Cary W. Williams v. E. K. McDaniel, et al (DEATH PENALTY)
Filing
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ORDER Denying 135 Amended Petition for Writ of Habeas Corpus filed by Cary Wallace Williams. The Clerk shall enter Judgment accordingly. IT IS FURTHER ORDERED that a Certificate of Appealabilty is issued as to the court's resolution of Claims One(G) and Sixteen. The Clerk of Court shall substitute Renee Baker for E.K. McDaniel as the respondent warden in this action. Signed by Judge Philip M. Pro on 07/01/2012. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CARY WALLACE WILLIAMS,
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Petitioner,
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vs.
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RENEE BAKER,1 et al.,
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Respondents.
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2:98-CV-0056-PMP-VCF
ORDER
Before the court for a decision on the merits is an application for a writ of habeas corpus filed
by Cary Wallace Williams, a Nevada prisoner sentenced to death. ECF No. 135.2
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I. FACTUAL AND PROCEDURAL HISTORY
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On August 18, 1982, a grand jury for the Second Judicial District Court for Washoe County,
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Nevada, handed down an indictment charging Williams with murder, manslaughter, and burglary.
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Two months earlier, Williams had broke into the Reno home of Allen and Katherine Carlson, got a
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Renee Baker is substituted for her predecessor, E.K. McDaniel, as Warden of Ely State Prison.
Fed. R. Civ. P. 25(d).
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Docket entries from number 117 forward have been imaged for the purposes of CM/ECF, the
court’s electronic filing system. All citations to the record for documents that have been imaged (i.e.,
ECF No. 117 and above) refer to the CM/ECF attachment and page numbers. Citations to the record
for document numbers 1 through 116 refer to the hard-copy file maintained by the court.
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knife from the kitchen, and proceeded to the master bedroom, where he stabbed Katherine to death.
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Katherine’s unborn daughter, eight months in utero, died from lack of oxygen.3
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On the first day of jury selection for his trial (December 6, 1982), Williams entered a plea of
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guilty to the burglary charge. On December 13, 1982, after four days of jury selection and one day of
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testimony, Williams entered pleas of guilty to the other two charges – i.e., murder in the first degree
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and manslaughter. On January 4, 1983, a penalty hearing began before a three-judge panel. On
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January 6, 1983, the panel found four aggravating circumstances: that the murder was committed
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while the defendant was engaged in the commission of a burglary, the murder was committed while
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the defendant was engaged in the commission of a robbery with the use of a deadly weapon, the
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murder was committed by the defendant for the purpose of avoiding and preventing his lawful arrest,
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and the murder committed by the defendant involved depravity of mind and torture. The panel found
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“no mitigating circumstances to outweigh” the aggravating circumstances, and sentenced Williams
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to death.
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Judgment was entered on January 13, 1983. Williams appealed to the Nevada Supreme
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Court. On February 3, 1983, while the appeal was pending, Williams filed a pro se petition for
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post-conviction relief in the Second Judicial District Court.
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On July 19, 1983, the Nevada Supreme Court granted the state’s motion to hold the direct
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appeal in abeyance until the post-conviction proceedings were concluded. On October 1, 1984,
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Williams, now represented by counsel, filed a supplemental petition for post-conviction relief in the
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Second Judicial District Court. On November 2, 1984, the district court held an evidentiary hearing
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on the claims raised in the initial pro se petition and the supplemental petition. On November 7,
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1984, the district court denied relief. Williams appealed to the Nevada Supreme Court. On May 29,
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1987, the Nevada Supreme Court consolidated the proceedings on direct appeal and collateral
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Two other defendants, Charles Wilkinson and Harvey Young, were charged in separate
proceeding with participating in the burglary and murder.
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review, and affirmed the conviction and sentence and the denial of post-conviction relief. Williams
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v. State, 737 P.2d 508 (Nev. 1987).
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On September 23, 1987, Williams filed an initial pro se federal habeas petition this court that
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was assigned case number CV-N-87-471-ECR. The Federal Public Defender was appointed to
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represent Williams. On May 20, 1988, United States District Judge Edward C. Reed, Jr., dismissed
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the petition without prejudice. On July 6, 1988, Williams filed another petition for post-conviction
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relief in the Second Judicial District Court.
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On July 8, 1988, the Second Judicial District Court, without holding an evidentiary
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hearing, denied the second petition for post-conviction relief. Williams filed a notice of appeal to
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the Nevada Supreme Court the same day. Also on that day, Williams filed a petition for writ of
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habeas corpus in the First Judicial District Court for Nevada.
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On July 11, 1988, without conducting an evidentiary hearing, the First Judicial District Court
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denied the habeas petition on the ground that the claims contained therein had already been rejected
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by the Nevada Supreme Court. Williams filed a notice of appeal. On July 12, 1988, the Nevada
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Supreme Court consolidated the appeals from the First and Second Judicial District Courts and
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dismissed them. That same day, Williams filed a federal habeas petition in this court that was
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assigned case number CV-S-88-928-LDG(LRL).
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On June 5, 1989, this court granted Williams’s motion for leave to return to state court based
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on the allegation that he entered his guilty plea to the murder based on sworn statements of a witness
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who made subsequent sworn statements that the earlier statements were false and were motivated by
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the witness’s desire to earn a lesser prison sentence. After unsuccessfully seeking relief in the
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Nevada courts, Williams filed, on November 30, 1990, a second amended federal petition in this
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court.
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On December 31, 1992, Williams filed a petition for writ of habeas corpus in the Seventh
Judicial District Court for Nevada. On April 20, 1993, this court dismissed the federal petition
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without prejudice. On July 16, 1993, Williams filed an amended petition for post-conviction relief
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in the state proceeding.
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On December 1, 1995, the state district court held an evidentiary hearing on Williams’s first
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amended petition. On August 15, 1996, the court granted the State’s motion to dismiss on the
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ground that the issues were without merit because they had already been presented or should have
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been presented in previous petitions. Williams filed an appeal that was dismissed by the Nevada
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Supreme Court on August 29, 1997.
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On April 14, 1998, this court granted Williams leave to file the federal petition initiating the
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instant action. On September 17, 1999, with the Federal Public Defender having been appointed as
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counsel, Williams filed an amended petition for writ of habeas corpus, which was followed by a
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second amended petition filed on May 30, 2002. On May 6, 2003, pursuant to a stipulation by the
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parties, the court held this proceeding in abeyance to allow another attempt at exhaustion.
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On March 3, 2003, Williams filed a state habeas petition in the Second Judicial District
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Court. On December 30, 2004, the state court denied relief without setting an evidentiary hearing,
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stating that the petition was untimely and “failed to plead facts which would support a finding of
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good cause and prejudice.” After Williams appealed, the Nevada Supreme Court issued, on
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December 8, 2006, an Order of Affirmance concluding that the burglary and robbery aggravators
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should be stricken pursuant to McConnell v. State, 102 P.3d 606 (Nev. 2004). Even so, the state
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supreme court reweighed the remaining aggravators (i.e., torture and depravity of mind and
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avoidance of lawful arrest) and concluded beyond a reasonable doubt that the three-judge sentencing
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panel still would have found Williams death eligible and imposed a death sentence.
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Both parties filed a petition for rehearing. On January 16, 2007, the Nevada Supreme Court
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denied both petitions. Williams then filed a petition for rehearing en banc. In an order entered July
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5, 2007, the state supreme court denied en banc reconsideration. In doing so, the court explained at
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length why it determined that one of Williams’s ineffective assistance claims was procedurally
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barred notwithstanding Williams’s argument that he could demonstrate a fundamental miscarriage of
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justice.
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On September 21, 2007, this court granted Williams’s motion to reopen these proceedings;
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and, on October 24, 2007, Williams filed his third amended petition for writ of habeas corpus. ECF
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Nos. 134/135. On August 8, 2008, respondents filed a motion to dismiss contending that several
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claims in the petition are either barred by the doctrine of procedural default or time-barred by 28
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U.S.C. § 2244(d). ECF No. 145. Pursuant to that motion, this court dismissed several claims from
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the amended petition. ECF No. 165. Claims One(A, B, F, G), Two, Four, Eight and Sixteen remain
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before the court for a decision on the merits.4
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II. STANDARDS OF REVIEW
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This action was initiated on January 12, 1998. Because this action was initiated after
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April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and
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Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997);
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Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v.
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Andrade, 538 U.S. 63 (2003); see also Reply at ECF No. 182, pp. 5, 51, 56 (conceding that AEDPA
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habeas standards apply).
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28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
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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 –
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(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
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(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.
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On March 28, 2011, this court denied Williams’s motion for an evidentiary hearing in relation
to his petition. ECF No. 187.
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28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the state court
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arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the
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state court decides a case differently than the Supreme Court has on a set of materially
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indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable
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application” occurs when “a state-court decision unreasonably applies the law of [the Supreme
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Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may not “issue the
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writ simply because that court concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.
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The Supreme Court has explained that “[a] federal court’s collateral review of a state-court
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decision must be consistent with the respect due state courts in our federal system.” Miller–El v.
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Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for
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evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of the
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doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333,
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n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “A state court’s
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determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
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could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct.
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770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
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has emphasized “that even a strong case for relief does not mean the state court’s contrary
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conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also
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Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as “a difficult to
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meet and highly deferential standard for evaluating state-court rulings, which demands that
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state-court decisions be given the benefit of the doubt”) (internal quotation marks and citations
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omitted).
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“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that
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adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. In Cullen, the Court reasoned that
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the “backward-looking language” present in § 2254(d)(1) “requires an examination of the state-court
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decision at the time it was made,” and, therefore, the record under review must be “limited to the
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record in existence at that same time i.e., the record before the state court.” Id.
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For any habeas claim that has not been adjudicated on the merits by the state court, the
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federal court reviews the claim de novo without the deference usually accorded state courts under 28
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U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313
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F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting
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that federal court review is de novo where a state court does not reach the merits, but instead denies
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relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such
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instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Cullen,131 S.Ct at 1401
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(“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas
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relief.”); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct
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under § 2254(e)(1) even if legal review is de novo).
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Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review
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habeas claims by conducting a de novo review prior to applying the “contrary to or unreasonable
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application of” limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so,
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however, the Court did not preclude such an approach. “AEDPA does not require a federal habeas
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court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) –
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whether a state court decision is contrary to, or involved an unreasonable application of, clearly
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established Federal law.” Id.
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III. ANALYSIS OF CLAIMS
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Claim One(A)
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In Claim One(A), Williams claims that he received ineffective assistance of counsel because
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his counsel failed to have him examined by a competent neuropsychologist prior to trial. According
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to Williams, such an examination would have revealed that, as a result of neurological impairments,
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he “is likely to suffer from increased impulsivity, problems with judgment, poor overall problem
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solving abilities, and difficulty incorporating important facts into his decision-making process.”
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ECF No. 135, p. 27. Williams contends that effective counsel would have presented this information
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to the sentencing panel. He further alleges that his impairments made him more likely to follow
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counsel’s advice to plead guilty and also affected his ability to understand the consequences of
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entering a guilty plea.
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In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two
prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming
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ineffective assistance of counsel must demonstrate (1) that the defense attorney’s representation
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“fell below an objective standard of reasonableness,” and (2) that the attorney’s deficient
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performance prejudiced the defendant such that “there is a reasonable probability that, but for
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counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
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466 U.S. at 688, 694. To overcome the strong presumption that counsel has acted competently (id. at
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690), a defendant must show that counsel failed to act “reasonabl[y] considering all the
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circumstances.” Id. at 688. If the petitioner makes an insufficient showing as to either one of the
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two Strickland components, the reviewing court need not address the other component. Id. at 697.
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Williams presented this claim to the Nevada courts in his final state post-conviction
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proceeding. As noted above, the Nevada Supreme Court concluded that the claims presented in that
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proceeding were untimely. In denying en banc reconsideration, however, the court addressed the
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merits of Williams’s claim that counsel was ineffective in failing to present brain damage evidence.
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ECF No. 136-4, p. 513-18. The court was “not persuaded that even assuming trial counsel had
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discovered and presented the brain damage evidence Williams now [relies upon] that it had a
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reasonable probability of altering the outcome of the penalty hearing.” Id., p. 516. Even though the
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court was considering the claim as part of its procedural default analysis, the ruling constitutes an
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adjudication on the merits for the purposes of § 2254(d). See Early v. Packer, 537 U.S. 3, 8 (2002)
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(holding that AEDPA deference is afforded where the state court applies a standard that is the
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functional equivalent of the federal standard).
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This court is not convinced that the state court rejection of the claim was contrary to, or an
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unreasonable application of, clearly established federal law, as determined by the Supreme Court, or
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that the state court’s ruling was based on an unreasonable determination of the facts in light of the
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evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). Williams argues that the
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state court erred by discounting the weight of Williams proffered evidence5 without conducting an
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evidentiary hearing. Even accepted at face value, however, the findings and opinions of Drs.
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Schmidt and DePry would have added, at most, only marginal benefit to Williams’s mitigation case.
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Counsel presented substantial mitigation evidence on Williams’s behalf at the penalty
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hearing. ECF No. 173-7, p. 42-51; ECF No. 173-8, p. 1-51; ECF No. 173-9, p. 1-51; ECF No. 173-
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10, p. 1-46. Not counting Williams himself, she called ten witnesses to the stand and elicited
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extensive testimony about the adverse conditions Williams faced growing up in violent and crime-
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ridden communities in southern California. The sentencing panel was informed that his mother died
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of cancer when he was nine years old and that his biological father was not involved in his
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upbringing. He spent the rest of his childhood living with relatives, mostly with his mother’s cousin
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in the years following his mother’s death and later with his maternal grandmother. He was described
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by various witnesses as a very thoughtful, dutiful, and dependable boy, who was committed to
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protecting and taking care of his younger sisters. According to testimony, Williams was hit very
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hard not only by the loss of his mother, but also his maternal grandmother and an uncle, both of
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whom died when he was seventeen years old.
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Counsel called several witnesses who testified about Williams’s redeeming qualities and the
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The evidence consists of a neuropsychological assessment by David L. Schmidt, Ph.D., and
psychiatric evaluation by Dennis L. DePry, D.O., both conducted in 1999. ECF No. 136-3, p. 104-129.
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contributions he could make to his family and other prisoners if his life were to be spared. His
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fiancee expressed her intent to marry him even though he had plead guilty to murder. His great
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uncle stated that he had employed Williams for four years and described him as reliable, respectful,
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and the best worker he had ever seen. A friend with whom Williams attended college testified about
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Williams’s efforts to improve himself and desire to work his way out of the rough neighborhood in
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which they lived. A former neighbor detailed how Williams, without being asked, came over to
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work around her house and helped her take care of her children.
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When Williams testified, he recounted his version of the murder, which, according to him,
was the result of panic brought about by unexpectedly confronting someone when he assumed no
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one was home. Counsel also elicited testimony about Williams’s background. After describing his
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family and educational background, Williams indicated that his brief stint at community college
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ended when he was shot in a drive-by shooting that resulted in three surgeries. He then left Los
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Angeles for San Diego, where he worked for a short time, first mixing cement, then cleaning up
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parks. Returning to Los Angeles but not wanting to stay, Williams used connections he had
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established while boxing in the Job Corps program a few years earlier to relocate to Reno, where he
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lived with a boxing manager and worked as a maintenance person in the subdivision where he
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committed the Carlson murder.
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The reports of Schmidt and DePry contain some information that may have added some
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mitigatory weight to Williams’s case, but not a significant amount. Based on Williams’s
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performance on neuropsycological tests, Dr. Schmidt opined that Williams had suffered sufficient
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brain damage to cause a change of functioning that included the attributes mentioned above – i.e.,
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increased impulsivity, problems with judgment, poor overall problem solving abilities, and difficulty
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incorporating important facts into his decision-making process. Dr. DePry noted that, had he been
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asked to testify at Williams’s penalty hearing, he would have testified “about the effects of the
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patient’s turbulent, chaotic and abusive upbringing as it relates to his behavior and personality.”
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The proffered reports are not only not particularly compelling, Dr. Schmidt’s report contains
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information that may have actually hurt Williams’s chances for a more lenient sentence.
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Specifically, Dr. Schmidt noted that Williams’s personality profile was indicative of individuals who
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are “angry, argumentative, and resentful of any demands being placed upon them” and who may
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“become hostile and angry [when] their expectations are not met.” ECF No. 136-3, p. 110. In any
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case, there is a “reasonable argument” that the outcome of Williams’s penalty proceeding would not
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likely have been different had counsel investigated and presented the evidence of brain damage upon
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which Williams now relies. See Richter, 131 S.Ct. at 788. Thus, Williams is not entitled to relief
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because he cannot “show that the state court’s ruling on the claim being presented in federal court
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was so lacking in justification that there was an error well understood and comprehended in existing
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law beyond any possibility for fairminded disagreement.” Id. at 786–787.
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With regard to Williams’s claim that his mental impairments impacted the voluntariness of
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his guilty plea, the proffered evidence falls well short of showing that Williams is entitled to habeas
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relief based on such a theory. More specifically, there has been no showing that Williams’s alleged
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mental impairments prevented him from knowingly, voluntarily, and intelligently entering a guilty
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plea with complete knowledge of the relevant circumstances and likely consequences. Brady v.
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United States, 397 U.S. 742, 747-48 and n. 4 (1970).
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Claim One(B)
In Claim One(B), Williams claims that he received ineffective assistance of counsel because
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his counsel failed to conduct adequate guilt phase research and investigation. Williams identifies
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several ways in which he claims counsel was deficient in this respect: (1) she failed to utilize the
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services of a competent investigator; (2) she failed to obtain adequate discovery from the prosecutor,
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including information suggesting that Charles Wilkinson played a greater role in the homicide; (3)
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she failed to research and accurately advise Williams as to constitutional issues regarding the
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admissibility of the statements of his non-testifying co-defendants; and (4) she failed to use available
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information, including Williams’s own inconsistent statements, to refute Williams’s testimony that
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he had acted alone. This claim was rejected on procedural grounds in state court. Thus, it is subject
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to de novo review by this court.
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Much of the evidence Williams relies upon to substantiate this claim was not presented to
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the state court until he litigated his final state petition, which was rejected by the Nevada Supreme
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Court on adequate and independent procedural grounds. As explained in this court’s order denying
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Williams’s motion for an evidentiary hearing (ECF No.187), 28 U.S.C. § 2254(e)(2) bars this court
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from considering such evidence in deciding the merit of Williams’s claims. Moreover, Williams has
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proffered no evidence at all to support some of his allegations, such as his claim that part of the
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reason he plead guilty to the murder is that counsel inaccurately advised him that his co-defendants’
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statements could be used against him at trial.
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At the state court evidentiary hearing held on November 2, 1984, Williams’s trial counsel,
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Shelly O’Neill, testified that, in the months leading up to trial, she had prepared a defense that
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conceded Williams’s participation in the burglary, but argued that a co-defendant was the actual
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killer. ECF No. 173-13, p. 31. According to her testimony, the decision to plead guilty to the
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murder came about when, after having difficulty with practice cross-examination, Williams
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confessed to her that he had killed Carlson and told her that he did not feel that he could hold up
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under the prosecutor’s cross examination. Id., p. 32.
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Despite having opportunities at two separate state court evidentiary hearings, Williams did
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not present any substantial evidence with respect to O’Neill’s efforts, or lack thereof, in preparing a
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guilt phase defense. In Claim One(B), he relies on a declaration from Robert Howell, an investigator
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with the public defender’s office assigned to Williams’s case, in attempting to show that O’Neill’s
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performance was deficient. ECF No. 136-3, p. 500-01. However, that declaration, not prepared until
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1999, is subject to the aforementioned bar imposed by § 2254(e)(2).
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In addition, the decision to plead guilty to the murder and focus on the penalty phase was
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reasonable given the overwhelming evidence of Williams’s guilt (including his own confession),
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together with a lack of evidence showing that one of co-defendants committed the killing. See
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Florida v. Nixon, 543 U.S. 175, 191-92 (2004) (holding that counsel's strategic decision to concede
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guilt and focus on the penalty phase was not ineffective assistance of counsel under the Strickland
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standard notwithstanding the absence of defendant's explicit consent). Claim One(B) is denied.
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Claim One(F)
In Claim One(F), Williams claims that he received ineffective assistance of counsel because
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counsel failed to present available mitigation evidence during the penalty phase of his trial.
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Williams alleges that his upbringing was far more bleak than what counsel presented at his penalty
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hearing and, in support of this claim, Williams sets out a very detailed social history, based
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primarily on declarations of relatives and acquaintances, along with records from the juvenile court
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in Los Angeles County. That history includes the following information.
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Prior to his mother’s death when he was nine years old, Williams witnessed her being beaten
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by his step-father. Williams was also physically abused by both his step-father and mother.
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Beginning at age eight, Williams witnessed his mother’s slow and agonizing death from cancer.
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When she died, Williams, then nine years old, was forced into the role of caretaker for his younger
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sisters. In the ensuing years, Williams and his sisters were passed from relative to relative,
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witnessing or experiencing neglect, alcohol abuse, physical and emotional abuse, and molestation.
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In early adolescence, Williams began consuming alcohol, sniffing glue, and smoking marijuana on a
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regular basis. By age thirteen, he was an alcoholic, and, at fifteen, he began using PCP. Drugs and
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gangs pervaded the neighborhoods of Compton and Watts, where Williams resided throughout his
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youth. Homicides were a regular occurrence and, in addition to being the victim of a drive-by
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shooting, Williams was once shot in the leg at a high school dance.
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Williams presented this claim to the state court in the amended petition for post-conviction
relief that he filed on July 16, 1993. ECF No. 173-20, p. 8-41. As noted above, the state district
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court held an evidentiary hearing in that case. ECF No. 173-21, p. 1-49; 173-22, p. 1-61. O’Neill
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and Williams testified at the hearing, but the testimony elicited by Williams’s counsel focused
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almost entirely on his conflict of interest claim (see discussion of Claim Four, below) to the
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exclusion of all other claims. Id. Even so, the State appeared to stipulate to allowing the state court
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to consider exhibits submitted with state petition (including several of the declarations cited in
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support of Claim One(F)). ECF 173-21, p. 9-10.
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The state district court dismissed the claim on grounds that Williams’s ineffective assistance
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of counsel claims had already been decided by the Nevada Supreme Court and that, as a result, the
9
court was bound by the law of the case doctrine. ECF No. 173-23, p. 1-9. The court also found,
10
however, that the claim was “directly contradicted by the evidence received by [the court].” Id., p. 9.
11
On appeal, the Nevada Supreme Court upheld the lower court’s law of the case determination, and
12
also held that, to the extent he was raising “new and different grounds for relief,” Williams had not
13
shown that failure to raise such grounds in an earlier petition should be excused due to cause and
14
prejudice or his “actual innocence.” Id., p. 10-14. Thus, because the claim was rejected on
15
procedural grounds in state court, it is subject to de novo review by this court.
16
As recounted above in relation to Claim One(A), much of the social history set forth in
17
support of this claim was, indeed, presented to the three-judge panel. Of the fifteen declarations
18
from relatives and acquaintances that Williams cites, six are from witnesses O’Neill called to testify
19
at the penalty hearing. And, strangely, some of the declarants are the very people other declarants
20
accuse of mistreating or abusing Williams and his sisters.
21
By selectively compiling allegations from the various declarants, Williams has presented a
22
social history on paper that contains some dramatic circumstances not elicited by O’Neill at
23
Williams’s penalty hearing. However, attempting to present that history before the sentencing panel,
24
with witnesses giving conflicting testimony and being subject to cross-examination, would have
25
painted a murky and confusing picture of Williams’s childhood. In addition, presenting additional
26
14
1
evidence regarding Williams’s substance abuse would not have necessarily added weight to his case
2
for mitigation. See Cullen, 131 S.Ct. at 1410 (noting that evidence of serious substance abuse is “by
3
no means clearly mitigating”).
4
O’Neill’s mitigation case adhered to a coherent theme – that being to portray Williams as a
5
thoughtful and caring young man who was forced to overcome a series of adverse family and social
6
circumstances from a very early age and worked hard to try to improve his situation. It is also
7
apparent from the record that O’Neill arrived at this strategy after conducting a reasonable
8
investigation into Williams’s family and social background. In sum, Williams has not overcome the
9
presumption of competence mandated by Strickland. See Cullen, 131 S.Ct. at 1406-07 (noting that
10
Strickland “rejected the notion that the same investigation will be required in every case” and
11
requires the habeas court to strongly presume that counsel exercised reasonable judgment in making
12
all significant decisions). And for the reasons discussed above, there is not reasonable probability
13
that the additional evidence Williams presented to the state court in post-conviction proceedings
14
would have resulted in a better outcome at sentencing. Claim One(F) is denied.
15
Claim One(G)
16
In Claim One(G), Williams claims that he received ineffective assistance of counsel because
17
counsel failed to obtain a defense expert to rebut the alleged aggravating circumstance of torture. In
18
support of this claim, Williams alleges that counsel never met with Dr. Roger Ritzlin, the expert
19
used by the State at the penalty hearing to establish that Williams tortured Carlson. According to
20
Williams, a “competent expert” could have demonstrated that Carlson’s wounds “were not
21
consistent with torture wounds.” ECF No. 135, p. 54.
22
Williams presented this claim to the state court in the amended petition for post-conviction
23
relief that he filed on July 16, 1993. ECF No. 173-20, p. 8-41. For the exact same reasons discussed
24
above in relation to Claim One(F), this claims is subject to de novo review by this court.
25
In support of this claim, Williams submits a report from Donald Reay, M.D., a forensic
26
15
1
pathologist. ECF No. 136-3, p. 88-103. In the report, Dr. Reay disagrees with Dr. Ritzlin’s
2
conclusion that the numerous superficial knife wounds found on Carlson’s body were evidence of
3
torture. Id. Here again, however, the report was not prepared until 1999 and is, therefore, beyond
4
the scope of this court’s review under § 2254(e)(2). Having not shown that a defense expert would
5
have been able to effectively rebut the State’s evidence in support of the torture aggravator, Williams
6
has not met the prejudice prong of the Strickland standard. See Bible v. Ryan, 571 F.3d 860, 871 (9th
7
Cir. 2009) (holding that speculation as to evidence that could have been presented is insufficient to
8
show Strickland prejudice).
9
As for the allegation that counsel had not met with Ritzlin prior to trial, O’Neill’s cross
10
examination of the expert was conducted in an effective manner. ECF No. 173-7 p. 25-42. She
11
undermined Ritzlin’s testimony that the wounds inflicted on Carlson were similar to those he had
12
observed in examining victims of gang-related torture killings in southern California. She was able
13
to establish that, unlike Carlson, the victims in all of those cases had been bound. Id., p. 35. In
14
addition, Ritzlin admitted, under cross-examination, that he did not know whether the gang killings
15
he testified about were committed by a single individual or a group. Id. He also conceded that some
16
of Carlson’s wounds were consistent with defensive wounds and that the wounds he identified as
17
evidence of torture could also be evidence of “severe struggle.” Id, p. 36-37. Even if O’Neill
18
neglected to interview Dr. Ritzlin prior to trial, Williams has not shown that her cross examination
19
of him would have been more effective had she done so. Thus, the alleged omission did not give rise
20
to the type of prejudice contemplated by Strickland. Claim One(G) is denied.
21
Claim Two
22
In Claim Two, Williams claims that his conviction and death sentence violate his
23
constitutional rights because the Washoe County Public Defender’s Office failed to provide him
24
with resources necessary for his defense. He alleges that the office was not adequately staffed to
25
handle its caseload, both in terms of the number and the experience of attorneys working in the
26
16
1
office. He further alleges that O’Neill was overworked and that she did not utilize the services of the
2
investigator assigned to the case or, for that matter, any other investigator.
3
4
5
6
In United States v. Cronic, 466 U.S. 648 (1984), the Court recognized that prejudice is, in
most cases, an essential part of a claim of ineffective assistance of counsel:
[T]he right to the effective assistance of counsel is recognized not for its own sake,
but because of the effect it has on the ability of the accused to receive a fair trial.
Absent some effect of challenged conduct on the reliability of the trial process, the
Sixth Amendment guarantee is generally not implicated.
7
8
Cronic, 466 U.S. at 658. The Cronic Court went on to hold, however, that there are “circumstances
9
that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is
10
unjustified.” Id. Examples of such circumstances are complete denial of counsel at a critical stage
11
of trial or failure on the part of counsel to subject the prosecution's case to meaningful adversarial
12
testing. Id. at 659. “Circumstances of that magnitude may be present on some occasions when
13
although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a
14
fully competent one, could provide effective assistance is so small that a presumption of prejudice is
15
appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60.
16
In this case, Williams's allegations regarding lack of resources provided for his defense by the
17
Washoe County Public Defender’s office do not show that his defense was so undermined that there
18
should be a presumption of prejudice, under Cronic, without inquiry into the actual conduct of the
19
trial. As such, the court determines that Claim Two does not set forth a viable claim that the alleged
20
lack of resources was a violation of Williams's right to effective assistance of counsel. Because it
21
does not independently state a viable claim for habeas corpus relief, the court will deny Claim Two.
22
23
Claim Four
In Claim Four, Williams claims that his constitutional rights were violated because his trial
24
counsel labored under an actual conflict of interest that adversely affected her performance. The
25
claim is premised on allegations that Williams’s trial counsel, O’Neill, established an attorney-client
26
17
1
relationship with Wilkinson, Williams’s separately charged co-defendant, prior to undertaking
2
representation of Williams.
3
As factual support for this claim, Williams relies, primarily, on testimony given by Williams
4
and O’Neill at the state post-conviction evidentiary hearing held on December 1, 1995. ECF No.
5
136-4, p. 104-212. At that hearing, Williams testified that, during their initial meeting at the Washoe
6
County jail, O’Neill told him that she had already spoken with Wilkinson and that she had yet to
7
decide whom she was going to represent. Id., p. 174. According to her testimony, O’Neill had no
8
memory of meeting with Wilkinson, but also noted that her recollection was “hazy,” having “not
9
seen the file in probably 12 or 13 years.” Id., p.120.
10
“To establish a violation of the right to conflict-free counsel, the petitioner must show either
11
that (1) in spite of an objection, the trial court failed to allow him the ‘opportunity to show that
12
potential conflicts impermissibly imperil[ed] his right to a fair trial;’ or (2) that an actual conflict of
13
interest existed.” Alberni v. McDaniel, 458 F.3d 860, 869-70 (9th Cir. 2006) (citing Cuyler v.
14
Sullivan, 446 U.S. 335, 348 (1980)). Because he never raised an objection based on the alleged
15
conflict in the trial court, Williams must show that an actual conflict of interest existed.
16
That is, he must demonstrate that O’Neill’s performance was adversely affected by the
17
alleged conflict. Mickens v. Taylor, 535 U.S. 162, 171 (2002) ("[A]n actual conflict of interest
18
[means] precisely a conflict that affected counsel's performance--as opposed to a mere theoretical
19
division of loyalties."). To meet this standard, he must show “that the attorney's behavior seems to
20
have been influenced by the conflict,” which, though not a showing of actual prejudice, “remains a
21
substantial hurdle.” Lockhart v. Terhune, 250 F.3d 1223, 1231 (9th Cir. 2001) (quoted citations
22
omitted).
23
Here, not only are Williams’s allegations and evidence lacking in substance, he has also
24
failed to link the purported conflict to a particular defect in counsel’s performance. See, e.g., Lewis
25
v. Mayle, 391 F.3d 989, 998-99 (9th Cir. 2004) (considering link between the conflict and counsel's
26
18
1
omissions in cross-examination). There is little more than Williams’s self-serving testimony to
2
support a finding that the jailhouse meeting between O’Neill and Wilkinson ever took place. Even if
3
it did, there is virtually no support in the record for Williams’s allegation that the O’Neill’s
4
“concurrent representation” caused her to not use information at her disposal “showing that
5
Wilkinson was the actual perpetrator of the homicide.” ECF No. 182, p. 44.
6
7
Having not made the showing required by Cuyler and Mickens, Williams is not entitled to
relief under Claim Four.
8
Claim Eight
9
In Claim Eight, Williams claims that his conviction and death sentence are unconstitutional
10
due to the State’s failure to disclose exculpatory and impeachment evidence. According to Williams,
11
such evidence consisted of the following:
12
13
14
15
16
17
. . . “a statement of Mr. Williams’ to a reporter in which Mr. Williams denied
committing the murder, (Ex. 151); a July 27, 1982 statement of Harvey Young, which
refutes Mr. Wilkinson’s alibi and magnifies Wilkinson’s level of involvement in the
homicide, (Ex. 116 attached hereto); a criminalistics report dated July 7, 1982 which
reveals that bags on the victim’s hands showed presence of animal hair and
light-colored human hair (Ex. 117 attached hereto); a July 30, 1982, report of
co-defendant Charles Wilkinson’s polygraph results, reflecting a determination that
Wilkinson was “deceptive” as to his alleged lack of knowledge about the details of
the homicide (attached hereto as Ex. 118); and a report of a March 2, 1983 interview
with DeLeon Fair, which refers to a post-homicide discussion between Young and his
girlfriend, Juliana Rogers, as to whether they could obtain secret witness money
(attached hereto as Ex.119).”
18
ECF No. 135, p. 86 (referenced exhibits located at ECF No. 136). Williams further alleges that the
19
State “also failed to disclose material, exculpatory information evidence pertaining to Mr. Williams’
20
juvenile adjudications, and to his assertion of his right to counsel.” Id.
21
The prosecution’s suppression of evidence favorable to an accused violates due process
22
where the evidence is material to either guilt or punishment, irrespective of the good faith of the
23
prosecutor. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a Brady
24
violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory
25
or because it is impeaching; (2) the evidence must have been suppressed by the State either willfully
26
19
1
or inadvertently; and (3) prejudice must have ensued. Banks v. Dretke, 540 U.S. 668, 691 (2004);
2
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
3
“Such evidence is material ‘if there is a reasonable probability that, had the evidence been
4
disclosed to the defense, the result of the proceeding would have been different.’” Strickler v.
5
Greene, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “[T]here is
6
never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable
7
probability that the suppressed evidence would have produced a different verdict.” Strickler v.
8
Greene, 527 U.S. at 281. A “reasonable probability” is a probability sufficient to undermine
9
confidence in the outcome. United States v. Bagley, 473 U.S. at 681-82; see also Kyles v. Whitley,
10
514 U.S. 419, 434 (1995) (“The question is not whether the defendant would more likely than not
11
have received a different verdict with the evidence, but whether in its absence he received a fair trial,
12
understood as a trial resulting in a verdict worthy of confidence.”).
13
The Nevada Supreme Court considered the federal law merits of this claim in determining
14
whether Nev. Rev. Stat. § 34.726 barred his state petition. See ECF No. 145-2, p. 11. The state
15
supreme court stated that it had reviewed Williams’s argument and proffered evidence and
16
concluded that he “failed to demonstrate any Brady violation.” Id. As with Claim One(A), this court
17
must apply § 2254(d) deference even though the state court was considering the claim as part of its
18
procedural default analysis.
19
To show that the evidence identified above was withheld, Williams offers a 1999 declaration
20
from his then-habeas counsel, Rebecca Blaskey, stating that she had compared “what purport to be
21
the original trial files of the attorneys for Mr. Williams and his two-separately charged co-
22
defendants” and found that certain police reports and witness statements in the co-defendants’ files
23
did not appear in Williams’s file. ECF No. 136-4, p. 213-15. Even accepting Blaskey’s declaration
24
as true and accurate, her comparison of files conducted more than fifteen years after Williams’s trial
25
is not particularly strong showing with respect to the suppression element. Cf. Banks, 540 U.S. at
26
20
1
693 (finding suppression of evidence for Brady purposes where the State persisted in hiding
2
witness's informant status at trial and in state habeas proceedings); Strickler, 527 U.S. at 275
3
(confining Brady analysis to exhibits that prosecutor admittedly failed to disclose).
4
Williams also falls short of showing that the evidence was material to either guilt or
5
punishment. Williams argues that, without the withheld evidence, the sentencing panel was deprived
6
of “an accurate picture of his culpability.”6 ECF No. 135, p. 87; ECF No. 182, p. 46. As
7
respondents point out, however, Williams was always aware of his level of culpability relative to that
8
of his co-defendants. According to his own testimony before the sentencing panel, he performed the
9
actual killing by himself. Cf. Brady, 373 U.S. at 84 (“Brady took the stand and admitted his
10
participation in the crime, but he claimed that [his accomplice] did the actual killing.”). Thus, the
11
evidence that Williams points to as elevating the culpability of his co-defendants (which is
12
questionable, at best) would have done little to improve his chances before the sentencing panel.
13
In addition, the evidence relating to his juvenile adjudications (ECF No. 136-4, p. 419-49) would not
14
have added substantial weight to his case for mitigation; and, the evidence that supposedly shows
15
that he asserted his right to counsel (ECF No.136-4, p. 1-2) would have added no weight whatsoever.
16
In sum, there is not a reasonable probability that, but for the State’s failure to disclose the
17
evidence at issue, the results of the Williams’s sentencing proceeding would have been different.
18
Moreover, the state court’s rejection of Williams’s Brady claim was not “so lacking in justification
19
that there was an error well understood and comprehended in existing law beyond any possibility for
20
6
21
22
23
24
In countering the State’s argument that his Brady claim was waived under Tollett v. Henderson,
411 U.S. 258 (1973), Williams emphasizes that the focus of his claim is the sentencing proceeding, not
the guilty plea. He further argues that, even if that were not the case, Sanchez v. U.S., 50 F.3d 1448 (9th
Cir. 1995), allows a defendant to challenge his guilty plea based on an alleged Brady violation.
Under Sanchez, Williams would need to establish “a reasonable probability that but for the
failure to disclose the Brady material, [he] would have refused to plead and would have gone to trial.”
50 F.3d at 1454. Williams does not claim that he can make such a showing.
25
26
21
1
fairminded disagreement.” Richter, 131 S.Ct. at 786-87. Accordingly, Claim Eight is denied.
Claim Sixteen
2
3
In Claim Sixteen, Williams claims that his death sentence violates his constitutional rights
4
because it is based on an invalid aggravating circumstance, that being that the homicide was
5
committed to avoid lawful arrest. He argues that there was insufficient evidence to support the
6
finding. He further argues that the statutory definition of the factor is impermissibly vague and
7
overbroad and that the factor is unconstitutional “as applied.”
8
9
According to Williams, the aggravating factor, as defined at Nev. Rev. Stat. § 200.033(5),
lacks rational standards to be applied by prosecutors and sentencing bodies and fails to give adequate
10
notice to defendants. He also contends that, as applied by the Nevada courts, the factor is
11
unconstitutional because its scope has been expanded to include homicides occurring in the absence
12
of an identifiable “lawful arrest” and does not rationally narrow the class of homicides subject to the
13
death penalty.
14
In Godfrey v. Georgia, the Supreme Court considered an aggravating circumstance
15
instruction that allowed for the death penalty if the jury found that the murder was “‘outrageously or
16
wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated
17
battery to the victim.’” 446 U.S. 420, 422 (1980) (quoting Georgia statute). The Court held that the
18
instruction was unconstitutional as applied in that case because it resulted in “standardless and
19
unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed
20
jury.” Id. at 429. The Court further held that the Georgia Supreme Court failed to cure the defect
21
because it did not apply a constitutional construction of the statutory language in affirming the death
22
sentences on appeal. Id. at 432-33.
23
As explained in Tuilaepa v. California, the Supreme Court has found very few aggravating
24
factors to be impermissibly vague and all of those have been similar to each other. 512 U.S. 967,
25
973-74 (1994) (citing to Godfrey and Maynard v. Cartwright, 486 U.S. 356, 361-364 (1988) as
26
22
1
examples, the latter of which addressed an aggravating circumstance that asked whether the murder
2
was “especially heinous, atrocious, or cruel”).7 An aggravating factor withstands a constitutional
3
challenge if it has some “common sense core of meaning . . . that criminal juries should be capable
4
of understanding.” Id. at 973 (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976)). However, to be
5
constitutional, an aggravating circumstance must “not apply to every defendant convicted of a
6
murder; it must apply only to a subclass of defendants convicted of murder.” Tuilaepa, 512 U.S. at
7
972; see also Arave v. Creech, 507 U.S. 463, 474 (1993) (“If the sentencer fairly could conclude that
8
an aggravating circumstance applies to every defendant eligible for the death penalty, the
9
circumstance is constitutionally infirm.”).
10
Here, the sentencing panel was called upon to determine whether “the murder was committed
11
by the defendant for the purpose of avoiding and preventing his lawful arrest for the burglary of the
12
victim’s home.” Document No. 14, Exhibit I-C. The “core meaning” of the factor at issue is readily
13
understandable from this language. In addition, the statutory language defining the circumstance is
14
specific enough to guide the sentencing body and avoid arbitrary and capricious imposition of the
15
death and sufficiently narrows the class to defendants to which it applies. See Wainwright v.
16
Lockhart 80 F.3d 1226, 1231 (8th Cir. 1996) (upholding the validity of an Arkansas statute that the
17
killing was committed for the purpose of avoiding or preventing an arrest or effecting an escape from
18
custody); Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, 769 (10th Cir. 1996)
19
(holding that Colorado's “avoiding or preventing lawful arrest or prosecution” sufficiently narrows
20
the class of persons eligible for the death penalty “by putting the focus on the purpose of the
21
murder.”).
22
23
24
25
7
Though Tuilaeapa was decided 18 years ago, this state of affairs still applies today. In the rare
instances since Tuilaeapa where the Court has found an aggravator invalid on vagueness grounds, the
aggravator has consisted of pejorative adjectives that generally apply to all murders. See, e.g., Barber
v. Tennessee, 513 U.S. 1184 (1995) (mem.) (denying certiorari on other grounds, but noting “wicked or
morally corrupt” as an aggravator is “plainly impermissible” because such a state of mind is
characteristic of every murder).
26
23
1
Williams is also incorrect in arguing that the Nevada courts have not applied the aggravating
2
circumstance in a constitutional manner. In both the cases Williams cites – Cavanaugh v. State, 729
3
P.2d 481, 486 (Nev. 1986) and Evans v. State, 926 P.2d 265, 280-81 (Nev. 1996), an antecedent
4
crime occurred, and the murderer killed the victim to prevent the victim's identification of the
5
murderer for that crime. Applying the factor in this manner does not run afoul of the Constitution.
6
Davis 100 F.3d at 770; accord Wainwright, 80 F.3d at 1231 (holding that the aggravator was
7
properly applied to a murder which was committed in the course of a robbery, in order to prevent the
8
murderer's identification by the victim). As discussed below, that is precisely how the circumstance
9
was applied in this case.
10
The standard used by the federal habeas court to determine whether a state court finding of an
11
aggravating circumstance is supported by sufficient evidence is the same “rational factfinder”
12
standard established in Jackson v. Virginia, 443 U.S. 307 (1979), to test whether sufficient evidence
13
supports a state conviction. Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Under that standard, the
14
court inquires as to “whether, after viewing the evidence in the light most favorable to the
15
prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
16
reasonable doubt.” Jackson, 443 U.S. at 319 (citation omitted).
17
Here, Williams testified at this penalty hearing that he thought no one was home when he
18
entered the Carlson’s residence and that he would not have committed the burglary if he thought
19
there was. ECF No. 173-8, p. 39-40. According to his testimony, he obtained the knife used to
20
murder Carlson after noticing a purse on the kitchen counter. Id., p. 44-45. He further testified that,
21
upon encountering the victim in the bedroom, she said, “Oh my God, you’re the kid from down the
22
street.” Id., p. 46; ECF No. 173-9, p. 25-26. He said that he then saw her reach for a drawer next to
23
the bed, at which point, he “cut her off” and stabbed her. ECF No. 173-9, p. 45; ECF No. 173-10, p.
24
25-27.
25
Viewing this evidence in a light most favorable to the prosecution, a rational factfinder could
26
24
1
have found beyond a reasonable doubt that Williams committed the murder to avoid or prevent a
2
lawful arrest. Thus, Williams is not entitled to relief under the Jackson standard. Claim Sixteen is
3
denied.
4
IV. IMPACT OF MARTINEZ
5
On May 5, 2012, this court entered an order permitting each party to file a supplemental brief
6
addressing the impact of Martinez v. Ryan, 132 S. Ct. 1309 (2012), on this case. ECF No. 190. In
7
Martinez, the Court held that, in collateral proceedings that provide the first occasion to raise a claim
8
of ineffective assistance at trial, ineffective assistance of post-conviction counsel in that proceeding
9
may establish cause for a prisoner's procedural default of such a claim. Martinez, 132 S. Ct. at 1315.
10
The Court in Martinez stressed that its holding was a “narrow exception” to the rule in
11
Coleman v. Thompson, 501 U.S. 722 (1991), that “an attorney's ignorance or inadvertence in a
12
postconviction proceeding does not qualify as cause to excuse a procedural default.” Martinez, 132
13
S.Ct. at 1315. It is clear from the opinion that the exception does not extend beyond ineffective
14
assistance of trial claims. See id. at 1320. Thus, in this case, Martinez would potentially apply to
15
only the sub-claims set forth under Claim One.
16
In asserting procedural defenses to Williams’s claims, however, the respondents also raised
17
lack of timeliness under 28 U.S.C. § 2244(d) with respect to several of those sub-claims, most
18
notably each of the sub-claims that have not been addressed on the merits above – i.e., Claims
19
One(C-E and H-I). ECF No. 145, p. 44-49. In adjudicating respondents’ motion to dismiss, this
20
court agreed that Claim One(C) is time-barred, but, having found Claims One(D, E, H, I, or J)
21
procedurally defaulted, did not determine whether they are also time-barred. ECF No. 165, p. 15-19.
22
For the reasons that follow, the court now concludes that all of the sub-claims in Claim One not
23
addressed on the merits above are, in fact, time-barred under Mayle v. Felix, 545 U.S. 644 (2005).8
24
25
8
The court’s order adjudication the respondents’ motion to dismiss includes a discussion of how
Mayle applies to this case. See ECF No. 165, p. 15-16.
26
25
1
In Claim One(D), Williams claims that he received ineffective assistance of counsel because
2
of his trial counsel’s performance during the jury selection phase of the trial. ECF No. 135, p. 31-34.
3
As grounds for the claim, he relies upon several statements counsel made to prospective jurors
4
during the voir dire process. Id. In opposing respondents’ motion to dismiss, Williams argued that
5
this claim related back to Claim Eight in his initial petition. ECF No. 156, p. 46-47. In comparing
6
the two claims, however, the court finds they do not share a common core of operative facts. Thus,
7
the Claim One(D) does not relate back and is untimely.
8
9
In Claim One(E), Williams claims he received ineffective assistance of counsel because his
counsel induced him into pleading guilty by representing that she was personal friends with the trial
10
judge, who would not sentence him to death. ECF No. 135, p. 34-35. Williams’s initial petition
11
makes brief reference to counsel’s “prediction of leniency” due to her personal friendship with the
12
judge. Document No. 5, p. 3. That reference, however, is contained in introduction of the petition
13
and is not alleged as an operative fact supporting a substantive claim. As such, Claim One(E) does
14
not relate back and is untimely.
15
In Claim One(H), Williams claims he received ineffective assistance of counsel because his
16
counsel failed to obtain his juvenile records for the purpose of rebutting the prosecutor’s presentation
17
of Williams’s prior record and failed to rebut other evidence of un-adjudicated conduct presented by
18
the State. ECF No. 135, p. 55-56. The juvenile records referred to the in claim are the
19
aforementioned records from the juvenile court in Los Angeles County; and, the un-adjudicated
20
conduct consists of a robbery Williams purportedly committed in Reno in 1982. Id. The claim does
21
not share a common core of operative facts with any claim or claims contained in Williams’s initial
22
petition. Thus, the claim does not relate back and is untimely.
23
In Claim One(I), Williams claims he received ineffective assistance of counsel because his
24
counsel failed to preserve his theory of defense. ECF No. 135, p. 56-57. Specifically, Williams
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alleges that counsel’s investigator revealed to an attorney who shared office space with co-defendant
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Wilkinson’s counsel that Williams’s defense was based on the theory that Wilkinson, not Williams,
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killed the victim. Id. The claim does not share a common core of operative facts with any claim or
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claims contained in Williams’s initial petition. Thus, the claim does not relate back and is untimely.
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In Claim One(J), Williams claims he received ineffective assistance of counsel because his
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counsel failed to litigate several motions and objections in order to protect his constitutional rights.
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ECF No. 135, p. 57-58. Williams argues that this claim relates back to Ground One of his initial
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petition, wherein Williams faulted counsel for failing to raise several enumerated evidentiary
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challenges. Document No. 5, p. 15-18. Those challenges bear virtually no factual relationship,
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however, to the motions and objections set forth in Claim One(J). Consequently, Claim One(J) does
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not relate back and is untimely.
Because all of the claims to which the Martinez holding could potentially apply are time-
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barred, the court will not delve into whether the procedural default of the claims may be excused due
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to ineffective assistance of post-conviction counsel. With his supplemental brief, Williams asks the
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court to consider whether he is entitled to equitable tolling in light of Holland v. Florida, 130 S.Ct.
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2549 (2010), which held that a habeas petitioner may be entitled to equitable tolling if he can show
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that he has been pursuing his rights diligently, and that some extraordinary circumstance stood in his
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way and prevented timely filing. 130 S.Ct. at 2560. The holding in Holland, however, was already
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the law in this circuit when this court addressed equitable tolling in the context of deciding
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respondents’ motion to dismiss. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.
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2009). As such, the court declines to revisit the issue.
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V. CONCLUSION
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For the reasons set forth above, Williams is not entitled to habeas relief.
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Certificate of Appealability
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Because this is a final order adverse to the petitioner, Rule 11 of the Rules Governing Section
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2254 Cases requires this court to issue or deny a certificate of appealability (COA). Accordingly, the
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court has sua sponte evaluated the claims within the petition for suitability for the issuance of a
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COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a
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substantial showing of the denial of a constitutional right." With respect to claims rejected on the
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merits, a petitioner "must demonstrate that reasonable jurists would find the district court's
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assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484
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(2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA
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will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the
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denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.
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The COA standard is not high. Williams must only “‘sho[w] that reasonable jurists could
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debate’” the district court's resolution or that the issues are “‘adequate to deserve encouragement to
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proceed further.’” Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc) (citations
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omitted). Having reviewed its determinations and rulings in adjudicating Williams’s petition, the
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court finds that the Slack standard is met with respect the court’s resolutions of Claims One(G) and
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Sixteen. The court therefore grants a certificate of appealability as to those issues. The court
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declines to issue a certificate of appealability for its resolution of any procedural issues or any of
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Williams’s other habeas claims.
IT IS THEREFORE ORDERED that petitioner's third amended petition for writ of habeas
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corpus (ECF No. 135) is DENIED. The Clerk shall enter judgment accordingly.
IT IS FURTHER ORDERED that a Certificate of Appealability is issued as to the court’s
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resolution of Claims One(G) and Sixteen.
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IT IS FURTHER ORDERED that the Clerk of the Court shall substitute Renee Baker for
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E.K. McDaniel, on the docket, as the respondent warden in this action, and shall update the caption
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of the action to reflect this change.
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DATED: July 1, 2012
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UNITED STATES DISTRICT JUDGE
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