Bergna v. Benedetti et al
Filing
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ORDER denying in its entirety ECF No. 55 Amended Petition; denying a certificate of appealability; directing Clerk to enter judgment accordingly and close case. Signed by Judge Robert C. Jones on 8/23/2016. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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PETER M. BERGNA,
Case No. 3:10-cv-00389-RCJ-WGC
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Petitioner,
ORDER
v.
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JAMES BENEDETTI, et al.,
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Respondents.
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This counseled amended petition for writ of habeas corpus pursuant to 28 U.S.C. §
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2254 by state prisoner Peter M. Bergna is before the court for final disposition on the
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merits (ECF No. 55). Respondents have answered the petition (ECF No. 59), and
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Bergna replied (ECF No. 60).
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I.
Procedural History and Background
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On November 15, 2000, the State of Nevada filed an indictment in state district court
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charging Bergna with one count of murder (exhibit 1 to petition).1
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commenced on October 1, 2001, and ended in a mistrial on November 20, 2001. Exh.
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2, pp. 16-60. The state elected to retry petitioner, and a second jury trial commenced
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on May 6, 2002. Exh. 109. On June 19, 2002, the jury returned a verdict finding
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petitioner guilty of first-degree murder.
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imprisonment with the possibility of parole after 20 years. Exh. 210. Judgment of
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conviction was filed on October 28, 2002. Exh. 230.
Exh. 208.
A jury trial
Petitioner was sentenced to life
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The exhibits referenced in this order are exhibits filed by petitioner and are found at ECF Nos. 14-27 and
36.
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On December 20, 2004, the Nevada Supreme Court affirmed petitioner’s conviction.
Exh. 254. On March 24, 2006, petitioner filed a postconviction petition in state district
court. Exh. 264. The court denied claims 1 through 18 on August 8, 2007, and set an
evidentiary hearing on claims 19 and 20.
Exh. 274.
On October 31, 2007, and
November 1, 2007, the state district court held an evidentiary hearing. Exhs. 276-277.
The state district court denied postconviction relief on August 1, 2008, the Nevada
Supreme Court affirmed on June 10, 2010, and remittitur issued on July 14, 2010.
Exhs. 283, 285, 297, 298.
Bergna dispatched his federal petition for writ of habeas corpus to this court on June
24, 2010 (ECF No. 1). On September 21, 2012, this court granted respondents’ motion
to dismiss in part, concluding that ground 9 was unexhausted (ECF No. 40). Petitioner
filed a notice of abandonment of ground 9 (ECF No. 56), and now before the court is
petitioner’s amended petition, which sets forth the remaining grounds (ECF No. 55).
II.
LEGAL STANDARDS
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty
Act (AEDPA), provides the legal standards for this court’s consideration of the petition in
this case:
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.
The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
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685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there
is no possibility fair-minded jurists could disagree that the state court’s decision conflicts
with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing
the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt”) (internal quotation marks and citations omitted).
A state court decision is contrary to clearly established Supreme Court
precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
A state court decision is an unreasonable application of clearly established
Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).
To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
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requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that the
state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:
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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.
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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
F.3d at 972.
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Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181.
III.
The Instant Petition
A. Grounds 1, 3, and 4
Respondents renew the arguments that they raised in their motion to dismiss that
grounds 1, 3, and 4 are procedurally barred from federal review. Generally, procedural
default is a preliminary issue to be considered before a federal court turns to the merits
of a claim. Lambrix v. Singletary, 520 U.S. 518, 524 (1997); Martinez-Villareal v. Lewis,
80 F.3d 1301, 1305 (9th Cir. 1996). However, when the procedural default question is
relatively complicated or when relief is due to be denied even if claims are not
procedurally barred, a federal court is authorized to skip over the procedural default
issue and proceed to deny the claim on the merits. Id. As discussed below, grounds 1,
3, and 4 shall be denied on the merits.
i. Ground 1
Bergna claims that his first-degree murder conviction and his sentence are invalid in
violation of his Fifth, Sixth and Fourteenth Amendment due process rights because the
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State failed to introduce sufficient evidence that his wife died as a result of a criminal act
rather than as the result of an accident (ECF No. 55, pp. 11-76).
“The Constitution prohibits the criminal conviction of any person except upon proof
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979)
(citing In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a
judgment of conviction pursuant to 28 U.S.C. § 2254, the petitioner “is entitled to
habeas corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at
324. “[T]he standard must be applied with explicit reference to the substantive elements
of the criminal offense as defined by state law.” Id. at 324 n.16. On habeas review, this
court must assume that the trier of fact resolved any evidentiary conflicts in favor of the
prosecution and must defer to such resolution. Id. at 326. Generally, the credibility of
witnesses is beyond the scope of a review of the sufficiency of the evidence. Schlup v.
Delo, 513 U.S. 298, 330 (1995).
A jury convicted Bergna of the first-degree murder of his wife, Rinette Rinella
Bergna. On May 31, 1998, Bergna picked Rinette up from the Reno airport when she
returned from a trip to Italy and drove her in his truck to a certain turn in State Route
431 near what is known as Slide Mountain. The State’s theory was that Bergna made a
sharp turn in the road while traveling 30 mph, drove the truck into the guardrail and
jumped out of the truck, which tumbled and then crashed some 800 feet below, killing
Rinette (ECF No. 59, p. 10). Bergna has maintained throughout that he lost control of
the truck, and it went through the guardrail. He claims he was not wearing a seatbelt
because he was leaning out his open window smoking a cigar, was ejected through the
driver’s window and landed about eighty feet below the road, while the truck eventually
landed about 800 feet below the road (ECF No. 55).
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Trial Testimony
The evidence introduced at trial included the following. Dewey Willie, the equipment
mechanic fleet supervisor for the Nevada Highway Patrol, testified that part of his job is
to inspect fatal vehicular crashes and that he had inspected about 230 fatal vehicular
crashes in six years. Exh. 121, pp. 90-162; see id. at 97. He inspected the truck,
including brakes, tires, suspension, and steering. Id. at 100. He stated that he found no
unusual mechanical failure whatsoever. Id. at 101. The seat belt on the passenger side
had been cut to extricate Rinette; the passenger side airbag was turned off and the
driver’s side seat belt was intact and fully retracted, i.e., it was not in use at the time of
the incident. Id. at 106. The windows on both sides were broken; the driver’s side
window regulator indicated the window was down and the passenger’s side window
regulator indicated that the window was up. Id. at 109-110. The emergency brake was
not engaged. Id. at 110. No trail of brake fluid was found on the roadway and no other
evidence of an actual rupture of the complete brake hydraulic system was found. Id. at
143.
Willie testified that any tests conducted on the vehicle three or four years later would
be problematic because any car sitting in storage for two years or more would suffer dry
rot of the rubber components of the braking system. Id. at 156. Willie testified that he
did not attempt to measure the amount of brake fluid that was in the brake system when
he performed his inspection.
Exh. 130, p. 74.
He testified that he was unable to
ascertain whether the left rear drum brake worked because it was gone, but that the
condition of the right rear drum and brake shoes was good. Id. at 78-79. He testified
that he visually inspected the master cylinder and vacuum booster but conducted no
other testing on them. Id. at 87-88.
He stated that he did not conduct further tests
because there was no recall notice from Ford Motor Company for the braking systems
and because this particular truck had not had braking problems prior to this crash. Id. at
84-87. Exh. 183, pp. 131-137.
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The State’s expert mechanical engineer Robert H. Turner testified that in his opinion
it was not possible that Bergna had been in the truck when it went over the cliff. Exh.
130, pp. 175-184. He explained that if Bergna had been ejected from the truck he
would have had about the same velocity as the truck and he would have landed at
about the same place the truck landed. Id. at 176-177.
Nevada Highway Patrol Trooper Rickey McLellan testified that he responded to the
call that a vehicle had gone through a guardrail near the Mt. Rose ski area. Exh. 116, p.
136. When he arrived, as he went toward the opening in the guardrail, he observed a
baseball cap on the pavement edge. Id. at 142.
Sergeant James Beltron testified that no skid marks or yaw marks were observed on
the roadway. Exh. 116, p. 223. He testified that during the police interview Bergna
appeared to be “going through the emotions of crying” but was not shedding any tears.
Exh. 117, pp. 42-43.
Scott Stoeffler, a chemist and microscopist, testified that he examined various
samples and items from the crash.
Exh. 126, pp. 135-195.
He testified that he
identified material consistent with asphalt on Bergna’s jacket, shoe and sock. Id. at 149,
156, 160, 177; Exh. 128, pp. 22-23. He also testified that there was no evidence that
the bottom of either of Bergna’s sneakers impacted a road surface at 30-35 mph. Exh.
128, pp. 21-27. He agreed that based on the testing he conducted he could not state
with a reasonable degree of scientific certainty that Bergna did not exit out of the truck
and land on the hillside in the manner Bergna described to police. Id. at 50.
Evidence was presented that Bergna filled up containers of gasoline that night and
placed them in the back of his truck, apparently not sealed closed. Exh. 117, pp. 24-31.
Evidence was also presented that when Bergna was brought to the emergency room he
was wearing a jacket, a “beautiful thick sweat shirt,” a dress shirt, a t-shirt, blue jeans
and white sneakers. Exh. 118, pp. 169-170. Nurse Jeanine Moorehead testified that
Bergna did not seem distressed or distraught when he arrived in the emergency room.
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Id. at 174.
She testified that thereafter she heard Bergna on the phone having a
“horrible heart wrenching sobbing conversation” but when she turned around she was
“astonished” because he sounded so horrendous but he had no expression on his face
whatsoever and “was just totally kickback . . . and just kind of looking around the room.”
Id. at 174-175.
Defense witness Douglas Neale testified that he was a longtime acquaintance of
Bergna and had worked during several different periods of time with Bergna. Exh. 166,
pp. 6-8. He
testified that Bergna had a habit of keeping five-gallon gas cans in the
back of his truck and that he had seen Bergna in a vehicle without a seat belt on
occasions. Id. at 9, 11.
Defense expert Terrence McCreary testified that he is an automobile technician and
had performed 150-200 vehicle forensic mechanical inspections. Exh. 166, pp. 17-18.
He testified that he inspected Bergna’s truck in March, 2002. Id. at 19. In his opinion,
the brake booster was leaking vacuum and that was the largest defect that contributed
to the crash. Id. at 19. He testified that he believed that the booster was leaking before
the crash. Id. at 20. He testified that before a brake failure could have been eliminated
in this case, the rear anti-lock braking system (RABS) should have been tested by an
independent brake specialist on “some kind of test bench” and that the brake booster
itself should have been disassembled and the inside examined. Id. at 36-37. When the
State questioned McCreary, he testified that he was unaware that Bergna had said in
his statement to police that there was no brake failure and he had never said there was
brake failure.
Id. at 40-46, 50-52 (see also id. at 48, the prosecution reads from
Bergna’s statement that was entered into evidence: “I never said there was brake
failure. I think my brakes worked just fine.”). McCreary acknowledged that there is no
evidence that the truck experienced a certain brake problem – a RABS valve leak – but
he assumed that it must have because Ford received other such complaints in the same
model truck. Id. at 61-62.
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Geoffrey Genther, a retired detective, also testified for the defense. He stated that
he worked on the Washington State Patrol Traffic Investigation Unit, a nationally
recognized leader in collision investigation and reconstruction. Exh. 184, pp. 11-30. He
testified that it was impossible that Bergna could have jumped out of the truck at 30
mph.
Id. at 130.
He based that opinion on his investigations of many
car/pedestrian/motorcycle ejection collisions where the speed of the vehicles and the
injuries suffered were known. He testified that the coefficient of friction would have
brought Bergna’s body down and slammed his head into the pavement at 30 mph. Id.
at 131-132. He noted that a normal survival reaction would be to put your hands out
and that broken wrists, elbows, lower arms would be expected. He testified that he
would have expected severe abrasions consistent with tumbling down the hill with no
control. Id. at 133. He testified that he could say with certainty that the truck struck the
guardrail, due to the blue paint on the guardrail and the damage to the guardrail. Id. at
134. He then posited that the truck’s momentum slowed considerably when it struck the
guardrail, then it began to roll and gravity could have pulled Bergna out of the open
window. Id. at 134. Genther testified that, based on the injuries that Bergna suffered,
the truck velocity had to be much, much lower than what law enforcement thought. Id.
at 140.
Rinette’s former boss testified for the State that she flew into Reno to attend the
funeral. Exh. 125, pp. 125. She stated that Bergna told her that when he picked up
Rinette when she returned from Italy she had wanted to stop and see the city lights
before going home. He recounted that later when he was driving down the mountain his
window was open because he was smoking a cigar, and therefore, he fell out of the
truck window when it crashed. Id. at 118-121. She testified that it seemed odd to her at
the time that someone who had been traveling for more than twenty hours would want
to stop to look at the lights. She also stated that after the funeral, she and some other
attendees went to Bergna’s house. She said that he put his arm around her, told her
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she was now welcome to come and stay at his house any time and that she found it
“creepy and inappropriate.” Id.
Another nurse and a paramedic testified for the State. Phyllis Tejeda, a CareFlight
nurse who was in the helicopter that was dispatched to the crash site, noted generally
that there have been incidents where a person was ejected from a vehicle but did not
sustain major bodily injury. Exh. 116, p. 91, 129-130. She testified that when Bergna
was placed in the helicopter he complained of back pain and that his vital signs were
good. Id. at 103-106. He was crying out and seemed anxious, and the nurse noted that
he was not shedding any tears. Id. at 11-12.
Paramedic Jeffrey Zambrano testified that, generally, ejections are associated with
major injury. Exh. 116, p. 6. He stated that he was surprised when Bergna said he had
been ejected because his injuries were not consistent with injuries Zambrano has seen
with patients who had been ejected. Id. at 18. Zambrano determined that Bergna was
in stable condition and saw no need to administer oxygen, an IV, or put a heart monitor
on him. Id. at 22. He also acknowledged that he has seen an ejection from a vehicle
where the person was not injured. Id. at 23, 59.
Kay Sweeney, a defense forensics expert, testified that based on the evidence he
reviewed, he could state to a reasonable degree of scientific certainty that Bergna
exited the truck in the area of the bank of the hillside and impacted the bank on the way
down. Exh. 139, p. 123; pp. 32-136.
Dean Jacobsen, a defense materials science engineering expert, testified that he
has seen ejections where people have gotten up and walked away and ejections where
people have been killed. Exh. 178, pp. 48-49. He stated that there is such a variety of
objects on the hill where the truck crashed and that it would have depended on what
part of Bergna’s body hit the ground and what his body movements were. Id. He
testified that in his opinion Bergna did not exit the truck voluntarily and land on the
asphalt. Exh. 175, p. 118; 119-176.
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A neighbor, members of Rinette’s family, Bergna’s former wife, and a jailhouse
informant also testified for the State. Cindy Glatz testified that she lived across the
street from the Bergnas. Exh. 128, pp. 175-184. Glatz testified that during the last year
that Rinette lived at the house, Rinette traveled a lot more and Glatz hardly saw her
except when she was departing for a trip. She testified that one day she watched
Rinette bringing baggage to her car and that Peter Bergna tracked her with the
snowblower and aimed it at her at close range and followed her, blowing snow on her
as she walked from the front of the house to the car and aimed it into the car when she
opened the door. Glatz stated that Rinette looked extremely upset and fearful. Id. at
182. Glatz testified that she continued watching because she wondered if the situation
would escalate and whether she might have to help or call 911. Id. at 184.
Mikki Riella, Rinette’s sister-in-law, testified that within two to three months after
Rinette’s death, Bergna had gotten rid of most if not all of Rinette’s belongings. Exh.
125, pp. 9-10. Jacque Riella, a sister-in-law of Rinette, testified that money was very
important to Bergna. Exh. 191, pp. 70-72.
Rebecca Tillery, Bergna’s former wife, testified. Exh. 188, pp. 121-131. She stated
that Bergna portrayed himself to friends and family as outgoing, gregarious and a really
nice guy and that privately he was extremely volatile and angry towards her. Id. at 125126. She testified that she constantly walked on egg shells around her husband and
lived in fear. Id. at 130-131. She testified that money was “pretty much everything to
him” and that she felt that he gained his self-worth through money. Id. at 133.
Nevada state inmate Darrell Coursey testified that he and Bergna had been housed
at the Washoe County Jail and were in a Bible study group together. Exh. 128, p. 114.
Coursey testified that Bergna told him that he had killed his wife because of financial
issues and because she did not want to have children. Exh. 128, p. 114, 125. He
testified that Bergna told him that Rinette was unconscious when he drove the truck off
the road and that he had jumped out of the window. Id. at 126. He stated that Bergna
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told him that he did not think he would be convicted because he had a good attorney.
Id. at 133.
On cross examination, Bergna’s counsel elicited testimony from Coursey that the
alleged conversation with Bergna took place about the third week in July, 2001, and that
at Coursey’s sentencing hearing on July 31, 2001, he asked the court to postpone the
hearing because he had work to do on behalf of law enforcement. Id. at 146-147. He
also acknowledged that he told police initially that he learned Bergna’s name from a
mailing label on a New York Times, but later testified at Bergna’s first trial that it was a
USA Today. Id. at 150-151. Coursey testified that he is serving a ten to twenty-fiveyear term and agreed with defense counsel that if the district attorney sent a favorable
letter when he was being considered for parole that it “probably wouldn’t hurt.” Id. at
171-172.
Defense witness Alan Walker testified that he was a friend of both Bergna and
Rinette. Exh. 183, pp. 63. He stated that he and his family spent time with Bergna
during Rinette’s six-week Italy trip, that he had been with Bergna earlier on the day of
the crash and that he did not notice that anything was out of the ordinary during those
times. Id. at 63-72.
Ground 1 Discussion & Analysis
Bergna argues that the State failed to gather and document evidence at the scene
(ECF No. 55, pp. 24-28).
He notes that heavy foot traffic by medical personnel
navigating the steep terrain and the loose dirt and gravel eliminated any possibility of
later inspecting the guard rail area for tire marks and made it difficult to determine with
certainty where the area of impact of the truck was and where Bergna landed when he
exited or was thrown from the vehicle. Id. at 25. However, the jury heard extensive
testimony that acknowledged that the actions of first responders rendering medical aid
in the dark on a steep hillside may have made it difficult or impossible to later gather
evidence about the crash. The jury also heard extensive testimony regarding steps
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police failed to take or ways they mishandled potential evidence during their
investigation of the site, including dragging the camper shell back up the hillside, not
taking certain measurements, and not noting the precise location of pieces of evidence
(including the location of various parts of the truck at the scene). See, e.g., Exh. 121, p.
44; Exh. 188, pp. 23-27; Exh. 183, pp. 181-182, 190; Exh. 118, pp. 31-32.
Testimony was also elicited that the truck remained where it landed out in the
elements—including snow—for four days before it was moved. Exh. 117, p. 49. It was
then stored outside at an impound lot for two and one-half years. Police also testified
that the driver’s side air bag was not removed and examined until two years after the
crash. Exhs. 117, 121. Defense experts testified that they were unable to conduct
thorough investigations (including of the brakes) because the inside and outside of the
vehicle were not properly preserved. Exhs. 191, 175.
Bergna argues at length that the State failed to prove criminal agency due to, inter
alia, the State’s failure to gather and preserve evidence, pre-indictment delay, and that
the State engaged in character assassination by introducing improper testimony of
“other bad acts” (ECF No. 55, pp. 24-77). He also argues that the court improperly
limited defense cross-examination and that there was extensive prosecutorial
misconduct. Id.
However, the analysis under Jackson 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 offense beyond a reasonable doubt. Jackson,
443 U.S. at 319. Under Jackson, a court reviewing an insufficiency of the evidence
claim may not consider evidence that was not presented at trial. Herrera v. Collins, 506
U.S. 390, 402 (1993) (“Jackson is limited to ‘record evidence . . .’ [and] does not extend
to nonrecord evidence, including newly discovered evidence.”). The reviewing court
“must consider all of the evidence admitted by the trial court, regardless of whether that
evidence was admitted erroneously.” McDaniel v. Brown, 588 U.S. 120, 131 (2010).
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This court concludes that Bergna’s claim that insufficient evidence supported the
verdict lacks merit.
The court acknowledges that experts testified to different and
sometimes conflicting opinions as to several of the details of how the crash occurred,
including at what angle or trajectory the truck went down the hill, at what speed the truck
was traveling, and the precise manner in which Bergna exited the vehicle. Experts for
the defense emphasized repeatedly that their attempts to test parts of the vehicle or to
reconstruct events were hampered by the passage of time and the fact that the truck
was stored outside for years.
However, the jury also heard: expert testimony that the steering and brakes on the
truck were functional, that Bergna could have avoided the crash by turning the steering
wheel or applying the brakes, and that he was not in the truck when it went over the cliff.
The State presented evidence that Bergna’s baseball cap was found in the roadway,
that no skid or yaw marks were found on the roadway, and that material consistent with
asphalt was found on Bergna’s clothing.
The State presented evidence that earlier that night Bergna had filled gas containers
and they were open in the back of his truck, that Bergna was dressed in several layers
of clothing, that he was not wearing his seatbelt and had rolled down his window.
Testimony was also presented that Bergna’s emotional reaction to his wife’s death did
not appear genuine, that he gave away Rinette’s personal belongings soon after her
death, and that he and Rinette had been having marital difficulties. Finally, an inmate
testified that Bergna admitted to him that he had killed his wife. Specifically, the inmate
testified that Bergna told him that Rinette was unconscious when he drove the truck off
the road and that he had jumped out of the window. Exh. 128, p. 126.
Jackson presents a high hurdle to be cleared to succeed on a sufficiency of the
evidence claim.
443 U.S. at 319.
Bergna simply has not demonstrated that, after
viewing the evidence in the light most favorable to the prosecution, no rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.
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Federal habeas relief is, therefore, denied as to ground 1.
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ii. Ground 3
Bergna contends that his Fifth, Sixth and Fourteenth Amendment rights to a fair trial
were violated because the district court denied his motion for change of venue and then
denied his motion for use of a jury questionnaire during voir dire (ECF No. 55, pp. 8085).
Change of Venue
With respect to change of venue, Bergna contends that due to extensive publicity
and in particular because an episode of the television show “48 Hours” about his first
trial was due to air shortly before jury selection was to begin for his second trial, the
venue should have been changed from Reno to Las Vegas. Id. at 80-82. He asserts
that in December 2001, during a teleconference with the court, the district court
indicated that it was inclined to move the trial to Las Vegas. However, on January 7,
2002, the trial court issued a trial management order that stated that the venue would
be Reno. Id.
The Sixth Amendment guarantees a defendant’s right to a trial before an impartial
jury. Skilling v. U.S., 561 U.S. 358, 377 (2010). The Constitution prescribes that trial
shall take place in the state and district where the crime was committed. Id. at 377-378;
Art. III, § 2, cl. 3; see also Amdt. 6. However, this does not prevent the transfer of the
proceeding to a different district at the defendant's request if extraordinary local
prejudice will prevent a fair trial—a “basic requirement of due process.” Skilling, 561
U.S. at 378 (quoting In re Murchison, 349 U.S. 133, 136 (1955)).
To support a change of venue request, the defendant must establish either
presumed or actual prejudice. See Skilling, 561 U.S. at 367-68. The Supreme Court
has explained that a court may presume prejudice only when the “trial atmosphere [is]
utterly corrupted by press coverage,” Dobbert v. Florida, 432 U.S. 282, 303 (1977)
(citation omitted), or when “a wave of public passion . . . ma[kes] a fair trial unlikely by
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the jury . . . ,” Patton v. Yount, 467 U.S. 1025, 1040 (1984) (internal quotation marks
omitted).
Juror exposure to news reports of a crime—even “pervasive, adverse
publicity”—is not enough alone to trigger a presumption of prejudice to the defendant’s
due process rights. Skilling, 130 S.Ct. at 384. Instead, a presumption of prejudice
“attends only the extreme case.” Id. at 381, 384 (describing the “vivid, unforgettable”
and “blatantly prejudicial” information at issue in the handful of cases in which the
Supreme Court has presumed prejudice as a result of pretrial publicity) (citing, inter alia,
Rideau v. Louisiana, 373 U.S. 723 (1963) (20-minute video of defendant’s confession to
robbery and murder aired three times on television before his trial); Sheppard v.
Maxwell, 384 U.S. 333 (1966) (“‘[B]edlam reigned at the courthouse during trial and
newsmen took over practically the entire courtroom’. . . .Sheppard’s case involved more
than heated reporting pretrial: [the Supreme Court] upset the murder conviction
because a ‘carnival atmosphere’ pervaded the trial.”).
In the alternative, a defendant may establish actual prejudice if, during voir dire,
potential jurors who have been exposed to pretrial publicity express steadfast bias or
hostility toward the defendant. Id. at 386-87 & n.20 (citing Mu’Min v. Virginia, 500 U.S.
415, 427 (1991)).
The court agrees with respondents that Bergna fails to demonstrate either presumed
or actual prejudice. He refers to an episode of a nationally-televised program, but he
cites to no evidence of a saturation of prejudicial and inflammatory local media
coverage (ECF No. 55, pp. 81-82). The three news articles in the record can be readily
distinguished from the media coverage in the cases discussed in Skilling. Here, the
local articles in the record report that Bergna claimed the crash was an accident, and
the November 2001 Reno Gazette-Journal article in particular is about evenly split in
discussing the prosecution and defense theories of the case. Exhs. 265-3; 265-17. The
CBS News article “Mystery on Slide Mountain” post-dates the guilty verdict. Exh. 265-8.
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Bergna attempts to rely on the district court’s comments prior to finalizing the pretrial
order that the court was inclined to move the trial from Reno to Las Vegas (ECF No. 55,
pp. 81-82). The record contains the affidavit of assistant district attorney Kelli Anne
Bell. Exh. 265-11. Bell stated that before the district court issued its trial management
order, the judge expressed in a teleconference with both sides that he had decided that
due to media coverage and the 48 Hours television episode, the trial would be moved to
Las Vegas. Id. However, that affidavit also recounts that the court agreed to entertain
briefing on the change of venue. Subsequently, on January 7, 2002, after briefing by
both parties, the district court issued its trial management order, which indicated that the
trial would be conducted in Reno. Exh. 71.
Finally, respondents point out that the record reflects that the empaneled jurors
either told the trial court during voir dire that they would be fair and impartial in their
deliberations irrespective of any media exposure to the case, see exh. 109, p. 266
(Juror Wilson); id. at 71 (Juror Holt); id. at 70 (Juror Rudeen); id. at 34-35 (Juror Neil);
id. at 55 (Juror Benjamin); id. at 69 (Juror Bohannon); exh. 110, p. 24 (Juror Abbott); or
they told the court that they had not heard or read about the case, exh. 109, p. 146
(Juror Kiger); id. at 144 (Juror Ploumen); id. at 175 (Juror Casto); id. at 15 (Juror
Hatten); exh. 110, p. 194 (Juror Jahan).
Bergna has failed to demonstrate presumed or actual prejudice by the trial court’s
failure to change the venue of the trial. See Skilling, 561 U.S. at 367-68.
Jury Questionnaire
Bergna also argues that his constitutional rights were violated because the trial court
refused to use a jury questionnaire concerning juror exposure to media coverage of the
case (ECF No. 59, pp. 82-85).
The trial court is to be given substantial deference with respect to conducting voir
dire regarding pretrial publicity and juror bias. Mu’Min v. Virginia, 500 U.S. 415, 427
(1991). The Supreme Court has explained:
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Whether a trial court decides to put questions about the content of
publicity to a potential juror or not, it must make the same decision at the
end of the questioning: is this juror to be believed when he says he has
not formed an opinion about the case? Questions about the content of the
publicity to which jurors have been exposed might be helpful in assessing
whether a juror is impartial. To be constitutionally compelled, however, it is
not enough that such questions might be helpful. Rather, the trial court's
failure to ask these questions must render the defendant's trial
fundamentally unfair.
Id. at 425-426. In that same case, the Court specifically observed that a potential
disadvantage of the use of a jury questionnaire is that “such written answers would not
give counsel or the court any exposure to the demeanor of the juror in the course of
answering the content questions. Id. at 425.
In denying Bergna’s motion to allow use of jury questionnaire, the trial court
explained that it had considered the parties’ arguments, had (by stipulation) conferred
with colleagues of the court regarding the utility of the proposed questionnaire, and had
drafted and considered modifications, deletions and additions to the proposed
questionnaire. Exh. 83, p. 1. The court concluded that it must rely on an evaluation of
demeanor evidence as well as the content of answers and determined that in this
particular instance, issues of pre-trial publicity and pre-formed opinions could be more
meaningfully explored by in-person examination than by use of the proposed
questionnaire. Id. at 2 (citing Mu’Min, 500 U.S. 415).
Bergna has argued generally that a jury questionnaire was particularly important in
this case (ECF No. 55, pp. 82-85). He points out potentially prejudicial aspects of the
48 Hours episode. He discusses at length the fact that several jurors learned during
voir dire that the first trial ended with a hung jury. Id. at 84-85. This court notes that the
fact that the first jury was unable to reach a verdict does not appear inherently
prejudicial either against or in favor of Bergna or the prosecution. In any event, Bergna
has presented no compelling argument as to why the trial court’s in-person examination
of the potential jurors regarding pre-trial publicity and prejudice to Bergna is not entitled
to deference. Federal habeas relief is also denied as to the second part of ground 3.
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Accordingly, the court denies federal habeas relief on ground 3.
iii. Ground 4
Bergna argues that the trial court’s bias violated his Fifth, Sixth, and Fourteenth
Amendment rights to due process, equal protection and a fair trial (ECF No. 55, pp. 8699). He asserts that the trial court manifested its bias against him by engaging in
extensive cross-examination and impeachment of defense witnesses while “coddling
and protecting” the State’s witnesses, and by disparaging questions posed by defense
counsel and imposing a fine on defense counsel in the presence of the jury. Id.
The Due Process Clause guarantees a criminal defendant the right to a fair and
impartial judge.
See In re Murchison, 349 U.S. 133, 136 (1955); Kennedy v. Los
Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989). While a trial judge should
strive to avoid the appearance of partiality, the Ninth Circuit has recognized that a judge
is “more than an umpire.” United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1998).
It is generally appropriate for a trial judge to participate in the examination of witnesses
for purposes such as clarifying the evidence, confining counsel to evidentiary rulings,
controlling the orderly presentation of the evidence, or preventing undue repetition of
testimony.
United States v. Morgan, 376 F.3d 1002, 1008 (9th Cir. 2004).
A trial
judge’s participation oversteps the bounds of propriety and deprives the parties of a fair
trial only when the record discloses actual bias or leaves the reviewing court with an
abiding impression that the judge’s remarks and questioning projected to the jury an
appearance of advocacy or partiality. See United States v. Parker, 241 F.3d 1114,
1119 (9th Cir. 2001). However, “[e]ven in cases where a judge’s participation in a trial is
‘extreme,’ that participation generally does not warrant reversal if a later curative
instruction is given.” Morgan, 376 F.3d at 1008 (citing Parker, 241 F.3d at 1119). In the
context of federal habeas review, the question is not whether the state judge committed
judicial misconduct, but whether the state judge’s behavior “render[ed] the trial so
fundamentally unfair as to violate federal due process under the United States
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Constitution.” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (emphasizing that a
federal court “has no supervisory authority over criminal proceedings in a state court,”
and must only focus on whether the judge’s actions, considered in the context of the
trial as a whole, violated due process).
Bergna complains specifically about the trial court’s questioning of five witnesses.
Defense witness Jarvis Michie, a guardrail expert, testified as to several defects in the
guardrail at the site of the crash and opined that the truck would have been stopped by
a properly constructed and maintained guardrail at 30 mph at a 70-degree angle of
impact to the guardrail. Exh. 173, p. 13. He also testified that the lack of reflectors on
the guardrail made it very difficult for a driver to discern the correct path of travel and
that there was a very wide shoulder there. He testified that a driver could drift out of the
lane, move over to the shoulder and be completely confused as to where he should be
driving. Id. at 9-10.
The court interposed a few questions; in particular, the court asked for clarification
because to its recollection Michie had changed his testimony regarding the speed at
which the truck hit the guardrail. Id. at 109-118. The court then admonished the jury
before the next recess that the fact that the court asks questions of any witness does
not indicate that the court has a particular view or opinion of the case at all. Id. at 121.
The court also questioned Michie as to whether and why Michie may have changed his
testimony regarding the area of initial impact of the truck. At that point, defense counsel
asked for a recess and objected to that line of questioning as unfair, hostile and
sarcastic. Id. at 120, 122. The prosecutor responded that he had observed defense
counsel speaking with Michie just before Michie changed his testimony regarding the
speed of the truck. Id. at 125, 126-127. Michie told the court that defense counsel “may
have wanted me to expand into area outside my engagement” with respect to the
truck’s “impact with a guardrail,” but stated that counsel had not asked him to change
his opinions. Id.
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When defense counsel posed a particular question to State’s expert Dr. Robert
Turner, the court interjected, “well that’s not fair he is trying to answer your questions.”
Exh. 133, pp. 13-14.
Bergna argues that Turner changed his testimony and
contradicted himself as to how the blue paint was transferred from the truck onto the
guardrail.
However, this court has reviewed the testimony and it is more fairly
characterized as Turner clarifying his opinion as to how some of the paint was likely
transferred. Exh. 132, pp. 128-132. Bergna asserts that the trial court did not impeach
Turner as it allegedly had with some defense witnesses.
But defense counsel
specifically questioned Turner as to whether he had changed his opinion and whether it
was due to his conferring with the prosecution. Id.
This court has reviewed the portions of the trial transcripts that Bergna insists reveal
extreme bias of the court so as to deprive him of due process, including portions of the
testimony of forensic scientist Kay Sweeney, exh. 139, pp. 221-231, exh. 166, pp. 150151; engineer Lowell Howard Shifley, exh. 168, pp. 195-197; and mechanic Dewey
Willie, exh. 121, pp. 110-119. The court agrees with respondents that, especially when
viewed in the context of a five-week criminal trial, these complaints do not demonstrate
an “extremely high level of interference by the trial judge which creates a pervasive
climate of partiality and unfairness.” Duckett, 67 F.3d at 740. The trial court also
instructed the jury at the conclusion of the case that it was to disregard any suggestion
of bias or favoritism, exh., 205, p. 4, and gave such a limiting instruction at other points
in the proceedings. See, e.g., exh. 168, pp. 195-197. This court concludes that Bergna
has failed to demonstrate extreme bias by the trial court that deprived him of due
process.
Finally in ground 4, Bergna contends that his constitutional rights were violated
because the trial court was critical in two instances of defense counsel’s questioning of
a witness and fined defense counsel in the presence of the jury (ECF No. 55, pp. 9899). Bergna also asserts that the court fined defense counsel three times and only fined
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the prosecution twice. Id. Again, this was a five-week trial, and this court has reviewed
the portions of the transcript that Bergna cites and finds no evidence of partiality.
Indeed, Bergna fails to even argue that the trial court’s characterization of defense
counsel’s questions on two occasions as “petty” and “unfair” was inaccurate.
portion of ground 4 is patently meritless. Accordingly, federal habeas relief is denied as
to ground 4 in its entirety.
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B. Grounds 2, 7, 8, and 10
Next, the court considers claims that the Nevada Supreme Court rejected on direct
appeal.
i. Ground 2
Bergna alleges that the trial court failed to admit defense evidence concerning
defective Ford brakes in violation of his Fifth, Sixth and Fourteenth Amendment rights to
due process and a fair trial (ECF No. 55, pp. 77-80). The trial court refused to admit
about five binders of documents from the Ford Motor Company that related to warranty
complaints and repairs on the brake systems of Ford F-150 trucks. Id. at 77.
The Constitution guarantees a criminal defendant a “meaningful opportunity to
present a complete defense,” and to introduce relevant evidence on his behalf. Crane
v. Kentucky, 476 U.S. 683, 690 (1986). However, this right is subject to reasonable
restrictions “to accommodate other legitimate interests in the criminal trial process.”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted). Thus, a trial
judge may exclude or limit evidence to prevent excessive consumption of time, undue
prejudice, confusion of the issues, or misleading the jury. See id; see also Montana v.
Egelhoff, 518 U.S. 37, 42-43 (1996). The trial judge is entitled to broad latitude in this
regard, so long as the rulings are not arbitrary or disproportionate. Scheffer, 523 U.S. at
308. Even where the exclusion of evidence violates a defendant’s constitutional rights,
habeas relief is only appropriate if the excluded evidence had a “substantial and
injurious effect” on the verdict. See Brecht v. Abrahamson, 507 U.S 619, 637 (1993).
In denying this claim, the Nevada Supreme Court explained:
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Bergna contends that the district court abused its discretion when it
refused to admit approximately five binders of documents from the Ford
Motor Company relating to warranty complaints and repairs on the brake
systems of Ford F-150 trucks. Bergna asserts that, because his expert
could not pinpoint the precise cause of the crash, a possibility exists that
there were serious failures in two or three mechanical systems.
Therefore, Bergna argues, consumer complaints relating to key brake
components were relevant.
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The decision to admit or exclude evidence rests within the sound
discretion of the district court. Accordingly, absent a manifest abuse of
that discretion, we will not overturn the district court’s decision on appeal.
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The district court permitted the defense’s expert to testify as to his
examination of the vehicle, his experience in the field, his opinion that
additional tests were available to the State to test certain brake
components and his reliance on Ford documents to form his opinion, but
held that the Ford documents themselves were not admissible. The
district court noted that during trial the defense failed to establish that the
vacuum booster, the master cylinder and the RABS valve were defective,
and therefore the Ford documents were irrelevant and would have likely
confused the jury. The district court also determined that admitting the
five binders of documents, which contained consumer complaints from
around the country over the course of the years concerning various brake
problems, would be unduly prejudicial to the State. Due to the voluminous
appendix of documents, the district court examined four complaints
chosen by the defense. The district court noted that the complaints from
the other consumers differed from the complaints concerning Bergna’s
truck, in that the allegedly defective part, or combination of parts, were
different. The district court concluded that Bergna’s expert’s testimony
speculating that several brake components had failed did not warrant the
introduction into evidence of unrelated consumer complaints concerning
other Ford trucks. We agree. Accordingly, we conclude that the district
court did not abuse its discretion when it refused to admit the Ford
documents into evidence.
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Exh. 254, pp. 21-22.
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The trial court held that the documentation of other complaints related to the master
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cylinder or rear anti-lock braking system (RABS) was inadmissible. Exh. 166, pp. 129-
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examination of the truck, his experience, and to the fact that no additional tests were
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done on the RABS valve and master cylinder, although the components were available
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to both parties for examination and testing. The court stated that McCreary could testify
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as to whatever extent he relied on data from Ford Motor Company in forming his opinion
as to the cause of the crash. Id.
The court explained that no evidence had been presented that the brakes failed or, if
they failed, what caused the failure. Id. at 133-138. The court concluded that it would
unfairly prejudice the State to admit hundreds and hundreds of pages of material that
reflect a variety of brake problems reported by Ford consumers over the course of
years. The court then went through the four exemplar complaints that the defense
selected. The court noted that they were all different from each other and from the
factual allegations in this case. Id.
As the Nevada Supreme Court pointed out, Bergna’s expert was permitted to testify
at length regarding his opinion that the brakes must have failed and he was permitted to
refer to the Ford consumer brake complaints to the extent he relied on them. The
Nevada Supreme Court’s conclusion that the district court did not err in excluding as
unfairly prejudicial and misleading volumes of Ford consumer complaints that differed
significantly from each other and from the defense’s theory that brake failure caused the
crash simply cannot be said to be unreasonable.
Bergna has not shown that the
Nevada Supreme Court’s decision on federal ground 2 is contrary to, or involves an
unreasonable application of, clearly established federal law, as determined by the U.S.
Supreme Court, or 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).
Accordingly, ground 2 is denied.
ii. Ground 7
Bergna alleges that the trial court erred in failing to dismiss the indictment based
upon the State’s destruction of exculpatory evidence in violation of his Fifth, Sixth and
Fourteenth Amendment rights to due process and a fair trial (ECF No. 55, pp. 146-148).
The State’s loss or destruction of potentially exculpatory evidence violates due
process only when the evidence “possess[es] an exculpatory value that was apparent
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before the evidence was [lost or] destroyed, and [is] of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.”
California v. Trombetta, 467 U.S. 479, 489 (1984); see also United States v. Bingham,
653 F.3d 983, 994 (9th Cir. 2011). However, “unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58
(1988); see also Illinois v. Fisher, 540 U.S. 544, 547–48 (2004) (per curiam). “The
presence or absence of bad faith by the police for purposes of the Due Process Clause
must necessarily turn on the police’s knowledge of the exculpatory value of the
evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 56 n. *; United
States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). Even negligence in failing to
preserve potentially useful evidence is not sufficient to constitute bad faith and does not
violate due process. Youngblood, 488 U.S. at 58; see also United States v. Flyer, 633
F.3d 911, 916 (9th Cir. 2011) (“Bad faith requires more than mere negligence or
recklessness.”).
The Nevada Supreme Court rejected Bergna’s claim that the district court’s failure
to dismiss the indictment based upon the State’s failure to preserve the truck’s airbag
and cornstarch, a guardrail post that the truck struck, the truck’s master cylinder, and
failure to store the truck in a manner that would have preserved its condition. The state
supreme court explained (headings added):
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Airbag
Bergna contends that the district court abused its discretion when it
failed to dismiss the indictment upon learning that the airbag and
cornstarch granules had not been preserved. Bergna first contends that, if
the State had removed the airbag from the vehicle on the day of the
incident, the airbag would be in testable condition. Bergna, however, fails
to explain how he would have tested the airbag or what he expected the
test results to reveal or how this evidence would have been exculpatory.
Bergna seems to argue that preservation of the airbag would have
demonstrated that the cornstarch particles found on Bergna’s jacket were
from the airbag, thereby placing him in the vehicle at the moment of
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impact, supporting Bergna’s theory that he was ejected from the vehicle
after it hit the guardrail. However, because experts testified that it is
impossible to determine the source of a particular cornstarch granule,
testing of the cornstarch particles would support neither the State’s nor the
defense’s theory. NHP’s first concern upon arrival at the crash site was
the safety of those involved in the accident rather than contamination of
evidence. As standard procedure, rescue and emergency personnel wore
latex gloves, which typically are dusted on the inside with cornstarch.
Consequently, the cornstarch particles found on Bergna’s clothing could
just as easily have come from the latex gloves. Therefore, Bergna failed
to demonstrate that the State should have reasonably anticipated that the
airbag would have been material, exculpatory evidence. Accordingly, we
conclude that Bergna’s argument is without merit.
Guardrail Post
Next, Bergna contends that, because the State destroyed guardrail
post 108, the district court should have dismissed the indictment. Bergna
argues that the State’s failure to preserve the evidence and immediately
investigate the evidence after the crash prejudiced his right to a fair trial.
The State’s expert testified that he did not conduct any tests on the wood
because the pieces of wood found in the truck’s undercarriage, which
were presumably from post 108, were irrelevant to the determination of
the speed of the truck or the approaching angle. Indeed, even assuming
that the pieces of wood were from post 108, Bergna does not explain how
this evidence is material or exculpatory or how it would support his theory
of the case. The defense’s expert testified that the pieces of wood found
in the truck’s undercarriage were not natural growth and were treated with
chemicals. The State did not dispute this testimony. The defense also did
not attempt to compare the pieces of wood with the other existing posts.
Even had the State had preserved post 108, there is no indication that the
evidence would have been exculpatory.
Master Cylinder
Finally, Bergna contends that, because the State failed to preserve
the vehicle’s master cylinder, the district court should have dismissed the
indictment. Bergna first argues that the State knew from the date of the
incident that a murder investigation was realistically in the future, and
therefore, should have preserved the truck. Bergna also argues that the
State was on notice that the brakes on Bergna’s vehicle were defective
and, therefore, should have preserved the braking system. Yet, during
Bergna’s first trial in October 2001, the defense did not argue that the
brakes on the truck were defective. It was not until March 2002 that the
defense attempted to investigate and examine the truck. Moreover, the
State’s examination of the vehicle in June 1998 did not reveal the
presence or possibility of brake failure. Accordingly, the record does not
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support Bergna’s contention that the State knew of any existing or
possible brake problems.
Bergna argues that the presence of brake fluid on the surface of the
vacuum booster warrants the inference that the mast cylinder seal had
been leaking. The State’s expert testified that, if the master cylinder were
defective, investigators would have found fluids on the roadway, which
they did not. Crime scene investigators testified that there were no fluids
found on the roadway nor any other evidence that the master cylinder had
leaked. Furthermore, Bergna’s expert was unable to determine whether
the hypothetical leak occurred pre-crash or post-crash. Bergna’s expert
testified that, due to the master cylinder’s deteriorated condition in March
2002, there was no way to test it. However, the State’s expert testified
that the rust, dirt and corrosion on the master cylinder could have resulted
from the vehicle tumbling 800 feet down the hillside, its four-day stay there
through rain and snow, its helicopter flight with the attendant wind and
dust, its transport to the impound lot and, finally, the deteriorating effects
of time over four years. Experts testified that dry air causes deterioration
to rubber, and that, even if the vehicle had been covered or kept indoors,
simply through the passage of time, the rubber seal on the master cylinder
could have easily deteriorated. These circumstances were unavoidable.
Therefore, even if the State had taken additional measures to preserve the
master cylinder, Bergna has failed to show how the master cylinder would
have been material or exculpatory to his defense. Accordingly, Bergna’s
argument is without merit.
Exh. 254, pp. 14-17.
17
Due process is not implicated unless a defendant can show that police acted in
18
bad faith by failing to preserve what they knew at that time was potentially exculpatory
19
evidence. Youngblood, 488 U.S. at 58. With respect to the preservation of the airbag
20
and the guardrail post, Bergna fails to even allege that police knew that those items
21
were potentially exculpatory evidence.
22
negligently discarded the guardrail post, and such negligence does not violate due
23
process. With respect to the preservation of the master cylinder, Bergna does not
24
explain how deterioration that occurs over time could have been avoided. While he
25
argues that the State admitted it viewed the crash as suspicious from the beginning, he
26
does not even allege, much less demonstrate, that police acted in bad faith and failed to
27
preserve the master cylinder despite knowing that it was potentially exculpatory
28
evidence.
Moreover, he acknowledges that police
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Bergna has failed to demonstrate that the Nevada Supreme Court’s decision on
federal ground 7 is contrary to, or involves an unreasonable application of, clearly
established federal law, as determined by the U.S. Supreme Court, or 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). Accordingly, this court denies habeas relief as
to ground 7.
iii. Ground 8
Bergna contends that the trial court’s failure to give certain jury instructions
violated his Fifth, Sixth and Fourteenth Amendment rights to due process and
a
fair
trial (ECF No. 55, pp. 148-151).
To obtain relief based on an error in instructing the jury, a habeas petitioner must
show the “‘instruction by itself so infected the entire trial that the resulting conviction
violates due process.’”
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
Where the defect is the failure to give an
instruction, the inquiry is the same, but the burden is even heavier because an omitted
or incomplete instruction is less likely to be prejudicial than an instruction that misstates
the law. See Henderson v. Kibbe, 431 U.S. 145, 155-157 (1977); see also Estelle, 502
U.S. at 72.
With respect to spoliation of evidence, the defense proffered the following
instruction:
To establish a violation of due process resulting from the State’s
loss of or destruction of evidence, a defendant must demonstrate either
(1) that the state lost or destroyed the evidence in bad faith, or (2) that the
loss unduly prejudiced the defendant’s case and the evidence possessed
an exculpatory value that was apparent before the evidence was
destroyed.
Such loss or destruction of the evidence by the State establishes a
rebuttable presumption that had evidence been available for testing and
use, the evidence would have established the existence of facts consistent
with defense claims relating to such evidence.
Exh. 194.
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1
With respect to proximate cause, the defense proffered the following instruction:
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7
The State must prove beyond a reasonable doubt that the
defendant’s act was the proximate cause of death. The proximate cause
of death is that cause which in a natural and unbroken sequence produces
death.
Exh. 195.
The Nevada Supreme Court rejected Bergna’s claim that the trial court erred by
failing to issue those instructions. The state supreme court reasoned as follows:
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Although a defendant has a right to have the jury instructed on his
theory of defense, his theory must be supported by at least some
evidence. Vallery v. State, 46 P.3d 66, 76-77 (Nev. 2002). Determining
the appropriateness of a jury instruction is within the sound discretion of
the district court. Jackson v. State, 17 P.3d 998, 1000 (Nev. 2001).
Accordingly, we “will review a district court’s decision to give a particular
instruction for an abuse of discretion or judicial error.” Id.
Bergna first contends that, if this court determines that Bergna’s due
process rights were violated by the State’s failure to preserve evidence,
then the district court abused its discretion when it refused to give to the
jury Bergna’s proffered spoliation of evidence instruction. We conclude
that, because the evidence does not support a spoliation of evidence
theory, the district court did not abuse its discretion when it refused to
submit the spoliation of evidence instruction to the jury.
Bergna next contends that the district court abused its discretion
when it refused to submit his proffered jury instruction on proximate cause
....
Here, there is no evidence that the Nevada Department of
Transportation’s allegedly poor maintenance of the guardrail system on
Slide Mountain was the sole cause of Rinette’s death, as would be
required in order to relieve Bergna from criminal liability. Instead, the
evidence indicates that Bergna’s intentional act of driving the vehicle into
the guardrail was a substantial factor in Rinette’s death. Expert testimony
also suggested that, even if the guardrail had been in prime condition, it
was only designed to protect against low-angle collisions. Moreover, the
jury received several instructions on the State’s burden to prove the
elements of the crime beyond a reasonable doubt. Because there is no
evidence indicating that NDOT’s actions constituted a superseding cause,
we conclude that the district court did not abuse its discretion when it
refused to give the jury Bergna’s proffered proximate cause instruction.
Exh. 254, pp. 18-20.
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As discussed above in relation to ground 7, Bergna’s claim premised upon the
State’s destruction of exculpatory evidence failed because Bergna did not establish that
police acted with bad faith and destroyed evidence that they knew was potentially
exculpatory.
As such, Bergna cannot show that the Nevada Supreme Court’s
conclusion that the evidence did not support his spoliation theory was contrary to or an
unreasonable
application
of
clearly
established
U.S.
Supreme
Court
law.
Consequently, Bergna cannot demonstrate that the Nevada Supreme Court’s
conclusion that the trial court did not err in refusing to give the spoliation jury instruction
was contrary to, or involves an unreasonable application of, clearly established federal
law, as determined by the U.S. Supreme Court, or 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).
Regarding the proximate cause instruction, the Nevada Supreme Court pointed
out that no evidence was presented that any failure to maintain the guardrail was the
single cause of Rinette’s death. As discussed above as to ground 1, the jury evaluated
proffered evidence suggesting that Bergna intentionally drove the truck over the cliff as
well as expert testimony that speculated that the brakes likely malfunctioned.
No
evidence was presented that any failure of the guardrail was a superseding cause of
death, the question for the jury was whether Bergna acted intentionally or accidently lost
control of the truck. Therefore, Bergna fails to demonstrate that the Nevada Supreme
Court’s conclusion that the trial court did not err in refusing to give the proximate cause
jury instruction was contrary to, or involves an unreasonable application of, clearly
established federal law, as determined by the U.S. Supreme Court, or 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). Federal habeas relief is denied as to ground 8.
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iv. Ground 10
Bergna asserts that the trial court erred in failing to dismiss the indictment
following the improper admission of prejudicial character and prior bad act testimony, in
violation of his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair
trial (ECF No. 55, p. 151-153).
On federal habeas review, a district court may not re-examine state-court
decisions on state-law questions, but is limited to inquiring whether a conviction violated
the Constitution or federal law. Estelle v. McGuire, 502 U.S. at 68. In Nevada, a grand
jury “can receive none but legal evidence, and the best evidence in degree, to the
exclusion of hearsay or secondary evidence.” NRS 172.135(2).
In rejecting this claim, the Nevada Supreme Court explained:
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Bergna argues that testimony from several witnesses at the grand
jury proceedings was inadmissible bad act evidence. As discussed
[earlier in this order], we conclude that the bad act testimony was relevant,
probative of motive and necessary to rebut Bergna’s character witnesses,
and that the opinion testimony concerning Bergna’s grief was admissible
pursuant to NRS 50.265.
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Bergna also contends that the grand jury should not have heard
testimony from Trooper John Schilling referencing the findings of Sye
Linowitz, an engineer from Ford Motor Company, without also hearing
Linowitz’s initial, erroneous findings concerning the airbag. A pretrial
hearing indicated that Linowitz’s report contained error concerning speed
and distance and, therefore, the timing of the airbag deployment.
However, while Trooper Schilling’s grand jury testimony refers to
Linowitz’s reports, Schilling did not make any direct statement about the
results from Linowitz’s report. Instead, Trooper Schilling simply testified
that he was aware that Linowitz was investigating the crash. Therefore,
we conclude that the reference to Linowitz having investigated the crash
was harmless and did not require the submission of his initial erroneous
report to the grand jury or dismissal of the indictment. Accordingly,
Bergna’s argument is without merit.
Bergna also contends that the submission to the grand jury of
Bergna’s entire, unredacted statement, which included reference to a
polygraph test, prejudiced Bergna. A copy of Bergna’s statement was not
included in the record on appeal. The State summarized that the remark
concerning the polygraph was brief, that the results of the test were never
discussed and that the State never used the information against Bergna.
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7
The State asserts that the statement revealed only that officers requested
Bergna take a polygraph, that he agreed to take the test and that he had
never taken the test before. Bergna does not dispute this assertion.
In the absence of a written stipulation from both parties, the results
of a polygraph test are inadmissible. Furthermore, evidence “that a
defendant in a criminal trial either refused to take a polygraph test or
offered to submit to one is inadmissible and incompetent evidence.”
Because there is nothing in the record on appeal that the statement
included either a refusal or an offer by Bergna to take the polygraph test or
that the statement included polygraph test results, Bergna’s argument is
without merit.
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Finally, Bergna has not demonstrated that the alleged errors in the
grand jury proceeding prejudiced his right to a fair trial. Even if Bergna’s
contentions regarding the inadmissibility of certain evidence before the
grand jury may have merit, sufficient evidence existed to support the
grand jury’s determination and the subsequent indictment, including, but
not limited to: (1) a baseball hat found on the roadway several feet in front
of the guardrail, while Bergna was found 80 feet down the hillside and
allegedly ejected out of the window after hitting the guardrail; (2) testimony
that the passenger airbag was turned off; (3) expert conclusions that
Bergna was not in the vehicle when it went over the guardrail and that
Bergna could not have been realistically ejected from the vehicle; (4) lack
of evidence of any attempt to stop the vehicle from crashing through the
guardrail; (5) lack of evidence indicating that the vehicle was out of
control; (6) lack of evidence demonstrating that brake fluid had leaked or
that the steering or braking systems were defective; (7) testimony that the
roadway near the crash was not overly steep; (8) a reenactment test
indicating that a simple turn could have prevented the vehicle from
crashing into the guardrail; (9) the condition of the roadway, which banked
to the left, and not to the right, where the guardrail was located; (10)
expert conclusions that damage to Bergna’s shoes was more consistent
with dragging on the roadway than rolling down the hillside; (11) lack of
visible signs of trauma or torn clothing on Bergna; and (12) the presence
of two gasoline cans in a dangerous condition in the back of Bergna’s
vehicle, which were purchased just prior to Bergna picking the victim up
from the airport. Accordingly, we conclude that the district court did not err
when it refused to dismiss the indictment.
Exh. 254, pp. 10-13.
25
Testimony that Bergna’s emotional response did not seem genuine, that he asked
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27
28
someone out on a date a month before his wife’s death and about the snowblower
incident was discussed above with respect to federal ground 1.
32
Bergna has not
1
demonstrated that the Nevada Supreme Court was unreasonable in deeming that such
2
bad act testimony was relevant, probative of motive and necessary to rebut Bergna’s
3
character witnesses, and that the opinion testimony concerning Bergna’s grief was
4
admissible pursuant to NRS 50.265. Further, as the state supreme court pointed out,
5
6
7
testimony referencing Sye Linowitz’s testing of the airbag merely stated that Linowitz
conducted tests, which were inconclusive. Exh. 3, p. 76.
8
It is also clear that the Nevada Supreme Court’s detailed conclusion that, in any
9
event, sufficient evidence supported the grand jury’s determination and subsequent
10
11
indictment, as outlined above, cannot be said to be unreasonable.
Bergna has not demonstrated that the Nevada Supreme Court’s conclusion that
12
13
14
the trial court did not err in when it did not dismiss the indictment following the
admission of character and prior bad act testimony, was contrary to, or involves an
15
unreasonable application of, clearly established federal law, as determined by the U.S.
16
Supreme Court, or was based on an unreasonable determination of the facts in light of
17
the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal
18
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habeas relief is denied as to ground 10.
C. Ineffective Assistance of Counsel (IAC) Claims
20
21
Bergna alleges numerous instances of ineffective assistance of trial counsel in
22
ground 5, and of appellate counsel in ground 6, which he argues violated his Fifth, Sixth
23
and Fourteenth Amendment rights (ECF No. 55, pp. 99-125).
24
Ineffective assistance of counsel claims are governed by the two-part test
25
announced in Strickland v. Washington, 466 U.S. 668 (1984).
26
Supreme Court held that a petitioner claiming ineffective assistance of counsel has the
27
burden of demonstrating that (1) the attorney made errors so serious that he or she was
28
not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
33
In Strickland, the
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deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-91
(2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
Id.
A reasonable probability is “probability
sufficient to undermine confidence in the outcome.” Id. Additionally, any review of the
attorney’s performance must be “highly deferential” and must adopt counsel’s
perspective at the time of the challenged conduct, in order to avoid the distorting effects
of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to overcome the
presumption that counsel’s actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured
against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations
omitted).
If the state court has already rejected an ineffective assistance claim, a federal
habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state
supreme court’s decision on a claim of ineffective assistance of counsel as “doubly
deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411,
1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential’ look
at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403
(internal citations omitted).
Moreover, federal habeas review of an ineffective
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1
2
3
4
assistance of counsel claim is limited to the record before the state court that
adjudicated the claim on the merits. Cullen, 563 U.S. at 181-84. The United States
Supreme Court has specifically reaffirmed the extensive deference owed to a state
court's decision regarding claims of ineffective assistance of counsel:
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Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id. at
689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review
is “doubly” so, Knowles, 556 U.S. at ––––, 129 S.Ct. at 1420. The
Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at ––––, 129 S.Ct. at 1420. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential
standard.
Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance
13
of counsel must apply a ‘strong presumption’ that counsel’s representation was within
14
the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland,
15
466 U.S. at 689). “The question is whether an attorney’s representation amounted to
16
incompetence under prevailing professional norms, not whether it deviated from best
17
practices or most common custom.” Id. (internal quotations and citations omitted).
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i. Ground 5
The Nevada Supreme Court summarily affirmed the denial many of the ineffective
assistance of trial counsel claims that Bergna raises here on the basis that he failed to
demonstrate prejudice. Exh. 297. When the last state-court decision is a summary
denial on the merits, the “unreasonable application” clause requires that a federal
habeas court look to the last reasoned state-court opinion in determining whether the
state court’s rejection of the claims was contrary to or an unreasonable application of
clearly established federal law under 28 U.S.C. section 2254(d)(1). See Johnson v.
Williams, 133 S.Ct. 1088, 1094 n.1 (2013) (citing Ylst v. Nunnemaker, 501 U.S. 797
(1991)).
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7
Ground 5(A)
Bergna alleges that trial counsel was ineffective because they presented a
defense theme to the jury based on evidence of faulty brakes, blue paint and bad faith
by Ford Motor Corporation and the Hartford Insurance Company, before the court ruled
on the admissibility of evidence of consumer complaints about Ford brakes. The court
later ruled that such evidence was inadmissible. The state district court reviewed this
claim in detail:
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Bergna alleged that David Schwartz, in delivering the opening
statement, made “specific promises about what the evidence at trial would
reveal,” but then adds that “the vast majority of the evidence supporting
the defense opening statement was not actually presented at trial,”
including, but not limited to, the expected appearance and testimony from
Alan Assay and Sye Linovitz, two people found on the State’s witness list,
who would ultimately not testify at trial, and Schwartz’s single reference to
“Ford documents,” which were offered but not admitted at trial.
Accordingly, counsel was ineffective. The Court disagrees.
First, assuming we are actually dealing with a promise, the Court is
skeptical about whether making a promise in an opening statement in the
guilty phase of a murder trial that goes unfulfilled amounts to ineffective
assistance under Strickland. Bergna did not present any evidence
establishing that, by mentioning items of information in an opening that
were, ultimately, never offered or admitted, is objectively unreasonable
under a prevailing professional norm. This is clear failure of proof.
Nevertheless, assuming reasonably competent trial lawyers may not
make promises and then not fulfill them, the Court has read the comments
at issue in the context of the entire opening statement, and after reading
those comments in conjunction with Schwartz’s testimony here, the Court
finds that Schwartz made no promises. Hence, counsel was not
ineffective in delivering his opening statement in the manner he delivered
it.
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But even assuming that, by mentioning the two points identified by
Bergna, Schwartz’s presentation constituted an unreasonable act under
Strickland, Bergna was not prejudiced by it.
First, the Court finds that the jury was told that counsel’s comments
are not evidence, and that it must base its verdict on the evidence
presented. The jury is presumed to have followed that instruction. Bergna
presented no evidence rebutting or tending to rebut that presumption.
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2
3
4
5
6
7
Second, the Court finds that Bergna presented no evidence that the
jury attached any significance to any part of Schwartz’s opening
statement, let alone the two parts at issue here. Moreover, while the
Court is mindful that the jury appeared to be taking notes during
Schwartz’s opening statement, Bergna presenting no evidence proving or
tending to prove what these jurors found noteworthy.
Third, the Court finds that nearly one entire month passed between
the delivery of the opening statement and the point at which the defense
rested. In the meantime, defense counsel were able to pick away at the
State’s experts and present experts of their own, regardless of the items
that were presented in the guilt phase of the trial.
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Fourth, the Court finds that Schwartz’s error did not in any way
undermine the primary defense: namely, that Bergna, a man of long
standing good character, with no motive to kill his wife, had been involved
in a tragic accident, which ended the life of a woman he loved and who
loved him.
Fifth, the Court notes that this is not a case in which the Ford
documents and/or Linovitz and Assay were never mentioned again by the
defense. The Court therefore finds that, in large part, the “promises”
made in opening statement, if that is what they were, were fulfilled. In
fact, the Court ruled that McCreary, the defense’s brake expert, could rely
on those documents in expressing his opinions about bad brakes. Later,
when McCreary testified, and after he had detailed his opinions regarding
the problems with Bergna’s brakes, and the inadequacy of the State’s
examination of the brakes, he did not “find it unusual that Bergna’s Ford F150 developed a brake defect.” Consequently, to whatever extent
Schwartz made a “promise” involving Ford documents, it was fulfilled by
McCreary.
Insofar as Linovitz and Assay are concerned, the Court finds that
their absence from trial could not have undermined Bergna’s primary
defense. First, when Schwartz commented on these two men, along with
their apparent bias to their respective employers—Ford and Hartford—and
their animus to Bergna, Schwartz also stated they were State witnesses.
The Court believes it more likely that the jury here was not wondering why
the defense failed to call the biased State experts but understanding why
the State didn’t.
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26
In sum, Bergna failed to prove, by a preponderance of evidence,
that he was deprived of his right to the effective assistance due to the
content of the opening statement. He also failed to demonstrate
prejudice.
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Exh. 283, pp. 3-5. The state district court’s decision is eminently reasonable;
Bergna has failed to demonstrate that the Nevada courts unreasonably applied
Strickland.
Ground 5(B)
Bergna argues that trial counsel were ineffective because they opened the door to
highly prejudicial testimony by his ex-wife (ECF No. 55, pp. 105-106). He contends that
he and his former wife had not been in contact for over a decade, and therefore,
reasonably effective counsel would have limited their questions of Bergna’s character
witnesses, his sister and a friend, to the ten years prior to Rinette’s death. Id.
The Nevada Supreme Court affirmed the denial of this claim, reasoning that trial
counsel made a tactical decision. Exh. 297, p. 3. The state supreme court explained
that “Trial counsel testified at the evidentiary hearing that based on the State’s case,
they needed to negate or diminish any inference that appellant had bad character. Id.
Defense counsel Smith testified at the postconviction evidentiary hearing that he
did not want to put on any character witnesses because he thought they distracted from
the main theme of the defense that this was an accident.
Exh. 277, pp. 63-64.
However, defense counsel Puentes testified that, after the State’s case-in-chief:
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I felt that we were in a lot of trouble . . . . at that point Peter was a
very unlikable character, and I think we needed to rehabilitate him, so my
thought is that we didn’t open the door, we were simply rebutting what was
– what was said on direct examination and we needed to do something to
rehabilitate our client.
22
Id. at 14. Puentes testified that, as a practical matter, he did not see how they
23
would have limited the testimony of Bergna’s sister and his friend to only the last ten
24
years and that the defense wanted those witnesses to testify to Bergna’s longstanding
25
good character. Id. at 14-15.
26
Defense counsel Schwartz testified that he was the lead lawyer on the case and
27
that, while the three lawyers worked as a team, if a decision had to be made, he would
28
be the one to make it. Exh. 299, p. 5. He also testified that he saw no reasonable way
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to ask a friend of Bergna, who had known Bergna for 25 years, to limit his testimony to
the last 10 years. Id. at 11-12. He noted that that would be a red flag for the jury, who
would likely wonder what testimony the defense was trying to avoid.
Id. at 12.
Schwartz testified that he believed the defense had absolutely no choice but to put on
character witnesses to try to rehabilitate the jury’s view of Bergna. Id. at 13-14. He had
no recollection of counsel Smith disagreeing about presenting character witnesses. Id.
Schwartz also stated that Bergna was adamant that the defense call these witnesses
and that he agreed with Bergna. Id. at 14-15.
The state district court held:
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First, it is clear that a very important element of the overall defense
case was Bergna’s good character, i.e., not only did he not murder his
wife, he is simply not the sort of person who would harm his wife, and
Bergna does not quarrel with the general proposition that advancing a
character defense in this case was reasonable. Indeed, at Bergna’s
request, the Court gave an instruction on the subject and effect of good
character in relation to reasonable doubt. See Instruction 31.
In addition, the defense, quite understandably, was interested in
negating or diminishing any inference that Bergna may have bad
character. The Court agrees. But where counsel went astray, according
to Bergna, was presenting the various character witnesses in such a way
that Ms. Tillery could testify as a rebuttal witness. Reasonable counsel,
Bergna alleged, “would have instead limited their evidence about Mr.
Bergna to the 10 years prior to Ms. Riella-Bergna’s death.”
To prevail on this claim of ineffective assistance, Bergna had to
prove that presenting character evidence dating back over ten years prior
to his wife’s death was unreasonable under a prevailing professional
norm. He presented no such evidence from any source.
The Court is, of course, mindful that Mr. Smith had some misgivings
about putting on a character defense, but Schwartz testified he had no
recollection of Smith having any misgivings.
The Court believes
Schwartz’s version is true.
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Moreover, according to Schwartz, Bergna was “adamant” that they
call these character witnesses. In addition, the fact of the matter is that
Bergna’s old friends knew him best, and they were his better character
witnesses.
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Furthermore, Schwartz credibly testified that he did not consider
limiting the witnesses to a particular time frame; he believed, and
reasonably so, that the defense had to give the jury a reason to like Peter
Bergna, and he did not believe calling a witness like Mr. Sampson, for
example, who had known Bergna for 25 years and having him limit himself
to the past 10 years was the way to go about it. Again, Bergna failed to
prove this strategy was unreasonable, particularly where, as here, a
significant part of Bergna’s adult life would be left out.
In sum, the Court finds that, even if the scope of the character
defense opened the door to Ms. Tillery, the Court finds the overall
strategy, which included a character defense, was reasonable, and
certainly not shown to have been substandard in this case.
9
Exh. 283, pp. 5-7. Bergna argues here that without his former wife’s testimony
10
there is a reasonable probability that the jury would not have returned a guilty verdict
11
(ECF No. 55, p. 106). This conclusory statement does not serve to carry his burden
12
under Strickland, and he has not demonstrated that the Nevada Supreme Court
13
unreasonably applied Strickland.
14
Ground 5(C)
15
Bergna contends that trial counsel were ineffective when they failed to object to
16
inadmissible evidence of State’s witness inmate Darrell Coursey’s religious beliefs (ECF
17
No. 55, pp. 106-109). Bergna argues that the improper questions had no evidentiary
18
purpose other than bolstering the witness’ credibility.
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The Nevada Supreme Court summarily affirmed the denial of this claim on the
basis that Bergna did not show prejudice. Exh. 297, p. 2.
21
Defense counsel Puentes testified at the state postconviction evidentiary hearing
22
that he thought Coursey’s testimony was “incredulous,” that he did not think he was a
23
good witness for the State and that the defense team was not overly concerned that
24
Coursey was going to make a big difference in the case. Exh. 277, p. 15.
25
Defense counsel Schwartz testified that he was personally skeptical in general
26
about jailhouse religious conversions and jailhouse confessions and that he attempted
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to demonstrate on cross-examination that Coursey was not a credible witness. Exh.
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299, pp. 16-17.
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The state district court denied the claim, reasoning:
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Under direct examination by the prosecutor, Darrell Coursey, a
jailhouse informant, testified that Bergna confessed to him. In doing so,
Coursey also mentioned his religious beliefs and his efforts “to practice the
things that the faith teaches [him].”
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Bergna alleged . . . that trial counsel was ineffective in failing to file a
motion in limine prohibiting this sort of improper examination, or by
otherwise failing to object when it was tendered.
...
A witness’s religious beliefs are “inadmissible for the purpose of
showing that by reason of their nature his credibility is impaired or
enhanced. NRS 50.105. But here, the Court is not persuaded, from the
trial record, that Coursey’s testimony, in context, was offered to enhance
credibility.
For example, Coursey was not asked about any relationship
between the command against bearing false witness and his version of his
encounter with Bergna. Rather, the Court believes that Coursey’s religious
conversion is what inspired him to attend Bible Studies, and it was after
one such meeting, a meeting Bergna attended, that he and Bergna had
their conversation. Later, Coursey was asked about who he had talked to
about coming forward and testifying. In response, Coursey named his
girlfriend and his pastor. This exchange, central to Bergna’s allegations,
does not inculcate the Commandment.
Assuming Coursey’s references to his religion approached the line
warranting an objection, Schwartz, without contradiction or impeachment,
explained why he did not object, detailing his skepticism with the religious
conversions of jailhouse informants generally, and with the notion that
simply asking a jailhouse “snitch” about his religious beliefs is actually
bolstering his credibility specifically. The Court finds this testimony to be
credible.
Schwartz was, of course, quizzed about whether the jury had the
benefit of his experience, and Schwartz made it clear that he had
anticipated Coursey’s testimony, and was ready to show, on cross, that
the jury would share his skepticism, and conclude, as he did, that Coursey
was a snitch “out to feather his own nest.” Given Schwartz’s credible
testimony, the Court finds that he had a good idea that Coursey might
mention something of his religion, but, based on his experience, Schwartz
was skeptical of such religious conversions by jailhouse informers,
particularly ones like Coursey who had a criminal record and conveyed
that skepticism to the jury through his examination. Consequently,
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Schwartz did not object when Coursey started talking about his faith.
Instead, Schwartz preferred to impeach Coursey, who appeared slovenly,
shifty and not very credible, and then establish, ultimately, that Coursey’s
entire account was contrived. This strategy, under Strickland, is presumed
reasonable, and, taken from Schwartz’s perspective at the time, was in
fact reasonable. Bergna presented no evidence drawing that conclusion
into question.
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Exh. 283, pp. 7-9. Bergna presents nothing here to demonstrate that the Nevada
courts unreasonably applied Strickland.
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Ground 5(D)
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12
Bergna argues that trial counsel failed to fully impeach Darrell Coursey with
evidence that he was being treated with psychological medication, that he had
newspaper clippings in his cell, that he had lied to the court in another case and that he
received a “tremendous benefit” for testifying in this case (ECF No. 55, pp. 110-112).
The Nevada Supreme Court summarily affirmed the denial of this claim. Exh. 297, p. 2.
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Defense counsel Schwartz testified at the state postconviction evidentiary hearing
that he was aware that Coursey was on psychiatric medication and that, as he recalled
“they were for a mood disorder, as opposed to a broad disorder.” Exh. 299, pp. 18-19.
He stated that the defense considered presenting evidence that newspaper clippings
were confiscated from Coursey’s cell in order to further their theory that Coursey
fabricated the confession based on news articles about the case, but they were unable
to ascertain what the clippings were and what specific information Coursey may have
learned. Id. at 19-20. Schwartz testified that he believed Coursey was an ineffective
witness—Coursey looked unkempt and did not make eye contact—and that he
succeeded on cross-examination in highlighting Coursey’s lack of credibility. Id. at 2224.
In denying this claim, the state district court reasoned:
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Since Coursey was the only witness to whom Bergna confessed, or
to who he is alleged to have confessed, Bergna claimed that defense
counsel could have and should have done a better job of impeaching him.
This claim was not proven.
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a. Impeachment with Medical History
First, Bergna alleged that defense counsel should have learned that
Coursey “had been receiving psychological medication while at the
Washoe County Detention Center,” and then secured production of
Coursey’s medical file. Once that was accomplished, defense counsel
could determine what types of drugs Coursey was on when he spoke to
Bergna and then determine if Coursey could be impeached based on his
psychological condition. Schwartz testified credibly that he was aware that
Coursey had been using medication, and it was for a mood disorder.
Schwartz did not know the names of the medications, however.
Unfortunately, Bergna did not establish just exactly what medications
Coursey was using, nor did he establish the dosages. Certainly, proving
those facts was part of Bergna’s burden of proof here. Presumably,
Bergna believes that information existed somewhere, and a reasonably
effective trial lawyer would have conducted an investigation designed to
learn that information. Again, Bergna did not present any evidence proving
or tending to prove that a reasonably competent lawyer would have
conducted such an investigation, but more importantly, he failed to
establish what such an investigation would have in fact revealed.
In sum, Bergna presented no evidence establishing what
medications Coursey was using, the dosages, or the effects, if any, from
using them. Consequently, there was no effort made in the present
proceeding to show what information a reasonably competent trial lawyer
would have used to impeach Coursey, nor did Bergna prove that Coursey
would have been impeached. In short, the Court finds a double failure of
proof under Strickland.
b. Impeachment with Newspaper Clippings
Bergna also alleged that trial counsel should have investigated and
learned that Coursey had newspaper clippings in his cell. Had counsel
done so, Bergna alleged counsel could have argued that Bergna did not
confess after all; instead, Coursey merely testified about what he learned
from reading the clippings. This claim also suffers from failure of proof.
First, defense counsel testified credibly that he was aware of the
clippings, but, upon investigation, could not pin it down: “We could not
establish that the newspaper clippings were . . . we could produce no
independent testimony about what the newspapers or what specific
information he obtained from newspapers.” The Court therefore finds that,
while counsel was aware of the newspaper clippings, counsel could not
pin down just exactly what the clippings involved. Consequently, the Court
finds that the matter of newspaper clippings was investigated, and that the
scope of the investigation was reasonably complete. Furthermore, since
the actual clippings were not produced in the present proceeding and no
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one testified about the content of the clippings, Bergna also failed to
demonstrate prejudice.
c. Impeachment with “Tremendous Benefits” for Testifying
Bergna also alleged Coursey could have been impeached “with
evidence demonstrating that he received tremendous benefits for
testifying in another case because he was eligible for adjudication of
habitual criminal, but the State did not seek this enhancement against
him.” Bergna offered no evidence proving or tending to prove that these
“tremendous benefits” existed. In other words, the Court finds that, given
the trial record and that of the evidentiary hearing, there simply was no
deal for Coursey’s testimony and Bergna failed to prove there was.
Moreover, the trial record shows that Schwartz examined Coursey
extensively on his criminal record, plea deals, sealed transcripts, and the
aborted effort to withdraw a plea. In addition, Schwartz got Coursey to
concede he “attempt[ed] to cooperate . . . to assist yourself as well as to
assist law enforcement” on a variety of occasions and that Coursey may
have expected benefits here. Schwartz even asked about the other case
alluded to in Bergna’s pleadings: namely, the Mr. O’s murder, and a
potential drug charge arising while Coursey was in jail. Moreover, the
Court gave a limiting instruction addressing Coursey explicitly, and
Schwartz crafted an elegant argument around that instruction.
In short, the record shows, despite Bergna’s allegation to the
contrary, that Schwartz made every reasonable effort to impeach Coursey.
Whether another viable line of impeachment evidence could have been
adduced about habitual criminal adjudications, assuming the Court could
plumb the depths of the applicability of that enhancement to Coursey,
Bergna failed to prove Schwartz’s failure to pursue it, along with or in
contrast to his extensive effort to impeach Coursey, was unreasonable in
this case. The Court also finds that the potential of a habitual criminal
adjudication, even if viable, would not have added any more weight to the
tendered effort to impeach Coursey already delivered by trial counsel.
22
....
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e. Impeachment with Other Jailhouse Informants
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Next, Bergna contends that, once defense counsel learned the State
intended to use Coursey, a jailhouse snitch, to testify about a confession,
they should have conducted an investigation that could have led to the
discovery of other inmates who might impeach Coursey and his version of
the facts and details of his conversation with Bergna.
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First, Bergna failed to prove that a reasonable lawyer would have
conducted that investigation. He also failed to prove prejudice, because he
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did not show that such an investigation would have generated anything
admissible at the time of trial.
On the other hand, the pleadings and supporting documents show
that, years after the fact, three men, each with their own credibility
problems, wrote [appellate counsel] Mr. Cornell some unsolicited and
unauthenticated letters respecting Coursey and his versions of the events.
But trial counsel’s behavior must be viewed from his perspective at the
time of the act or omission. From that perspective, a perspective anchored
in Strickland, it is far from clear how or whether a lawyer would simply
show up at the jail, uninvited, and really get anywhere with what would
have been at that time three strangers, each with their problems.
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Given the circumstances alluded to by the other inmates, Bergna
most certainly could have been of considerable assistance in identifying
these inmates for his lawyers, but it would appear that never happened.
Accordingly, the Court finds that Bergna failed to show that counsel’s lack
of investigation was unreasonable here.
In addition, Bergna failed to establish prejudice. First, the letters
accompanying the Petition were never authenticated, and none of the
other inmates testified in our evidentiary hearing. As a result, the letters
were inadmissible in any proceeding. Consequently, without the live
testimony of the authors, there has simply been no showing that the result
of Bergna’s trial would have been different.
16
Exh. 283, pp. 9-13.
Bergna has not demonstrated that the Nevada courts
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unreasonably applied Strickland.
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Ground 5(E)
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Bergna asserts that trial counsel failed to object to the admission of inadmissible
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evidence of alleged threats against witnesses for the State, namely inmate Coursey and
21
Bergna’s neighbor Cindy Glatz (ECF No. 55, pp. 112-113). The Nevada Supreme Court
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affirmed the denial of this claim, explaining:
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Appellant failed to demonstrate deficiency or prejudice. Neither
witness testified that appellant threatened them. Rather, the informant
testified only that prison informants were not liked in prison and the
neighbor testified that appellant had once made her uncomfortable by
noting that he noticed that her husband was often away. Trial counsel
testified at the evidentiary hearing that they did not object because they
thought the better strategy was to impugn her credibility on cross
examination. Further, appellant failed to demonstrate a reasonable
probability of a different outcome at trial had trial counsel objected.
Therefore, the district court did not err in denying this claim.
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Exh. 297, p. 4. The Nevada Supreme Court pointed out that the record belies
Bergna’s contention that these witnesses testified as to threats. Bergna has not shown
that the state supreme court’s determination that he failed to show that counsel was
ineffective or that he was prejudiced was an unreasonable application of Strickland.
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Ground 5(F)
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Bergna contends that trial counsel failed to object to the admission of victim
impact evidence during the guilt phase of the trial (ECF No. 55, p. 114).
specifically points to the testimony of several family members that family was everything
to Rinette. The Nevada Supreme Court affirmed the denial of this claim as belied by the
record because trial counsel filed a pre-trial motion to exclude this evidence, which was
denied. Exh. 297, pp. 2-3; Exh. 299, pp. 25-26. This claim lacks merit.
12
Ground 5(G)
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Bergna argues that trial counsel was ineffective because they failed to properly
address several pieces of bad-act and bad-character evidence.
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Ground 5(G)(1)
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Bergna
Bergna argues that trial counsel failed to seek exclusion of allegedly highly
prejudicial testimony by a witness whose child was present when the television was
turned on at Bergna’s house and it was on the Playboy channel (ECF No. 55, pp.114115). The Nevada Supreme Court affirmed the denial of this claim, concluding that
Bergna failed to demonstrate deficiency or prejudice. The state supreme court pointed
out that trial counsel testified at the postconviction evidentiary hearing that, because the
trial court had already ruled the testimony admissible, they made a tactical decision to
deal with it by undermining the witness’s credibility on cross examination. Exh. 297, p.
4.
Defense counsel Schwartz testified at the state postconviction evidentiary hearing
that the witness was “ridiculous” and that the tactical decision was to “let her talk”
because her testimony became more and more incredulous and bizarre. Exh. 299, pp.
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28-29 (see also exh. 277, pp. 17-20, defense counsel Puentes’ similar testimony about
that tactical decision).
Bergna has not demonstrated that the Nevada Supreme Court’s rejection of this
claim was an unreasonable application of Strickland.
Ground 5(G)(2)
Bergna claims that trial counsel commented during jury selection that jurors would
not hear any evidence that Bergna belittled his wife, but the jury later heard such
evidence (ECF No. 55, p. 115). The Nevada Supreme Court affirmed the denial of this
claim, concluding that Bergna failed to demonstrate deficiency or prejudice. The court
pointed out that trial counsel testified at the evidentiary hearing that they did not believe
that the State’s evidence should be characterized as “belittling” and the court
determined that this was a reasonable belief. Exh. 297, p. 5.
Defense counsel Puentes testified: “I would today still say that no witnesses
testified that Peter belittled [Rinette].” Exh. 277, p. 21. He stated that Bergna and his
wife were married for several years and he did not view testimony about two or three
arguments between spouses as evidence of “belittling.” Id. at 20-21.
This court notes that there is no evidence that defense counsel’s comment was
heard or considered significant by any of the jurors who were ultimately empaneled.
Further, this statement was made during jury selection before a lengthy trial. It cannot
be said that the Nevada Supreme Court’s conclusion that Bergna did not show a
reasonable probability of a different outcome at trial was unreasonable.
Ground 5(G)(3)
Bergna argues that trial counsel did not seek a limiting instruction as to the
evidence of uncharged misconduct that the State introduced (ECF No. 55, pp. 115-116).
The Nevada Supreme Court summarily affirmed the denial of this claim. Exh. 297, p. 2.
The state district court explained that defense counsel declined the court’s
invitation to give the limiting instruction at least twice. Defense counsel specifically
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indicated that they were concerned that such instruction would highlight the testimony
and possibly cause jurors to wonder why an instruction accompanied one lay witness
and not another. The court held that Bergna failed to demonstrate that the tactical
decision was objectively unreasonable or that there was a reasonable probability of a
different outcome had the instruction been given. Exh. 283, pp. 18-19.
Defense counsel Puentes testified at the state postconviction evidentiary hearing
that the State was obligated to offer the limiting instruction each time the evidence was
presented but the State failed to do so until “late in the day.” Exh. 277, pp. 21-23. The
defense concluded that a limiting instruction at that time would bring more attention to
Bergna’s ex-wife’s testimony. Puentes explained that the second rationale was that it
was the State’s error, and therefore, it could potentially be an issue for appeal. Id.
Here again, Bergna utterly fails to demonstrate how the state courts’ disposition
of this ground was unreasonable under Strickland.
Ground 5(G)(4)
Trial counsel failed to correct the State’s insinuation that Bergna was engaged to
another woman four months after his wife’s death, when he was not engaged until two
years after his wife’s death. In affirming the denial of this claim, the Nevada Supreme
Court pointed out that trial counsel testified at the state postconviction evidentiary
hearing that the only way to present information about Bergna’s relationship with his
fiancée was to have one of them testify. Trial counsel did not want that, and Bergna
agreed with the strategy. Exh. 297, p. 4.
Defense counsel Schwartz testified at the state postconviction evidentiary hearing
that while Bergna was not engaged to another woman four months after Rinette’s death,
he began the relationship about that time, which “some people would consider to be a
relatively short period of time after Rinette’s death.” Exh. 299, p. 32. The defense had
already made the decision that neither Bergna nor his fiancée, Robin, would testify,
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which would have been the way in which to correct that misstatement. Id. at 32-33; see
also exh. 277, p. 21-23 (defense counsel Puentes’ similar testimony).
The state supreme court determined that Bergna failed to demonstrate a
reasonable probability of a different outcome had evidence to clarify their relationship
been presented, and here Bergna has failed to demonstrate that the affirmance of the
denial of the claim was an unreasonable application of Strickland.
Ground 5(G)(5)
Bergna claims that trial counsel failed to fully impeach Cindy Glatz on the basis
that she had learned information from Rinette’s former live-in boyfriend and that she
displayed “odd” behavior such as climbing down the hill to the truck to retrieve Rinette’s
books and bathing nude in her front-yard hot tub (ECF No. 55, pp. 116-117).
The Nevada Supreme Court concluded that Bergna failed to show deficiency or
prejudice and noted that he failed to produce any evidence to support the claims
regarding the ex-boyfriend or hot tub. Further, the neighbor was cross-examined about
Rinette’s things on Slide Mountain and the state supreme court determined that Bergna
failed to show a reasonable probability of a different outcome had a more effective cross
examination been conducted. Exh. 297, p. 5. Bergna has offered no evidence that
Glatz based her testimony on what she learned from the boyfriend. Respondents point
out that the prosecution referenced Glatz in closing argument only as to the snowblower
incident, which she witnessed (ECF No. 59, p. 65; Exh. 196, p. 7).
Bergna has failed to demonstrate that the affirmance of the denial of the claim
was an unreasonable application of Strickland.
Ground 5(G)(6)
Bergna contends that trial counsel failed to fully impeach Rinette’s Italian aunt,
Gianna Riella, by showing that there was a language barrier between Rinette and
Gianna. Bergna argues counsel failed to use correspondence between he and his wife
that contained affectionate language and did not reflect any marital difficulties to
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impeach Gianna’s testimony that the couple was not in close contact (ECF No. 55, pp.
118-119). The Nevada Supreme Court affirmed the denial of this claim as belied by the
record because trial counsel inquired into the language barrier, the jurors could see that
Gianna needed an interpreter, and counsel introduced the letters through another letter.
Exh. 297, pp. 5-6.
Bergna includes in this ground a conclusory claim that trial counsel was ineffective
for failing to file a motion to exclude Gianna’s testimony that Rinette planned to buy a
condominium in Italy as unreliable hearsay. However, he fails to demonstrate that such
a motion had any reasonable likelihood of success or of changing the outcome of trial.
Bergna has not demonstrated that the state supreme court’s decision was
unreasonable under Strickland.
Ground 5(H)
Bergna claims that trial counsel failed to consult with a forensic expert in brake
failure analysis, instead relying on a mechanic, and also failed to timely examine the
brakes (ECF No. 55, p. 119). The Nevada Supreme Court affirmed the denial of this
claim because Bergna did not provide any evidence regarding what a forensic brake
expert would have testified to, and therefore, failed to demonstrate deficiency or
prejudice. Exh. 297, p. 3.
Bergna has failed to demonstrate that the state supreme court unreasonably
applied Strickland. This court notes that the state district court found that Bergna’s
defense team discounted a brake failure theory and only later after the first trial, took a
“fresh look” at the brakes. Exh. 283, pp. 24-25. Thus, the trial court concluded that
Bergna failed to show his counsel’s approach was substandard under the particular
circumstances. Id.
Defense counsel Smith testified at the state postconviction evidentiary hearing
that the defense considered hiring a forensic brake expert rather than a mechanic, but
they had engaged a significant number of experts already and were growing concerned
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about costs. Exh. 277, pp. 87-88. Also, Smith testified that he was unable to identify a
discrete forensic specialty involving just brakes and that that generally falls within the
purview of the testimony of an expert who worked in law enforcement and accident
reconstruction. Id.
Ground 5(I)
Bergna argues that trial counsel failed to protect his right to present exculpatory
evidence in two particular instances (ECF No. 55, pp. 119-121).
Ground 5(I)(1)
Trial counsel failed to request the personnel file of State expert witness mechanic
Dewey Willie, which revealed that Willie had been reprimanded for an act of dishonesty.
Willie testified about his examination of the truck, including his assessment that the
braking system was in working order. In affirming the denial of this claim, the Nevada
Supreme Court stated:
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Apparently, the same week that this expert testified, charges were
sustained against him for twice falsifying timesheets. Appellant failed to
demonstrate that this evidence was material and therefore failed to
demonstrate that counsel was ineffective for failing to specifically request
the file. Therefore, the district court did not err in denying these claims.
18
Exh. 297, p. 6.
19
Defense counsel Schwartz testified that based on Willie’s testimony he assessed
20
him as not particularly competent. Exh. 299, pp. 40-41. He acknowledged that such
21
conduct could have been relevant to Willie’s truthfulness, but stated that he was
22
unaware of and had no reason to know about the timesheets issue. Id.
23
This court notes that it is unclear whether evidence of the timesheets would have
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been admissible, and even if admissible, it likely would have had minimal impact as it
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would not have significantly undermined Willie’s testimony about the brakes. Bergna
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has not demonstrated a reasonable probability of a different outcome had defense
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counsel questioned Willie about the work reprimand.
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Nevada Supreme Court unreasonably applied Strickland.
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He has not shown that the
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Ground 5(I)(2)
Bergna alleges generally that trial counsel failed to challenge the chain of custody
of physical evidence introduced by the State, including the contents of the truck. The
Nevada Supreme Court did not specifically refer to this claim in its order affirming the
denial of the state postconviction petition. The state district court denied the claim in
part as belied by the record because defense counsel filed a motion to dismiss, “which
alluded to these omissions.” Exh. 283, pp. 30-31. The district court further observed
that Bergna failed to specifically identify what contents of the truck were collected and
introduced at trial that lacked sufficient proof of a chain of custody. The court found that
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Bergna simply failed to prove that counsel’s failure to object at trial was
unreasonable, or, if unreasonable, the objection would have been
sustained, and, as a result evidence would have been excluded that would
undermine the court’s confidence in the outcome.
Exh. 283, pp. 30-31. Defense counsel Smith testified at the state postconviction
evidentiary hearing that he did not believe that a proper chain of custody was
established for the evidence gathered from the mountainside. Exh. 277, pp. 98-99. He
stated that the defense filed motions regarding the collection of evidence but he did not
recall the specifics. Id.
Bergna’s federal ground 5(I)(2) is vague, and he fails to demonstrate that the
Nevada Supreme Court’s denial of any portion of ground 5(I) was objectively
unreasonable under Strickland.
Ground 5(J)
Bergna contends that trial counsel failed to file necessary motions and to fully
preserve issues on all available grounds (ECF No. 55, pp. 121-122).
Ground 5(J)(1)
Bergna argues that trial counsel failed to object on constitutional grounds to
testimony by the State’s experts because the experts relied on out-of-court material that
was not admitted at trial. In Crawford v. Washington, the United States Supreme Court
held that testimonial evidence may not be admitted at trial unless the witness is
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unavailable to testify and the defendant has had a prior opportunity for crossexamination. 541 U.S. 36, 68 (2004). Notably, (in relation to trial counsel’s actions) this
case was decided almost two years after Bergna’s second trial concluded.
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In affirming the denial of this claim, the Nevada Supreme Court concluded that
Bergna failed to demonstrate that Crawford applies when an expert is relying on out-ofcourt materials not admitted at trial. Exh. 297, p. 6 (citing Estes v. State, 146 P.3d
1114, 1126 (Nev. 2006), declining to apply Crawford where a testifying doctor relied on
opinions of non-testifying doctors).
demonstrate a reasonable probability of a different outcome had counsel objected
based on Crawford. Exh. 297, p. 6.
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The state district court noted that in the unlikely event that a pre-Crawford
confrontation clause objection had been sustained at trial, the State would merely have
called the out-of-court declarants as witnesses or shown them to be unavailable. Thus,
the court concluded Bergna was not prejudiced. Bergna has not demonstrated that the
Nevada Supreme Court’s affirmance of that decision was objectively unreasonable
under Strickland.
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Grounds 5(J)(2) and 5(J)(3)
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Bergna argues that trial counsel failed to object to the trial court’s allegedly
disparate examination of defense witnesses in comparison to prosecution witnesses
(J)(2) and to the trial court’s imposition of fines on defense counsel in the presence of
the jury (J)(2). The Nevada Supreme Court did not specifically address these claims.
The state district court found that Bergna failed to demonstrate deficiency or prejudice.
Exh. 283, pp. 35-47.
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The court also held that Bergna failed to
In this court’s disposition, above, of federal ground 4, it denied the claims
underlying these IAC claims on the merits. Accordingly, Bergna cannot show that had
counsel objected there was a reasonable probability of a different outcome at trial.2
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Moreover, defense counsel did, in fact, ask for and was granted a recess in order to lodge a formal
objection regarding the court’s questioning of Jarvis Michie. See exh. 277, pp. 150-110.
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Ground 5(J)(4)
Bergna claims that trial counsel was ineffective for failing to call Bergna’s his trial
counsel at a hearing regarding a misstatement by the State during the grand jury
proceedings (ECF No. 55, p. 122). The Nevada Supreme Court affirmed the denial of
this claim on the basis that Bergna produced no evidence that the State made such a
misstatement. Exh. 297, p. 7. The state district court had pointed out that while Bergna
had submitted an affidavit purportedly by first trial counsel Pinkerton, Pinkerton did not
testify at the postconviction evidentiary hearing nor was the affidavit admitted at the
hearing. The state district court also noted that the prosecutor alleged to have made
the misstatement did not testify at the state postconviction evidentiary hearing on the
subject. Exh. 283, p. 47. Bergna has not demonstrated here that the Nevada Supreme
Court was unreasonable in determining that the claim lacked evidentiary support.
Ground 5(K)
Bergna asserts that trial counsel failed to challenge three jurors for cause who
viewed the nationally-televised “48 Hours” program about Bergna, the State’s charges
against him, and the first trial. Defense counsel used a peremptory challenge against
one of the jurors, but the other two, Flores and Benjamin, served on the jury (ECF No.
55, pp. 122-124). The Nevada Supreme Court summarily affirmed the denial of this
claim on the basis that Bergna failed to demonstrate prejudice. Exh. 297, p. 2.
First, as this court discussed with respect to federal ground 3, above, the court
and all counsel conducted extensive voir dire in an attempt to ascertain whether
potential jurors were unwilling or unable to approach the trial impartially. Second, third,
and fourth, as the state district court pointed out, all the empaneled jurors indicated that
they had either seen the program or heard about it, defense counsel Puentes testified at
the postconviction evidentiary hearing that—while they may have felt differently after the
trial—the defense had wanted Flores on the jury, and defense counsel Smith
questioned Benjamin at length after she indicated that she had seen media accounts.
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Exh. 283, pp. 47-49; exh. 277. Finally, defense counsel Schwartz testified that the court
made it clear that it was not going to permit challenges for cause of jurors who indicated
that they would be able to put aside any preconceived bias and that his typical strategy
is to decline to make cause challenges unless he thinks they will be successful. Exh.
299, pp. 70-72.
No evidence suggests that counsel was deficient in not challenging these jurors
for cause, and no evidence suggests that any challenge would have been granted.
Bergna has not demonstrated the Nevada Supreme Court unreasonably applied
Strickland.
Ground 5(L)
Bergna argues that trial counsel were ineffective when they failed to request a jury
instruction on the defense theory of the case that the crash was an accident and an
instruction that the jury could not return a guilty verdict based upon negligent driving or
mere failure to take corrective action, such as applying the parking brake, steering away
from the guardrail, or not moving the gear shift to park (ECF No. 55, p. 124).
The Nevada Supreme Court summarily affirmed the denial of this claim,
concluding that Bergna failed to show prejudice. Exh. 297, p. 2. The state district court
acknowledged that a properly worded instruction on this theory likely would have been
given. However, the court found that
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Bergna failed to prove that counsels’ failure to request them was
unreasonable in this case. This is particularly true where, as here, (1) the
jury was instructed on express malice, the specific intent to kill, willfulness,
deliberation and premeditation, and (2) counsel argued that accident,
negligent driving and a mere failure to take corrective action cannot be
reconciled with nor establish express malice. In fact, defense counsel
went to considerable lengths to argue all of these exculpatory theories as
they tried to show the jury that the State had not proven mens rea.
Obviously, the absence of these instructions did not inhibit counsel’s
argument. As a result, assuming counsel should have proffered these
instructions, Bergna was not prejudiced by counsel’s failure to request
them, and their absence did not have a substantial and injurious effect or
influence in determining the verdict.
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Exh. 283, pp. 49-50; exh. 205, jury instructions nos. 25-29.
Defense counsel Schwartz testified at the state postconviction evidentiary hearing
that he thought the jury instructions, as a whole, provided the necessary language and
instructions to the jury for the defense to be able to argue its case. Exh. 299, pp. 73-75.
Bergna has not demonstrated that the Nevada courts’ determination that he failed
to show prejudice is an unreasonable application of Strickland.
Ground 5(M)
Bergna claims that the cumulative effect of the errors asserted in Ground 5
violated Bergna’s right to effective assistance of counsel (ECF No. 55, p. 124).
Generally, a separate cumulative error claim for ineffective assistance of counsel is
either noncognizable or duplicative of the underlying ineffective assistance claims. In
any event, Bergna has not demonstrated any errors of counsel to cumulate.
In sum, Bergna has failed to demonstrate that the Nevada Supreme Court’s
decisions on any of ineffective assistance of trial counsel claims set forth in federal
ground 5 involved an unreasonable determination of fact or were contrary to or an
unreasonable application of Strickland v. Washington. 28 U.S.C. § 2254(d)(1) & (2).
Federal habeas relief is denied as to the entirety of ground 5.
ii. Ground 6
Bergna next alleges several instances of ineffective assistance of appellate
counsel.
Ground 6(A)
Bergna claims that appellate counsel failed to make simple formatting changes to
the opening brief to the Nevada Supreme Court, which prevented him from raising all
the issues that he wanted to present (ECF No. 55, pp. 127-130). The Nevada Supreme
Court summarily affirmed the denial of this claim on the basis that Bergna failed to
demonstrate prejudice. Exh. 297, p. 8.
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Here, Bergna only states in conclusory fashion that the omitted claims were
meritorious (ECF No. 55, p. 129). He fails to demonstrate that the omitted claims had a
reasonable probability of success. He therefore has not demonstrated that the Nevada
Supreme Court unreasonably applied Strickland.
Ground 6(B)
Bergna contends that appellate counsel failed to federalize several issues raised
on direct appeal, including issues related to prior bad acts and character evidence,
opinions as to whether Bergna’s grief was genuine, the destruction of certain evidence
and preservation of certain evidence, and the failure to give the defense-proffered
instruction on proximate causation.
The Nevada Supreme Court summarily affirmed the denial of this claim on the
basis that Bergna failed to demonstrate prejudice. Exh. 297, p. 8. Appellate counsel
testified at the postconviction evidentiary hearing that he looked back at the appeal after
the Nevada Supreme Court affirmed the conviction and realized that he had failed to
federalize several claims. Exh. 276, pp. 22-29.
In denying this claim, the state district court concluded that Bergna had failed to
prove that federalizing claims is the prevailing professional norm. Exh. 283, p. 54.
Here, Bergna merely reiterates his view that appellate counsel should have argued—in
addition to arguing state-law violations—that Bergna’s federal constitutional rights were
violated.
He presents nothing to demonstrate that any of these claims had any
likelihood of success as federal constitutional claims. He has not demonstrated that the
Nevada courts unreasonably applied Strickland.
Ground 6(C)
Bergna argues that appellate counsel failed to request permission to file a
supplemental brief after the decision issued in Crawford v. Washington. Exh. 276, pp.
29-34. This court has already denied relief as to Bergna’s claim that trial counsel was
ineffective for failing to object to portions of Dr. Turner’s testimony based on Crawford.
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This court has determined that the Nevada courts’ determinations that Bergna failed to
demonstrate that Crawford was applicable and that in any event he failed to show
prejudice were not unreasonable.
See ground 5(J)(1).
Therefore, Bergna cannot
demonstrate that he was prejudiced by appellate counsel’s failure to seek to file a
supplemental brief based on Crawford.
Ground 6(D)
Bergna asserts that appellate counsel was ineffective in his presenting the
destruction of evidence issue (ECF No. 55, pp. 136-137). Specifically, Bergna contends
that while appellate counsel argued that Bergna suffered prejudice because DNA
testing of the airbag could not be performed, he failed to present the more compelling
issue that cornstarch residue from the deployed air bag in the truck might have
confirmed that Bergna was in the truck when it initially went over the cliff. However, as
discussed earlier with respect to a related destruction of evidence claim, Bergna has
failed to allege, much less demonstrate, bad faith on the part of the State, and therefore,
failure to preserve potentially useful evidence does not constitute a denial of due
process of law. Youngblood, 488 U.S. at 58. Accordingly, he cannot demonstrate that
any alleged deficiency with respect to how appellate counsel presented the destruction
of the airbag issue was prejudicial.
Ground 6(E)
Finally, Bergna contends that appellate counsel failed to raise several meritorious
issues on appeal (ECF No. 55, pp. 137-146). The Nevada Supreme Court summarily
affirmed the denial of this claim for failure to show prejudice. Exh. 297, pp. 7-8.
The United States Supreme Court has held that appellate counsel need not raise
every nonfrivolous claim, but should select from among them in order to maximize the
likelihood of success on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). In Smith
v. Robbins, the Court further explained that it is possible to bring a Strickland claim
based on appellate counsel’s failure to raise a certain claim, but that it is difficult to
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demonstrate that counsel was incompetent. 528 U.S. 259, 288 (2000). A petitioner
bears the burden of showing that a particular nonfrivolous issue was clearly stronger
than the issues that counsel presented. Id.
First, Bergna argues that appellate counsel failed to raise 6E(1): sufficiency of the
evidence and lack of proof of criminal agency; 6E(2): pre-indictment delay/destruction of
or failure to preserve evidence; 6E(3): admission of Dr. Turner’s testimony; 6E(4):
introduction of prejudicial bad acts testimony; 6E(7): unconstitutional restrictions on
Bergna’s right to confront the State’s witnesses and challenge the State’s evidence
against him; 6(E)(8): introduction of extensive evidence about inmate Darrell Coursey’s
religious beliefs; 6(E)(10): denial of the motion for change of venue; 6(E)(11): trial
court’s refusal to permit use of a jury questionnaire and the jury selection process; and
6(E)(12): trial court’s fining of defense counsel and extensive examining and
impeaching defense witnesses only.
At the state postconviction evidentiary hearing, appellate counsel testified to his
strategic decisions with respect to which claims to raise on appeal. Exh. 276, see, e.g.,
pp. 41-44, 52-56, 79, 90-91. He testified to his view that the Nevada Supreme Court
was not very receptive to sufficiency of the evidence claims at that time. He stated that
he was unaware of a valid basis to challenge the admission of Dr. Turner’s testimony,
noted that it was for the jury to determine what weight to give Turner’s testimony, and
noted that Turner was extensively cross-examined. Id. Counsel testified that he looked
closely at the transcript of Jarvis Michie’s testimony in considering any judicial bias
claims and concluded “for appellate issues that issue [was not] going to get me
anywhere.” Id. at 55.
Moreover, this court has denied earlier in this order either the
grounds that raised the underlying substantive claims or the grounds that raised these
claims as claims of ineffective assistance of trial counsel.
Thus, Bergna cannot
demonstrate prejudice as to appellate counsel’s failure to raise these claims.
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Next, Bergna claims that appellate counsel failed to raise 6(E)(5): the admission
of lay and expert witness testimony as to their opinion of Bergna’s guilt; 6E(6): the
admission of lay and expert witness testimony about the existence of a phantom,
unsigned will; 6(E)(9): prosecutorial misconduct throughout the trial; 6(E)(13): the district
court’s refusal to permit a nighttime viewing of the crime scene, while permitting the
State to impeach a defense expert who prepared a video of the scene at night because
he did not know full details about the lighting configurations of his camera; and 6(E)(14):
alleged juror misconduct.
He also argues that 6(E)(15): appellate counsel was
ineffective for failing to file a timely motion for new trial upon learning of new evidence
as well as cumulative error (ECF No. 55, pp. 137-146).
Appellate counsel testified at the postconviction evidentiary hearing that this had
been one of the most difficult cases he had ever handled in terms of choosing which
issues to raise on appeal, and he discussed several strategic decisions he made. Exh.
276, see e.g., pp. 71, 77, 91-101.
He testified that he believed a defense expert
lawyer—who answered a hypothetical question about a will—was the best witness in
the whole case. He noted that the trial court in fact sustained an objection to a lay
witness’ testimony about Bergna’s guilt. He testified that in his experience, it was highly
unlikely that the state supreme court would conclude that the trial court abused its
discretion with respect to the issues regarding viewing the crime scene and the video.
He also testified that he believed any newly discovered evidence was to be raised as a
postconviction claim for relief. Id.
Appellate counsel need not raise every nonfrivolous claim. Bergna does not even
attempt to argue that any of the claims in federal ground 6(E) were clearly stronger than
the issues that counsel raised on appeal. Robbins, 528 U.S. at 288. Thus, he has not
demonstrated that the Nevada Supreme Court’s affirmance of the denial of this claim
was contrary to or an unreasonable application of Strickland or involved an
unreasonable determination of fact. 28 U.S.C. § 2254(d).
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As discussed above, federal relief is denied as to federal ground 6.
The petition, therefore, is denied in its entirety.
IV.
Certificate of Appealability
This is a final order adverse to the petitioner.
As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
made a substantial showing of the denial of a constitutional right." With respect to
claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. Id.
Having reviewed its determinations and rulings in adjudicating Bergna’s petition, the
court finds that none of those rulings meets the Slack standard. The court therefore
declines to issue a certificate of appealability for its resolution of any of Bergna’s claims.
V.
Conclusion
IT IS THEREFORE ORDERED that the amended petition (ECF No. 55) is DENIED
in its entirety.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.
DATED: 5 August 2016.
August 23, 2016
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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE
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