DAVID BOLLINGER v. E.K. MCDANIEL, et al.

Filing 232

ORDER that 215 Motion to Dismiss is Granted in part and Denied in part. FURTHER ORDERED that 216 Motion for Summary Judgment is Denied. Signed by Judge Miranda M. Du on 12/20/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID BOLLINGER,

Case No. 2:98-cv-01263-MMD-PAL
Petitioner,

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ORDER

v.

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RENEE BAKER, et al.,
Respondents.

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I.

INTRODUCTION

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This action is a petition for a writ of habeas corpus by David Bollinger, a Nevada

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prisoner sentenced to death. There are, before the Court, motions to dismiss Bollinger’s

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third amended habeas corpus petition and for partial summary judgment. In this order,

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the Court resolves those motions, granting the motion to dismiss in part and denying it

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in part, and denying the motion for summary judgment.

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II.

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BACKGROUND FACTS AND PROCEDURAL HISTORY
The following is from the Nevada Supreme Court’s August 24, 1995, opinion on

Bollinger’s direct appeal:
David A. Bollinger (“Bollinger”) was convicted of two counts of
murder in the first degree for killing Rose and James Vertrees (“the
Vertreeses”), two counts of kidnapping, two counts of robbery, and one
count of burglary. Bollinger, and possibly an accomplice identified as Tom
Johnston (“Johnston”), robbed the Vertreeses in their motor home in
Reno. After beating the Vertreeses to death, Bollinger, or he and
Johnston, set fire to the Vertreeses’ bodies at a rest-stop in Rifle,
Colorado. [Footnote: Johnston’s name came up occasionally at trial.
Although this shadowy character may have participated in the crimes, the
State suggested that possibly only Bollinger committed the crimes.

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Indeed, police officers never found Johnston or proof of his existence.]
After being arrested in Colorado, Bollinger placed a tattoo on his shoulder
which read “Pyro,” the nickname inmates had given him.
After empaneling a jury, the district court admonished jurors,
pursuant to NRS 175.401, to refrain from talking about the trial and to
avoid coming into contact with the media. During trial, however, the district
court often failed to admonish the jury before adjourning. At the conclusion
of the trial, the district court issued the following instruction based upon
the statutory definition of reasonable doubt:

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With respect to Rose’s murder, the jury found Bollinger worthy of
death. In support of this finding, the jury found no mitigating factors but
selected all three possible aggravating factors: (1) Bollinger was under
sentence of imprisonment at the time, (2) Bollinger committed the crime
while engaged in or in flight from a robbery, burglary, or kidnapping, and
(3) the murder was committed to avoid lawful arrest.
With respect to James’ murder, the jury found that Bollinger should
be imprisoned for life without the possibility of parole. In support of this
finding, the jury found the following two mitigating factors: (1) Bollinger had
no significant criminal history, and (2) “other mitigating circumstance”
existed. In addition, the jury did not select any of the three possible
aggravating factors that it selected regarding Rose’s murder.

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Bollinger v. State, 111 Nev. 1110, 1112-14, 901 P.2d 671, 672-74 (1995).
The Nevada Supreme Court affirmed the judgment of conviction and death
sentence on August 24, 1995. Bollinger, 111 Nev. at 1117, 705 P.2d at 676.

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Bollinger filed his first state court habeas corpus petition on September 12, 1996.

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Exhibit 263 (dkt. no. 196-1).1 The state district court held an evidentiary hearing on

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March 3 and 4, 1997. Exhibits 267, 281 (dkt. nos. 197, 197-1, 199-1). The petition was

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denied on May 7, 1997. Exhibit 270 (dkt. no. 198).

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Bollinger appealed. Exhibits H, I, J (dkt. no. 217). The Nevada Supreme Court
dismissed the appeal on July 28, 1998. Exhibit K (dkt. no. 217).

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Bollinger then initiated this federal habeas corpus action on September 9, 1998.

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Counsel was appointed, discovery proceedings ensued, and a first amended habeas

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Exhibits identified by number (E.g. “Exhibit 1”) are located in the record at dkt.
nos. 169-208, and 226. Exhibits identified by letter (E.g. “Exhibit A”) are located in the
record at dkt. no. 217. Citations to the location of exhibits in the record are provided, in
parentheses.
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petition (dkt. no. 39) was filed on February 29, 2000. After extensive discovery

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proceedings, Bollinger filed a second amended habeas petition (dkt. no. 110) on

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October 29, 2004. On June 22, 2005, respondents filed a motion to dismiss and motion

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for summary judgment (dkt. nos. 124, 125, 126), asserting that several claims in the

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second amended petition were not exhausted in state court. Then, on October 5, 2005,

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the parties submitted a stipulation to stay the case pending Bollinger’s exhaustion of

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claims in state court (dkt. no. 130). The Court approved that stipulation, and stayed this

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action on October 13, 2005 (dkt. no. 130).

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On November 14, 2005, Bollinger filed a second state habeas petition. Exhibit

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273 (dkt. nos. 198-1, 198-2, 198-3). The State moved to dismiss. Exhibit 283 (dkt. no.

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199-2). The state district court dismissed the petition on October 10, 2007. Exhibit 290

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(dkt. no. 199-3). Bollinger appealed. Exhibits 292, 293, 294 (dkt. nos. 199-4 - 200). The

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Nevada Supreme Court affirmed the state district court’s ruling on September 20, 2011.

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Exhibit 295 (dkt. no. 201). Rehearing was denied on December 20, 2011. Exhibit 297

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(dkt. no. 201).

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On March 12, 2012, the stay of this federal habeas action was lifted (dkt. no.

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152). On September 14, 2012, Bollinger filed a third amended habeas petition (dkt. no.

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168), which is now the operative petition in this case.2

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On March 12, 2013, respondents filed their motions to dismiss and for partial

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summary judgment (dkt. nos. 215, 216).3 Bollinger filed an opposition to those motions

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on September 12, 2013 (dkt. no. 225). Respondents replied on November 27, 2013

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(dkt. no. 231).

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The claims referenced in this order are the claims asserted in the third amended
habeas petition, unless otherwise stated.
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Respondents’ motions to dismiss and for partial summary judgment are
contained in one document. That document was filed and docketed twice, reflecting that
it includes both a motion to dismiss and a motion for summary judgment. In this order,
the Court cites the document containing respondents’ motions as “Motions to Dismiss
and for Partial Summary Judgment (dkt. nos. 215, 216).”
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In their motions, respondents raise four main arguments: (1) several claims in

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Bollinger’s third amended petition are unexhausted in state court, (2) several claims are

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procedurally defaulted, (3) several claims fail to state a cognizable claim for federal

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habeas corpus relief, and (4) several claims were waived in Bollinger’s state court

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proceedings.

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III.

EXHAUSTION

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Respondents argue that all the claims in Bollinger’s third amended petition

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except Claim 14F are unexhausted in state court. See Motions to Dismiss and for

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Partial Summary Judgment (dkt. nos. 215, 216), pp. 29-33. Bollinger argues, in

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response, that he has exhausted all his claims. See Opposition to Motions to Dismiss

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and for Partial Summary Judgment (dkt no. 225), p. 3. The Court finds that Bollinger has

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exhausted in state court all the claims in his third amended petition. A federal court may

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not grant habeas corpus relief on a claim not exhausted in state court. 28 U.S.C. §

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2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is

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intended to allow state courts the initial opportunity to correct constitutional deprivations.

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See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner

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generally must fairly present the claim to the highest state court, and must give that

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court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365

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(1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).

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Bollinger argues that part of Claim 7 was exhausted on his direct appeal.

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Opposition to Motions to Dismiss and for Partial Summary Judgment, p. 2. Specifically,

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Bollinger points to part of Claim 7 in which he claims that his federal constitutional rights

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were violated because the trial judge was not impartial. See id.; see also Third

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Amended Petition, pp. 127-34. In that part of Claim 7, Bollinger mentions, as indications

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of the trial judge’s bias, the judge’s alleged failure to adequately admonish the jury

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concerning news media coverage of the trial (Third Amended Petition, p. 132), and the

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judge’s alleged failure to exclude evidence concerning Bollinger’s tattoo of the word

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“Pyro” (Third Amended Petition, p. 133). Bollinger argues those parts of Claim 7 were
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All the claims in Bollinger’s third amended petition other than the claim regarding

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the reasonable doubt instruction (Claim 14F) and the two claims of ineffective

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assistance of appellate counsel described above (parts of Claim 18) were exhausted by

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Bollinger only in his second state habeas action. See Petition for Writ of Habeas

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Corpus, Exhibit 273 (dkt. nos. 198-1, 198-2, 198-3); see also Third Amended Petition,

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pp. 5-7; Opposition to Motions to Dismiss and for Partial Summary Judgment, p. 3.

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Respondents argue that these claims ─ the claims Bollinger raised only in his

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second state habeas action ─ are not exhausted. See Motions to Dismiss and for Partial

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Summary Judgment (dkt. nos. 215, 216), pp. 29-33. Respondents acknowledge that

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Bollinger raised all the claims in his third amended petition in the state district court in

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his second state habeas action, but argue that Bollinger abandoned all those claims on

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appeal. See id. Respondents point out that, on the appeal in the second state habeas

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action, the argument of the parties concerned procedural issues and the merits of

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Bollinger’s claims were not briefed. See id. In the second state habeas action, the

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district court dismissed all Bollinger’s claims on procedural grounds. See Order, Exhibit

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290 (dkt. no. 199-3). On appeal, then, the argument of the parties naturally concerned

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the procedural rulings of the state district court, and not the merits of the dismissed

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claims. See Appellant’s Opening Brief, Exhibit 292 (dkt. nos. 199-4, 199-5, 199-6, 199-

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7). Under these circumstances, the claims that Bollinger raised in his second state

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habeas action are exhausted, but, as is explained below, they are also procedurally

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defaulted. Procedurally defaulted claims are exhausted; there is no further remedy

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available in state court with respect to such claims. See Cooper v. Neven, 641 F.3d

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322, 327 (9th Cir.2011), cert. denied, 132 S.Ct. 558 (2011) (finding that if state courts

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will not hear a petitioner’s claims on their merits because of failure to comply with a

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state procedural rule, the claims are “technically exhausted” and procedurally

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defaulted).

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IV.

PROCEDURAL DEFAULT

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A.

Legal Standards

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In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails

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to comply with the state’s procedural requirements in presenting his claims is barred

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from obtaining a writ of habeas corpus in federal court by the adequate and

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independent state ground doctrine. Coleman v. Thompson, 501 U.S. 722, 731–32

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(1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies,

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a habeas petitioner who has failed to meet the State’s procedural requirements for

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presenting his federal claims has deprived the state courts of an opportunity to address

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those claims in the first instance.”). Where such a procedural default constitutes an

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adequate and independent state ground for denial of habeas corpus, the default may be

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excused only if “a constitutional violation has probably resulted in the conviction of one

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who is actually innocent,” or if the prisoner demonstrates cause for the default and

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prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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To demonstrate cause for a procedural default, the petitioner must “show that

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some objective factor external to the defense impeded” his efforts to comply with the

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state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external

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impediment must have prevented the petitioner from raising the claim. See McCleskey

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v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner

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bears “the burden of showing not merely that the errors [complained of] constituted a

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possibility of prejudice, but that they worked to his actual and substantial disadvantage,

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infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis,

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874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170

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(1982).

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As the court understands respondents’ argument, they assert that all the claims

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that Bollinger exhausted only in his second state habeas action ─ that is, all the claims

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in his third amended petition other than the claim regarding the reasonable doubt

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instruction (Claim 14F) and the two claims of ineffective assistance of appellate counsel
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described above (part of Claim 18) (see discussion regarding exhaustion, supra) ─ are

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procedurally defaulted and should be dismissed on that ground. See Motions to Dismiss

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and for Partial Summary Judgment, pp. 33-44.

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B.

The Procedural Default

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Bollinger presented all the claims that now appear in his third amended petition in

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his second state habeas petition. See Petition for Writ of Habeas Corpus, Exhibit 273

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(dkt. nos. 198-1, 198-2, 198-3); see also Third Amended Petition, pp. 5-7; Opposition to

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Motions to Dismiss and for Partial Summary Judgment, p. 3. On October 10, 2007, the

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state district court dismissed all Bollinger’s claims on procedural grounds. See Order,

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Exhibit 290 (dkt. no. 199-3). Bollinger appealed, and the Nevada Supreme Court

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affirmed. Exhibits 292, 293, 294, 295, 297 (dkt. nos. 199-4 - 201). In doing so, the

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Nevada Supreme Court addressed only Bollinger’s procedural default, ruling that

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Bollinger could not overcome the default; it did not address any of Bollinger’s claims on

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their merits. See id. Therefore, all the claims exhausted by Bollinger only in his second

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state habeas action are subject to the procedural default doctrine.

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This applies to all of Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14A, 14B, 14C,

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14D, 14E, 14G, 15, 16, 17, all of Claim 18 except the claims that Bollinger's appellate

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counsel was ineffective for failing to raise a claim that the trial court did not have

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jurisdiction and that Bollinger's appellate counsel was ineffective for failing to raise a

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claim that the transfer of Bollinger's case from Colorado to Nevada resulted in a

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violation of Bollinger's right to a speedy trial, and all of Claim 19. Those claims are

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barred by the procedural default doctrine, unless Bollinger can show otherwise. Below,

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the Court addresses the arguments of the parties with respect to the adequacy of the

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state procedural rule to support the procedural default defense, and with respect to the

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application of the procedural default defense to certain of Bollinger=s claims.

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C.

Adequacy of the State Procedural Rule

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A state procedural rule is “adequate” if it is “clear, consistently applied, and well-

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established at the time of the petitioner’s purported default.” Calderon v. United States
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Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal quotation

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marks omitted); see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (State procedural

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rule adequate if “firmly established and regularly followed by the time as of which it is to

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be applied.” (citation and internal quotation marks omitted)); Lambright v. Stewart, 241

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F.3d 1201, 1203 (9th Cir.2001).

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In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the court of appeals

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announced a burden-shifting test for analyzing adequacy. Under Bennett, the State

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carries the initial burden of pleading “the existence of an independent and adequate

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state procedural ground as an affirmative defense.” Bennett, 322 F.3d at 586. The

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burden then shifts to the petitioner “to place that defense in issue,” which the petitioner

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may do “by asserting specific factual allegations that demonstrate the inadequacy of the

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state procedure, including citation to authority demonstrating inconsistent application of

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the rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the

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adequacy of the procedural rule rests with the State, which must demonstrate “that the

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state procedural rule has been regularly and consistently applied in habeas actions.”

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Id.; see also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006).

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In this case, respondents meet their initial burden under Bennett by asserting that

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the Nevada Supreme Court’s application of NRS 34.726, the state-law one-year statute

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of limitations for habeas actions, constituted an independent and adequate state

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procedural ground for denying relief. See Motions to Dismiss and for Partial Summary

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Judgment, pp. 33-44.4

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In response, Bollinger challenges the adequacy of NRS 34.726. See Opposition
to Motions to Dismiss and for Partial Summary Judgment, pp. 20-26.
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In asserting their procedural default argument, respondents do not appear to
rely on the state courts’ application of NRS 34.800 or 34.810. With respect to NRS
34.810 (successive petitions), this is presumably because the Ninth Circuit Court of
Appeals has held that statute to be inadequate to support the procedural default
defense in federal court. See Valerio v. Crawford, 306 F.3d 742, 777-78 (9th Cir. 2002).
At any rate, respondents meet their burden with respect to their assertion that NRS
34.726 constituted an independent and adequate bar to federal habeas review, and the
analysis proceeds with respect to the state courts’ application of that statute.
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Bollinger’s default occurred in 1996, one year after his direct appeal was

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concluded. The Ninth Circuit Court of Appeals has rejected the argument that the

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Nevada Supreme Court inconsistently applied NRS 34.726 at that time, and has held

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that it was then adequate to support a procedural bar. See Loveland v. Hatcher, 231

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F.3d 640, 642-63 (9th Cir. 2000) (regarding NRS 34.726, as of 1993); Moran v.

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McDaniel, 80 F.3d 1261, 1269-70 (9th Cir. 1996) (regarding NRS 34.726, as of 1996).

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Bollinger has not met his burden, to assert specific factual allegations that demonstrate

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the inadequacy of the state procedural rule. Bollinger has not asserted any argument,

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and has made no showing, to undermine the Ninth Circuit’s ruling that NRS 34.726 was

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consistently applied, and adequate to support a procedural default, at the time of

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Bollinger’s default in this case.
This Court, therefore, follows Moran and Loveland, and rules that NRS 34.726

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was adequate to support the procedural default defense asserted by respondents.

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D.

Good Cause/Claims of Ineffective Assistance of Trial Counsel

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With respect to the procedural default of the claims of ineffective assistance of

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trial counsel that he raised in state court only in his second state habeas action,

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Bollinger argues, relying upon Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182

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L.Ed.2d 272 (2012), that ineffective assistance of counsel in his first state habeas action

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constitutes cause for the procedural default. See Opposition to Motions to Dismiss and

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for Partial Summary Judgment, pp. 29-57.

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In Martinez, the Supreme Court noted that it had previously held, in Coleman v.

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Thompson, 501 U.S. 722, 746-47 (1991), that “an attorney’s negligence in a

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postconviction proceeding does not establish cause” to excuse procedural default.

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Martinez, 132 S.Ct. at 1319. The court in Martinez then “qualif[ied] Coleman by

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recognizing a narrow exception: inadequate assistance of counsel at initial-review

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collateral proceedings may establish cause for a prisoner’s procedural default of a claim

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of ineffective assistance at trial.” Id. at 1315. The court described “initial-review

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collateral proceedings” as “collateral proceedings which provide the first occasion to

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raise a claim of ineffective assistance at trial.” Id.

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In Martinez, the petitioner’s procedural default was based on an Arizona rule

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barring successive petitions; as such, the petitioner’s procedural default was complete

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when counsel in the initial-review collateral proceeding failed to raise certain claims.

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See Martinez, 132 S.Ct. at 1314. The procedural default at issue in this case is different.

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Bollinger’s procedural default is based on the statute of limitations in NRS § 34.726.

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The procedural default occurred because Bollinger delayed for ten (10) years, after his

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direct appeal ended in 1995, before he initiated his second state habeas action in 2005,

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asserting the claims now held to be procedurally defaulted. See Order of Affirmance,

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Exhibit 295, pp. 2-3. The attorney who represented Bollinger in his first state habeas

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action represented Bollinger for only about two (2) years, while Bollinger’s first state

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habeas action was pending, a relatively small portion of the time over which the statute

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of limitations default occurred. Ineffective assistance of Bollinger’s first state post-

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conviction counsel does not explain the ten-year delay that led to Bollinger’s default

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under NRS § 34.726. In short, there is an insufficient causal connection between the

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alleged ineffective assistance of Bollinger’s first post-conviction counsel and the

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procedural default at issue in this case. Ineffective assistance of counsel in Bollinger’s

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first state habeas action does not function as cause for the procedural default of the

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claims of ineffective assistance of trial counsel raised in Bollinger’s second state habeas

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action.

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E.

Independence of the Nevada Supreme Court’s Ruling
i.

Claim 4

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Claim 4 of Bollinger’s third amended petition is a claim based on Polk v.

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Sandoval, 503 F.3d 903 (9th Cir.2007), and Byford v. State, 116 Nev. 215, 994 P.2d

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700 (2000), that his constitutional rights were violated on account of the “trial court’s

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failure to properly instruct the jury concerning the elements of the capital offense.” Third

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Amended Petition, p. 67.
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Bollinger argues that the Nevada Supreme Court’s dismissal of the claim was not

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a default ruling, but was a ruling on the merits, and, at any rate, to the extent that it was

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a default ruling, it was inadequate. See Opposition to Motions to Dismiss and for Partial

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Summary Judgment, pp. 6-16. Bollinger’s argument is without merit.

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First, the Nevada Supreme Court only addressed Bollinger’s procedural default,

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finding that the claim was procedurally defaulted, and that Bollinger did not make a

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showing of good cause and prejudice to overcome that default. See Order of

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Affirmance, Exhibit 295, p. 4 (“Therefore, the district court did not err in concluding that

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Bollinger could not demonstrate good cause and prejudice to overcome the applicable

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procedural bars with respect to this claim.”).

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Second, Bollinger’s argument that the procedural rule is inadequate is foreclosed

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by Babb v. Lozowsky, 719 F.3d 1019 (9th Cir.2013), in which the court of appeals ruled

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that Polk was undermined by Nika v. State, 124 Nev. 1272, 198 P.3d 839, 849 (2008).

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See Babb, 719 F.3d at 1027-28. The court in Babb explained:

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According to Nika, this Court in Polk was wrong in concluding that the
Kazalyn instruction was a violation of due process because the instruction
accurately represented the elements of first degree murder up until Byford
was decided. Thus, before Byford was decided, the Kazalyn instruction did
not improperly relieve the State of the burden of proving all the elements
of first degree murder.

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Babb, 719 F.3d at 1028. Bollinger’s conviction became final long before Byford was

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decided. Therefore, after Babb, there is no viable argument that the Polk decision gave

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rise to any claim for relief for Bollinger. The Nevada cases cited by Bollinger, in an

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attempt to show the procedural rule to be inadequate, predate the Babb decision. See

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Opposition to Motions to Dismiss and for Partial Summary Judgment, pp. 14-15.

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Bollinger makes no showing that the procedural bar was inadequate with respect to its

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application to this claim.
Claim 4 is procedurally defaulted.

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ii.

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Claim 5

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Claim 5 is a claim that Bollinger’s constitutional rights were violated because of

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ineffective assistance of his trial counsel. Third Amended Petition, pp. 74-119. Claim 5

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includes several distinct sub-claims. See id.

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Bollinger points out that he attempted in state court to overcome the procedural

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bar by arguing that dismissal of the claim would be a miscarriage of justice.

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See Opposition to Motions to Dismiss and for Partial Summary Judgment, pp. 16-17.

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Bollinger points out that the Nevada Supreme Court rejected that argument. See id.;

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see also Order of Affirmance, Exhibit 295, pp. 8-10. Bollinger argues that this ruling

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was not an independent procedural ruling because it was interwoven with federal law, or

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depended upon an examination of the underlying claim. See Opposition to Motions to

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Dismiss and for Partial Summary Judgment, p. 16. Bollinger argues that, in ruling on

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the issue whether there would be a miscarriage of justice if this claim was not

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adjudicated on its merits, the Nevada Supreme Court “address[ed] the substance of the

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evidence supporting Mr. Bollinger’s federal claim that prior counsel was ineffective.” Id.

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at 17.

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The assertion that the Nevada Supreme Court “addressed the substance of the

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evidence” allegedly supporting the claim does not show that the procedural ruling was

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interwoven with federal law, or that it depended upon an examination of the underlying

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claim. The Nevada Supreme Court did not consider the merits of Claim 5. Rather, that

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court addressed the issue whether there was a colorable showing that Bollinger is

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actually innocent or ineligible for the death penalty. See Order of Affirmance, Exhibit

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295, pp. 8-9. That court’s analysis did not constitute consideration of the merits of

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Claim 5.

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Claim 5 is procedurally defaulted.
iii.

Claim 6

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In Claim 6, Bollinger claims that his constitutional rights were violated because

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“the state post-conviction court, during its re-weighing analysis, failed to consider
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mitigating evidence from the post-conviction proceedings.” Third Amended Petition, p.

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120.

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Bollinger argues that the Nevada Supreme Court’s ruling, that Bollinger did not

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satisfy the prejudice part of the cause and prejudice standard necessary to overcome

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the procedural default, was not independent of federal law. See Opposition to Motions

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to Dismiss and for Partial Summary Judgment, pp. 17-18.

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However, the Nevada Supreme Court’s ruling regarding this claim was clearly

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based solely on procedural grounds. Although the Nevada Supreme Court discussed a

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part of the merits of the claim ─ the issue of prejudice ─ that analysis was plainly for the

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purpose of demonstrating that Bollinger could not overcome the procedural default by a

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showing of cause and prejudice. The Nevada Supreme Court rested its decision,

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affirming the dismissal of Bollinger’s claim, on independent state procedural grounds.

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See Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir.1996).

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Claim 6 is procedurally defaulted.
iv.

Claim 12

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In Claim 12 of his third amended petition, Bollinger claims that his constitutional

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rights were violated “due to the use of the unconstitutionally vague aggravating factor

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that the murder was committed to avoid or prevent lawful arrest.” Third Amended

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Petition, p. 149.

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Bollinger argued in state court that “the failure to consider his claim that the

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preventing-a-lawful-arrest aggravator is invalid resulted in a fundamental miscarriage of

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justice because there was no evidence that he murdered the victims in an attempt to

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avoid a lawful arrest.” Order of Affirmance, Exhibit 295, p. 9. The Nevada Supreme

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Court rejected that miscarriage-of-justice argument, ruling as follows:

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26
27
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This court has already determined in its mandatory review of the death
sentence under NRS 177.055(2) that the evidence supported the finding
of the aggravating circumstances. [Bollinger v. State, 111 Nev. 1110,
1117, 901 P.2d 671, 676 (1995).] As it is the law of the case that sufficient
evidence was presented at trial for the jury to find that he had murdered
Rose to avoid a lawful arrest, see Hall v. State, 91 Nev. 314, 316, 535
P.2d 797, 799 (1975), Bollinger did not show that it was more likely than
14

not that no rational juror would have concluded that Rose’s murder was
committed to prevent a lawful arrest.

1
2
3

Id.

4

Bollinger argues that this was not a default ruling “because it indicates only that

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the Nevada Supreme Court previously considered and denied this claim on the merits

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as part of its mandatory review of Mr. Bollinger’s death sentence.” See Opposition to

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Motions to Dismiss and for Partial Summary Judgment, pp. 18-19. But this ruling by the

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Nevada Supreme Court plainly was a default ruling; the Nevada Supreme Court was

9

clear that it was ruling on Bollinger’s argument that dismissal of the claim would amount

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to a fundamental miscarriage of justice. Order of Affirmance, Exhibit 295, p. 9. And,

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looking back to its mandatory review of the death penalty on Bollinger’s direct appeal,

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the Nevada Supreme Court did not indicate that it had previously considered and

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denied this claim ─ a claim that the preventing-a-lawful-arrest aggravator is

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unconstitutionally vague. Rather, the Nevada Supreme Court indicated that it found, in

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its mandatory review on the direct appeal, that the evidence supported the finding of the

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preventing-a-lawful-arrest aggravator, a finding that was relevant to the miscarriage of

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justice issue raised by Bollinger in attempting to overcome the procedural bar. Neither in

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rejecting Bollinger’s miscarriage of justice argument, nor in its mandatory review on

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Bollinger’s direct appeal, did the Nevada Supreme Court rule on the merits of this claim.

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The state supreme court ruled that the claim was procedurally barred and that Bollinger

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did not overcome the procedural bar.
Claim 12 is procedurally defaulted.

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v.

23

Claim 14G

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In Claim 14G, Bollinger claims that his constitutional rights were violated because

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the trial court did not instruct the jury “that it had to find the second element of death-

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eligibility ─ that the aggravating circumstances were not outweighed by the mitigating

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circumstances ─ beyond a reasonable doubt. . . .” Third Amended Petition, p. 162.

28

///
15

The Nevada Supreme Court ruled as follows, with respect to Bollinger’s

1
2

procedural default of this claim:

3

Bollinger argues that the district court erred by applying procedural bars to
his claim that the jury was not instructed to find that the aggravating
circumstances outweighed the mitigating circumstances beyond a
reasonable doubt. We conclude that this argument lacks merit. The
premise behind Bollinger’s argument is that the jury’s weighing function in
determining death eligibility is a factual determination that must be found
beyond a reasonable doubt, as explained in Johnson v. State, 119 Nev.
787, 59 P.3d 450 (2002), and appears to be based on Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”), Ring v. Arizona, 536 U.S. 584, 609 (2002)
(holding that capital sentencing scheme which places determination of
aggravating circumstances in hands of judge violates the Sixth
Amendment right to jury trial), and Blakely v. Washington, 542 U.S. 296,
303 (2004) (providing that “the ‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant”). Apprendi
and Ring were decided several years before Bollinger filed the instant
post-conviction petition in 2005, and he wholly fails to explain his delay in
raising this claim. Further, this court held in Colwell v. State, 118 Nev. 807,
821, 59 P.3d 463, 473 (2002), that Ring has no retroactive application.
Therefore, the district court did not err in denying this claim as
procedurally barred.

4
5
6
7
8
9
10
11
12
13
14
15
16

Order of Affirmance, Exhibit 295, pp. 4-5 (emphasis removed).

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Bollinger argues here that “[t]he Nevada Supreme Court addressed this claim on

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the merits by holding that, in Colwell v. State, 59 P.3d 463 (Nev. 2002), it ruled that

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under Ring v. Arizona, 536 U.S. 584, 609 (2002), Apprendi is not retroactive.”

20

Opposition to Motions to Dismiss and for Partial Summary Judgment, p. 19. This

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argument, however, is belied by the ruling of the Nevada Supreme Court, quoted above.

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The Nevada Supreme Court ruled that “the district court did not err in denying this claim

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as procedurally barred.” This was a ruling regarding the procedural bar ─ a ruling that

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there was no showing of good cause for Bollinger to fail to comply with the state

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procedural rule.
Claim 14G is procedurally defaulted.

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27

///

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///
16

vi.

1

Claims 1, 2, 7, and 11

2

With respect to these claims in his third amended petition, Bollinger argues that

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the Nevada Supreme Court ruled on the merits of the claims, and that, therefore, there

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is no procedural default. Opposition to Motions to Dismiss and for Partial Summary

5

Judgment, pp. 19-20.

6

The Nevada Supreme Court’s ruling that Bollinger refers to was as follows:

7

Bollinger argues that other errors amounted to a fundamental miscarriage
of justice: (1) his trial counsel proceeded under a conflict of interest, (2) his
appellate counsel proceeded under a conflict of interest, (3) the trial judge
was biased, (4) the district court lacked jurisdiction, (5) the jury failed to
designate a degree of murder, and (6) the district court denied him a
speedy trial. We conclude that these arguments lack merit. As stated
above, a fundamental miscarriage of justice requires a showing of actual,
factual innocence or ineligibility for the death penalty. Mitchell v. State,
122 Nev. 1269, 1273-74, 149 P.3d 33, 36 (2006); [Pellegrini v. State, 117
Nev. 860, 887, 34 P.3d 519, 537 (2001)]. This standard is a factual one
that is not met by merely alleging procedural errors at trial.

8
9
10
11
12
13

Order of Affirmance, Exhibit 295, pp. 10-11.

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This ruling by the Nevada Supreme Court was plainly a ruling on Bollinger’s

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miscarriage of justice argument regarding the listed claims. This was not a ruling on the

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merits of those claims. Bollinger’s argument in this regard is without merit. Claims 1, 2,

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7, and 11 are procedurally defaulted.

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F.

Conclusion Regarding Procedural Default

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The Court, then, concludes that all the claims that Bollinger exhausted only in his

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second state habeas action are barred by the doctrine of procedural default. This

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applies to all of Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14A, 14B, 14C, 14D, 14E,

22

14G, 15, 16, 17, all of Claim 18 except the claims that Bollinger’s appellate counsel was

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ineffective for failing to raise a claim that the trial court did not have jurisdiction and that

24

Bollinger’s appellate counsel was ineffective for failing to raise a claim that the transfer

25

of Bollinger’s case from Colorado to Nevada resulted in a violation of Bollinger’s right to

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a speedy trial, and all of Claim 19. As to those claims, respondents’ motion to dismiss

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will be granted, and those claims will be dismissed.

28

///
17

1

The following claims, on the other hand, were exhausted in Bollinger’s direct

2

appeal or in his first state habeas action, and are not procedurally defaulted: Claim 14F,

3

and Claim 18 to the extent it asserts claims that Bollinger’s appellate counsel was

4

ineffective for failing to raise a claim that the trial court did not have jurisdiction and that

5

Bollinger’s appellate counsel was ineffective for failing to raise a claim that the transfer

6

of Bollinger’s case from Colorado to Nevada resulted in a violation of Bollinger’s right to

7

a speedy trial. As to those claims, respondents’ motion to dismiss will be denied.

8

V.

COGNIZABILITY OF CLAIMS

9

Respondents argue that Claims 3, 4, 5E, 7, 8, 10, 14F, and 15 are not cognizable

10

in this federal habeas action. See Motions to Dismiss and for Partial Summary

11

Judgment, pp. 44-47. Much of respondents’ argument in this regard goes to the merits

12

of those claims. See id.

13

Claims 3, 4, 5E, 7, 8, 10, and 15 will be dismissed on the ground of the

14

procedural default doctrine (see discussion, supra). The Court declines, therefore, to

15

address respondents’ arguments going to the cognizability and merits of those claims.

16

This ruling is without prejudice to respondents reasserting such arguments at any

17

appropriate time, if they deem it necessary to do so.

18
19
20

Respondents’ argument with respect to the cognizability of Claim 14F is as
follows:

21

Claim 14F fails to state a claim cognizable in habeas corpus. It challenges
the reasonable doubt instruction. That instruction is constitutional.
Ramirez v. Hatcher 136 F.3d 1209, 1213-15 (9th Cir.1998).

22

Motions to Dismiss and for Partial Summary Judgment, p. 47; see also Reply in Support

23

of Motions to Dismiss and for Partial Summary Judgment, p. 24. The merits of this claim

24

will be better considered upon an answer by respondents, and further briefing as

25

provided for in the scheduling order in this case. See Order entered April 3, 2012 (dkt.

26

no. 154). The Court will, therefore, deny this portion of respondents’ motion, without

27

prejudice to respondents making this same argument regarding Claim 14F in their

28

answer and in any further briefing on the merits of the claim.
18

1

VI.

WAIVER OF CLAIMS

2

Respondents argue that Bollinger waived parts of Claims 1, 5, 7, and 8. Motions

3

to Dismiss and for Partial Summary Judgment, pp. 48-49; see also Reply in Support of

4

Motions to Dismiss and for Partial Summary Judgment, pp. 24-25. The claims that

5

respondents argue are waived are all claims that will be dismissed on the ground of the

6

procedural default doctrine. The Court declines, therefore, to address respondents’

7

arguments regarding the alleged waiver of those claims by Bollinger. This ruling is

8

without prejudice to respondents reasserting such arguments, at any appropriate time, if

9

they deem it necessary to do so.

10

It is therefore ordered that respondents’ motion to dismiss (dkt. no. 215) is

11

granted in part and denied in part. The following claims in petitioner’s third amended

12

habeas corpus petition (dkt. no. 168) are dismissed: all of Claims 1, 2, 3, 4, 5, 6, 7, 8, 9,

13

10, 11, 12, 13, 14A, 14B, 14C, 14D, 14E, 14G, 15, 16, 17, all of Claim 18 except the

14

claims that Bollinger’s appellate counsel was ineffective for failing to raise a claim that

15

the trial court did not have jurisdiction and that Bollinger’s appellate counsel was

16

ineffective for failing to raise a claim that the transfer of Bollinger’s case from Colorado

17

to Nevada resulted in a violation of Bollinger’s right to a speedy trial, and all of Claim 19.

18

It is further ordered that respondents’ motion for summary judgment (dkt. no.

19

216) is denied.

20

It is further ordered that respondents shall file an answer within ninety (90) days

21

from the entry of this order, responding, on their merits, to the remaining claims in

22

petitioner’s third amended habeas corpus petition (dkt. no. 168), which are Claim 14F,

23

and Claim 18 to the extent it asserts claims that Bollinger’s appellate counsel was

24

ineffective for failing to raise a claim that the trial court did not have jurisdiction and that

25

Bollinger’s appellate counsel was ineffective for failing to raise a claim that the transfer

26

of Bollinger’s case from Colorado to Nevada resulted in a violation of Bollinger’s right to

27

a speedy trial.

28

///
19

1

It is further ordered that, in all other respects, the schedule for further

2

proceedings in this action shall be governed by the order entered by the Court on April

3

3, 2012 (dkt. no. 154).

4
5

DATED THIS 20th day of December 2013.

6
7

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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