Heusner v. Neven et al

Filing 24

ORDER that grounds 16, 24, and 26 of the 22 amended petition are DISMISSED. Respondents have 45 days from the date of entry of this order to answer or otherwise respond to the amended petition. Petitioner has 45 days from the date on which the answer is served to file a reply. Signed by Judge Richard F. Boulware, II on 1/9/2018. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

ALLEN S. HEUSNER,

10

Petitioner,

11

vs.

12

Case No. 2:14-cv-01119-RFB-GWF

DWIGHT NEVEN, et al.,

13

ORDER

Respondents.

14
15

Petitioner has filed an amended petition (ECF No. 22). The court has reviewed it pursuant to

16

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court will

17

dismiss three grounds. Respondents will need to respond to the rest of the grounds.

18

Grounds 16 and 26 are claims of ineffective assistance of counsel. A petitioner claiming

19

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

20

below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

21

and (2) that the attorney’s deficient performance prejudiced the defendant such that “there is a

22

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would

23

have been different,” id. at 694. “[T]here is no reason for a court deciding an ineffective assistance

24

claim to approach the inquiry in the same order or even to address both components of the inquiry if

25

the defendant makes an insufficient showing on one.” Id. at 697.

26

In ground 16, petitioner argues that trial counsel provided ineffective assistance because trial

27

counsel did not object to the instruction that defined reasonable doubt. Petitioner also argues that

28

appellate counsel provided ineffective assistance because on direct appeal appellate counsel did not

1

challenge the constitutionality of the reasonable-doubt instruction. The reasonable-doubt instruction

2

that petitioner quotes is constitutional. Ramirez v. Hatcher, 136 F.3d 1209, 1211-15 (9th Cir. 1998).

3

The court of appeals also has held that the issue is not worthy of a certificate of appealability. Nevius

4

v. McDaniel, 218 F.3d 940, 944-45 (9th Cir. 2000). The lack of an objection was not deficient

5

performance, and petitioner did not suffer prejudice. Ground 16 is without merit on its face, and the

6

court dismisses it.

7

In ground 26, petitioner argues that counsel failed to challenge the validity of the Nevada

8

Revised Statutes under the doctrine of separation of powers because in 1951 the Nevada Legislature

9

appointed three justices of the Nevada Supreme Court to a statute revision commission. Regardless of

10

who was on that commission, on January 25, 1957 the Nevada Legislature duly enacted the Nevada

11

Revised Statutes as the laws of Nevada. 1957 Nev. Stat 1-4. Furthermore, the Nevada Legislature has

12

duly amended the statutes governing arson, burglary, murder, and the use of a deadly weapon in the

13

years since 1957.1 The issue underlying this ground is completely without merit and is frivolous.

14

Counsel did not perform deficiently, and petitioner suffered no prejudice, by not raising this issue before

15

the state courts. Ground 26 is without merit on its face, and the court dismisses it.

16

In ground 24, petitioner attempts to incorporate his grounds in his state habeas corpus petition

17

by reference to that petition. However, the state habeas corpus petition is not attached to the amended

18

federal petition. Ground 24 does not present any claim, and the court dismisses it.

19

IT IS THEREFORE ORDERED that grounds 16, 24, and 26 of the amended petition (ECF No.

20

22) are DISMISSED.

21

///

22

///

23

///

24

///

25
26
27
28

1

Petitioner is convicted of burglary with the use of a deadly weapon, first-degree murder with the use
of a deadly weapon, and first-degree arson.
-2-

1

IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the date of

2

entry of this order to answer or otherwise respond to the amended petition (ECF No. 22). Respondents

3

shall raise all potential affirmative defenses in the initial responsive pleading, including lack of

4

exhaustion and procedural default. Successive motions to dismiss will not be entertained. If

5

respondents file and serve an answer, then they shall comply with Rule 5 of the Rules Governing

6

Section 2254 Cases in the United States District Courts, and then petitioner shall have forty-five (45)

7

days from the date on which the answer is served to file a reply. If respondents file a motion, then the

8

briefing schedule of Local Rule LR 7-2 shall apply.

9

DATED: January 9, 2018

10
11

_________________________________
RICHARD F. BOULWARE, II
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-