Wadsworth v. Williams et al

Filing 46

ORDER Granting in Part 34 Motion to Dismiss. Petitioner Shall Have 30 days from the entry of this order to file a motion for dismissal without prejudice of the entire petition. Signed by Chief Judge Gloria M. Navarro on 3/30/2015. (Copies have been distributed pursuant to the NEF - DC)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MICHAEL B. WADSWORTH,

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Petitioner,

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vs.

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Case No. 2:13-cv-00401-GMN-GWF

BRIAN E. WILLIAMS, et al.,

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ORDER

Respondents.

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Before the court are the second amended petition for writ of habeas corpus (#26),

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respondents’ motion to dismiss (#34), petitioner’s opposition (#38), and respondents’ reply (#45).

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The court finds that petitioner has not exhausted all his grounds for relief, and the court grants the

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motion in part.

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After a jury trial in state district court, petitioner was found guilty of first-degree murder

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with the use of a deadly weapon. Ex. 50 (#13). Petitioner appealed, and the Nevada Supreme Court

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affirmed. Ex. 75 (#14).

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Petitioner then filed a proper-person post-conviction habeas corpus petition in the state

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district court. Ex. 81 (#14). The state district court appointed counsel, who filed a supplemental

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petition. Ex. 96 (#15). The state district court dismissed the claims in the proper-person petition

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without an evidentiary hearing and determined that an evidentiary hearing was necessary for the

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claim in the supplemental petition. Ex. 103 (#15). After holding the hearing, the state district court

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denied the claim in the supplemental petition. Ex. 108 (#15). Petitioner appealed, and the Nevada

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Supreme Court affirmed. Ex. 123 (#16).

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Petitioner then commenced this action. The court appointed counsel, who filed a first

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amended petition (#9) and a second amended petition (#26). Respondents’ motion to dismiss (#34)

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followed.

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Exhaustion of State-court Remedies
The court will take respondents’ arguments out of the order of presentation and turn first to

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the arguments that petitioner has not exhausted all his grounds for relief. Before a federal court

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may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies

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available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly

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present that ground to the state’s highest court, describing the operative facts and legal theory, and

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give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S.

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364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

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“[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state

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remedies only if he characterized the claims he raised in state proceedings specifically as federal

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claims. In short, the petitioner must have either referenced specific provisions of the federal

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constitution or statutes or cited to federal case law.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.

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2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that

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applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158

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(9th Cir. 2003) (en banc). “The mere similarity between a claim of state and federal error is

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insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles,

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such as due process, equal protection, and the right to a fair trial, are insufficient to establish

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exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

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Respondents base their primary argument for failure to exhaust upon the second of three

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issues that petitioner presented in the appeal from the denial of his state habeas corpus petition. The

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three issues were:

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I.

The District Court erred in denying Wadsworth’s claim that his trial counsel
provided ineffective assistance of counsel, when there was no good or sound reason
for counsel’s choice of defense . . . .

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The District Court erred in dismissing several properly-pled claims in the postconviction petition for writ of habeas corpus—including the Batson challenge and
the ineffective assistance of appellate counsel claim—without an evidentiary hearing,
and by impermissibly adopting the State’s position wholesale . . . .

III.

The State presented insufficient evidence of First Degree Murder, and thus the jury
erroneously convicted Wadsworth of the same . . . .

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Ex. 115 at ii (#15) (citations to the Constitution omitted). Respondents argue that petitioner has not

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exhausted grounds 2, 3, 4, 5, 7, and parts of ground 6 because he did not present them specifically to

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the Nevada Supreme Court, but only raised the issue that the state district court should have held an

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evidentiary hearing before dismissing the grounds.1 The Nevada Supreme Court’s ruling was:

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Next, appellant argues that the district court erred by summarily dismissing his other claims
without holding an evidentiary hearing or making specific findings of fact or conclusions of
law as to those claims. Specifically, appellant contends that the district court’s order should
be reversed because the district court stated that the claims raised in appellant’s proper
person petition were dismissed “on motion of the State, for the reasons stated in the motion
to dismiss.” We conclude that, to the extent that the district court erred by failing to set forth
specific findings of fact and conclusions of law pursuant to NRS 34.830(1) and NRAP
4(b)(5)(B), appellant has failed to demonstrate that he was harmed by such error. Our
review of the record reveals that the claims raised by appellant in his proper person petition
were belied by the record, were rejected by this court on direct appeal and thus were barred
by the doctrine of the law of the case, or failed to demonstrate actual prejudice.
Furthermore, other than asserting that the district court failed to hold an evidentiary hearing
or make factual findings or conclusions of law in denying these claims, appellant does not
present any argument on appeal to demonstrate that the district court erred in declining to
hold an evidentiary hearing on these claims. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) (“It is appellant’s responsibility to present relevant authority and cogent
argument.”). Thus, we conclude that the district court did not err by denying the claims.

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Ex. 123, at 3-4 (#16) (emphasis added). The court of appeals has addressed a similar issue in Kibler

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v. Walters, 220 F.3d 1151 (9th Cir. 2000). In that case, Kibler sought discretionary relief in the

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Washington Supreme Court. Kibler presented one issue of ineffective assistance of counsel with

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specificity. As for the other issues of ineffective assistance, Kibler only requested that the lower

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court should hold an evidentiary hearing on his post-conviction claims, referring to the claims in a

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lower-court brief. The Washington Supreme Court denied the motion without comment. Id. at

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1152. The court of appeals noted that Kibler had not stated the underlying claim of ineffective

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assistance of counsel with clarity, as required both by state-court rule and the exhaustion

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requirement of 28 U.S.C. § 2254. Id. at 1153. Consequently, Kibler had not exhausted the

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underlying claim. Id. Likewise, petitioner’s argument in his opening brief on appeal from the

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denial of the habeas corpus petition contained only the legal standards for holding an evidentiary

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hearing in state court and the conclusion that the district court erred, without any allegations about

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the merits of the underlying grounds. If the Nevada Supreme Court had not put the emphasized

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portion into its ruling, this court would have no trouble concluding that the issue presented to the

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Nevada Supreme Court failed to exhaust the grounds at issue. However, as much as respondents

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argue that the emphasized portion was a review of procedural requirements, statements such as

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claims being belied by the record or petitioner failing to demonstrate actual prejudice indicate that

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Respondents had argued that ground 1(A) is unexhausted, but then they withdrew that
argument. Reply at 12 n.7 (#45).
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the Nevada Supreme Court did review the merits of the claims. Petitioner notes correctly that a

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claim is exhausted if the Nevada Supreme Court addresses it, even if the claim was not fairly

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presented to the Nevada Supreme Court. Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004).

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Consequently, to the extent that petitioner did present raise the claims in the challenged grounds in

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his proper-person state petition, his request for an evidentiary hearing was not a failure to exhaust

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those grounds.

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In the alternative, respondents argue that petitioner did not present some of the challenged

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grounds either on direct appeal or in his state habeas corpus petition. The court agrees with some,

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but not all, of respondents’ arguments.

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In ground 2, petitioner alleges that the trial court erred in denying petitioner’s attempts to

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admit into evidence the police statements of Cisco Neal, Michael Griner, and petitioner himself, to

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impeach the testimony of Detective Fogarty. Regarding Cisco Neal, petitioner argued on direct

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appeal that he was not able to question Detective Fogarty about Neal, but that was an argument on

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state law, not federal law. Ex. 63, at 8-9 (#14). The proper-person state habeas corpus petition

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contains no allegation that the state district court prevented petitioner from further questioning

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Detective Fogarty about the mention of a possible second shooter in the interview with Neal. See

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Ex. 81 at 7-7D (#14). Petitioner did allege in the proper-person state petition:

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Petitioner’s defense was, another person with a gun was a[t] the scene of the crime, “who
was the chubby dude, possibly named Ace, who had a gun”, who[se] bullets most probably
would have matched those recovered from victim and crime scene, but the court denied the
several opportunities to allow jury to learn about this evidence, and this forced Petitioner to
testify regarding the chubby dude with the gun and this left testimony bare and naked
without the prior discussed exculpatory evidence to support it, and the nakedness of the
testimony was further stripped bare when Detective Fogarty told the jury, no evidence
existed to support the Petitioner’s allegations as to the chubby dude with a gun that was at
the scene.

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Ex. 81 at 7C (#14). However, nowhere in the preceding paragraphs did petitioner mention anything

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about trying to introduce into evidence the transcript of Neal’s interview with the police. Regarding

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Michael Griner, on direct appeal petitioner alleged that Griner’s interview with police was

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transcribed, but petitioner made no argument about Griner’s statement. Ex. 63 at 6 (#14). In the

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proper-person state petition, petitioner alleges that the transcript of Griner’s statement was provided

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to the trial court for the judge’s review, but that counsel never marked the transcript as an exhibit or
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offered the transcript into evidence. Ex. 81 at 7B (#14). This is a claim of ineffective assistance of

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counsel, which is legally and factually distinct from the claim in the current ground 2 that the

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district court denied petitioner’s attempt to admit the transcript into evidence. Consequently, the

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parts of ground 2 regarding the interviews of Neal and Griner are unexhausted.

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Ground 4 is a claim that petitioner was forced to testify because the trial court did not allow

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petitioner to impeach Detective Fogarty. Petitioner made a brief argument to that effect in his

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opening brief on direct appeal. Ex. 63, at 6 (#14). The Nevada Supreme Court then held:

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Additionally, Wadsworth argues that, but for the district court’s error in limiting Detective
Fogerty’s questioning, he would not have had to testify because the second gunman theory
would have been presented through Detective Fogerty. However, the decision to testify is a
strategic decision. [Footnote 1: Comer v. Schriro, 480 F.3d 960, 987 (9th Cir. 2007) (citing
Rock v. Arkansas, 483 U.S. 44, 53 (1987)).] As such, it was Wadsworth’s prerogative to
testify knowing the strength of the State’s case. By choosing to testify, Wadsworth accepted
both the risks and the rewards that accompanied his testimony.

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Ex. 75, at 2 (#14). Rock held that a criminal defendant has the right to testify in his or her own

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defense. 483 U.S. at 49. Rock noted that this right “is also a necessary corollary to the Fifth

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Amendment’s guarantee against compelled testimony.” Id. at 52. In other words, petitioner had a

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constitutional right not to testify or to testify; the choice is petitioner’s to make. Even though

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petitioner did not mention the Constitution in his brief argument, the Nevada Supreme Court

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recognized the constitutional implications of the argument, and thus effectively exhausted ground 4.

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Casey, 386 F.3d at 916 n.18.

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Ground 5 is a claim that the trial court erred when it denied a proposed instruction that told

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the jury what to do when presented with evidence that is susceptible of two constructions or

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interpretations. Petitioner presented the same claim on direct appeal. The Nevada Supreme Court

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held that the district court could deny the instruction as long as the jury received the correct

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instruction on reasonable doubt. Ex. 75, at 3-4. Respondents argue that this ground should be

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considered unexhausted because “reasonable doubt” is a generic phrase like “due process” or “fair

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trial.” See Hiivala, 195 F.3d at 1106. The court disagrees. It has long been a constitutional

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requirement that a jury must find a person guilty beyond a reasonable doubt. In re Winship, 397

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U.S. 358 (1970). The reasonable-doubt instruction in Nevada has been the subject of much

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litigation, with the court of appeals having found it to be constitutional. See Ramirez v. Hatcher,
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136 F.3d 1209, 1211-15 (9th Cir. 1998). It is hard to see how use of the phrase “reasonable doubt”

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in the context of a criminal trial could mean anything other than the federal constitutional standard

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for finding a defendant guilty. Ground 5 is exhausted.

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Ground 6(D) is a claim that trial counsel provided ineffective assistance because trial

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counsel did not locate and present at trial witnesses who were vital for the defense. Petitioner

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identifies six people. The proper-person state habeas corpus petition has a citation to the general

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principle that counsel has the duty to investigate the case and to find witnesses for the defense, but,

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with one exception, petitioner did not provide any names of the witnesses that he provided in

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ground 6(D). See Ex. 81, at 10-10A (#14). The one exception is a woman named Beatriz Ramirez.

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Petitioner describes her recollection of the events. Id. at 10A. However, he does not allege

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anything that counsel should have done regarding her. Petitioner alleges in the federal second

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amended petition that trial counsel should have investigated and located Ramirez, but the Nevada

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Supreme Court did not have the benefit of reading the second amended petition. Petitioner has not

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fairly presented the issue in ground 6(D) to the Nevada Supreme Court, and the ground is

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unexhausted.

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Ground 6(G) is a claim that trial counsel provided ineffective assistance because trial

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counsel did not actually seek admission into evidence of petitioner’s videotaped police interview

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and the transcript of Cisco Neal’s police interview. See Ex. 75 at 2, 3 (direct-appeal order noting

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that petitioner did not seek the admission of these two things) (#14). Petitioner argues that he

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presented this issue in his proper-person petition, Ex. 81 at 8, 8B-8C (#14). However, that is a

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claim of ineffective assistance of appellate counsel for poor presentation of the issues on direct

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appeal. The court cannot construe that claim into a claim of ineffective assistance of trial counsel.

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The attorneys, the court, and the actual claims are all different. Ground 6(G) is unexhausted.

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Ground 7(B) is a claim of ineffective assistance of appellate counsel because appellate

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counsel did not challenge the sufficiency of the evidence to establish premeditation and deliberation,

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both elements of first-degree murder. In the appeal from the denial of the state habeas corpus

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petition, the Nevada Supreme Court ruled:

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Finally, appellant argues that there was insufficient evidence to convict him of first-degree
murder with the use of a deadly weapon because there was no evidence of premeditation and
deliberation. This claim was not raised in appellant’s supplemental petition and was raised
in appellant’s proper person petition only in the context of ineffective assistance of counsel.
Thus, we need not address the insufficient-evidence claim in the first instance. See generally
Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991) (observing that arguments
not presented in district court in first instance need not be considered on appeal), overruled
on other grounds by Means v. State, 120 Nev. 1001, 103 P.3d 25 (2004). To the extent that
appellant’s claim in his proper person petition could be construed as a separate claim of
insufficient evidence, such a claim would be procedurally barred because it could have been
raised on direct appeal. See NRS 34.810(1)(b)(2).

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Ex. 123 at 4-5 (#16). The ground of the proper-person petition that the Nevada Supreme Court

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mentions does start as a claim of ineffective assistance of trial counsel. Ex. 81 at 10 (#14). The

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argument about the sufficiency of the evidence to establish premeditation and deliberation is at

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pages 10B-10C of the proper-person petition. Petitioner might have intended to allege a separate

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claim of insufficient evidence, because in general his proper-person petition often blended separate

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legal theories together. Regardless of what petitioner did raise in that ground in the proper-person

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petition, the proper-person petition does not contain a claim of ineffective assistance of appellate

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counsel for not challenging the sufficiency of all elements, particularly premeditation and

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deliberation, of first-degree murder. See Ex. 81 (#14). The supplemental petition also does not

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contain such a claim. See Ex. 96 (#15). In the appeal from the denial of the state habeas corpus

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petition, petitioner did try to link the issue of sufficiency of the evidence to a claim of ineffective

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assistance. However, that was a claim of ineffective assistance of trial counsel for choosing the

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defense theory that there was a second shooter, as opposed to a theory of self-defense or defense of

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others. See Ex. 115 at 6-15 (#15). Nowhere in that brief did petitioner argue that appellate counsel

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failed to raise the issue of insufficient evidence to establish premeditation and deliberation. Ground

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7(B) is unexhausted.

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Procedural Default
Respondents also argue that ground 1(B) is procedurally defaulted. Ground 1(B) is the claim

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that underlies ground 7(B), that the evidence was insufficient to establish premeditation and

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deliberation. As noted above, petitioner might have intended to raise this claim in his proper-person

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state habeas corpus petition. He certainly did raise the claim in the appeal from the denial of his

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state habeas corpus petition. The Nevada Supreme Court ruled that the claim was barred pursuant
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to Nev. Rev. Stat. § 34.810 because petitioner could have raised the claim on direct appeal, but did

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not. Ex. 123 at 4-5 (#16).

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A federal court will not review a claim for habeas corpus relief if the decision of the state

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court regarding that claim rested on a state-law ground that is independent of the federal question

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and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).

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In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review
of the claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.

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Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The grounds for dismissal upon

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which the Nevada Supreme Court relied in this case is an adequate and independent state rule.

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Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003) (Nev. Rev. Stat. § 34.810).

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

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factor external to the defense impeded” his efforts to comply with the state procedural rule. Carrier,

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477 U.S. at 488.

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To show prejudice, “[t]he habeas petitioner must show ‘not merely that the errors at . . . trial

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

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infecting his entire trial with error of constitutional dimensions.’” Carrier, 477 U.S. at 494 (quoting

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United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).

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The court disagrees with petitioner that the Nevada Supreme Court decided the issue on the
merits in the direct appeal. The direct-appeal argument, in full, was:

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The jury should not have concluded that WADSWORTH shot the victim because of
Criminalist Kevin Lattyak testimony. He testified that he could not state for certain that the
bullets recovered at the scene and from the victim came from the .38 caliber Colt revolver
found at the scene. Trial Transcript, Vol. V., pp. 15-16, 21-22 and 24-25. Therefore, the
jury could not have reached its decision based on the testimony at trial.

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Ex. 63, at 10 (#14-2). The reply brief did not address this claim. See Ex. 68 (#14-7). The Nevada

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Supreme Court held:

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Wadsworth next argues that there was insufficient evidence to convict him because the
firearms expert could not affirmatively state that the shots fired came from Wadsworth’s
revolver. The firearms expert testified that the bullets recovered from the crime scene came
from a Colt .38 caliber revolver. He compared the recovered bullets to the Colt .38 caliber
revolver found at the crime scene. The firearms expert testified that he could not
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conclusively determine that the Colt .38 recovered from the crime scene was the murder
weapon, but he also could not exclude it. Wadsworth later testified that the Colt .38
revolver was his and that he had fired the gun in the victim’s direction, but that he had fired
it into the ground. No other weapon was recovered from the crime scene.

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It is for the jury to determine the weight and credibility of the evidence. The jury apparently
found credible the firearm expert’s testimony, as well as Wadsworth’s acknowledgement
[sic] that he owned the Colt .38 found at the crime scene. Moreover, additional evidence
supported Wadsworth’s conviction, including eyewitness testimony placing him at the crime
scene and shooting a revolver. Therefore, we conclude that the firearm expert’s testimony
did not render the evidence adduced at trial insufficient to support his conviction.

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Ex. 75, at 4-5 (#14-14). In the petition, petitioner argues that “[t]he facts, as presented at trial, do

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not support any reasonable interpretation that Wadsworth had sufficient time nor reason for

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premeditation and deliberation.” Second Amended Petition, at 10 (#26) (emphasis added). On

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direct appeal, petitioner challenged the sufficiency of the evidence that he fired the fatal shot.

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Petitioner never made the elements of premeditation and deliberation an issue on direct appeal, and

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the Nevada Supreme Court’s ruling did not address those elements. The Nevada Supreme Court

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was under no obligation to create an issue sua sponte when petitioner made no mention of it.

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The court also disagrees with petitioner’s argument that the Nevada Supreme Court ruled on

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the merits of the claim when it considered whether the district court should have held an evidentiary

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hearing. Immediately after stating that it had reviewed the proper-person petition, the Nevada

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Supreme Court specifically stated that this claim was procedurally barred by Nev. Rev. Stat.

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§ 34.810. The Nevada Supreme Court’s alternative decision on the merits does not affect the

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adequacy and independence of the state ground for denying the petition. Harris v. Reed, 489 U.S.

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255, 264 n.10 (1989); Comer, 480 F.3d at 964 n.6.

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Finally, petitioner argues that appellate counsel provided ineffective assistance because

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appellate counsel failed to raise the claim on direct appeal, and that such ineffective assistance is

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cause to excuse the procedural default. However, that claim of ineffective assistance is the

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unexhausted ground 7(B), which is unable to act as cause. Carrier, 477 U.S. at 488-89. Petitioner

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will need to decide what to do with ground 7(B), and then the court can decide how to dispose of

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ground 1(B).

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The second amended petition (#26) is mixed, containing both claims exhausted in state court
and claims not exhausted in state court, and it is subject to dismissal. See Rose v. Lundy, 455 U.S.

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509, 521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983).
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (#34) is GRANTED
in part. Grounds 6(D), 6(G), 7(B), and part of ground 2 are unexhausted.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of

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entry of this order to file a motion for dismissal without prejudice of the entire petition, for partial

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dismissal of grounds 6(D), 6(G), 7(B), and the unexhausted part of ground 2, or for other

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appropriate relief. Within ten (10) days of filing such motion, petitioner must file a signed

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declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 that he has conferred with his

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counsel in this matter regarding his options, that he has read the motion, and that he has authorized

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that the relief sought therein be requested. Failure to comply with this order will result in the

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dismissal of this action.

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DATED this 30th day of March, 2015.

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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