George W. Luster, Jr. VS Director Nevada Dept of Corrections, etal

Filing 161

ORDER Granting in Part Respondents' 141 Motion to Dismiss and that Ground 4 of the 123 Sixth Amended Petition is DISMISSED with prejudice as procedurally defaulted. Within 45 days of entry of this order, respondents shall file an ans wer on the merits to the remaining claims in the Sixth Amended Petition. Counsel shall send a hard copy of all exhibits filed to, for this case, the Las Vegas Clerk's Office. Petitioner shall have 30 days from service of the answer to file a reply. Signed by Judge Roger L. Hunt on 3/7/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GEORGE W. LUSTER, JR.,
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Petitioner,

2:04-cv-00334-RLH-NJK

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vs.

ORDER

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DIRECTOR, NEVADA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

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This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on
respondents’ motion (#141) to dismiss.
Background

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Petitioner George Luster seeks to set aside his 1998 Nevada state court conviction,

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pursuant to a jury verdict, of first degree murder with the use of a deadly weapon, discharging

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a firearm at or into a structure, burglary while in possession of a firearm, conspiracy to commit

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first degree kidnapping, first degree kidnapping with the use of a deadly weapon, extortion

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with the use of a deadly weapon, two counts of coercion with the use of a deadly weapon,

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robbery with the use of a deadly weapon, and child endangerment.

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In the motion to dismiss, respondents contend that: (1) the petition is a mixed petition

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subject to, inter alia, possible dismissal because Ground 1(d) of the sixth amended petition

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(#123) is not exhausted; and (3) amended Grounds 2, 3 and 4 are procedurally defaulted.

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Discussion

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Exhaustion of Amended Ground 1(d)

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Respondents contend that amended Ground 1(d) is unexhausted because petitioner

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presents a claim that fundamentally alters the claim exhausted in the state courts.

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Respondents contend that petitioner exhausted a claim alleging that trial counsel was

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ineffective for failing to challenge the failure to preserve a note by the kidnapper. They

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contend that petitioner now is pursuing a different and unexhausted claim instead that trial

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counsel was ineffective for failing to object to officers’ testimony regarding the note on the

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basis of hearsay.

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Amended Ground 1(d) does not allege a claim – in this Court – that trial counsel was

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ineffective for failing to object to officers’ testimony regarding the note on the basis of

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hearsay. Petitioner alleges in pertinent part in the pleading on file:

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c. Notwithstanding that the testimony about the note was
inadmissible hearsay (and even hearsay within hearsay
prescribed by NRS 51.066), Counsel for Luster failed to address
the State’s failure to preserve and produce the “kidnap” note,
which would have provided an opportunity to have a handwriting
analysis performed to establish the handwriting was not Luster’s,
and would have established that the number provided in the note
did not belong to Luster.
d. Luster was substantially prejudiced by trial counsel’s
failure to address the State’s failure to preserve the alleged
“kidnap” note that had exculpatory evidentiary value.
#123, at 23 (emphasis added).

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Federal habeas pleading is not notice pleading. See Mayle v. Felix, 545 U.S. 644, 649

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(2005). Inter alia, under Rule 2(c)(1) of the Rules Governing Section 2254 Cases, the

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petitioner must “specify all the grounds for relief available to the petitioner.”

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In amended Ground 1(d), petitioner has specified no ground for relief based upon an

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alleged failure by trial counsel to object to officers’ testimony regarding the note on the basis

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of hearsay. Petitioner specifies that counsel was ineffective instead based upon his alleged

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deficient performance in failing “to address the State's failure to preserve and produce the

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‘kidnap’ note.” Petitioner specifies that he sustained prejudice because the note, if preserved,
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“would have provided an opportunity to have a handwriting analysis performed to establish

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the handwriting was not Luster's, and would have established that the number provided in the

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note did not belong to Luster.” Plaintiff alleges neither deficient performance nor resulting

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prejudice from a failure to object to the testimony regarding the note as hearsay. Petitioner

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therefore has specified no ground for relief under Rule 2(c)(1) based upon an alleged failure

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by trial counsel to object to officers’ testimony regarding the note on the basis of hearsay.

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Merely noting that testimony constituted hearsay states no claim for relief under Strickland.

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Respondents have not established otherwise that the claim actually alleged in

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amended Ground 1 is not exhausted.1
Procedural Default of Grounds 2 and 3

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In amended Ground 2, petitioner alleges that the State allegedly knowingly elicited

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false testimony from detectives that they recognized specific items in Luster’s home that

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another detective’s report stated the victim had said were in the kidnapper’s apartment,

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despite there having been no report with such statements. In amended Ground 3, petitioner

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Petitioner urges in his opposition that a broad claim including a claim based upon failure to object to
the testimony on the basis of hearsay is before the Court. He asserts that the claim is one broadly based
upon an alleged failure “to properly address the kidnap note.” #145, at 3. That is not what petitioner alleged
in the counseled amended petition. Amended Ground 1(a), again, alleges ineffective assistance of counsel
based upon counsel’s failure “to address the State's failure to preserve and produce the ‘kidnap’ note.”
Federal habeas pleading, also again, is not notice pleading. Petitioner, with the assistance of counsel, has
had – ample – opportunity by this late juncture in the case to specifically plead his claims from among all of
the myriad claims articulated in the prior state and federal proceedings. It is way too late in the day in this
case to be inferring indirectly the presence of claims that were pled specifically in prior state and/or federal
pleadings but which were not carried forward and alleged with specificity in petitioner’s last counseled
amended petition. There is no claim before this Court that petitioner was denied effective assistance of trial
counsel because counsel failed to object to the kidnap note as hearsay.
The pleadings are closed. They are not likely to be reopened at this point for the specification of
further constitutional claims, particularly given petitioner’s clear reflection of his desire that the case proceed
to a resolution without further delay. If petitioner, through counsel, has not specifically alleged a particular
federal constitutional claim in the sixth amended petition, it is not before the Court. Petitioner may not expand
the claims “through the back door” in subsequent filings – such as an opposition memorandum or a reply to
an answer – presenting claims that are not specifically alleged in the sixth amended petition. E.g., Cacoperdo
v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)(the federal reply may not be used to amend the petition). In
this regard, note 5 in the sixth amended petition does not leave the door open to expand the basis for claims.

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To reiterate, there is no claim before this Court that petitioner was denied effective assistance of trial
counsel because counsel failed to object to the kidnap note as hearsay.

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alleges that he was denied rights to due process and equal protection when the state trial

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court admitted into evidence a 9 mm handgun that allegedly had no relevance to the case.

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Respondents sought the dismissal of similar grounds in a prior amended petition on

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the basis of procedural default. Petitioner responded that there was cause and prejudice to

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overcome the procedural default of the claims because they were not raised on direct appeal

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due to ineffective assistance of appellate counsel.

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independent claims of such ineffective assistance of appellate counsel in the state courts.

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Petitioner apparently exhausted

The Court concluded at that time:
This Court has not been presented at this juncture with
adequate state court record materials and argument upon which
to address any such claim of ineffective assistance of appellate
counsel as constituting cause and prejudice excusing the
procedural default. The Court accordingly defers a final
resolution of the procedural default defense as to [the two
grounds] until respondents file an answer along with adequate
state court record materials to resolve the issue.
#91, at 7 & 8; see also id., at 13, lines 4-6.

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In the present motion to dismiss, respondents sought dismissal of the same claims

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based upon the same procedural default. Respondents did not address petitioner’s clearly

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previously invoked reliance upon ineffective assistance of appellate counsel as establishing

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cause and prejudice overcoming the default. In his opposition, petitioner referred back to the

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Court’s prior determination as to the manner in which the procedural default defense was to

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be resolved as to the claims.

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In the reply, respondents assert that “Luster’s citation to an earlier proceeding avails

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him no harbor, as the procedural posture of the case has not remained static.” #146, at 2.

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Respondents urge that petitioner has waived his opportunity to respond under the burden-

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shifting allocation established under Ninth Circuit case law.

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There is no difference in substance in the procedural posture presented now and the

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posture presented previously. Given that the issue that expressly was deferred previously on

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the same affirmative defense also is not adequately postured for decision on the current

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motion, it will have to be addressed after an answer, for the same reasons stated previously.
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Procedural Default of Ground 4

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In amended Ground 4, petitioner alleges that he was denied unspecified constitutional

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rights because the Kazalyn jury instruction2 used at his trial did not adequately distinguish

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between the elements of wilfulness, deliberation and premeditation on a charge of first-degree

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murder.

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When petitioner raised this claim in a March 6, 2009, state post-conviction petition, the
state courts rejected the claim because the petition was both untimely and successive.3

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Under the procedural default doctrine, federal review of a habeas claim may be barred

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if the state courts rejected the claim on an independent and adequate state law ground due

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to a procedural default by the petitioner. Review of a defaulted claim will be barred even if

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the state court also rejected the claim on the merits in the same decision. Federal habeas

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review will be barred on claims rejected on an independent and adequate state law ground

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unless the petitioner can demonstrate either: (a) cause for the procedural default and actual

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prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage of

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justice will result in the absence of review. See, e.g.,Bennet v. Mueller, 322 F.3d 573, 580

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(9th Cir. 2003).

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To demonstrate cause, the petitioner must establish that some objective factor external

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to the defense or petitioner impeded his efforts to comply with the state’s procedural rule.

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E.g., Murray v. Carrier, 477 U.S. 478, 488 (1986); Hivala v. Wood, 195 F.3d 1098, 1105 (9th

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Cir. 1999). To demonstrate prejudice, he must show that the alleged error resulted in actual

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harm. E.g., Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). Both cause and prejudice

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must be established. Murray, 477 U.S. at 494.

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Petitioner contends that he has cause for the procedural default of the claim because

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the factual or legal basis of the claim was not reasonably available to him in prior state

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proceedings. He contends in particular that the state supreme court’s December 31, 2008,

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Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).

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See #101, Ex. 2, (at blue-tint-numbered electronic docketing pages 12-15).

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decision in Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008), “create[d] for Luster

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clarification on certain deadlines in his case, and to his favor.” #145, at 6. He urges that “[i]t

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was not until Nika was decided on December 31, 2008, that there was clarity as to how,

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according to the Nevada Supreme Court, [the 2000 state supreme court decision in] Byford

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was to have been applied.” Id., at 7.

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A federal habeas petitioner can establish cause, as Luster suggests, if the factual or

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legal basis for a claim was not reasonably available previously. Murray, 477 U.S. at 488.

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However, as evidenced by the case cited by the Supreme Court in Murray for this rule, the

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situation to which the rule refers is one “where a constitutional claim is so novel that its legal

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basis is not reasonably available.” Reed v. Ross, 468 U.S. 1, 17 (1984). In this regard, the

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question is not whether subsequent legal developments have made the litigant’s task easier,

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but whether at the time of the default the claim was reasonably available at all. See Smith

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v. Murray, 477 U.S. 527, 537 (1986). Absent a wholly novel claim, the generally applicable

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rule that instead governs is that the mere failure to recognize the factual or legal basis for a

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claim does not constitute cause for a procedural default. 477 U.S. at 535.

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After the 2000 decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), and

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even more so after the 2007 decision in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), it

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hardly could be said that a constitutional challenge to a Kazalyn instruction was so novel that

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its legal basis was not reasonably available to Luster. Petitioners were raising federal

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constitutional claims based on Byford in this Court as early as March 2003, as well as raising

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the underlying constitutional claim even prior to that in capital habeas litigation.4 Petitioners

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were raising such constitutional claims in the Supreme Court of Nevada even earlier than in

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See, e.g., Christopher Williams v. James Schomig, No. 2:03-cv-00298-RCJ-RJJ, #1, at 3-A (pro se
petition mailed March 12, 2003, by Byford’s co-defendant); Ruel Salva Mercado v. Jackie Crawford, No. 3:02cv-00357-ECR-RAM, #12, at 62-63 (counseled amended petition filed on April 15, 2003, raising related claim
of ineffective assistance of appellate counsel based on Byford); Barry Rowe v. State of Nevada, No. 3:04-cv00444-PMP-VPC, #8, at 19-19A (pro se petition mailed August 16, 2004, raising claim based on Byford);
Ronald Collins v. E.K. McDaniel, No. 3:04-cv-00298-RCJ-VPC, #17, at 17-18 (counseled amended petition
filed on February 11, 2005); see also Samuel Howard v. E.K. McDaniel, No. 2:93-01209-LRH-VCF, #60, at
17-18 (raising claim in counseled capital habeas petition on January 27, 1997, three years before Byford).

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this Court.5 It thus hardly could be said that a constitutional challenge to the giving of a

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Kazalyn instruction was so novel that its legal basis was not reasonably available to petitioner.

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Where the basis of a constitutional claim both is available and other litigants in fact have

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raised the claim, the failure of another petitioner to recognize and/or raise the claim cannot

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constitute cause for a procedural default. E.g., Engle v. Isaac, 456 U.S. 107, 134 (1982).

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Nothing in Nika prevented Luster from pursuing a constitutional challenge to the

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Kazalyn instruction at any time prior to December 31, 2008. Nika extended, for purposes of

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the state supreme court’s handling of the issue, Byford to cases that were not yet final at the

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time of Byford. Yet the petitioner in Polk did not have to wait for Nika in order to raise a

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constitutional challenge to the Kazalyn instruction in his case, in spite of intervening adverse

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state supreme court authority applying Byford only purely prospectively. Nor did the countless

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other litigants who raised constitutional challenges to Kazalyn charges well prior to December

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31, 2008, have to wait for Nika to raise the claim. The question is not whether subsequent

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legal developments made the litigant’s task easier but instead is whether at the time of the

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default the claim was reasonably available at all. Smith, 477 U.S. at 537. Thus, even if Nika

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arguendo provided “clarity as to how, according to the Nevada Supreme Court, Byford was

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to have been applied,” Nika clearly did not establish for the first time the prospect of a claim

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that theretofore was so novel that its legal basis was not reasonably available.

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Petitioner therefore has not established cause to overcome the procedural default of

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Ground 4. The Court accordingly has no occasion to consider whether he would be able to

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demonstrate prejudice. Both cause and prejudice m ust be shown. Murray, supra.

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Ground 4 therefore will be dismissed with prejudice as procedurally defaulted.6

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See, e.g., Bridges v. State, 116 Nev. 752, 6 P.3d 1000 (2000)(constitutional challenge to Kazalyn
charge raised in a capital appeal that had been pending before Byford was decided).
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Petitioner responds to respondents’ motion as to amended Ground 4 on the basis that respondents
are contending that Ground 4 is “time-barred,” and petitioner argues the issue under state law authority
applying N.R.S. 810. To be clear, respondents did not seek dismissal on the basis that the claim is timebarred in this Court, which would be an issue addressed under 28 U.S.C. § 2244(d). Respondents instead
raised a defense that the claim was barred under the federal doctrine of procedural default because it was

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(continued...)
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Housekeeping Detail: State Court Record Materials

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The Court has been endeavoring to bring the practice in habeas cases with a panel

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attorney regarding the filing of state court record exhibits in accord with the practice in cases

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with the Federal Public Defender.

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When filing a counseled amended petition, the Federal Public Defender, as does the

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Attorney General with an answer in a pro se case: (a) files a largely chronological index of

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numbered exhibits, and then (b) identifies the specific docket entries and attachments in

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which those indexed exhibits are filed. See, e.g., No. 2:14-cv-00076-APG-CWH, ## 12-25;

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see also #81 in this matter. Anyone thereafter wishing to look at a particular exhibit in the

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record – whether counsel, this Court, or, importantly, a reviewing court – need only: (a) look

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at the index of exhibits if they do not already have the exhibit number, and then (b) go straight

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to the exhibit in the record, because it clearly has been identified on the face of the docket

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sheet where that numbered exhibit is located.

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In the present case, in contrast: (a) the Court has been unable to locate a separately

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filed index of the exhibits referenced by petitioner in his pleadings; and (b) the state court

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record exhibits filed with sundry amended petitions are identified on the face of the electronic

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docket sheet with ambiguous designations such as “exhibit reporter transcript” that do not

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distinguish one exhibit from another. When the Court attempts to look at specific pages from

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a trial transcript – which are cited by petitioner by a particular date during the trial – it finds

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that the ambiguously labeled “exhibit reporter transcript” attachments on CM/ECF variously

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contain transcripts from various trial days in no particular apparent order, transcripts from

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other proceedings in the case, and/or items that are not transcripts at all. Moreover, judging

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by the handwriting on the exhibits, it does not appear that the record exhibits are from the

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(...continued)

rejected in state court based on state court procedural bars. Whether petitioner can establish cause and
prejudice to overcome a procedural default is a matter of federal law, not state law, which is decided under
federal law authorities. Any issue otherwise regarding the correct application of Nevada state law is a matter
over which the Supreme Court of Nevada has the final word. The state and federal standards in this context
in any event are substantially similar. Petitioner’s argument is without merit under either.

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actual state court record as opposed to a litigation file. In other words, the exhibits filed by

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petitioner essentially are not usable by this Court and/or a reviewing court. The courts are left

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to go “fishing” blindly through essentially unmarked attachments looking for the cited record

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materials. Courts do actually look at what the record says rather than relying on what lawyers

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say the record says. The courts need to be able to readily find where specific state court

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record exhibits actually are in the federal record.

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The state of petitioner’s record exhibits of course is not attributable to petitioner’s
current counsel, who only fairly recently was substituted in as counsel.
Nor of course is it attributable to respondents.

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The Court has reviewed the record over the course of the multiple successive counsel

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for petitioner in this case. It was unable to readily locate a specific directive to petitioner’s

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prior attorneys outlining what arguably might be considered to be common sense steps for

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filing record exhibits on an electronic docketing system. So the responsibility perhaps

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ultimately lies with the Court.

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The Court nonetheless needs to resolve this case as efficiently and promptly as it can.

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At this point, the most efficient and prompt manner to get the necessary state court record

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exhibits filed in a – usable – manner is for respondents to file supplemental state court record

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exhibits in substantially the same manner as they otherwise would in a pro se case. Whether

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that chore instead should be done adequately instead by a represented petitioner in this

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context will have to be a matter addressed another day in another case. As the Court noted,

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it has been endeavoring in more recent cases to have the panel attorneys file the state court

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record exhibits with the counseled amended petition in substantially the same manner as is

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followed by the Federal Public Defender. For this case, however, the Court needs to have

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a usable record in place promptly so that the case can be brought to a final resolution quickly

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and efficiently.

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The Court accordingly will direct the filing of related state court record exhibits by

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respondents, as per the specific provisions infra in the disposition paragraphs of this order.

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At this juncture, respondents are in a better position than the only recently appointed
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substitute panel attorney to promptly present the necessary additional state court record

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materials in a usable format.

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IT THEREFORE IS ORDERED that respondents’ motion (#141) to dismiss is

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GRANTED IN PART and that Ground 4 of the sixth amended petition (#123) is DISMISSED

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with prejudice as procedurally defaulted. The Court defers a final resolution of the procedural

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default defense raised as to amended Grounds 2 and 3 until the filing of an answer and reply

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addressing, on an adequate record, the allegations of ineffective assistance of appellate

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counsel relied upon to establish cause and prejudice.

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IT FURTHER IS ORDERED that, within forty-five (45) days of entry of this order,

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respondents shall file an answer on the merits to the remaining claims in the sixth amended

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petition, including a detailed response addressing the cause allegations that appellate counsel

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was ineffective in failing to raise the claims in amended Grounds 2 and 3 on direct appeal.

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IT FURTHER IS ORDERED that, along with the answer, respondents shall file a

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chronologically indexed set of supplemental state court record exhibits relevant to the

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remaining issues before the Court, picking up in the numbered sequence from the last

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indexed exhibit filed by respondents (apparently Ex. 35 in #81) and disregarding all prior pro

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se and/or counseled exhibits submitted by petitioner. That is, respondents need not duplicate

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any exhibits previously filed by respondents, but respondents shall not rely upon the sundry

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exhibits scattered throughout the record by petitioner and his counsel as satisfying a need to

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file a copy of a particular relevant state court record exhibit. The exhibits and exhibit

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attachments further shall be identified on the electronic docket in substantially the customary

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manner followed by the Attorney General reflected by, e.g., respondents’ prior filing in #81.

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The relevant state court record exhibits include, but are not necessarily limited to: (a) the state

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district court minutes; (b) the transcript, if previously transcribed, and all written submissions

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by the defense and prosecution in the original criminal proceeding related to the suppression

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hearing referred to in amended Ground 1(a); (c) the trial transcripts, to the extent previously

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transcribed, excluding any voir dire transcripts except to the extent that a particular portion

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of a transcript contains relevant discussion between the court and counsel regarding a matter
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at issue in the current petition; and (d) the transcripts, to the extent previously transcribed,

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from the April 27, 2005, and May 4, 2005, state post-conviction evidentiary hearing dates.

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IT FURTHER IS ORDERED that counsel additionally shall send a hard copy of all
exhibits filed to, for this case, the Las Vegas Clerk's Office.
IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service of
the answer to file a reply.

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No extensions of time will be granted except in extraordinary circumstances.

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Any scheduling conflicts with deadlines in other cases in this District should be

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resolved in favor of the earlier-filed case, based upon the initial March 22, 2004, filing

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date of this action, such that any necessary extensions of time should be sought

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expeditiously in the later-filed case. Any request for extension of time based on a

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scheduling conflict with other matters in this District that does not address the

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requirements of this order will be denied.7
DATED: March 7, 2914.

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_________________________________
ROGER L. HUNT
United States District Judge

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This proviso does not constitute a reflection on either counsel. The Court simply is seeking to
posture this matter for a final resolution as promptly as possible given the Court’s own time and resource
constraints.

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