RICKEY TODD MAJOR V. E.K. MCDANIEL

Filing 91

ORDERED that grounds 5, 10, 11, 12, 13, 14 of the Amended Petition are DISMISSED WITH PREJUDICE and grounds 1-4, 6-9, 15, 17(a)-(m), 17(o)-(r), 18 and 19 are DENIED. IT IS FURTHER ORDERED that P is GRANTED a Certificate of Appealability as to grounds 17(g) and (m). Signed by Judge Larry R. Hicks on 3/17/2010. (Copies have been distributed pursuant to the NEF - DRM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The exhibits referenced in this Order were filed by petitioner in support of his amended petition and are found in the clerk's record at dockets 18-30 and 49-59.
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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

RICKEY TODD MAJOR, Petitioner, vs. E.K. McDANIEL, et al., Respondents.

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3:99-cv-00237-LRH-RAM ORDER

This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is the amended petition, respondents' answer and petitioner's reply. Dockets #14, #83 and #90. I. Procedural History The procedural history of petitioner's criminal and appellate proceedings is extensive, covering a period of ten years from the date of the crime in April or May of 1988 to September 10, 1990, when charges were originally filed, to 1996, when the conviction was obtained, to completion of direct appeal on September 3, 1998. Post-conviction proceedings have proceeded in and out of state and federal court from November 1998 through the present. A. First Elko County Murder Prosecution - Case No. 5159 Petitioner was originally charged with open murder with the use of a deadly weapon for the killing of Tina Dell, in Elko County, Nevada on September 10, 1990. Exhibit 1.1 Petitioner

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raised questions of venue arguing that the proper venue was in Eureka County where the body of the deceased was found. Exhibits 8. Upon stipulation, petitioner was committed to Lakes Crossing, a state-run mental health facility located in Reno, Nevada, for a competency evaluation. Exhibit 21. Petitioner was found competent (Exhibits 29 and 31). On February 13, 1992, after a hearing and special canvass of petitioner by the court, the parties stipulated to the dismissal of the charges without prejudice on the basis that new evidence had come to light. Exhibits 87, 88 and 89. Petitioner specifically waived any statute of limitations for re-filing charges against him. B. Eureka County Murder Prosecution - Case No. 875

In February, 1994, the Eureka County District Attorney (DA) filed open murder with the use of a deadly weapon charges against petitioner in the killing of Tina Dell. Exhibit 95. Following a preliminary hearing, petitioner was bound over to the district court on the charges. Exhibits 96-97. Petitioner filed a motion for change of venue, arguing that there was insufficient evidence that the crime occurred in Eureka County. Exhibit 99. He also moved to dismiss the charges contending that the issue of venue had been previously litigated. Exhibit 102. On

September 16, 1994, following a hearing on these and various other motions, the court issued an order dismissing the action without prejudice because there was no evidence that the "fatal blow" or death of Tina Dell occurred in Eureka County. Exhibit 109. An appeal of this order was ultimately withdrawn by the DA. Exhibits 110, 113 and 114. C. Erueka County Perjury Prosecution - Case No. 876

Meanwhile, on April 22, 1994, petitioner was charged with perjury based on an affidavit signed and attested to by petitioner that he had no history of mental health problems. Exhibit 115. Following a jury trial, petitioner was convicted (Exhibit 144) and sentenced to four years in prison. Exhibit 151. This conviction was reversed on appeal in 1998. Exhibit 164. D. Elko County Murder Prosecution - Case No. 6218

In February 1995, the Elko County DA again filed charges against petitioner of open murder with the use of a deadly weapon for the 1988 killing of Tina Dell. Exhibit 165. The petitioner was bound over. Exhibit 176. Petitioner was represented by Matthew Stermitz. Id. 2

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Petitioner pled not guilty on the Information filed against him in the Fourth Judicial District Court on the charge of open murder. Exhibit 178. A five-day jury trial commenced on March 11, 1996. Exhibits 192-197. Petitioner was found guilty of first degree murder with the use of a deadly weapon on March 15, 1996. Exhibit 199. The state pursued a habitual criminal enhancement. Exhibit 200. The court sentenced petitioner to two consecutive sentences of life without the possibility of parole. Exhibit 206. E. State Appeal

Petitioner filed a direct appeal raising nine claims of error. Exhibit 208. While the appeal was pending, with the representation of a new attorney, petitioner moved for a new trial, claiming that he had just discovered that his trial counsel, Mr. Stermitz, had a conflict of interest arising from his employment by the district attorney's office when the murder charges were initially filed against petitioner in 1990 and because Stermitz had promised to re-open the Dell murder file during an unsuccessful election campaign. Exhibit 218. The motion for a new trial was denied and petitioner appealed. Exhibits 224, 225. The appealed was dismissed, with the Nevada Supreme Court concluding that no actual conflict of interest existed and that counsel's representation of appellant had not been deficient. Exhibit 238. Petitioner's direct appeal of his conviction was dismissed on September 3, 1998, with the Nevada Supreme Court concluding that none of petitioner's claims were meritorious. Exhibit 233. F. Post-Conviction Review

Petitioner filed a petition for writ of habeas corpus (post-conviction) in the state district court of White Pine County on November 13, 1998. Exhibit 241. Because it was filed in the wrong county, the matter was transferred to Elko County. Exhibit 242. Before the state court had addressed the state petition, petitioner initiated his federal action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Docket #1. The federal petition was filed April 27, 1999, raising five grounds for relief. Id. On petitioner's motion, counsel was appointed and an amended petition was filed raising nineteen grounds for relief. Docket #14. 3

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On respondents' motion to dismiss for lack of exhaustion and petitioner's motion to stay pending state court exhaustion, the court determined that grounds 5, 10, 11-14, and 16-19 were unexhausted. Docket #42. Petitioner agreed to have the federal petition dismissed without prejudice to allow him to return to state court to exhaust his claims. Petitioner returned to state court and filed an amended post-conviction habeas petition on November 13, 1998, raising the same nineteen grounds raised in his amended federal habeas petition. Exhibit 241. Counsel was appointed to represent petitioner. Exhibit 257. Because the amended petition was not verified, it was dismissed. Exhibit 261. In the court's amended order dismissing the amended petition, it noted the original petition, filed in November 1998, was still viable. Counsel filed supplemental points and authorities in support of the state postconviction petition, raising two additional claims. Exhibit 268. On respondents' motion, the state court dismissed petitioner's claim that he received an illegal sentence when the court and not the jury imposed sentence. Exhibits 277 and 281. A hearing on the remainder of the petition was conducted on December 5, 2003. Exhibit 282. On December 20, 2003, the court denied the petition, addressing and deciding all claims raised in the original petition, the amended petition, and the supplemental points and authorities of counsel. Exhibit 302. Petitioner appealed in case number 45012. Exhibit 306. On January 8, 2004, petitioner filed a motion to modify an illegal sentence, claiming he was entitled under Nevada law to be sentenced by the jury that convicted him and that the DA and the court had both relied upon the perjury conviction, which was later overturned, in arguing and deciding the sentence. Exhibit 284. This motion was granted and a new sentencing hearing was ordered. Exhibit 287. Ultimately, petitioner waived his right to be sentenced by a jury and allowed the judge (one who had not presided over the trial) to impose sentence. Exhibits 298 and 299. Resentencing was conducted on February 16, 2005. Exhibit 304. The judge imposed a sentence of two consecutive life sentences without the possibility of parole. Id. Petitioner appealed in case number 45427. Exhibit 310. 4

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On July 5, 2006, the Nevada Supreme Court affirmed petitioner's new sentence. Exhibit 316. On October 19, 2006, the Nevada Supreme Court affirmed the denial of petitioner's post-conviction petition. Exhibit 318. Thereafter, petitioner moved to reopen his federal habeas action, which motion was granted. Respondents moved to dismiss the amended petition on exhaustion and procedural default grounds. The motion was granted in part and denied in part, with the court finding that grounds 16 and 17(n) were moot and dismissed them. The court also found that grounds 5, 10-12, and 14 were procedurally defaulted, but noted that the petitioner might be able to make a showing of cause and prejudice through consideration of the merits of his ineffective assistance of appellate counsel claims, reserving that determination until after full briefing on the merits. Respondents have now filed their answer and petitioner his reply. Discussion The court previously found that grounds 5, 10, 11, 12, and 14 of the amended petition were procedurally defaulted. Respondents renew their argument that ground 13 of the amended petition is also defaulted, admitting a typographical error omitted reference to ground 13 from the heading and initial lines of their argument, but pointing to the multiple references to ground 13 in the remainder of that section. See Motion to Dismiss (docket #66), p. 23 at lines 10-11 and p. 24, line 25. Petitioner offers no objection to this contention and, having reviewed the motion to dismiss as referenced, the court finds that the affirmative defense of procedural bar was addressed as to ground 13 and has not been waived. See Morrison v. Mahoney, 399 F.3d 1042, 1046-47 (9th Cir. 1999); Windham v. Merkel, 163 F.3d 1092, 1100 (9th Cir. 1998). The court will apply the argument for procedural default, and its finding of the same, to ground 13. In his reply, petitioner responds as to each claim for relief, incorporating his cause and prejudice arguments within the relevant discussions. A. Procedural Default

"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, rather than on the 5

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merits. A federal court will not review a claim for habeas corpus relief if the state court's decision rested on a state law ground that is independent of the federal question and if the ground is adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court stated the effect of a procedural default, as follows: [i]n 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. Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). To demonstrate cause to overcome a procedural default, the petitioner must be able to "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). Ineffective assistance of counsel may satisfy the cause requirement to overcome a procedural default. Murray, 477 U.S. at 488. However, for ineffective assistance of counsel to satisfy the cause requirement, the independent claim of ineffective assistance of counsel must first be presented to the state courts. Id. at 488-89. In addition, the independent ineffective assistance of counsel claim cannot serve as cause if that claim is also procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to show prejudice to overcome procedural default, petitioner bears the burden . . . of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension. White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982). If the petitioner fails to show cause, the court need not consider whether the petitioner suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 6

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528, 530 n.3 (9th Cir. 1988). The court having found a procedural default as to grounds 5, and 10-14, petitioner must demonstrate cause for the default and prejudice in order to obtain a review of his defaulted claims on the merits. Failure to make a sufficient showing will bar the court from considering his defaulted claims. Murray, 477 U.S. at 488. Petitioner argued in opposition to the motion to dismiss that his procedural default should be excused because his trial and appellate counsel had been ineffective, citing "generally" to claims 17 and 18 of the amended petition. Opposition to Motion to Dismiss (docket #69), p. 9. As respondents point out in their answer, the claim of ineffective assistance of trial counsel raised as ground 17 offers nothing to excuse petitioner's failure to bring the procedurally defaulted claims before the Nevada Supreme Court in their proper procedural context. All the defaulted claims were denied by the state high court on the basis that they were waived when petitioner failed to present them on direct appeal. Exhibit 318, p. 2, n.3. Because the claims should rightfully have been raised on direct appeal, it is the performance of appellate counsel that is called into question. Only ground 18 presents a claim of ineffective assistance of appellate counsel. That claim contends that counsel should have raised the now defaulted claims and argues that failure to do so was ineffective assistance. See Amended Petition (docket # 14), pp. 38-39. In order to determine if petitioner can overcome the procedural bar, the court must examine the merits of ground 18. Ground 18 states: Petitioner's Conviction and Sentence Are Invalid under the Constitutional Guarantees of Due Process of Law, Equal Protection of the Laws, Effective Assistance of Counsel and a Reliable Sentence Because Petitioner Was Not Afforded Effective Assistance of Counsel on Appeal. U.S. Const. Amends. VI, VIII & XIV. 1. Petitioner was represented on direct appeal to the Nevada Supreme Court by Matthew Stermitz. The experience of counsel and the available resources and time to prepare the briefing was inadequate to permit reasonably effective assistance to be provided on appeal. 2. Appellate counsel failed to provide reasonably effective assistance of counsel to petitioner. Appellate counsel unreasonably failed to raise on appeal or completely assert all the available arguments supporting the constitutional issues asserted in this petition as grounds one (Right to Conflict7

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Free Counsel), five (Unqualified State Expert), ten (Reasonable Doubt Jury Instruction), eleven (Premeditation and Deliberation & Malice Jury Instructions), twelve (Prosecutorial Misconduct), thirteen (Prejudicial Trial Atmosphere-Change of Venue), fourteen (Voluntary and Knowing Waiver of Major's Right Against Self-Incrimination), and sixteen (Denial of Penalty Hearing and Sentencing by Jury). 3. Appellate counsel did not have any tactical or strategic reasons within the range of reasonable competence for failing to assert available constitutional claims or otherwise performing reasonably in perfecting the record on appeal. Counsel failed to perform with reasonable competence due to the limitations on resources and time available to counsel and not for the purpose of gaining a tactical or strategic benefit. 5.[Sic] The failure of appellate counsel to render effective assistance was prejudicial in that it is reasonably probable that a more favorable result would have been obtained on appeal if counsel had performed effectively and the failure of appellate counsel to provide reasonably effective assistance was substantially injurious to the petitioner's right to obtain fundamentally fair and adequate appellate review of petitioner's conviction and sentence because the claims which should have been raised are meritorious and they could not have been found harmless beyond a reasonable doubt on direct appeal. Docket # 14, p. 38. In considering the merits of a claim presented in the amended petition this court is bound by the provisions of 28 U.S.C. § 2254(d), which provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. §2254(d). Ineffective assistance of appellate counsel, if proved, constitutes cause for procedural default. Murray v. Carrier, 477 U.S. 478, 488-92 (1985) (examining ineffective assistance of counsel resulting in procedural default in state court). To establish prejudice based on the deficient assistance of appellate counsel, the defendant must show that the omitted issues would have a 8

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reasonable probability of success on appeal. Morrison v. Estelle, 981 F.2d 425, 427-28 (9th Cir.1992), cert. denied 508 U.S. 920 (1993); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir.1992); Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991). The Nevada Supreme Court reviewed petitioner's claim of ineffective assistance of appellate counsel on appeal from denial of his post-conviction petition. Exhibit 318. In that order the court stated the proper federal standard for review, citing to Strickland v. Washington, 466 U.S. 668 (1964) and Jones v. Barnes, 463 U.S. 745, 751 (1983)(Appellate counsel is not required to raise every non-frivolous issue on appeal.) Exhibit 318, p. 4, n. 7; p. 18, n. 23. Additionally, the court reviewed the claims that petitioner argued his appellate counsel should have brought on appeal in the context of his ineffective assistance of trial counsel claims and determined that those claims "did not have a reasonable likelihood of success on appeal." Id., p. 18. If, as the Nevada Supreme Court concluded, the claims had no reasonable likelihood of success on appeal, petitioner cannot demonstrate the level of prejudice required on a claim of ineffective assistance of counsel enunciated in Strickland, at 687-92, and it follows, therefore, that he cannot meet the higher standard of showing "actual prejudice" required under United States v. Frady, 456 U.S. 152, 1665-168 (1982)(holding that to obtain habeas relief on a defaulted claim, a petitioner must clear a significantly higher hurdle that would exist on direct appeal.) The Nevada Supreme Court rejected the claim of ineffective assistance of appellate counsel holding: Major also claims the district court erred in rejecting Major's claim that appellate counsel was ineffective. [fn 22, Major was originally represented during his direct appeal by Matthew Stermitz; David Houston substituted in as counsel of record on January 29, 1997.] To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that the omitted issue would have a reasonable probability of success on appeal. [fn 23, Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996) (citing Strickland, 446 U.S. 668).] Appellate counsel is not required to raise every nonfrivolous issue on appeal. [fn 24, Jones v. Barnes, 463 U.S. 745, 751 (1983).] This court has held that appellate counsel will be most effective when every conceivable issue is not raised on appeal. [fn 25, Ford v. State, 105 Nev. 850, 853, 783 P.2d 951, 953 (1989).] Major claims Stermitz should have argued (a) trial counsel's conflict of interest 9

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(b) Dr. Brooks' qualifications to serve as an expert witness, (c) reasonable doubt instruction, (d) premeditation and deliberation and malice jury instructions, (e) prosecutorial misconduct, (f) change of venue, (g) Miranda violations, and (h) denial of sentencing by jury. As stated above, we conclude issues (a)-(g) did not have a reasonable likelihood of success on appeal and (h) was rendered moot by Major's successful motion to correct illegal sentence, which led to his resentencing in 2005. Thus, the district court did not err in concluding that Major failed to demonstrate that Stermitz's appellate representation fell below an objective standard of reasonableness or omitted any issues on appeal that would have had a reasonable probability of success. Exhibit 318, 651-652.2 As discussed infra, petitioner has not demonstrated that the state court's rejection of this claim was either contrary to clearly established federal law or an unreasonable application of that law. 28 U.S.C. § 2254(d)(1). Neither has he shown that the state court made an unreasonable determination of the facts in light of the evidence at trial. Id. Because the state court's decision as to the effectiveness of appellate counsel was proper under § 2254(d)(2), this court is bound by that decision and petitioner has not met his burden to show cause and prejudice to obtain review of the procedurally barred claims. Grounds 5 and 10-14 are procedurally barred from review by this court and shall be dismissed with prejudice. B. Merits Review

The remaining grounds for relief are eligible for a review on the merits. Those claims include grounds 1-4, 6-9, 15, 17(a)-(m), 17(o)-(r), 18 and 19. As previously noted, the court's review of the merits of petitioner's claims is governed by the provisions of the AEDPA3 as codified at 28 U.S.C. § 2254. Ground One. Major's Right to Conflict Free Counsel as Guaranteed by the United States Constitution Was Violated When Matthew Stermitz Was Appointed to Represent Major at Trial. U.S. Const. Amend. VI.

The Nevada Supreme Court considered and rejected the individual claims omitted from appeal, including the present grounds 5 and 10-14, in the context of ineffective assistance of counsel at trial claims. Exhibit 318, pp. 5-8, 12-15.
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Antiterrorism and Effective Death Penalty Act of 1996. 10

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In support of this claim, petitioner reports that Stermitz had just run for election to the office of Elko County District Attorney prior to being appointed to represent petitioner in the 199596 murder prosecution against him. During the election campaign, Stermitz was said to have "indicated he would review the case" of the Tina Dell murder charges if he was elected.4 He was not elected and returned to private practice, and later was appointed to represent petitioner in defense of the murder charge. Petitioner further reports that his prior counsel, David Lockie, had been disqualified on the basis that his law partner had been a deputy district attorney at the time of the original prosecution in Elko. Petitioner argues that this same circumstance­Stermitz's employment as a deputy district attorney at the time of the first Elko murder prosecution­should have disqualified Stermitz from representing him. Petitioner argues that because he was living in Colorado during the election campaign, he was unaware of these facts. However, he suggests that the court, the prosecutor and other officials involved in the proceedings would have been aware of this obvious conflict. Petitioner contends that these facts evidence the actual conflict of interest that his counsel suffered and that this conflict denied him his right to counsel as guaranteed by the Sixth Amendment. He further argues this actual conflict requires no showing of prejudice. The Sixth Amendment provides that a criminal defendant shall have the right to "the Assistance of Counsel for his defense . . . because of the effect it has on the ability of the accused to receive a fair trial." United States v. Cronic, 466 U.S. 648, 658 (1984). Where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. See, e.g., Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481 (1978). And, while as a general matter, a petitioner alleging a Sixth Amendment violation must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland, 466 U.S. at 694, in the case where a petitioner's counsel had

The quoted language was extracted from the Motion for New Trial, p. 4, where it is cited as a quote from a newspaper article appearing in the High Desert Advocate on March 13, 1996. Exhibit 229. The actual quote is significantly different than as reported by petitioner. 11

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an actual conflict of interest, the petitioner must show only that the conflict "actually affected the adequacy of his representation." Cuyler, 446 U.S. at 349-50.5 In determining whether there has been an actual affect on the representation, petitioner must show that counsel failed to pursue some "plausible alternative defense strategy or tactic," United States v. Wells,394 F.3d 725, 733 (9th Cir. 2005), "that counsel was influenced in his basic strategic decisions" by the conflict, United States v. Shwayder, 312 F.3d 1109, 1118 (9th Cir. 2002), or that counsel would be required to undermine, criticize, or attack his own work product from a previous case, Maiden v. Bunnell, 35 F.3d 477, 480 481 (9th Cir. 1994). During his testimony at the state post-conviction hearing, counsel was questioned about potential alternate defense strategies. Stermitz confirmed that petitioner's defense was innocence and that he believed arguing for a second degree murder conviction would have been completely inconsistent with that strategy. Exhibit 282, pp. 62. Stermitz further testified that he did not believe petitioner would have "authorized" this alternate argument and he did not want to weaken the innocence claim by making any concessions as to guilt. Id., pp. 63-64. When asked why he did not argue the lack of evidence of deliberation or premeditation required for first degree murder, counsel testified that the murder weapon was a knife and that the use of a knife was evidence of deliberation, stating, "You use a knife, you stab, what the hell were you trying to do? Tickle them?" Id. p. 62. These statements offer no support for the argument that counsel shaped his defense strategy for any purpose except for the benefit of his client. Strategic decisions made by counsel on the basis of the client's instructions and the evidence available do not demonstrate a conflict of interest that had an actual affect on the adequacy of the representation. Petitioner has not demonstrated that counsel suffered from a conflict of interest based upon his statements made during an election campaign.

In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court noted that its holding in Cuyler v.Sullivan, was limited to the situation of joint representation. Id., at 176. Whether the Cuyler exception to the prejudice requirement of Strickland should apply in other situations of attorney conflict remains an open question. Id. 12

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Petitioner next argues that because counsel was employed by the district attorney's office just prior to the time the original charges were filed, the representation was "substantially related" to the current representation and should have required disqualification, citing Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). In Trone the court held that if there was a possibility that confidential information was disclosed in the previous representation that could harm the client in the present representation, then a substantial relationship is presumed. Id. In this case the potential harm fell only to the prosecution if confidential information was obtained by Stermitz while he was employed as a deputy district attorney. It is impossible to imagine how information that Stermitz might have obtained in preparing the case for prosecution could have been of harm to the defendant. More likely it would have been used, if at all, for his benefit. The Nevada Supreme Court clearly reviewed this contention in post-conviction review and concluded no such conflict existed. Exhibit 238, pp. 1-2. Petitioner has not shown that the state court's decision was improper under 28 U.S.C. § 2254(d) and no relief is warranted on ground one. Ground Two: Major Was Denied His Right to Due Process and a Fair Trial When His Jury Was Prejudiced by a Juror Whose Co-worker Remarked That the Prosecution Had Possession of "The Knife." U.S. Const. Amends. VI & XIV. Petitioner asserts in this claim that on the fourth day of trial a seated juror asked to speak with the court. In a meeting with all parties present, the juror informed the court that a fellow employee had discussed the case with her. She said the co-worker told her that the co-worker's mother's friend found a knife and found out it was "the knife" used in Dell's murder. The juror was also told that the woman had used the knife and had gotten rid of it. Exhibit 196, pp.3-5.6 Despite counsel's repeated objection to the juror remaining on the jury, the court extracted a promise from the juror to disregard the statement and to not allow it to bear any weight in her deliberations. Id. Private communications, possibly prejudicial, between jurors and third persons, or

In fact, the juror said: "The girl that I work with happens to live out at Paradise Valley, and she said, `Well, my mother has a friend who has a friend that found the knife and they found out that it was the knife and it was the best damned knife they used and they got rid of it.' " Exhibit 196, p. 3-4. 13

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witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear. Mattox v. U. S.,146 U.S. 140, 150 (1892); See also, Remmer v. U.S. 347 U.S. 227, 229 (1954) (prejudice is presumed where there is any private communication between a juror and an outside party on matters related to the trial while the matter is pending.) This presumption of prejudice can be overcome if, at a hearing with notice to all parties, the state makes a strong showing that there was no harm to the defendant. Id. As the petitioner acknowledges, the court, after receiving a note from the juror, conducted a hearing involving the juror, the prosecutor, defense counsel. Exhibit 196, pp. 2-7. The court questioned the juror and then allowed both parties to question the juror. Defense counsel then moved to have the juror removed stating: It's such an integral part of the case, yeah, in spite of what's been said ­ and I don't know that the juror ­ but in spite of what's been said, I think it's such an integral part of the case whether or not that really happened and, yeah, we would object. Exhibit 196, p.6. The court denied the motion, having obtained the juror's assurance that she would not consider the co-worker's statement for any purpose and that the information would not have any weight in her deliberations. Id. at 7. Petitioner has not shown the trial court's decision was improper. The nature of the hearing indicates the court's immediate concern for the events and his careful consideration of what the juror had to say. Moreover, the circumstances, together with the juror's testimony, showed that the juror intended to act appropriately and honestly with the court. She brought the matter to the judge's attention. She answered honestly when asked what was said. She indicated she had advised the co-worker she was not to talk about the trial and had exited the room. She further stated that she doubted the credibility of the co-worker. When the Nevada Supreme Court considered the claim, it found it had no merit, that the trial court had acted in conformance with Isbell v. State, 97 Nev. 222, 626 P.2d 1274 (1981) and had made the proper factual determination that the communication was not prejudicial as required by Remmer, v. United States, 347, 227 (1954). Exhibit 233, pp. 7-8. The court found that the trial court's determination to retain the juror was supported by substantial evidence. Id. 14

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Petitioner has not demonstrated that the Nevada Supreme Court's decision was an unreasonable determination of facts in light of the evidence in the record. Moreover, the court correctly applied the applicable federal law. Petitioner is not entitled to relief on this claim. Ground Three: Major Was Deprived of His Rights to Due Process and a Fair Trial When the Prosecution Failed to Disclose Evidence Regarding the Finding of Knives. U.S. Const. Amends. VI & XIV. Petitioner offers these facts to support this claim: Petitioner requested the opportunity to review all discoverable materials. During trial, a prosecution witness testified that she found a knife in the same area where the bones had been found and that she turned the knife over to police. Exhibit 192, pp. 42-43. Petitioner had not been advised of these events and, although the witness had testified on three prior occasions, she had never before mentioned the knife. Exhibits 11, 96 and 175. Another witness also testified that there were knives missing from petitioner's household after Ms. Dell's disappearance. Based on the assumption that no knife had been found, defense counsel made an opening statement highlighting that fact. Petitioner argues that the subsequent testimony to the contrary was very damaging to petitioner's case. Petitioner had based his defense on the state being unable to prove that Ms. Dell's death was caused by criminal agency. Petitioner further argues that the court should have declared a mistrial following the witnesses testimony about finding the knife. Petitioner acknowledges, however, that the DA claimed that the testimony was a complete surprise to him. Petitioner argues that the state is responsible for the suppression of the knife evidence and that because the evidence was not provided to petitioner prior to trial, the court should have granted a mistrial. He further argues that denial of the motion for mistrial denied due process and a fair trial. Under Brady v. Maryland, 373 U.S. 83 (1963), the state is obligated to provide a criminal defendant with exculpatory evidence. To show a violation of this rule, petitioner must demonstrate that the prosecution suppressed evidence that was favorable or exculpatory and that the evidence was material. Id., at 87; see also United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983). Here, the evidence petitioner claims was suppressed was not exculpatory evidence. Rather, if the knife had been found and turned over to police as the witness testified, and, if the knife proved to 15

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be related to the killing, it would have been incriminating evidence, otherwise it would likely have been irrelevant to the prosecution or defense. However, apart from the unanticipated testimony of Ms. Brockett, the witness who reported finding the knife and turning it over to the police, no evidence of the knife was presented at trial. In fact, the police officer to whom the knife was reportedly submitted denied ever receiving it. Exhibit 194, pp. 145, 151. The Nevada Supreme Court considered this claim on direct appeal from the judgment of conviction citing to Brady and concluded that petitioner had failed to show that the knife was ever in the prosecution's possession, and that, even if it was, petitioner had failed to show the evidence was exculpatory. Exhibit 233. The Nevada Supreme Court's determination of this claim was not incorrect or unreasonable within the parameters of 28 U.S.C. § 2254(d) and no relief shall be granted on ground three. Ground Four: Major's Conviction and the Resulting Sentence Is Invalid under the Constitutional Guarantees of Due Process and a Fair Trial Due to the Absence of Evidence Sufficient to Support, Beyond a Reasonable Doubt, a Factual Basis for the Necessary Elements of Criminal Agency for Culpability for the Offense. U.S. Const. Amends. VI, XIV. Petitioner claims there was insufficient evidence presented at trial to prove beyond a reasonable doubt that Ms. Dell died by a specific criminal agency or that petitioner was the person responsible for her death. He contends the condition of the remains and the conditions under which they existed until their discovery required a "qualified forensic anthropologist[`s]" examination, and that Dr. Brooks, the expert used at trial, was not qualified. Petitioner argues the only evidence at trial of the criminal agency causing death came in through Dr. Brooks, suggesting that evidence given via testimony of witnesses who saw a photograph of the victim lying on a bed with stab wounds to her chest and apparently dead (Exhibit 194, pp. 29-30), together with statements made by the petitioner himself to those testifying witnesses about the same photograph (Exhibit 194, pp. 51, 60; 134-145), does not qualify as evidence of the criminal agency causing death. Petitioner also ignores testimonial reference to the report prepared by Dr. Birkby, which also identified perimortem injuries to the skeletal remains as evidence suggesting that "knife wounds inflicted elsewhere on the body" could be the cause of death. Exhibit 247. 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ground Six:

Respondents argue that this claim does not present a federal question because the issue of corpus delicti is a question of state law. Respondents are mistaken. Questions of the sufficiency of the evidence implicate federal due process and fair trial guarantees. In determining claims of insufficient evidence, the relevant question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In considering this claim, the Nevada Supreme Court found the claim to be without merit, pointing to the testimony of the state's expert about the stab wounds as the eventual, if not immediate cause of death and noting the role of the jury in determining the weight and credibility to be given to witness testimony. Exhibit 233. Viewing all the evidence in a light most favorable to the prosecution, this court cannot conclude that no rational trier of facts could have found the essential element of criminal agency in the death of Tina Dell. The Nevada court's rejection of the claim is not an unreasonable determination of facts in light of the evidence. Ground four shall be denied. Ground Five: Major's Conviction and Sentence Are Invalid under the Federal Constitutional Guarantees of Due Process, Equal Protection, Trial Before an Impartial Jury and a Reliable Sentence Because the Testimony of the Unqualified State Expert Witness Was Not Reliable and Her Conclusions Were Not Based on Approved Methods That Could Be Tested by Other Experts in Her Field. U.S. Const. Amends. V, VI, VIII & XIV. This ground is procedurally defaulted. Major's Conviction and Sentence Are Invalid under the Federal Constitutional Guarantees of Due Process and a Fair Trial Because the Court Refused to Admit The Results of Major's Polygraph Test. U.S. Const. Amends. VI & XIV. Petitioner claims the results of his polygraph should have been admitted at trial. Petitioner contends that because he signed a broad release at the time of his polygraph examination that provided for its dissemination to "any and all persons involved in the investigation and/or prosecution of the above case, my lawyer, the courts when deemed appropriate by competent judicial authority and my parents or legal guardian if I am under 18 years of age" there was a stipulation for its admission. Exhibit 212, pp. 14-16. Petitioner argues the document is a contract with the state, 17

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which thus implicates petitioner's due process rights.7 Petitioner further represents that the report of the polygraph test administered by an employee of the Nevada Division of Investigation, indicates his truthfulness in denying that he killed or stabbed Tina Dell. Petitioner contends he has a constitutional right to present this exculpatory evidence and argues it was the only way he could rebut the allegations of the prosecution that had relied upon petitioner's statements to police as evidence of his guilt. A defendant's right to present relevant evidence is subject to reasonable restrictions to accommodate other legitimate interests in the criminal trial process. U.S. v. Scheffer, 523 U.S. 303, 303 (1998). Such reasonable restrictions include the exclusion of unreliable evidence such as polygraph tests. Id. at 309. Generally, the question of the admissibility of evidence is a question of state law. Lisenba v. California, 314 U.S. 219, 228 (1941). Under Nevada law, polygraph evidence can be considered reliable if properly administered by a qualified expert who can then be subjected to cross-examination on the testing and its results. Corbett v. State, 94 Nev. 643, 584 P.2d 704 (1978). The Nevada Supreme Court considered this claim and rejected it, finding that the polygraph test was reasonably excluded because petitioner had not presented evidence to supports the test's reliability, such as the qualification of the examiner or the quality of the testing procedures. Exhibit 233. The Nevada Supreme Court's rejection of this claim was not contrary to or an unreasonable application of clearly established federal law. Neither was it an unreasonable determination of the facts. No relief is warranted on this claim. Ground Seven: Major's Conviction and Sentence Are Invalid under the Federal Constitutional Guarantees of Due Process and a Fair Trial Because the Court Refused to Allow the Defense's Proposed Jury Instructions. U.S. Const. Amends. VI & XIV.

Petitioner complains that the trial court rejected three proposed jury instructions: (1) Proposed Instruction "A" advising the jury that it could find petitioner guilty of manslaughter if they The document referenced by petitioner is not provided in the record. There is no indication that it was signed by any agent of the state so as to make it binding upon the state in terms of contract law. 18
7

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had reasonable doubt whether the crime was murder or manslaughter; (2) Proposed Instruction "B" defining the concept of proximate cause of death as "a cause which, in natural and continuous sequence, produced the death, and without which the death would not have occurred;" and (3) Proposed Instruction "C"which set forth the defense of voluntary intoxication. Petitioner notes the instructions were denied because the court believed them to be covered by other instructions, a point petitioner disputes. Petitioner further argues that the court's instructions were not a correct statement of the law, did not contain the instruction sought or denied petitioner an instruction on his theory of defense. To prevail on this claim, the petitioner must demonstrate that the erroneous instructions were so prejudicial that they "support a collateral attack on the constitutional validity of a state court's judgment." Henderson v. Kibbe 431 U.S. 145, 154 (1977). This burden is greater than that required to establish plain error on direct appeal. Id. The question for this court is "whether the ailing instructions by themselves so infected the entire trial that the resulting conviction violates due process." Id. quoting Cupp v. Naughten, 414 U.S.141, 147 (1973). Petitioner's Proposed Instruction A stated: If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of the doubt and find it to be manslaughter. Exhibit 249. The instruction offered to the jury by the court, which otherwise covered the subject, provides: If you believe from the evidence beyond a reasonable doubt that the Defendant is guilty of Murder, and there is in your minds a reasonable doubt as to which of the two degrees he is guilty, he must be convicted of the lower of such degrees which is Murder of the Second Degree. Should you find that the Defendant did not commit Murder of either the First or Second degree but believe beyond a reasonable doubt that he is responsible for the homicide, you must determine if that killing was manslaughter. Exhibit 198, Jury Instruction 12. Petitioner relies on Crawford v. State, 121 Nev. 744, 121 P. 3d

582 (2005) to argue that the court was required to give his proffered instruction to remind the jury that it cannot convict the defendant if proof of a particular elements of the crime is lacking, because, 19

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"[j]urors should neither be expected to be legal experts nor make legal inferences with respect to the meaning of the law." Id. at 753-754, 121 P.3d at 588. In Crawford, the defendant had introduced evidence to support a defense of voluntary manslaughter and the trial court denied a specific instruction that the burden is on the state to prove that the defendant did not act in the heat of passion with the requisite legal provocation. Id. at 754, 121 P.3d at 589. Here, the jury was instructed properly and the proposed instruction offered nothing that could not be taken from the instruction that was given. Petitioner has not met his burden to show this instruction infected the entire trial that his conviction violates due process. Henderson v. Kibbe, 431 U.S. at 154. Next, petitioner argues the court improperly denied his instruction on proximate cause. The Involuntary Manslaughter instruction given to jurors reads: Involuntary Manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act or a lawful act which probably might produce such a consequence in an unlawful manner; but where the involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is Murder. Exhibit 198, Jury Instruction 14. Proposed Instruction B instructed the jury that

16 17 18 19 20 21 22 23 24 25 26 27 28 To constitute [murder] [or] [manslaughter] there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. A proximate cause of a death is a cause which, in natural and continual sequence, produces the death, and without which the death would not have occurred. Exhibit 249. Although the proposed instruction defines proximate cause concisely, petitioner has not shown that the instruction given fails to inform the jury of the elements and circumstances necessary to a finding of involuntary manslaughter. As to Proposed Instruction "C," petitioner argues his constitutional rights were violated when the court refused to give a jury instruction on his theory of defense - voluntary intoxication. Petitioner's instruction reads: If you find that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter. When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts 20

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inherently dangerous to human life or safety. Under such circumstances, the law implies criminal negligence. Exhibit 249. Instead, the trial court offered Jury Instruction no. 16. Exhibit 198. The Nevada Supreme Court determined that his instruction was an inaccurate statement of Nevada law. NRS 193.220 outlines when voluntary intoxication can be considered in determining criminal liability. The statute provides: No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining the purpose, motive or intent. This was the exact language set forth in Jury Instruction no. 16. Thus, petitioner's proposed instruction was correctly rejected by the trial court. The Nevada Supreme Court's consideration and rejection of ground seven was appropriate within the parameters of 28 U.S.C. §2254(d) and cannot be revisited by this court. Ground Eight: Major's Sentence Is Invalid Under the Federal Constitutional Guarantees of Due Process, Equal Protection, and a Reliable Sentence Because the Court Abused its Discretion in Sentencing Him to a Term of Two Life Sentences Without Parole. U.S. Const. Amends. V, VI & VIII. This ground for relief is moot and has been abandoned by petitioner (docket #90, p. 30). Ground Nine: Major's Conviction and Sentence Are Invalid under the Federal Constitutional Guarantees of Due Process, a Fair Trial and the Right to Testify in His Own Defense Because the Court Failed to Advise Him of His Right to Testify at Trial. U.S. Const. Amends. V, VI, & VIII. Neither party cites to any United States Supreme Court case law which outlines a criminal defendant's right to be advised by the court of his right to testify or not at his criminal trial. Respondents contend that the issue is an open question and that this forecloses any relief for petitioner under 28 U.S.C. § 2254. Petitioner relies on Johnson v. Zerbst, 304 U.S. 458, 464 (1938) to support his 21

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argument that the waiver of a constitutional right must be shown on the record to have been knowing and competently made and that it is the court's responsibility to ensure the waiver is proper. In Johnson v. Zerbst, the petitioner was convicted and sentenced without counsel and without a record that he knowingly and intelligently waived the right to have counsel. Id. A different issue is presented here. While the Fifth Amendment clearly provides that a defendant cannot be compelled to testify in his own defense, that is not petitioner's claim. Petitioner was not forced to testify. Rather, he complains that the court did not inform him that he could testify. He does not complain that he did not know he could testify. Such a complaint would be disingenuous at the least, as he was fully canvassed by the court and did testify at his trial on a charge of perjury. See Exhibit 145, pp. 269330. No United States Supreme Court precedent exists upon which petitioner can rightly rely to overcome the decision of the Nevada Supreme Court. As noted in its order dismissing appeal, in Phillips v. State, 105 Nev. 631, 782 P. 2d 381 (1989), Nevada declined to adopt any affirmative requirement that the court canvass a criminal defendant on his right to testify. Thus, petitioner has not demonstrated that his federal constitutional rights have been violated and no relief is warranted on ground nine of this amended petition. Grounds Ten-Fourteen: Ground Fifteen: These grounds were procedurally defaulted in state court.

Petitioner's Rights to Equal Protection, Due Process and a Fair Trial Were Violated When the State Was Allowed to Participate in the Ex Parte Application for an Investigator and Expert Fees.

Petitioner complains that his ex parte application for fees for an investigator was improperly published to the State which then participated in the hearing on his application. Respondents point out that the application for fees referenced by petitioner, exhibit 181, was not labeled as "ex parte" and was served on the state by petitioner. Id. Moreover, according to the appellate briefs (Exhibits 215 and 302), neither the application itself, or the matters revealed at the hearing in the presence of the prosecutor revealed any work product or confidential defense strategies

22

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or discoveries.8 The record reveals that petitioner sought and received funds to employ an investigator and other experts. The motion in question on this claim was not filed ex parte and included a certificate of service on the prosecutor. Moreover, by petitioner's own words, at the hearing, the state was excused from the hearing after entering its objection to the excess fees. While petitioner asserts he was forced to disclose information "that he may not have intended to introduce at trial, he provides no specifics about what information was disclosed. Neither party has directed the court to federal law that applies to this claim. Thus, the handling of it by the Nevada Supreme Court cannot be said to be contrary to or an unreasonable application of clearly established federal law. Petitioner is not entitled to relief on ground fifteen. Ground Sixteen: Ground Seventeen: This ground has been dismissed (docket # 73). Major's Conviction and Sentence Are Invalid Because He Was Deprived of His Constitutional Right to Effective Assistance of Counsel, Due Process of Law, Equal Protection of the Laws, Confrontation of Adverse Witnesses and a Reliable Sentence Due to the Failure of Trial Counsel to Provide Reasonably Effective Assistance. U.S. Const. Amends. VI, VI VIII & XIV

Petitioner argues his court-appointed counsel was ineffective during the proceedings due to a lack of adequate preparation, skill and experience. "The right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In Strickland v. Washington, 466 U.S. 668 (1984), the Court established the standards by which claims of ineffective counsel are to be measured propounding a two prong test. A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. Regarding the first prong, the Court expressly declined to articulate specific As respondents note, there is no transcript of the hearing on the motion for investigation fees included in the record. 23
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guidelines for attorney performance beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the duty to communicate with the client over the course of the prosecution. Id. Construing the Sixth Amendment to guarantee not effective counsel per se, but rather a fair proceeding with a reliable outcome, the Strickland Court concluded that demonstrating that counsel fell below an objective standard of reasonableness alone is insufficient to warrant a finding of ineffective assistance. In order to satisfy Strickland's second prong, the defendant must show that the attorney's sub-par performance prejudiced the defense. Id. at 691-92. The Court defined reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. at 694. Bearing these standards in mind, the court reviews petitioner's claim of ineffective assistance of counsel at trial. Petitioner attributes the following alleged injuries to counsel's lack of preparation, skill and experience: Petitioner's statements to police and admitted at trial. (a) Counsel failed to investigate and present expert testimony about petitioner's physical and psychological condition and his obvious intoxication by drugs in relation to the statements petitioner gave officials during the investigation of the offense. Petitioner contends he had indications of significant drug abuse which started at an early age. Counsel's failure to suppress the statements under the Fifth Amendment was ineffective assistance of counsel. Defense counsel unreasonably failed to take steps to prevent or minimize the harmful effects of the presentation to the jury of petitioner's statements to police, which were the subject of extensive examination at trial. Defense counsel must not have read or simply did not understand these statements. Nor did defense counsel make reasonable objections to the testimony presented concerning these statements when the prosecutor repeatedly referred to them during his closing arguments. Had such steps been taken it is reasonably probable that a different result would have occurred at trial. Defense counsel unreasonably failed to file a motion to suppress to exclude the interviews and statement petitioner made to law enforcement in the absence of a voluntary, knowing and intelligent waiver of his constitutional rights. These interviews and statements formed the basis for the state's closing argument. Had defense counsel filed the appropriate motions it is probable that petitioner would have received a more favorable verdict.

(b) 19 20 21 22 23 24 25 26 27 28 (r)

The state's investigation of the Tina Dell disappearance and murder continued for a 24

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period of approximately eight years, from 1988 until petitioner was finally tried and convicted in 1996. Petitioner spoke with investigators numerous times. Petitioner's claim that counsel should have investigated and suppressed statements made by petitioner to police during the investigation is too broad and does not identify specifically what statements were made when or how the circumstances surrounding the statement would warrant their suppression. Conclusory allegations not supported by a statement of specific facts do not warrant habeas corpus relief. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996). Nothing in the petition or in petitioner's reply to the answer identifies the statements to which it refers or explains the circumstances under which they were given. Rather, petitioner cites to the record to instances where the state made reference to the statement in arguing that they were incriminating. Because the specifics about the statements are missing, this court need not grant relief. However, because the Nevada Supreme Court considered the claims, its decision and reasoning shall be considered. Counsel has an obligation to conduct a thorough investigation. Williams v. Taylor, 529 U.S. 362 (2000). Counsel's judgment and decisions about the nature and extent of investigation are entitled to great deference and must be judged based on the information known at the time, rather than from the perspective of hindsight. See Strickland, 466 U.S. at 689. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691. The Nevada Supreme Court applied the Strickland standard in its review of petitioner's ineffective assistance of counsel claims. Exhibit 318, p. 4. It also gave proper deference to the district court's findings of fact derived from the evidentiary hearing it conducted into these claims. Id. According to the Nevada Supreme Court and the transcripts of that hearing, the petitioner's statements were made voluntarily and were generally initiated with police by petitioner. Additionally, he was not in a custodial setting, having been interviewed in his home in Colorado with his wife present in the next room. When he was interviewed in Elko, his attorney was present. 25

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Id. at 5-6. Counsel testified that he had no basis to move to suppress the statements and that arguing that petitioner's drug abuse might have contributed to some of the statements he made was inconsistent with the defense theory of innocence, making it a strategic decision. Exhibit 282, pp. 93-101. The state court rightly concluded that counsel was not ineffective in this regard. Jury voir dire, trial publicity and venue (c) Trial counsel unreasonably failed to conduct adequate voir dire of the prospective jurors on the effect of community pressure and publicity regarding petitioner's case. Defense counsel unreasonably failed to move for a change of venue, despite the highly prejudicial trial atmosphere. Defense counsel unreasonably failed to object to the prejudicial atmosphere in which the trial took place, and failed to file a motion to have the venue changed to a less prejudicial location.

(f) (q)

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Petitioner argues that counsel should have brought out that pre-trial publicity had negatively impacted the jury pool which made it impossible for petitioner to obtain a fair and unbiased jury and a fair trial because of public sentiment against petitioner. Petitioner further argues that the "overwhelming" pre-trial publicity "in all probability" led many of the prospective jurors to form the opinion that petitioner was guilty. Reply, p. 52. He suggests that counsel should have questioned the potential jurors to bring out that their ability to consider all the possible verdicts was impaired by the strength of community sentiment about the case. While pretrial publicity alone can render a trial inherently unfair, to make a sufficient showing that this occurred in petitioner's case, the publicity must have been recent, inflammatory and accusatory so as to impair the jury's impartiality. Murphy v. Florida, 421 U.S. 794, 802 (1975); U.S. v. Blom, 242 F.3d 799, 804 (8th Cir. 2001). Petitioner has not identified any juror that expressed a prejudice or pre-determined bias in the case. Neither has he identified what publicity, save counsel's own election campaign statement of an intent to review the case, there was in the community to taint the jury pool. The criminal trial took place some eight years after the disappearance and death of the victim. Additionally, while in the first prosecution in 1991, the state suggested that the jury pool 26

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exclude citizens of Carlin "because of the size of the community of Carlin and the nature of this case" (exhibit 70, p. 2.), counsel did not believe pre-trial publicity tainted the jury pool for the trial in 1996. Exhibit 282, pp. 100-201. The Nevada Supreme Court affirmed the district court's denial of relief on this claim noting that petitioner had failed to show that counsel's performance was deficient. Petitioner's arguments to this court are no more persuasive and do not warrant relief. Juror Out-of-Court Discussions (d) Trial counsel failed to effectively examine a juror regarding whether that juror had discussed inadmissible and inflammatory information with other community members during the trial and whether or not she would impart that information to other jurors.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. A. Q. A. Q.

During trial, a juror informed the court of a communic