx's brain, killing him. Kirksey later told a police officer that he intended to kill
Foxx.

2
3

Kirksey v. State, 814 P.2d 1008, 1008-09 (Nev. 1991).

4

Prior to entering his plea, Kirksey was informed by the state court, on the record, that the

5

state would seek the death penalty and that his plea could result in a sentence of death. A

6

three-judge panel was appointed to preside over sentencing. After a penalty hearing held on

7

November 13 and 14, 1989, the panel recommended a sentence of death. The court entered a

8

judgment of conviction on January 12, 1990.

9

On appeal, the Nevada Supreme Court concluded that two of the aggravating circumstances

10

found by the three-judge panel should not have been considered, but affirmed the conviction and

11

sentence. Id. at 1011. The United States Supreme Court denied Kirksey’s petition for writ of

12

certiorari on December 2, 1991. Kirksey v. Nevada, 502 U.S. 989 (1991).

13

On February 28, 1992, Kirksey filed a petition for post-conviction relief in the state district

14

court pursuant to former Nev. Rev. Stat. Chapter 177. An evidentiary hearing was conducted on

15

February 1, 1993. On April 14, 1993, the district court denied the petition. The Nevada Supreme

16

Court affirmed the order of the district court on August 16, 1996 (rehearing denied January 4, 1997).

17

Kirksey v. State, 923 P.2d 1102 (Nev. 1996).

18

On March 21, 1997, Kirksey filed a federal petition initiating the instant proceeding. On

19

January 26, 1998, Kirksey filed a first amended federal habeas petition for writ of habeas corpus.

20

Following extensive discovery proceedings related to the trial court’s role in the creation of a

21

psychiatric evaluation, including several depositions and the retention of a questioned documents

22

examiner, Kirksey filed a third amended federal petition on October 7, 2002.

23

On March 6, 2003, Kirksey filed a post-conviction petition for a writ of habeas corpus in the

24

state district court. On May 6, 2003, this court stayed federal proceedings to allow Kirksey an

25

opportunity to exhaust his unexhausted federal claims in state court. The State opposed Kirksey’s

26

state petition as procedurally barred. The state district court ordered the State to respond to the

27

claims on the merits and set the matter for an evidentiary hearing.

28

///
2

1

The State sought extraordinary relief with the Nevada Supreme Court by way of a petition for

2

a writ of prohibition or mandamus challenging the order granting the evidentiary hearing. The

3

Nevada Supreme Court granted the petition in part, concluding that a full hearing on Kirksey's

4

numerous claims was not warranted due to the procedural bars. In denying the petition in part, the

5

state supreme court determined that an evidentiary hearing was necessary to consider whether

6

Kirksey could show good cause for raising claims related to his competence and possible judicial

7

bias and whether Kirksey is mentally retarded, the latter of which would require that the death

8

sentence be vacated pursuant to Atkins v. Virginia, 536 U.S. 304 (2002).

9

On February 6-8, 2006, a limited evidentiary hearing was conducted concerning those claims.

10

The state district court determined that Kirksey is mentally retarded and ordered a new sentencing

11

hearing. The state district court also concluded that appellant failed to demonstrate good cause and

12

prejudice to overcome the procedural bars. Thus, on March 2, 2007, the district court granted the

13

petition as to the claim of mental retardation, but denied the remainder of the claims in the petition

14

as procedurally barred. Kirksey appealed.

15

On August 21, 2009, the Nevada Supreme Court entered an order affirming the denial of

16

Kirksey’s state petition on procedural grounds. On January 7, 2010, the Nevada Supreme court

17

denied en banc reconsideration.

18

On April 5, 2010, Kirksey filed a motion to vacate the stay herein, which was unopposed by

19

the State and granted by the court. Kirksey then filed this his fourth amended petition for writ of

20

habeas corpus. On June 20, 2011, respondents filed a motion to dismiss several claims in the

21

petition on procedural grounds. On March 26, 2012, the court granted in part and denied in part the

22

respondents’ motion, concluding that nearly all of Kirksey’s claims are either barred by the doctrine

23

of procedural default or by the statute of limitations or both. Kirksey file a motion for

24

reconsideration of that decision, which the court denied on July 9, 2012.

25

On October 4, 2012, respondents filed an answer to the remaining claims in Kirksey’s

26

petition – i.e., Claim Three(D), certain allegations contained within Claim Eight, Claim Ten, and

27

Claim Twenty-one. On January 15, 2013, Kirksey filed a reply to that answer and a motion for an

28

evidentiary hearing. Having considered all the parties’ arguments with regard to the merits of those
3

1

claims and Kirksey’s motion, the court finds and concludes as follows.

2

II. STANDARDS OF REVIEW

3

Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254

4

enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v.

5

Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000),

6

overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

7

28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:

8

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 –

9
10
11

(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

12
13
14
15

(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.
28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the state court

16

arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the

17

state court decides a case differently than the Supreme Court has on a set of materially

18

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable

19

application” occurs when “a state-court decision unreasonably applies the law of [the Supreme

20

Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may not “issue the

21

writ simply because that court concludes in its independent judgment that the relevant state-court

22

decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

23

The Supreme Court has explained that “[a] federal court’s collateral review of a state-court

24

decision must be consistent with the respect due state courts in our federal system.” Miller–El v.

25

Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for

26

evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the

27

doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7

28

(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “A state court’s determination
4

1

that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

2

on the correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011)

3

(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized

4

“that even a strong case for relief does not mean the state court’s contrary conclusion was

5

unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v.

6

Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as “a difficult to meet and

7

highly deferential standard for evaluating state-court rulings, which demands that state-court

8

decisions be given the benefit of the doubt”) (internal quotation marks and citations omitted).

9

“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that

10

adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court

11

reasoned that the “backward-looking language” present in § 2254(d)(1) “requires an examination of

12

the state-court decision at the time it was made,” and, therefore, the record under review must be

13

“limited to the record in existence at that same time, i.e., the record before the state court.” Id.

14

For any habeas claim that has not been adjudicated on the merits by the state court, the

15

federal court reviews the claim de novo without the deference usually accorded state courts under 28

16

U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313

17

F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting

18

that federal court review is de novo where a state court does not reach the merits, but instead denies

19

relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such

20

instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 S.Ct at 1401

21

(“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas

22

relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct

23

under § 2254(e)(1) even if legal review is de novo).

24

Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review

25

habeas claims by conducting a de novo review prior to applying the “contrary to or unreasonable

26

application of” limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so,

27

however, the Court did not preclude such an approach. “AEDPA does not require a federal habeas

28

court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) –
5

1

whether a state court decision is contrary to, or involved an unreasonable application of, clearly

2

established Federal law.” Id.

3

III. ANALYSIS OF CLAIMS
Claim Three(D)2

4
5

In Claim Three(D), Kirksey claims that he received ineffective assistance of counsel because

6

his trial counsel relied upon the prosecutor to provide him with relevant discovery and to advise him

7

on how to litigate the case. Specifically, the claim alleges that trial counsel’s discovery and

8

investigation was limited to the contents of the prosecutor’s file and omitted evidence collected by

9

the police and contacts between Kirksey and the lead detective on the case. It also alleges trial

10

counsel relied on the prosecutor for advice regarding Kirksey’s stated desire to waive his right to a

11

direct appeal.

12

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two

13

prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective

14

assistance of counsel must demonstrate (1) that the defense attorney’s representation “fell below an

15

objective standard of reasonableness,” and (2) that the attorney’s deficient performance prejudiced

16

the defendant such that “there is a reasonable probability that, but for counsel’s unprofessional

17

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. In

18

the context of a guilty plea, a petitioner satisfies the prejudice prong of the Strickland test where

19

“there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and

20

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

21

Kirksey exhausted this claim by presenting it, albeit in a somewhat different form, to the

22

Nevada Supreme Court in his first post-conviction proceeding. ECF No. 203-1, p. 47-50.3 After

23

identifying Strickland as the the relevant federal law, the state supreme court addressed the claim as

24

follows:

25
2

26
27

Though not denominated as such in the fourth amended petition, Claim Three(D) is the fourth
of five sub-claims contained within Claim Three and includes the allegations located on pages 52 and
53 of the petition.
3

28

Citations to page numbers for electronically filed documents are based on the CM/ECF
pagination.
6

1
2
3
4
5
6
7
8
9
10
11

Kirksey argues that he has been denied effective assistance of counsel because
counsel failed to pursue any independent investigation of the facts underlying the
murder charge. Specifically, Kirksey contends that [trial counsel] Kelesis'
representation was deficient because he never consulted with the independent
investigator appointed for the defense, never talked to Jerry Jordon [Footnote: Jordon
was with Kirksey in Foxx's motel room and had made a statement to the police that
Kirksey had beaten Foxx. Jordon was acquitted on a charge of involuntary
manslaughter] about testifying, never contacted LVMPD Detective Dibble to obtain
the homicide notebook, never tried to view the physical evidence, never sought an
independent medical examination as to the cause of death, never obtained medical
records from Riverside General Hospital establishing Kirksey's long history of
cocaine use and psychotic behavior, never conducted an independent investigation of
the California murders, and never contacted family members. Kirksey therefore
concludes that Kelesis could not have made an informed and rational decision to
acquiesce in Kirksey's instructions not to prepare a defense.
Kelesis testified at the post-conviction hearing that he reviewed the
prosecution's file, autopsy reports on both the Nevada and California murders, grand
jury testimony, and prison records from California. He further testified that he had
wanted to meet with Kirksey's mother, but Kirksey instructed him not to do so.
Kelesis also stated that he had discussed the State's evidence with Kirksey on several
occasions.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

First, we conclude that Kelesis' decision was objectively reasonable under the
circumstances. In Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir.1984), the Eighth
Circuit concluded that an attorney's performance was deficient where he relied solely
on the prosecution's file, medical reports, and interviews with the defendant where the
defendant consistently maintained his innocence and denied statements made to the
police. The Thomas court specifically distinguished that case from one wherein the
defendant has not provided the attorney with any information that would cast doubt
on the events as portrayed in the prosecutor's files. Id.; see also Benson v. United
States, 552 F.2d 223, 224–25 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54
L.Ed.2d 120 (1977).
Here, Kirksey never denied his involvement and never suggested to Kelesis
that his statements were made involuntarily. Everything Kirksey told Kelesis
appeared to be consistent with the prosecution's file. Additionally, on July 13, 1989,
Judge Lehman received a handwritten letter from Kirksey. In that letter, Kirksey
admitted to the two California murders and the Las Vegas murder. [Footnote
omitted.] It is also clear that based upon his investigation, Kelesis believed there
were issues regarding the cause of death which he could have raised with the jury.
Kirksey refused to give him that opportunity. Additionally, in his July 1989 letter to
Judge Lehman, Kirksey wrote: “This sorry ass old attorney [sic] you gave me. This
fool thinks he is going to lower this down to man slotter [sic]. But between me and
you old man we know better than that.”
Kirksey's letter indicates that Kelesis had presented him with the possibility of
a lesser charge, but that Kirksey was determined to plead guilty and ask for a death
sentence. In viewing the circumstances of this case from Kelesis' point of view at the
time, we are unable to conclude that Kelesis' performance fell below an objective
standard of reasonableness.
Further, we conclude that Kirksey has failed to show sufficient prejudice. As
noted earlier, when a guilty plea is challenged for ineffective assistance, the defendant
must show a reasonable probability that, but for counsel's errors, he would not have
7

1
2
3
4
5
6

pleaded guilty and would have insisted on going to trial. Kirksey pleaded guilty
without the benefit of any plea negotiations or promises from the prosecution; indeed,
Kirksey was informed on the record that the State would seek the death penalty and
that his guilty plea could result in a death sentence. There is no indication that his
decision was the result of any urging by Kelesis or that any of the allegedly
uninvestigated information would have induced Kirksey to change his mind and
invoke his right to a trial.
Kirksey, 923 P.2d at 1110-11.
With respect to the performance prong of the Strickland test, Kirksey argues that a more

7

vigorous investigation would have revealed a lack of evidence to support a first-degree murder

8

conviction.4 In particular, Kirksey contends that effective counsel would have been able to show

9

that, due to a lack of criminal agency, Kirksey’s actions in beating Mr. Foxx amounted to nothing

10

more than manslaughter. As support for this position, Kirksey notes that counsel Kelesis failed to

11

interview Jerry Jordon,5 timely review the record of Jordon’s trial, or develop evidence about the

12

victim’s pre-existing defect in his arteries.

13

“The reasonableness of counsel's actions may be determined or substantially influenced by

14

the defendant's own statements or actions.” Strickland, 466 U.S. at 691. Kirksey’s intent to plead

15

guilty mitigated, but did not eliminate, his attorney's duty to reasonably investigate. See Langford v.

16

Day, 110 F.3d 1380, 1386-87 (9th Cir. 1996). In addition, counsel’s duty to fully investigate the

17

circumstances of a crime is elevated in a capital case, even when his client has admitted guilt. Smith

18

v. Mahoney, 611 F.3d 978, 987 (9th Cir. 2010).

19

Here, the state supreme court arguably applied too low of a performance standard by using

20

Kirksey’s insistence on pleading guilty as a justification for counsel’s failure to expand his

21

investigation. See Kirksey, 923 P.3d at 1111 (suggesting that Kirksey’s lack of cooperation excused

22

counsel from further developing possible defenses). Moreover, the state court’s determination that

23

counsel provided effective assistance of counsel notwithstanding counsel’s failure to even attempt to

24

interview Jordon, an eyewitness to the offense, was an unreasonable application of the Strickland

25
4

26
27

Kirksey also argues that trial counsel failed in his duty to investigate Kirksey’s mental state
to determine whether he was competent to assist counsel. However, the portion of Claim Three based
on such allegations is procedurally defaulted and time-barred. ECF No. 208.
5

28

Though the spelling “Jordan” appears throughout the record and pleadings herein, “Jordon”
appears to be the correct spelling. See ECF No. 179-4, p. 291.
8

1
2

standard.
The same cannot be said, however, about the state court’s determination that Kirksey had

3

failed to show sufficient prejudice to establish a meritorious Strickland claim. The state court

4

correctly identified Hill as the correct federal law standard to apply when the Strickland analysis

5

involves a guilty plea. Id. at 1107. Applying that standard, the state court found no indication that

6

counsel urged Kirksey to plead guilty or that the discovery of additional information by counsel

7

would have caused Kirksey to invoke his right to trial. Kirksey has proffered no evidence in this

8

proceeding to show that either of those findings were an unreasonable determination of the facts in

9

light of the evidence presented in the state court proceeding.

10

Accordingly, this court cannot say that the state court’s adjudication of the claim is not

11

entitled to the deference afforded by 28 U.S.C. § 2254(d). See Richter, 131 S.Ct. at 788 (holding

12

that a federal habeas court’s review of a state court's adjudication of a Strickland claim is “doubly”

13

deferential). Such an outcome is supported by Mahoney, a more recent Ninth Circuit case addressing

14

circumstances similar to those presented here. In that case, counsel’s investigation was even more

15

lackluster than that performed by Kirksey’s counsel inasmuch as counsel only interviewed a handful

16

of the thirty-five potential witnesses and “conceded that he ‘did not feel a need to go beyond

17

anything that Mr. Smith’ told him.” Mahoney, 611 F.3d at 988. Even so, the court of appeals

18

concluded that the petitioner could not establish prejudice because the record showed that he “was

19

independently adamant on pleading guilty and [had] never argued that he did not commit the

20

crimes.” Id. at 992.

21

Claim Three(D) is denied.6

22

Claim Eight

23

In Claim Eight, Kirksey alleges that appellate counsel failed to provide effective assistance of

24

counsel by failing to raise on appeal certain federal constitutional issues asserted in his fourth

25

amended petition. This court has previously determined that the only aspects of this claim that are

26

not procedurally defaulted are allegations that appellate counsel was ineffective by not obtaining

27
6

28

The portion of the claim that alleges ineffectiveness based on counsel’s reliance on the
prosecutor for advice regarding Kirksey’s appeal is wholly without merit. Even if the factual allegations
supporting the claim are true, this court discerns no prejudice arising from counsel’s actions.
9

1

certain transcripts and raising arguments that the trial court erred in (1) refusing to appoint a second

2

attorney and (2) conducting an ex parte meeting with Dr. Franklin Master, a psychiatrist appointed

3

by the state court to assess Kirksey’s competence to stand trial.

4

Kirksey exhausted these claims in his first post-conviction petition. ECF No. 193-1, p. 59-

5

60. The Nevada Supreme Court denied the claims on two grounds. First, the court determined that,

6

because the alleged errors occurred before the guilty plea, appellate counsel could not have raised the

7

issues on direct appeal. Kirksey, 923 P.2d at 1114. Second, the court held that, even if the issues

8

could have been raised, there was no reasonable probability of success on appeal. Id. at 1114-15.

9

With respect to the second ground, the state supreme court correctly applied the Strickland

10

standard to Kirksey’s claims. See Hurles v. Ryan, 706 F.3d 1021, 1033 (9th Cir. 2013) (“We consider

11

claims of ineffective assistance of appellate counsel according to the standard set forth in

12

Strickland.”). In addressing the potential merit of a claim based on the trial court’s refusal to appoint

13

co-counsel, the state supreme court stated as follows:

14
15
16
17

. . . Appointment of co-counsel under NRS 260.060 is discretionary, even in a capital
case, and the denial of co-counsel is appropriate when the amount of preparation and
investigation required is not unduly burdensome. See, e.g., DePasquale v. State, 106
Nev. 843, 846, 803 P.2d 218, 220 (1990), cert. denied, 502 U.S. 829, 112 S.Ct. 99,
116 L.Ed.2d 70 (1991); Sechrest v. State, 101 Nev. 360, 367–68, 705 P.2d 626,
631–32 (1985). Since Kirksey's motion for co-counsel came approximately five
months prior to the scheduled trial, there was sufficient time for his attorney to
investigate and prepare for trial.

18
19

Id. Kirksey makes no argument that the state court was wrong in concluding that the underlying

20

claim lacked merit as an issue on direct appeal. Thus, he has not shown that the state court was

21

objectively unreasonable denying his ineffective assistance of appellate counsel claim premised on

22

the trial court’s failure to appoint co-counsel. Accordingly, Kirksey is not entitled to habeas relief

23

based on this portion of Claim Eight.

24

As for appellate counsel’s failure to raise an issue based on the alleged ex parte meeting

25

between the trial court judge and Dr. Master, Kirksey argues that the Nevada Supreme Court’s

26

decision is not entitled to deference because it was an unreasonable application of federal law as well

27

as being based on an unreasonable determination of the facts in light of evidence presented to the

28

state court. Even if reviewed de novo, however, this portion of Claim Eight fails for the reasons
10

1

discussed below in relation to Claim Ten.

2

Claim Ten

3

In Claim Ten, Kirksey alleges a violation of his constitutional rights arising from an ex parte

4

communication between Judge Lehman, the trial court judge, and Dr. Master regarding Kirksey’s

5

competence. Pursuant to a request filed by Kelesis several months prior to Kirksey’s guilty plea, the

6

trial court appointed Dr. Master and Dr. Jack Jurasky to answer specific questions related to

7

Kirksey’s competence. ECF No. 179-2, p. 312-19. Dr. Jurasky filed a report concluding that

8

Kirksey was competent, but Dr. Master filed one concluding that Kirksey was incompetent because

9

he was suicidal and depressed. ECF No. 178-3, p. 108-16.

10

On June 21, 1989, Judge Lehman held a hearing at which he noted that Dr. Master had failed,

11

in his report, to answer the specific questions posed by the court’s order. Id., p. 59. The judge then

12

stated, as follows:

13
14

What I’m going to do is contact Dr. Master and tell him that I want
clarification of his report. And if it’s still not clear or if he really disagrees with Dr.
Jurasky, then we’re going to appoint a third psychiatrist and let him break the log jam.

15

Id., p. 60. A couple of days later the judge forwarded a “supplemental report” to both counsel that is

16

dated June 22, 1989, and signed by Dr. Master. ECF 178-5, p. 117-19. That report consists of one

17

paragraph and states, without any elaboration whatsoever, that Kirksey is competent to assist his

18

counsel, understands the significance of the act for which he is charged, understands the difference

19

between right and wrong, and knows the meaning of his Miranda rights and the significance of

20

waiving them. ECF No. 178-3, p. 118.

21

Kirksey exhausted Claim Ten in his first post-conviction petition. ECF No. 193-1, p. 47-49.

22

The Nevada Supreme Court in that proceeding addressed the claim in the context of deciding

23

whether appellate counsel was ineffective in failing to raise it on direct appeal. Kirksey, 923 P.2d at

24

1114. As noted above, the court concluded that appellate counsel was not ineffective because the ex

25

parte communication occurred before the guilty plea and, therefore, could not have been raised as an

26

issue on direct appeal. Id.

27
28

The court then considered the merits of the underlying claim and concluded as follows:
Although Judge Lehman's ex parte communication with Dr. Masters [sic] was
11

1
2
3
4
5

inappropriate, there is no evidence that the communication resulted in bias or
prejudice on the part of the judge. Additionally, there is no evidence that Dr. Masters
[sic] was somehow coerced to change his opinion. We therefore conclude that this
contention lacks merit and would have had no reasonable probability of success on
appeal.
Id. at 1115 (footnotes omitted).
According to the United States Supreme Court, a defendant has a due process right to be

6

present “‘whenever his presence has a relation, reasonably substantial, to the fullness of his

7

opportunity to defend against the charge.’” Kentucky v. Stincer, 482 U.S. 730, 745 (1987); (quoting

8

Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Significantly, however, “the presence of a

9

defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by

10

his absence, and to that extent only.” Snyder, 291 U.S. at 107-08. In addition, a defendant may

11

consent to exclusion, or counsel may waive the defendant's right to be present in person, even at a

12

critical stage. See, e.g., Campbell v. Wood, 18 F.3d 662, 670–72 (9th Cir. 1994) (en banc).

13

At the June 21, 1989, hearing, Kirksey’s counsel argued that, given the apparent difference of

14

opinion between Dr. Jurasky and Dr. Master, the “normal procedure” was for Kirksey to be

15

transferred to a mental health facility for further evaluation. ECF No. 178-3, p. 59. Counsel did not,

16

however, object to Judge Lehman contacting Dr. Master, but instead asked merely that Dr. Master’s

17

report be independent of, and not influenced by, Dr. Jurasky’s report. Id., p. 60-61.

18

Arguably, counsel waived Kirksey’s right to be present during the communication between

19

the judge and the psychiatrist. Even if he did not, however, the extent to which a fair and just

20

hearing was thwarted by Kirksey’s absence is difficult to gauge given the lack of information before

21

this court about the nature and content of the communication. Judge Lehman’s comments at the

22

June 21 hearing followed by the issuance of the “supplemental report” a couple days later indicates

23

that he contacted Dr. Master about his report. The record does not support, however, Kirksey’s

24

various allegations stating or suggesting that the two had an “in chambers meeting” to discuss the

25

report (e.g., ECF No. 222, p. 19).

26

With respect to allegations that Judge Lehman “impermissibly affected” Dr. Master’s opinion

27

regarding Kirksey’s competence (e.g., ECF No. 222, p. 21), Kirksey has submitted evidence that

28

suggests that the competency report was prepared by the trial judge for Dr. Master’s signature. ECF
12

1

No. 178-5, p. 117-19; ECF No. 180-2, p. 10-14. But, as noted in this court’s previous order (ECF

2

No. 212, p. 4-5), Kirksey has not rebutted state court findings that the report reflected Dr. Master’s

3

opinion at the time and that the signature on the document is his. ECF No. 180-4, p. 136; ECF No.

4

180-5, p. 262, 264.

5

Even assuming that Kirksey’s absence from the ex parte communication violated his right to

6

due process, such a violation is trial error, not structural error, so it is subject to review for

7

harmlessness. Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc). See Sturgis v.

8

Goldsmith, 796 F.2d 1103, 1108–09 (9th Cir. 1986) (holding that a defendant has a constitutional

9

right to be present at a competency hearing, but that a violation of the right is subject to harmless

10

error review). As such, relief is not available unless the ex parte communication between Judge

11

Lehman and Dr. Master had “a substantial and injurious effect” on the outcome of the proceeding.

12

Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993),

13

and Kotteakos v. United States, 328 U.S. 750, 758 (1946)).7

14

Absent from the record is any convincing evidence that Kirksey was incompetent, under the

15

relevant standard, at the time he entered his guilty plea. “To be competent to stand trial, a defendant

16

must demonstrate an ability ‘to consult with his lawyer with a reasonable degree of rational

17

understanding’ and a ‘rational as well as factual understanding of the proceedings against him.’”

18

Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir. 2003) (quoting Godinez v. Moran, 509 U.S. 389,

19

396 (1993). Competence “has a modest aim: It seeks to ensure that [the defendant] has the capacity

20

to understand the proceedings and to assist counsel.” Godinez, 509 U.S. at 402.

21

While Dr. Master’s initial report did not address these issues, it describes Kirksey as a

22

“highly intelligent individual,” but one who is “significantly clinically depressed.” ECF No. 178-3,

23

p. 116. Based on Dr. Jurasky’s report, Kirksey met the competency standard. Dr. Master’s

24

supplemental report, though conclusory, also stated that Kirksey was capable of assisting his attorney

25

in his own defense at trial. In addition, Kelesis testified at the 1993 evidentiary hearing that Kirksey

26
27
28

7

The court in Sturgis identified Chapman v. California, 386 U.S. 18, 21-22 (1967), as the source
of the applicable harmless error standard. See Sturgis, 796 F.2d at 1109. Fry confirms, however, that
the standard in Brecht applies in this context.
13

1

was “very competent” and that he could not see a basis upon which he might be found incompetent.

2

ECF No. 179-4, p. 323.

3

Assessments conducted at Kirksey’s request in 1998 (by David L. Schmidt, Ph.D and by

4

Dennis L. DePry, D.O.) also fall well short of establishing a reasonable probability that Kirksey was

5

incompetent when he entered his guilty plea. For one, retrospective competency determinations

6

made several years later are of limited probative value and generally disfavored. Williams v.

7

Woodford, 384 F.3d 567, 610 (9th Cir. 2004). Secondly, both experts agreed that Kirksey’s

8

impairment made it difficult to understand complex issues, but neither indicated that Kirksey was

9

unable to consult with his attorney with a reasonable degree of rational understanding or understand

10

the proceedings against him. ECF No. 178-2, pp. 1-17, 32-53. Dr. DePry opined that Kirksey did

11

not have “a valid and reliable competence evaluation prior to his trial or his sentencing,” but could

12

only speculate as to whether Kirksey was incompetent at that time. Id., p. 52.8

13

Kirksey directs the court’s attention to Dr. Master’s testimony at the 2006 evidentiary hearing

14

and argues that Dr. Master “stood by his opinion that Mr. Kirksey was not competent to assist

15

counsel.” ECF No. 222, p. 30. At that hearing, Dr. Master testified as follows:

16
17
18
19
20

I think in looking at the abbreviated statement of June 22nd, there is really only
one point where there is conflict with my May 23rd report, and that is in statement
number one, and again, I think it’s a matter of interpretation. My June 22nd statement
is “Mr. Kirksey is competent to assist his attorney in his own defense during a trial.”
By that, I’m saying that, yes, he knows what he’s being charged with, he remembers
the facts; that he was intelligent and verbal, but going back to my May statement, this
was a man who did not want to defend himself, and not wanting to defend himself, he
would not be rationally cooperative in assisting his defense counsel, so I would still
stick by the original statement that he was not competent if he was suicidally
depressed.

21
22
23

ECF No. 180-3, p. 196.
Dr. Master’s re-confirmation of his initial opinion does not help Kirksey’s argument. In

24

Deere v. Pinholster, 718 F.3d 1124 (9th Cir. 2013), the court held that a plea “motivated by an

25

irrational desire to be put to death” does not render a defendant incompetent and his plea invalid.

26
27
28

8

Dr. Schmidt’s testimony at the 2006 evidentiary hearing was similarly equivocal. Asked about
Kirksey’s competence “at the time of his trial,” Dr. Schmidt testified that the issue was not “investigated
sufficiently” and that he had “grave concerns” about Kirksey’s ability to understand the proceedings
against him and assist counsel in his defense. ECF No. 180-4, p. 9-10.
14

1

718 F.3d at 1146-47. In so holding, the court relied on its decision in Dennis v. Budge, 378 F.3d 880

2

(9th Cir. 2004), in which the court noted:

3
4

The question . . . is not whether mental illness substantially affects a decision,
but whether a mental disease, disorder or defect substantially affects the prisoner's
capacity to appreciate his options and make a rational choice among them.

5

378 F.3d at 890 (emphasis in original). The court in Budge further explained that “rational choice”

6

in this context does not mean a sensible or reasonable decision, but rather a choice made with a

7

“rational understanding” of the available options. Id.

8
9

Given the absence of persuasive evidence that his absence from any ex parte communication
between Judge Lehman and Dr. Master had a substantial and injurious effect on the trial court’s

10

competency determination, Kirksey is not entitled to habeas relief under Claim Ten. The claim is

11

denied.

12
13

Claim Twenty-one
In Claim Twenty-one, Kirksey claims that his first-degree murder conviction is

14

unconstitutional because law enforcement officials interrogated him in the absence of a voluntary,

15

knowing, and intelligent waiver of his Miranda rights. Prior to pleading guilty, Kirksey made

16

incriminating statements to the police in at least three separate interviews - two conducted by

17

detectives in Riverside, California, on December 23 and 24, 1988, and one conducted by a detective

18

in Las Vegas on February 8, 1989. ECF No. 178-7, p. 30-91. The allegations supporting Claim

19

Twenty-one focus on circumstances surrounding the first of the two Riverside interviews.

20

According to those allegations, Kirksey was in need of medical treatment for an injured hand

21

and under the influence of cocaine, and likely alcohol, at the time of the December 23 interview. He

22

claims that those factors, especially when considered in combination with his various mental

23

impairments, invalidate the waiver of his Miranda rights. He further alleges that, in the absence of

24

those circumstances, he would have exercised his rights to remain silent and to obtain the assistance

25

of counsel.

26

This claim is wholly without merit. Beyond the absence of evidence to support his claims of

27

physical distress and intoxication during the December 23 interview, Kirksey recounted the details of

28

the crime in subsequent interviews with law enforcement officials and, of course, plead guilty to first
15

1

degree murder. The Nevada Supreme Court addressed this claim in Kirksey’s first post-conviction

2

proceeding. Kirksey, 923 P.2d at 1109-10. The state supreme court’s rejection of the claim is

3

entitled to the deference afforded by 28 U.S.C. § 2254(d); and, Kirksey makes no argument that it

4

does not. Claim Twenty-one is denied..

5

IV. MOTION FOR EVIDENTIARY HEARING

6

Kirksey asks this court to grant him an evidentiary hearing on the remaining claims in his

7

petition. ECF No. 223. After Pinholster, an evidentiary hearing is pointless once this court has

8

determined that § 2254(d) precludes habeas relief. See Pinholster, 131 S. Ct. at 1411 n.20 (“Because

9

Pinholster has failed to demonstrate that the adjudication of his claim based on the state-court record

10

resulted in a decision ‘contrary to’ or ‘involv[ing] an unreasonable application’ of federal law, a writ

11

of habeas corpus ‘shall not be granted’ and our analysis is at an end.”); see, also, Sully v. Ayers,

12

2013 WL 3988674, 14 (9th Cir. 2013) (holding that lower court did not abuse its discretion in

13

denying an evidentiary hearing on ineffective assistance claims that had been adjudicated in state

14

court).

15
16

For claims to which Pinholster does not apply, this court’s ability to grant Kirksey’s request
is limited by 28 U.S.C. § 2254(e)(2), which provides as follows:

17

If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that-

18
19

(A) the claim relies on(i) a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the
exercise of due diligence; and

20
21
22
23

(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.

24

The Supreme Court has interpreted subsection (e)(2) as precluding an evidentiary hearing in federal

25

court if the failure to develop a claim's factual basis in state court is due to a “lack of diligence, or

26

some greater fault, attributable to the prisoner or the prisoner's counsel.” Williams v. Taylor, 529

27

U.S. 420, 432 (2000).

28

///
16

1

A hearing is not barred, however, when a petitioner diligently attempts to develop the factual

2

basis of a claim in state court and is “thwarted, for example, by the conduct of another or by

3

happenstance.” Id. Absent unusual circumstances, diligence requires that a petitioner, “at a

4

minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at

5

437.

6

As explained above, § 2254(d) precludes habeas relief for Claims Three(D) and Twenty-one,

7

and the portion of Claim Eight based on appellate counsel’s failure to challenge the trial court’s

8

denial of co-counsel. Based on Pinholster, an evidentiary hearing would not serve any purpose with

9

respect to those claims.

10

Pinholster does not necessarily bar consideration of new evidence with respect to Claim Ten

11

and the portion of Claim Eight based on appellate counsel’s failure to challenge the alleged ex parte

12

meeting between Judge Lehman and Dr. Master. In addition, Kirksey argues that he is allowed to

13

bypass § 2254(e)(2) because the state court limited his ability to develop facts in support of post-

14

conviction claims. Even after considering all of Kirksey’s proffered evidence, however, this court

15

remains unconvinced that Kirksey was prejudiced by his absence from the purported ex parte

16

meeting.9

17

Kirksey has not cited to any additional relevant evidence that he intends to present on this

18

particular issue. Because he has not demonstrated that an evidentiary hearing would assist him in

19

showing that he is entitled to relief, his motion for an evidentiary hearing shall be denied. See

20

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“In deciding whether to grant an evidentiary

21

hearing, a federal court must consider whether such a hearing could enable an applicant to prove the

22

petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.”)

23

(citation omitted).

24

V. CONCLUSION

25

For the reasons set forth above, Kirksey is not entitled to habeas relief.

26
27
28

9

On the issue of Kirksey’s competence at the time of his plea and sentencing, Kirksey cites to
the following exhibits attached to his fourth amended petition: 1, 4, 8-14, 16, 25, 26, 35, 38, 40. ECF
No. 177, p. 21-23.
17

1

Certificate of Appealability

2

This is a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing

3

Section 2254 Cases requires this court to issue or deny a certificate of appealability (COA).

4

Accordingly, the court has sua sponte evaluated the claims within the petition for suitability for the

5

issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir.

6

2002).

7

Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a

8

substantial showing of the denial of a constitutional right." With respect to claims rejected on the

9

merits, a petitioner "must demonstrate that reasonable jurists would find the district court's

10

assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484

11

(2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA

12

will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the

13

denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.

14

Having reviewed its determinations and rulings in adjudicating Kirksey’s petition, the court

15

finds that none of those rulings meets the Slack standard. The court therefore declines to issue a

16

certificate of appealability for its resolution of any procedural issues or any of Kirksey’s habeas

17

claims.

18
19

IT IS THEREFORE ORDERED that petitioner's fourth amended petition for writ of
habeas corpus (ECF No. 177) is DENIED. The Clerk shall enter judgment accordingly.

20

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

21

DATED this 13th day of September, 2013.

22
23
24

________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

25
26
27
28
18