Reberger v. State of Nevada et al
Filing
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ORDER that the Second Amended Petition (ECF No.[ 65]) is granted for Ground One's Napue claim. Lance Reberger will be released from custody within 60 days unless the Respondents filein this action, within that 60-day period, a writ ten notice of election to retry Reberger, and the State thereafter, within 180 days after the filing of that notice, commences proceedings toward the retrial. Any party may request a reasonable modification of the time limits set forth in this paragr aph. The judgment in this action will be stayed pending the conclusion of any appellate or certiorari review in the Ninth Circuit Court of Appeals or the United States Supreme Court, or the expiration of the time for seeking such appellate or cert iorari review, whichever occurs later. Reberger is granted a certificate of appealability for Ground One's Brady claim; a certificate of appealability is denied as to Reberger's remaining grounds. Signed by Chief Judge Miranda M. Du on 3/23/2020. (Copies have been distributed pursuant to the NEF - LW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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LANCE REBERGER,
Case No. 3:13-cv-00071-MMD-CLB
Petitioner,
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ORDER
v.
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RENEE BAKER, et al.,
Respondents.
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I.
SUMMARY
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Petitioner Lance Reberger filed a petition for writ of habeas corpus (“Petition”)
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under 28 U.S.C. § 2254. This matter is before the Court for adjudication of the Petition’s
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merits. For the reasons discussed below, the Court grants Reberger habeas relief on
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Ground One’s Napue claim, and grants a certificate of appealability for Ground One’s
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Brady claim, but denies Reberger relief on his remaining grounds.
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II.
BACKGROUND
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Reberger’s convictions are the result of events that occurred in Clark County,
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Nevada on November 4, 1990. (ECF No. 31-7 at 2.) Reberger and Amber Harvey
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entered an adult video and bookstore on the morning of November 4, 1990, at
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approximately 3:30 a.m. (ECF No. 29-2 at 13-14.) After speaking with the store clerk
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and watching some videos, Harvey stole some money and merchandise. (Id. at 17-20.)
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Reberger then took the store clerk into the back of the store and shot him three times in
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the head. (Id. at 21-22; see also ECF No. 28-3 at 75.) Reberger grabbed more money
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and the store’s cameras, and Reberger and Harvey drove away. (ECF No. 29-2 at 22.)
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After disposing of the cameras, their clothing, and some of the merchandise in the
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desert, Reberger and Harvey eventually drove to Coos Bay, Oregon where they were
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apprehended by local law enforcement. (Id. at 22-23, 25-29.)
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Following a jury trial, Reberger was found guilty of burglary, robbery with the use
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of a deadly weapon, and murder with the use of a deadly weapon. (ECF No. 31-7 at 2.)
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Reberger was sentenced to six years for the burglary conviction; ten years for the
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robbery conviction with an additional ten years for the deadly weapon enhancement, to
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run consecutive to the burglary sentence; and life with the possibility of parole for the
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murder conviction with an additional life with the possibility of parole for the deadly
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weapon enhancement, to run consecutive to the robbery sentence. (Id. at 3.) Reberger
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appealed, and the Nevada Supreme Court dismissed the appeal on May 26, 1995. (ECF
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No. 32-1.) Remittitur issued on June 14, 1995. (ECF No. 32-2.)
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Reberger filed a state habeas corpus petition on January 30, 1996. (ECF No. 32-
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5.) Following the appointment of “five different attorneys over the course of ten (10)
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years,” Reberger filed a counseled, supplemental petition on June 25, 2007; however,
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this supplemental petition was later stricken. (ECF No. 32-43 at 2, 14.) Following nine
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evidentiary hearings, the state district court denied Reberger’s petition on January 19,
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2012. (ECF No. 38.) Reberger appealed, and the Nevada Supreme Court affirmed on
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December 12, 2012. (ECF No. 38-9.) Remittitur issued on January 7, 2013. (ECF No.
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38-10.)
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Reberger dispatched his federal habeas corpus petition on February 10, 2013.
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(ECF No. 1-2 at 36.) Reberger thereafter filed a counseled, first amended federal petition
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on January 6, 2014. (ECF No. 16.) On January 15, 2014, Reberger moved for a stay and
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abeyance to allow him to return to state court to exhaust Ground One of his federal
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petition. (ECF No. 41.) This Court granted the motion and stayed this action. (ECF No.
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48 at 9.)
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On January 14, 2014, Reberger filed a counseled, second state habeas petition.
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(ECF No. 42-1.) Reberger later filed a counseled, amended petition and a counseled,
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supplemental petition on May 12, 2014, and June 25, 2014, respectively. (ECF Nos. 54,
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54-7.) Following two evidentiary hearings, the state district court dismissed Reberger’s
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petition. (ECF Nos. 55-5, 55-8, 56-3.) Reberger appealed, and the Nevada Supreme
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Court affirmed on January 12, 2017. (ECF No. 57-3.) Remittitur issued on February 6,
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2017. (ECF No. 57-4.)
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On March 22, 2017, Reberger moved to reopen this federal action. (ECF No. 51.)
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This Court granted the motion and ordered that the stay be lifted. (ECF No. 64 at 2.)
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Reberger then filed his counseled, second amended federal petition on April 19, 2017.
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(ECF No. 65.) Respondents moved to dismiss claims within Reberger’s second amended
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petition. (ECF No. 66.) The Court granted the motion in part and denied it in part. (ECF
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No. 94.) Specifically, Ground 9I, 10A, 10B, and 10C were dismissed as procedurally
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defaulted; and Grounds 2 and 3 were dismissed as noncognizable. (Id. at 13.)
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Respondents answered the remaining claims on May 29, 2018. (ECF No. 96.) Reberger
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replied on October 25, 2018. (ECF No. 101.)
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In his remaining claims, Reberger asserts the following violations of his federal
constitutional rights:
1.
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4.
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8.
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9A.
9B.
9C.
9D.
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9E.
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9F.
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9G.
The State suppressed evidence that Harvey had a deal to
receive a reduced sentence in exchange for her testimony
against him.
The state district court erred in allowing a jailhouse informant
to testify.
There were cumulative errors of prosecutorial misconduct.
The testimony of Harvey was improper.
The jury engaged in premature deliberations.
The state district court erred in refusing to give two proposed
jury instructions.
His trial counsel failed to call Corrine Kemp.
His trial counsel failed to investigate and call alibi witnesses.
His trial counsel improperly waived his speedy trial rights.
His trial counsel introduced incriminating evidence against
him.
His trial counsel failed to sufficiently challenge letters he
allegedly wrote to Harvey.
His trial counsel failed to challenge Detective Perkins’
testimony.
His trial counsel failed to challenge the search warrant.
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9H.
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His trial counsel failed to object to Jury Instruction Number 16.
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(ECF No. 65 at 21-93.)
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III.
LEGAL STANDARD
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28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in
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habeas corpus cases under the Antiterrorism and Effective Death Penalty Act
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(“AEDPA”):
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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 --
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(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
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(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.
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A state court decision is contrary to clearly established Supreme Court precedent, within
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the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the
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governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a
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set of facts that are materially indistinguishable from a decision of [the Supreme] Court.”
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Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,
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405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision
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is an unreasonable application of clearly established Supreme Court precedent within
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the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing
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legal principle from [the Supreme] Court’s decisions but unreasonably applies that
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principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413).
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“The ‘unreasonable application’ clause requires the state court decision to be more than
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incorrect or erroneous. The state court’s application of clearly established law must be
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objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation
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omitted).
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The Supreme Court has instructed that “[a] state court’s determination that a
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claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
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disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562
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U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
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Supreme Court has stated “that even a strong case for relief does not mean the state
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court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at
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75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as
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a “difficult to meet” and “highly deferential standard for evaluating state-court rulings,
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which demands that state-court decisions be given the benefit of the doubt”) (internal
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quotation marks and citations omitted).
IV.
DISCUSSION
The Petition asserts seven remaining grounds for relief. (ECF No. 65 at 21-93.)
The Court will address each ground in turn.
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A.
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In Ground One, Reberger alleges that his federal constitutional rights were
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violated when the state district court suppressed evidence that Harvey had a deal to
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receive a reduced sentence in exchange for her testimony. (ECF No. 65 at 21.)
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Reberger’s claim is based on violations of Brady v. Maryland, 373 U.S. 83 (1963) and
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Napue v. Illinois, 360 U.S. 264, 269 (1959). (Id. at 48.) In Reberger’s appeal of the denial
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of his second state habeas petition, the Nevada Supreme Court held:
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Ground One
Reberger contends that the district court erred in denying his claim that the
State improperly withheld Brady [v. Maryland, 373 U.S. 83 (1963)] evidence
that would have impeached the State’s primary witness and his
codefendant, Amber Harvey. “To prove a Brady violation, the accused must
make three showings: (1) the evidence is favorable to the accused, either
because it is exculpatory or impeaching; (2) the State withheld the evidence,
either intentionally or inadvertently; and (3) prejudice ensured, i.e., the
evidence was material.” State v. Huebler, 128 Nev. 192, 198, 275 P.3d 91,
95 (2012) (internal quotation marks omitted). Demonstrating the second
and third elements of a Brady claim satisfies the good cause and prejudice
requirements to overcome the procedural bars. Id. The district court found
that the State withheld favorable evidence but that the evidence was not
material. We agree.
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The district court’s finding that the State withheld favorable evidence is
supported by significant evidence in the record. The State agreed not to
oppose Harvey’s postconviction efforts to reduce her sentence in exchange
for her withdrawing her appeal and testifying against Reberger. Harvey
performed her part of the bargain despite knowing the initially contemplated
vehicle for the agreement was not available. At Reberger’s trial, Harvey
denied having any deal with the State and said she was testifying only
because she wanted Reberger to pay for his actions. After Reberger’s
conviction, the State not only failed to oppose the [sic] Harvey’s facially
deficient postconviction efforts to reduce her sentence but entered into a
guilty plea agreement with her before the district court granted the
postconviction relief. [Footnote 2: After Reberger was convicted, Harvey,
who had been convicted of the same crimes, filed a motion for new trial
based on newly discovered evidence. The new evidence was introduced at
Reberger’s trial and suggested that he and not Harvey was the shooter.
However, because the State had conceded at Harvey’s trial that she was
not the shooter, the new evidence could not have “render[ed] a different
result probable upon retrial.” Sanborn v. State, 107 Nev. 399, 406, 812 P.2d
1279, 1284-85 (1991) (setting forth the elements necessary to obtain a new
trial based on newly discovered evidence).]
The district court also correctly concluded that the evidence was not
material. Because Reberger had specifically requested evidence of a deal
between the State and Harvey, the withheld evidence is material if there is
“a reasonable possibility that the claimed evidence would have affected the
judgment of the trier of fact, and thus the outcome of the trial.” Jimenez v.
State, 112 Nev. 610, 619, 918 P.2d 687, 692 (1996) (emphasis, quotation
marks omitted). Although the withheld evidence constituted new and
different impeachment evidence of the State’s key witness, it does not
undermine confidence in the outcome of the trial because, unlike in Wearry
v. Cain, 136 S. Ct. 1002, 1006 (2016), there was sufficient independent
evidence of Reberger’s guilt. Overwhelming evidence points to Harvey’s
involvement in the crimes, and independent witnesses and evidence
indicated Reberger and Harvey were together shortly before and after the
crimes, they fled the state together despite having only recently met, and
Reberger’s own letters to and a conversation with Harvey while in jail
indicated his participation in the crimes. For the same reason, Reberger’s
claim that the State violated Napue v. Illinois, 360 U.S. 264, 269 (1959)
(holding it is a constitutional violation for the State to obtain a conviction
through knowing use of false evidence or failing to correct false evidence
when it appears), also fails. See Giglio v. United States, 405 U.S. 150, 154
(1972) (applying a Brady materiality test to a Napue claim).
(ECF No. 57-3 at 3-5.)1
1The
Court previously determined that this ground was not procedurally barred
from federal habeas review because the Nevada Supreme Court’s decision on this
ground did not rest on an independent and adequate state ground; rather, the Nevada
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1. Factual background
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Following a jury trial, Harvey was found guilty of burglary, robbery with the use of
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a deadly weapon, and first-degree murder with the use of a deadly weapon on September
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13, 1991. (ECF No. 21-4.) Harvey was sentenced and appealed on November 21, 1991.
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(ECF Nos. 22, 22-2.) On July 14, 1992, Harvey’s trial counsel, Robert Miller, sent Harvey
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a letter stating that he had enclosed “copies of the Motion for Voluntary Dismissal of
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Appeal and [his] accompanying affidavit.” (ECF No. 53-1.) Miller indicated that “Lance’s
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trial has been put off until November, but we need to proceed with this part of the
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negotiations immediately.” (Id.)
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Thereafter, on August 4, 1992, Miller moved for voluntary dismissal of Harvey’s
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appeal. (ECF No. 23-3.) Miller stated “[t]hat the present Motion for Voluntary Dismissal of
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Appeal is brought pursuant to and in accordance with negotiations entered into with the
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Clark County District Attorney’s office” and that “[t]he substance of those negotiations is
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that Appellant Harvey would agree to voluntary dismissal of the present appeal and would
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agree to testify truthfully at the trial” of Reberger. (Id. at 3.) In exchange for Harvey’s
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testimony, “the State agree[d] not to oppose Appellant Harvey’s petition for post-
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conviction relief, the granting of which would result in amendment of the judgment of
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conviction to reflect omission of the life imprisonment sentence” for the deadly weapon
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enhancement. (Id. at 3-4.) Reberger’s trial counsel “d[id] not remember ever seeing this
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motion” prior to November 21, 2013, approximately twenty years after Reberger’s trial
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took place. (ECF No. 38-14 at 2; see also ECF No. 38-13 at 2.) The Nevada Supreme
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Court granted Harvey’s motion. (ECF No. 23-4.)
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On November 5, 1992, Reberger, through one of his trial counsel, Philip Dunleavy,
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moved to limit Harvey’s testimony at his trial, explaining, in part, that “[t]he State has
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requested that Ms. Harvey waive her right to an appeal and testify in exchange for which
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they have agreed to request the Judge to resentence her to only one life with and run
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Supreme Court’s federal Brady analysis controlled the outcome of its state procedural
default analysis. (ECF No. 94 at 8-9.)
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everything else concurrent or dismiss the remaining sentence.” (ECF No. 23-7 at 4.)
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Dunleavy later explained that “[a]t some point prior to Reberger’s trial, I heard through
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word of mouth, rumor, and gossip around the courthouse that . . . Harvey[ ] had negotiated
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a deal with the prosecution to testify against Reberger at his trial.” (ECF No. 38-14 at 2.)
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The State opposed Reberger’s motion’s explaining, in part, that “the State has no
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agreement with Amber Harvey and does not know if she will even testify.” (ECF No. 23-8
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at 11.) At a hearing on Reberger’s motion, Miller stated that “[t]he status of [Harvey’s]
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case is that we, at one point, thought that we had negotiations on the case, which would
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involve her amending her appeal, there being a reduction in the sentence that she was
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facing, and that she would be testifying truthfully concerning this incident.” (ECF No. 23-
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11 at 20.) However, it was determined by Miller and the State “that those negotiations
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would not be something that could legally be consummated. There is no authority to
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reduce the sentences that were imposed by the jury.” (Id.) It does not appear that there
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was any effort made to reinstate Harvey’s appeal. (ECF No. 55-5 at 189-190.)
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On December 29, 1992, Reberger moved for an in-camera inspection of the
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State’s file in regards to any deal between Harvey and the State, explaining that
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“[c]ounsel for Defendant is concerned that there may be some agreement and/or
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understanding between counsel for the State and counsel for Ms. Harvey which would
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allow the [previous] negotiations to come to actually be entered into.” (ECF No. 24 at 4.)
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The state district court granted the motion. (ECF No. 24-1 at 3.)
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Reberger’s first trial began on December 29, 1992, but it ended in a mistrial. (See
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ECF Nos. 24-1, 26-1 at 72.) During opening statements for Reberger’s second trial, the
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State commented that “[y]ou are going to hear why [Harvey] wants to testify,” and Harvey
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“is going to get up here and she is going to tell you if the State gave her any kind of deal
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to testify.” (ECF No. 28 at 9, 38.) Harvey later testified as a State witness. (ECF No. 29-
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2 at 9.) Harvey responded in the negative when asked if she was “testifying because of
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any kind of deal that the State ha[d] given [her].” (Id. at 10-11.) And Harvey responded
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in the affirmative when asked if she “originally ha[d] an offer of a deal made to [her]” and
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when asked to elaborate replied, “for whatever reason, that deal is no longer open.” (Id.
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at 11.) Harvey explained that she was testifying “[b]ecause [she] want[ed] Lance to pay
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for what he did.” (Id.) During cross-examination, Harvey testified that the State had
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“dropped [a grant of immunity] too” and that she was “down here because [she] want[ed]
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to testify.” (Id. at 55.)2
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Harvey testified that she and Reberger went to the Fantasy Video Adult
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Bookstore on November 4, 1990, with a “.22 nickel pistol gun that belonged to [Harvey’s]
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ex-husband.” (ECF No. 29-2 at 9, 13-14.) It was Reberger’s idea to go to that location
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to commit a robbery “because [he] kn[e]w the roots to it” since “[a] friend of [his] used to
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work there.” (Id. at 16.) When they entered the store, Reberger “had the gun and
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[Harvey] had [Reberger’s] knife.” (Id. at 17.) After Reberger and Harvey talked to the
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store clerk and watched some movies, Reberger brought the store clerk “out of the back”
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with a gun to the store clerk’s head and Harvey held a knife under his chin. (Id. at 17,
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19-20.) Harvey then took some money out of the cash register and some store
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merchandise. (Id. at 20.) Reberger walked the store clerk to the back of the store while
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pointing a gun at the back of his head, and Harvey told Reberger to “‘[d]o whatever you
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have to do.’” (Id. at 21.) Harvey then heard three gunshots while Reberger and the store
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clerk were in the back of the store. (Id. at 22.) Harvey started their vehicle, and Reberger
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“came running out with the cameras and the gun and the rest of the money.” (Id.)
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Harvey and Reberger disposed of the cameras, their clothing, and some
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merchandise in the desert and went to a hotel to take a shower. (Id. at 22-23.) After
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leaving the hotel, they went to Harvey’s ex-husband’s house to return the gun and “d[o]
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some drugs.” (Id. at 25.) They then left with Harvey’s son and drove to Los Angeles,
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then San Francisco, and finally Coos Bay, Oregon. (Id. at 25-26, 28.) Harvey and
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Reberger were arrested in Coos Bay. (Id. at 29.)
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closing arguments, the State commented, “Amber testified because she is
doing life in prison . . . . She does not feel it’s fair that he is not.” (ECF No. 30-3.)
2During
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Following Reberger’s trial, on August 17, 1993, Harvey moved for a new trial
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based on newly discovered evidence. (ECF No. 31-9.) Harvey explained that “evidence
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was adduced [at Reberger’s trial] that Reberger had forged a letter from Amber Harvey”
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and that “[t]his evidence was not available at the time of Defendant Harvey’s trial and
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constitutes newly discovered evidence.” (Id. at 4.) It does not appear that the State
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opposed Harvey’s motion. (See ECF No. 54-5 at 2 (declaration from an investigator of
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the Federal Public Defender’s office that “[t]here is no opposition to the 1993 motion for
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a new trial in Harvey’s court file”); see also ECF No. 55-4 at 2 (stipulation by the parties
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that “[a] written opposition from the District Attorney’s Office to the Motion for a New
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Trial based on Newly Discovered Evidence” does not appear in Harvey’s Eighth Judicial
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District Court’s file); ECF No. 55-8 at 175-76.)
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A few weeks after filing the motion, on September 3, 1993, Miller sent Harvey a
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letter enclosing a guilty plea memorandum that “eliminate[d] the use of a deadly weapon
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enhancement on the murder charge and . . . eliminate[d] one of the two life sentences.”
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(ECF No. 53-10 at 2.) The guilty plea agreement provided that in exchange for pleading
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guilty, Harvey’s use of a deadly weapon enhancement would be dropped from the
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murder count, the recommended sentence on the murder count would be life
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imprisonment with the possibility of parole, and it would be recommended that
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sentences on all counts run concurrently. (ECF No. 53-6 at 2.)
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A hearing was held on Harvey’s motion. (ECF No. 31-14.) The motion was
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granted without argument, although the state district court indicated that it “ha[d] a copy
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of [the State’s] opposition.” (Id. at 3.) When the state district court asked what the parties
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“we[re] going to do,” Miller responded that the parties had entered into negotiations
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whereby the State had agreed to drop the deadly weapon enhancement on the murder
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count. (Id. at 3-4.) Thereafter, during the same hearing, Harvey pleaded guilty pursuant
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to the plea agreement, and the state district court sentenced her. (Id. at 5.) Harvey’s
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guilty plea memorandum does not appear in her court file. (See ECF No. 54-5 at 2; ECF
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No. 55-4 at 2.)
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Years later, on June 11, 2010, during Reberger’s first state habeas evidentiary
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hearing proceedings, William Kephart, the prosecutor in Reberger’s case, explained that
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Harvey’s trial counsel moved for a new trial, and the state district court “represented on
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the record that he was going to grant a new trial,” so “they renegotiated.” (ECF No. 35-
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5 at 31.) Kephart also explained that “[t]here [were] no deals given to her, nothing” and
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it would not make sense to negotiate for her testimony that had already been given. (Id.
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at 31, 33.) Kephart then took the stand and testified that the State did not have
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“negotiations with Amber Harvey for her testimony in [Reberger’s] 1993 trial.” (Id. at 44,
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54, 57.)
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In October 2011, Harvey had a hearing before the parole board. (ECF No. 38-
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19.) Harvey told the parole board that she “testified against [Reberger] and got some of
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[her] time dropped.” (Id. at 4.) Years later, on January 8, 2015, during Reberger’s second
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state habeas evidentiary hearing proceedings, Harvey, in response to the question “[d]id
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you get some of your time dropped as a result of your testimony” against Reberger,
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responded, “Yeah. But that still wasn’t the deal. The first degree murder was supposed
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to be dropped.” (ECF No. 55-5 at 99, 115.) Harvey also testified that she “was promised
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that if [she] testified and showed those letters that [Reberger] wrote [her], that they would
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drop that.” (Id. at 123.) Harvey explained that she lied at Reberger’s trial when she
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testified that there was no deal for her testimony “because [she] said what they told [her]
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to say.” (Id. at 127.)
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2. Brady
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“[T]he suppression by the prosecutor of evidence favorable to an accused upon
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request violates due process where the evidence is material either to guilt or to
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punishment irrespective of the good faith or bad faith of the prosecution.” Brady, 373
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U.S. at 87. Because a witness’s “‘reliability . . . may well be determinative of guilt or
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innocence,’ nondisclosure of evidence affecting credibility falls within [the Brady] rule.”
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Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at 269).
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“There are three components of a true Brady violation: The evidence at issue must be
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favorable to the accused, either because it is exculpatory, or because it is impeaching;
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that evidence must have been suppressed by the State, either willfully or inadvertently;
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and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
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The materiality of the evidence that has been suppressed is assessed to determine
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whether prejudice exists. See Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006).
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Evidence is material “if there is a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceeding would have been different.” United
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States v. Bagley, 473 U.S. 667, 682 (1985). “The question is not whether the defendant
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would more likely than not have received a different verdict with the evidence, but
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whether in its absence he received a fair trial, understood as a trial resulting in a verdict
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worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Accordingly, “[a]
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‘reasonable probability’ of a different result is . . . shown when the government’s
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evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id. (quoting
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Bagley, 473 U.S. at 678).
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Addressing the first Brady prong, the Nevada Supreme Court reasonably
16
concluded that a deal between the State and Harvey was favorable evidence. Indeed,
17
because Harvey was a crucial witness for the State, as she was the only eyewitness, a
18
deal whereby she received a reduced sentence for her testimony undermines her
19
credibility and reliability. See Giglio, 405 U.S. at 154. This evidence would certainly have
20
been helpful to Reberger’s defense. See, e.g., Davis v. Alaska, 415 U.S. 308, 316-17
21
(1974) (“[T]he exposure of a witness’ motivation in testifying is a proper and important
22
function of the constitutionally protected right of cross-examination.”).
23
Turning to the second Brady prong, the Nevada Supreme Court reasonably
24
concluded that a deal between the State and Harvey was suppressed. In fact,
25
Respondents do not appear to dispute this conclusion. (See ECF No. 96 at 20.)
26
First, evidence reasonably supports the conclusion that the State made a deal
27
with Harvey before she testified against Reberger in his second trial. Harvey voluntarily
28
dismissed her appeal of her judgment of conviction because she had entered into
12
1
negotiations with the State whereby she would testify against Reberger in return for the
2
dismissal of the deadly weapon enhancement and a reduction in her sentence. (ECF
3
No. 23-3 at 3-4.) Miller later explained that the agreement between the State and Harvey
4
did not come to fruition because “[t]here is no authority to reduce the sentences that
5
were imposed by the jury,” however, Miller did not attempt to reinstate Harvey’s appeal
6
after the agreement allegedly fell through. (ECF No. 23-11 at 20; ECF No. 55-5 at 189-
7
190.) After Harvey testified against Reberger and confirmed that there was no deal made
8
for her testimony (see ECF No. 29-2 at 10-11), Harvey moved for a mistrial (ECF No.
9
31-9). The State did not oppose Harvey’s motion (see ECF No. 54-5 at 2; ECF No. 55-
10
4 at 2; ECF No. 55-8 at 175-76), and, prior to a hearing taking place on the motion,
11
Harvey signed a guilty plea agreement which, in line with the original negotiations with
12
the State, dismissed the deadly weapon enhancement (ECF No. 53-6 at 2). The state
13
district court granted the motion for a new trial without argument or discussion, accepted
14
Harvey’s guilty plea, and resentenced Harvey in the course of one undisputed hearing.
15
(ECF No. 31-14.) Later, Harvey testified at her parole hearing and at Reberger’s second
16
state postconviction evidentiary hearing that the State had promised to reduce her
17
charges if she testified against Reberger. (ECF No. 38-19 at 4; ECF No. 55-5 at 99, 115,
18
123.) This evidence demonstrates that the Nevada Supreme Court reasonably
19
determined that a deal existed between the State and Harvey. Indeed, this evidence
20
demonstrates that a deal was initially made between the State and Harvey prior to
21
Reberger’s trial, and even though it was allegedly abandoned, the same terms of the
22
deal were later revived following Reberger’s trial. See, e.g., United States v. Shaffer,
23
789 F.2d 682, 690 (9th Cir. 1986) (“While it is clear that an explicit agreement would
24
have to be disclosed because of its effect on [the witness]’s credibility, it is equally clear
25
that facts which imply an agreement would also bear on [the witness]’s credibility and
26
would have to be disclosed.”).
27
Regarding suppression, the State never provided Reberger with Harvey’s motion
28
for voluntary dismissal of her appeal even after the state district court granted
13
1
Reberger’s request for an in-camera inspection of the State’s file (ECF No. 38-14 at 2;
2
ECF No. 38-13 at 2); the State made comments during its opening statement at
3
Reberger’s trial that Harvey was not offered a deal for her testimony (ECF No. 28 at 9,
4
38); the State continued to deny that any deal was made to Harvey for her testimony
5
(see ECF No. 35-5 at 54, 57); and Harvey testified at Reberger’s second state
6
postconviction evidentiary hearing that she was instructed to lie at Reberger’s trial
7
regarding the lack of a deal (ECF No. 55-5 at 127). This evidence demonstrates that the
8
Nevada Supreme Court reasonably determined that the State suppressed the deal.
9
Turning to the final Brady prong, materiality, Reberger asserts that this Court’s
10
review should be de novo because the Nevada Supreme Court used a sufficiency of the
11
evidence standard to assess materiality instead of using the test outlined in Kyles. (ECF
12
No. 101 at 50-52.) To be sure, the Supreme Court explained that a Brady materiality
13
assessment “is not a sufficiency of evidence test.” Kyles, 514 U.S. at 434. However,
14
even though the Nevada Supreme Court reasoned that “there was sufficient
15
independent evidence of Reberger’s guilt,” its holding that the suppressed evidence
16
“does not undermine confidence in the outcome of the trial” was in line with Kyles. (ECF
17
No. 57-3 at 4.) Indeed, it appears that the Nevada Supreme Court was merely assessing
18
the remainder of the evidence presented against Reberger in order to determine
19
whether “the favorable evidence could reasonably be taken to put the whole case in
20
such a different light.” Kyles, 514 U.S. at 435. Accordingly, this Court is unpersuaded
21
that its review of the materiality prong is de novo.
22
Reberger points out that the Nevada Supreme Court noted in his first state
23
habeas appeal that “[t]he State’s case against [Harvey] was based primarily on the
24
testimony of [Harvey]” (ECF No. 38-9 at 4-5), and as such, evidence impeaching her
25
credibility is material. See Giglio, 405 U.S. at 154-55 (determining that a witness’
26
credibility was “an important issue in the case, and evidence of any understanding or
27
agreement as to a future prosecution would be relevant to his credibility and the jury
28
was entitled to know of it”); see also Silva v. Brown, 416 F.3d 980, 987 (2005)
14
1
(“Impeachment evidence is especially likely to be material when it impugns the
2
testimony of a witness who is critical to the prosecution’s case.”). However, importantly,
3
the Nevada Supreme Court also reasonably noted in the same sentence that Harvey’s
4
testimony “was corroborated by [Reberger’s] own incriminating writings.” (ECF No. 38-
5
9 at 4-5.) In fact, as is discussed further in Ground Nine, Subpart E, Reberger wrote
6
letters to Harvey stating, among other things, that “[w]e fucked up, I am is [sic] good as
7
dead[,] you will be out in 10 or 20 years if your [sic] lucky but not me[.] . . . we should
8
have never done it in the first place now we are going to pay for it big time.” (ECF No.
9
18-9 at 3.) In another letter, Reberger wrote, “[y]ou don’t know how he died only I know
10
how.” (ECF No. 19 at 4.) Further, the State introduced evidence from Andrew Jackson,
11
a corrections officer for the Coos County Sheriff’s Department, who testified, among
12
other things, that he heard Reberger tell Harvey “that she doesn’t have anything to worry
13
about because she wasn’t in the back room when it happened.” (ECF No. 29 at 4, 10.)
14
Thus, although Harvey provided the only eyewitness testimony to the crimes, her
15
testimony that Reberger shot the victim was corroborated by other evidence. See Smith
16
v. Cain, 565 U.S. 73, 76 (2012) (“[O]bserv[ing] that evidence impeaching an eyewitness
17
may not be material if the State’s other evidence is strong enough to sustain confidence
18
in the verdict.”); cf. Banks v. Dretke, 540 U.S. 668, 700-01 (2004) (holding that
19
impeachment evidence was material where it pertained to a witness whose testimony,
20
which was “uncorroborated by any other witness,” was “crucial to the prosecution”);
21
Wearry v. Cain, 136 S. Ct. 1002, 1006-1007 (2016) (determining that there was a lack
22
of confidence in the jury’s verdict due to the suppression of evidence related to two
23
witnesses’ motivations for testifying because “the only evidence directly tying [the
24
defendant] to th[e] crime was [one witness’s] dubious testimony, corroborated by the
25
similarly suspect testimony of [the other witness]”); Hayes v. Brown, 399 F.3d 972, 985
26
(9th Cir. 2005) (finding suppressed evidence material where tainted witness’s testimony
27
“was the centerpiece of the prosecution’s case” and “[n]early all of the other evidence
28
against Hayes was circumstantial”). Because Harvey’s testimony was corroborated by
15
1
Reberger’s own statements, the Nevada Supreme Court reasonably concluded that the
2
confidence in the outcome of Reberger’s trial was not undermined by the State’s
3
suppression of its deal with Harvey. See Kyles, 514 U.S. at 434. Accordingly, it cannot
4
be concluded that “there [was] a reasonable probability that, had the evidence [that there
5
was a deal between Harvey and Reberger] been disclosed to the defense, the result of
6
the proceeding would have been different.” Bagley, 473 U.S. at 682.
7
3. Napue
8
“[A] conviction obtained through use of false evidence, known to be such by
9
representatives of the State, must fall under the Fourteenth Amendment.” Napue, 360
10
U.S. at 269. This rule applies “when the State, although not soliciting false evidence,
11
allows it to go uncorrected when it appears” and when “the false testimony goes only to
12
the credibility of the witness.” Id. A Napue violation claim will succeed when “(1) the
13
testimony (or evidence) was actually false, (2) the prosecution knew or should have
14
known that the testimony was actually false, and (3) the false testimony was material.”
15
Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (internal quotation marks and
16
alternation omitted). “[A] conviction obtained by the knowing use of perjured testimony is
17
fundamentally unfair, and must be set aside if there is any reasonable likelihood that the
18
false testimony could have affected the judgment of the jury.’” United States v. Agurs, 427
19
U.S. 97, 103 (1976).
20
Reberger asserts that this Court’s review of his Napue claim should be de novo
21
because the Nevada Supreme Court improperly applied the Brady materiality analysis
22
to the Napue materiality analysis. (ECF No. 101 at 65.) To be sure, the Ninth Circuit has
23
explained that “[t]he Napue materiality standard is less demanding than Brady.” Reis-
24
Campos v. Biter, 832 F.3d 968, 976 (9th Cir. 2016). However, the Court is unconvinced
25
that the Nevada Supreme Court used the wrong materiality analysis. The Nevada
26
Supreme Court cited Giglio, which cites to the proper Napue materiality standard. See
27
Giglio, 405 U.S. at 154 (“A new trial is required if ‘the false testimony could . . . in any
28
reasonable likelihood have affected the judgment of the jury.’”).
16
1
Turning next to the Nevada Supreme Court’s rejection of Reberger’s Napue
2
claim, the Nevada Supreme Court, through its Brady discussion, appears to have
3
implicitly and reasonably concluded that Reberger satisfied the first two factors under
4
Naupe. Indeed, because the underlying facts of the Brady and Napue claims are so
5
intertwined, the analysis for the first two Napue factors are the same as Brady. During
6
Harvey’s testimony, she explained, in response to the State’s questions, that she was
7
not “testifying because of any kind of deal that the State ha[d] given [her]” but “[b]ecause
8
[she] want[ed] Lance to pay for what he did.” (ECF No. 29-2 at 10-11.) Harvey also
9
explained that she “originally ha[d] an offer of a deal made to [her],” but, “for whatever
10
reason, that deal is no longer open.” (Id. at 11.) As was discussed previously, the
11
Nevada Supreme Court reasonably determined in its Brady analysis that there was a
12
deal—fluid or not—between the State and Harvey for her testimony against Reberger.
13
Therefore, Harvey’s foregoing testimony was false, and the State, a party to that deal,
14
knew or should have known that the testimony was false.3 See Hayes, 399 F.3d at 984.
15
However, the Nevada Supreme Court’s conclusion as to materiality under
16
Naupe’s less demanding materiality standard was objectively unreasonable. As
17
discussed supra, the State elicited and failed to correct Harvey’s crucial false evidence.
18
And Harvey’s false testimony failed to alert the jury to the fact that she was testifying in
19
return for a reduced sentence. This information would have cast great doubt on her
20
credibility, and because Harvey was the only eyewitness to the crimes, her credibility
21
was central to the State’s case and to Reberger’s convictions. This false testimony about
22
the lack of a deal between the State and Harvey for her testimony played a significant
23
24
25
26
27
28
3In
fact, the evidence supports the reasonable inference that the State intentionally
solicited false testimony knowing it was false, or at a minimum, knew that the testimony
was false after Harvey testified and did nothing to correct it. As discussed supra, at
Reberger’s second trial, the State represented in its opening statement that Harvey was
expected to testify that she was not given any kind of deal to testify which was contrary
to the negotiations and deal reached by then (ECF No. 28 at 9, 38), and Harvey testified
as the State represented—that she did not have a deal when asked (ECF No. 29-2 at 1011). As Harvey later testified, she was directed to lie about the lack of a deal. (ECF No.
55-5 at 127.)
17
1
role in the jury’s credibility evaluation of Harvey; in fact, the jury was under the mistaken
2
impression that Harvey was testifying for altruistic reasons only. Contrarily, Harvey
3
testified against Reberger for her own self-interest: her second life sentence for the
4
murder deadly weapon enhancement, which originally ran consecutive to her first life
5
sentence for murder, was dismissed. (Compare ECF No. ECF No. 22 at 3 with ECF No.
6
31-14.) Reberger’s resulting conviction “obtained by the knowing use of [Harvey’s]
7
perjured testimony is fundamentally unfair[.]” Agurs, 427 U.S. at 103. Moreover, due to
8
the important role Harvey played in Reberger’s trial and her false testimony that
9
suppressed the fact that she was receiving an extraordinary reduction in her sentence
10
in return for her testimony, “there is a[ ] reasonabl[e] likelihood that [her] false testimony
11
could have affected the judgment of the jury.” Id. Therefore, although the Nevada
12
Supreme Court appears to have “identifie[d] the correct governing legal principle” to
13
assess materiality under a Napue violation, “it unreasonably applie[d] that principle to
14
the facts of [Reberger’s] case.” Lockyer, 538 U.S. at 75.
15
In sum, the Court finds that the Nevada Supreme Court’s determination that
16
Reberger failed to demonstrate materiality under a Napue violation was an objectively
17
unreasonable application of clearly established federal law as determined by the
18
Supreme Court of the United States. The Court therefore grants Reberger habeas
19
corpus relief with respect to Ground One’s Napue claim under 28 U.S.C. § 2254(d)(1).4
20
///
21
///
22
23
24
25
26
27
28
4Reberger
argues that he is entitled to dismissal of the charges, an immediate
release from custody, and an order barring the State from retrying him due to the State’s
egregious misconduct. (ECF No. 101 at 69-70.) Alternatively, Reberger argues that this
Court should issue a conditional writ, ordering that he be released from custody unless
the State retries him within a certain period of time, and deny a stay if Respondents
appeal. (Id. at 75.) While this Court agrees that the State’s misconduct was outlandish, it
does not agree that a dismissal of the charges or the denial of a stay if Respondents
appeal are warranted. This Court will, however, order that Reberger be released from
custody within 60 days unless the Respondents file a written notice of election to retry
Reberger, and the State thereafter, within 180 days after the filing of that notice,
commences proceedings toward the retrial.
18
1
B.
Ground Four
2
In Ground Four, Reberger alleges that his federal constitutional rights were
3
violated when the state district court allowed an unreliable jailhouse informant to testify.
4
(ECF No. 65 at 71.) In Reberger’s appeal of his judgment of conviction, the Nevada
5
Supreme Court held: “We remain unpersuaded by Reberger’s argument[ that the district
6
court erred] because . . . evidence independent of testimony rendered by . . . a jailhouse
7
informant connected Reberger to the crimes, see D’Agostino v. State, 107 Nev. 1001,
8
823 P.2d 283 (1991).” (ECF No. 32-1 at 2.) Reberger also raised this claim in his appeal
9
of the denial of his first state habeas petition, but the Nevada Supreme Court stated that
10
the claim was barred by the doctrine of the law of the case because it had already held
11
on direct appeal that the claim lacked merit. (ECF No. 38-9 at 8-9 & n.4.) In response to
12
Respondents’ contention in the motion to dismiss that Reberger raised this claim as a
13
state-law claim only on direct appeal, this Court held that the Nevada Supreme Court
14
implicitly considered the federal claims in the appeal of the denial of the state
15
postconviction petition. (ECF No. 94 at 4.) As the Nevada Supreme Court only implicitly
16
considered the federal claims, the question here is whether Reberger has shown that
17
there was no reasonable basis for the Nevada Supreme Court to deny relief. See
18
Harrington, 562 U.S. at 98 (“Where a state court’s decision is unaccompanied by an
19
explanation, the habeas petitioner’s burden still must be met by showing there was no
20
reasonable basis for the state court to deny relief.”).
21
Dean Salvador Zuniga, Reberger’s former cellmate, testified at Reberger’s trial
22
that he was contacted by Detective White of the Henderson Police Department in
23
December 1992,5 and told Detective White that Reberger had told him that “he capped”
24
someone. (ECF No. 29-1 at 43-45, 50.) Zuniga explained that he understood this to
25
mean that Reberger shot someone. (Id. at 46.) Reberger “didn’t give the specifics” about
26
the shooting. (Id. at 49.) In return for his testimony, Zuniga testified that Detective White
27
28
5Reberger’s
first jury trial commenced on December 29, 1992. (See ECF No. 24-
1.)
19
1
said he would “speak on [Zuniga’s] behalf” by writing a letter to the parole board. (Id. at
2
46-48; see also id. at 51, 81-82 (testimony of Detective White that he told Zuniga he
3
would “write a letter stating his cooperation in this matter for them to consider when he
4
came up for parole”).)
5
“A habeas petitioner bears a heavy burden in showing a due process violation
6
based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005),
7
as amended on reh’g, 421 F.3d 1154 (9th Cir. 2005). “[C]laims deal[ing] with admission
8
of evidence” are “issue[s] of state law,” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th
9
Cir. 2009), and “federal habeas corpus relief does not lie for errors of state law.” Lewis
10
v. Jeffers, 497 U.S. 764 (1990). Therefore, the issue before this Court is “whether the
11
state proceedings satisfied due process.” Jammal v. Van de Kamp, 926 F.2d 918, 919-
12
20 (9th Cir. 1991). In order for the admission of evidence to provide a basis for habeas
13
relief, the evidence must have “rendered the trial fundamentally unfair in violation of due
14
process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle v. McGuire,
15
502 U.S. 62, 67 (1991)). Further, “[u]nder AEDPA, even clearly erroneous admissions
16
of evidence that render a trial fundamentally unfair may not permit the grant of federal
17
habeas corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by
18
the Supreme Court.” Yarborough, 568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see
19
also Dowling v. United States, 493 U.S. 342, 352 (1990) (explaining that the Supreme
20
Court has “defined the category of infractions that violate ‘fundamental fairness’ very
21
narrowly”). Importantly, the Supreme Court “has not yet made a ruling that admission of
22
irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to
23
warrant issuance of the writ.” Id.
24
Although there was a question about Zuniga’s reliability, that is insufficient to
25
demonstrate a due process violation. See United States v. Berry, 624 F.3d 1031, 1040
26
(9th Cir. 2010) (“In order . . . to succeed on [a] due process claim, it is not enough that
27
the evidence introduced against [a petitioner] was of . . . questionable reliability.”).
28
Instead, Reberger “must establish that the evidence was so arbitrary that ‘the factfinder
20
1
and the adversary system [were] not . . . competent to uncover, recognize, and take due
2
account of its shortcomings.’” Id. (citing Barefoot v. Estelle, 463 U.S. 880, 899 (1983)
3
superseded on other grounds by 28 U.S.C. § 2253(c)(2)); see also United States v.
4
Scheffer, 523 U.S. 303, 313 (1998) (“Determining the weight and credibility of witness
5
testimony . . . has long been held to be the ‘part of every case [that] belongs to the jury.’”)
6
(quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891).
7
Here, the jury was aware that Zuniga was a cellmate of Reberger’s; that Zuniga
8
had been convicted of stealing a car, stealing credit cards, and attempted coercion; and
9
that Detective White promised to write a letter on Zuniga’s behalf to the parole board if
10
he testified. (ECF No. 29-1 at 44, 46-48.) Further, the jury was instructed that “[t]he
11
credibility or believability of a witness should be determined by his manner upon the
12
stand, his relationship to the parties, his fears, motives, interests or feelings, [and] his
13
opportunity to have observed the matter to which he testified.” (ECF No. 30-1 at 11.)
14
The jury was also instructed that “[y]ou have heard testimony that the Defendant made
15
an oral admission to a person in custody. Evidence of an oral admission by a Defendant
16
ought to be viewed with caution.” (Id. at 13.) Because the jury was aware of the potential
17
shortcomings of Zuniga’s testimony through cross-examination and the jury instructions
18
and was able to weigh Zuniga’s credibility in light of these shortcomings, it cannot be
19
concluded that Reberger’s trial was rendered fundamentally unfair. See McGuire, 502
20
U.S. at 67. Accordingly, because Reberger has not demonstrated unfairness and
21
because the Supreme Court has not held that “overtly prejudicial evidence constitutes a
22
due process violation,” Yarborough, 568 F.3d at 1101, Reberger has failed to show that
23
there was no reasonable basis for the Nevada Supreme Court to deny relief. See
24
Harrington, 562 U.S. at 98.
25
Reberger is denied federal habeas relief for Ground Four.
26
C.
27
In Ground Five, Reberger alleges that his federal constitutional rights were
28
violated due to the cumulative effect of prosecutorial misconduct. (ECF No. 65 at 72.)
Ground Five
21
1
Reberger alleges four instances of prosecutorial misconduct. (See id. at 72-76.) In
2
Reberger’s appeal of his judgment of conviction, the Nevada Supreme Court held: “We
3
remain unpersuaded by Reberger’s arguments [that the district court erred]
4
because . . . alleged misconduct by the State did not materially affect the verdict when
5
viewed in the context of the entire trial, see Leonard v. State, 108 Nev. 79, 824 P.2d 287
6
(1992).” (ECF No. 32-1 at 2-3.)
7
“[T]he touchstone of due process analysis in cases of alleged prosecutorial
8
misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v.
9
Phillips, 455 U.S. 209, 219 (1982). “The relevant question is whether the prosecutors’
10
comments ‘so infected the trial with unfairness as to make the resulting conviction a
11
denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
12
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A court must judge the remarks
13
“in the context in which they are made.” Boyde v. California, 494 U.S. 370, 385 (1990).
14
The fairness of a trial is measured “by considering, inter alia, (1) whether the
15
prosecutor’s comments manipulated or misstated the evidence; (2) whether the trial
16
court gave a curative instruction; and (3) the weight of the evidence against the
17
accused.” Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005). “[P]rosecutorial
18
misconduct[ ] warrant[s] relief only if [it] ‘had substantial and injurious effect or influence
19
in determining the jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012)
20
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).
21
1. Subpart A
22
In Ground Five, Subpart A, Reberger alleges that his federal constitutional rights
23
were violated when the state failed to disclose that Harvey had been described by the
24
State as being “patently unreliable” in a different case. (ECF No. 65 at 72.)
25
During Reberger’s trial, outside the presence of the jury, Reberger’s trial counsel
26
indicated to the state district court that “[i]t came to our attention accidentally last week
27
that the State in fact has a document wherein Mel Harmon of the district attorney’s office
28
in another case filed a motion in which he referred to Amber Lynn Harvey as patently
22
1
unreliable.” (ECF No. 29-1 at 4.) Reberger’s trial counsel elaborated that “there is
2
apparently extensive evidence that [Harvey] gave very inconsistent statements in
3
another murder case, specifically Hagelmeyer” and that “we never found out about it
4
until one of our investigators happened to be in another attorney’s office and by accident
5
noticed a file on his desk captioned Amber Lynn Harvey and asked about it.” (Id.)
6
Reberger’s trial counsel explained that “if we’d had this weeks or months ago, we could
7
have done an investigation to find out all the details.” (Id. at 5.) The state district court
8
stated that it did not “know if an opinion by a prosecutor in an adversary proceeding
9
rises to the level of exculpatory evidence” because it is “argument of counsel[,] . . . not
10
evidence.” (Id. at 7.) The state district court then denied Reberger’s motion, stating that
11
the motion was in a different case filed by a different prosecutor. (Id. at 9.)
12
Harvey’s testimony was presented later that day, and Reberger’s trial counsel
13
cross-examined Harvey regarding a statement she gave in the Hagelmeyer case and
14
its similarity to a statement she made in Reberger’s case. (ECF No. 29-2 at 2, 9, 62-63.)
15
Harvey denied giving more than one statement in that case. (Id. at 63.) And as is
16
explained further in Ground Six, Harvey was questioned about the prior inconsistent
17
statements that she made in Reberger’s case. (See ECF No. 29-2 at 30, 57-58, 61-62,
18
66, 88.)
19
Although information that the State opined that Harvey was unreliable in a
20
different case may have been favorable to Reberger and may have been suppressed
21
pursuant to Brady, the Nevada Supreme Court reasonably concluded that the verdict
22
was not materially affected. Reberger’s trial counsel questioned Harvey about the
23
inconsistent statements she made in Reberger’s case and about the similarities between
24
Harvey’s statement in the Hagelmeyer case and her statement to Detective Perkins in
25
Reberger’s case. Because Harvey was impeached with her prior statements, which cast
26
doubt on her reliability, Reberger fails to demonstrate that the potential prosecutorial
27
misconduct in suppressing additional impeachment evidence against Harvey dealing
28
with reliability “had substantial and injurious effect or influence in determining the jury’s
23
1
verdict.” Brecht, 507 U.S. at 637-38. Accordingly, because the Nevada Supreme Court
2
reasonably denied that there was prosecutorial misconduct warranting the granting of
3
relief to Reberger, Reberger is denied federal habeas relief for Ground Five, Subpart A.
4
2. Subpart B
5
In Ground Five, Subpart B, Reberger alleges that his federal constitutional rights
6
were violated when the State deliberately placed prejudicial information before the jury.
7
(ECF No. 65 at 73.) Specifically, Reberger alleges that the State laid the autopsy
8
photographs face up so that they were visible to the jury before they had been admitted
9
and elicited evidence that Reberger was involved in an unrelated traffic stop. (Id.)
10
Regarding Reberger’s first contention, Reberger’s trial counsel explained to the
11
state district court that during Reberger’s first trial, which ended in a mistrial, “the
12
prosecution had taken out the autopsy photos and laid them out on the table so the jury
13
could see them. We would ask the Court to request them to keep them turned down until
14
and unless they are admitted into evidence, then only publish them to the jury.” (ECF
15
No. 28 at 4.) The state district court indicated that it believed “that is appropriate.” (Id.)
16
Later, through the testimony of Giles Green, the coroner who performed the victim’s
17
autopsy, the autopsy photographs were admitted and published to the jury. (ECF No.
18
28-3 at 69-70, 85.) Outside the presence of the jury, Reberger’s trial counsel indicated
19
that the State again laid the photographs “face up on the desk facing the jury.” (ECF No.
20
28-3 at 104.) The State admitted that the photographs “were face up, but there was only
21
one of them that was actually viewable.” (Id. at 105.) The state district court then stated
22
that there was no prejudice because it did not “think it was intentional and [there was]
23
only one photograph” that was later admitted. (Id.)
24
Turning to Reberger’s second contention, Troy Hatch, an undercover narcotics
25
detective with the Henderson Police Department, testified that he “ma[de] a traffic stop
26
on October 25th of 1990 in reference to a black Chevrolet Camaro with Florida license
27
plates.” (ECF No. 28-4 at 28-29.) Detective Hatch explained Reberger was one of two
28
occupants in the vehicle. (Id. at 29.) The State asked Detective Hatch if he “recall[ed] if
24
1
[Reberger] was driving or was the passenger.” (Id. at 30.) Detective Hatch indicated that
2
Reberger was driving. (Id.) Detective Hatch then testified, “without going into the
3
particulars of the traffic stop itself,” as the State requested, that he arrested the
4
passenger on an outstanding warrant. (Id.) Later, outside the presence of the jury,
5
Reberger’s trial counsel explained that the State “didn’t have to elicit testimony that
6
[Reberger] was the driver and it was a traffic stop.” (Id. at 69.) The state district court
7
ruled that it was “not convinced that what happened even arose to the level to whereby
8
it was a previous criminal act” because “most of the discussion and the testimony was
9
surrounding the passenger who was wanted on some kind of felony warrant” and there
10
was no “indication that Mr. Reberger was wanted or anything or had to be charged or
11
was even ticketed for anything.” (Id. at 70.)
12
Even if these two circumstances warranted a finding that the State committed
13
misconduct, the Nevada Supreme Court reasonably concluded that the jury’s verdict
14
was not affected or influenced by the conduct. See Brecht, 507 U.S. at 637-38. First, the
15
jury was able to view the photographs shortly after they were allegedly improperly
16
displayed when they were subsequently published. And second, Detective Hatch did not
17
give any description of or reason for the traffic stop of Reberger’s vehicle. Accordingly,
18
because the Nevada Supreme Court reasonably denied that there was prosecutorial
19
misconduct warranting the granting of relief to Reberger, Reberger is denied federal
20
habeas relief for Ground Five, Subpart B.
21
3. Subpart C
22
In Ground Five, Subpart C, Reberger alleges that his federal constitutional rights
23
were violated when the State improperly commented on the reasonable doubt standard.
24
(ECF No. 65 at 74.) During the State’s closing argument, the following colloquy occurred:
25
26
27
[THE STATE]:
. . . 27 times the defense made the statement not
beyond a reasonable doubt. Is that a defense, simply
not beyond a reasonable doubt? Stand up here and
say - -
28
25
MR. DUNLEAVY:
2
Your Honor, I am going to object. This is a defense.
That’s the law.
[THE STATE]:
1
Is the statement not beyond a reasonable doubt a
defense? Is he putting it forward now?
3
4
Ladies and gentlemen, you read - - we will take some
time. I will go through this right now with you. You are
going to have the opportunity to read it. It’s instruction
number four. In that instruction, pay attention to the
second paragraph. The second paragraph says: “A
reasonable doubt is one based on reason. It is not
mere possible doubt but is such a doubt as would
govern or control a person in their more weighty affairs
of life. If in the minds of the jurors, after the entire
comparison and consideration of all of the evidence are
in such a condition that they can say they fill [sic] an
abiding conviction of the truth of the charge, there is
not a reasonable doubt.” Doubt must be reasonable.
Doubt to be reasonable must be actual, not mere
possibility or speculation. . . .
5
6
7
8
9
10
11
12
13
(ECF No. 30-3 at 42-43.)
14
The Nevada Supreme Court’s conclusion that the State’s comment did not
15
materially affect the verdict was reasonable. Even if the State’s argument can be
16
described as being misleading, see Deck v. Jenkins, 814 F.3d 954, 977-78 (9th Cir.
17
2016), the State immediately and accurately thereafter gave the definition of reasonable
18
doubt. (See ECF No. 30-1 at 5 (reasonable doubt jury instruction).) Thus, it cannot be
19
determined that the State’s previous, isolated comment “had [a] substantial and injurious
20
effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637-38; see
21
generally United States v. Williams, 690 F.3d 70 (2d Cir. 2012) (determining that the
22
prosecutor’s comment that “‘this is not a search for reasonable doubt. This is a search
23
for truth” was improper but not plain error). Therefore, because the Nevada Supreme
24
Court reasonably denied that there was prosecutorial misconduct warranting the
25
granting of relief to Reberger, Reberger is denied federal habeas relief for Ground Five,
26
Subpart C.
27
///
28
///
26
1
4. Subpart D
2
In Ground Five, Subpart D, Reberger alleges that his federal constitutional rights
3
were violated when the State deliberately withheld important discovery material related
4
to letters Reberger allegedly wrote from the Coos Bay Correctional Center. (ECF No. 6
5
at 74.) Specifically, Reberger alleges that the State misled him into believing that the
6
original letters were destroyed and ambushed him at trial with the letter logs obtained
7
from the Coos Bay Correctional Center. (Id. at 75.)
8
As was discussed briefly in Ground One and is discussed further in Ground Nine,
9
Subpart E, Reberger wrote Harvey three letters from the Coos County Corrections
10
facility. (ECF Nos. 18-9, 18-10, 19.) At a pre-trial hearing, Reberger’s trial counsel
11
indicated that the original letters “are no longer in existence.” (ECF No. 23-17 at 4.)
12
Reberger’s trial counsel explained that he was “advised . . . that someone in the law
13
enforcement chain . . . took the letters and gave them to Amber Lynn Harvey, who sent
14
them to her mother, who threw them away.” (Id. at 5.) The State confirmed that Coos
15
Bay Correction Facility officers “made photocopies of letters, and they passed on the
16
originals to Amber Harvey. And they made photocopies of the copies to send them down
17
to Henderson. And of course these are the letters that everybody has here in Court.” (Id.
18
at 12.) The State also confirmed that he “spoke with Amber Harvey’s mother a week
19
ago, and [he] asked her where the originals were,” and because “Amber basically
20
wanted to have nothing else to do with Lance Reberger,” the original letters were
21
disposed of. (Id. at 12-13.)
22
Later, during the first trial, Reberger’s trial counsel explained that, “all of a sudden,
23
the originals [of the letters] are sitting here[.] . . . I don’t now [sic] how they came from
24
the dead, but we weren’t advised that somehow they miraculously appeared.” (ECF No.
25
26-1 at 46.) Reberger’s trial counsel explained that they had “a Xerox copy of a Xerox
26
copy” and that Reberger was prejudiced by the late introduction of the original
27
28
27
1
documents because Reberger did not have “a chance to challenge the validity of the
2
chain of custody or the authorship of the letters.”6 (Id. at 48-49.)
3
Turning to Reberger’s second contention, during the second trial, the State called
4
Officer Jackson, who testified, among other things, about the mail procedures in the
5
Coos County Corrections facility. (ECF No. 29 at 4, 10.) The State asked Officer Jackson
6
about a log of the letters that Reberger sent while he was housed at the Coos County
7
Corrections facility. (Id. at 11, 15.) Officer Jackson testified that the log, which was four
8
pages in length, showed how many letters Reberger mailed and to whom the letters
9
were sent. (Id. at 15.) When the State moved to admit the log, Reberger’s trial counsel
10
explained that he had “never seen [the log] until a couple minutes ago” and requested
11
that he be able to ask Officer Jackson some questions about it. (Id. at 16.) During
12
Reberger’s trial counsel’s questions, Officer Jackson testified that the log indicated
13
whether mail is “inter-jail correspondence,” does not state who in the jail the mail was
14
sent to, and does not state when people receive mail. (Id. at 16-17.) Reberger’s trial
15
counsel than objected to the admission of the log on the basis that Officer Jackson was
16
“not the custodian of records, he’s not the person that can verify whether or not the
17
information contained in those logs is proper or what procedures [were] used.” (Id. at
18
26.) The state district court admitted the log over Reberger’s trial counsel’s objection.
19
(Id. at 27.) Later, outside the presence of the jury, Reberger’s trial counsel explained
20
that “Andrew Jackson [came] in with logs that [he] didn’t know existed and never had an
21
opportunity to review.” (Id. at 49.) The State indicated that it just saw the log that day
22
and that it told Officer Jackson to bring them. (Id.) The state district court then stated
23
that it did not “think those documents were so prejudicial,” but warned the State that if it
24
“told [Officer Jackson] to bring them and [it] was going to introduce them, it’s encumbent
25
[sic] upon [the State] to let [the defense] know.” (Id. at 50.)
26
27
28
6The
Court notes that the State had the original letters tested for fingerprints. (ECF
No. 26-1 at 42-43.)
28
1
The Nevada Supreme Court reasonably concluded that the late notice of the
2
original letters and the log of letters did not materially affect the verdict in Reberger’s
3
case. See Brecht, 507 U.S. at 637-38. First, although it is unclear when the State
4
obtained the original letters, it explained that it did not originally have access to them.
5
However, because notice of the original letters was given during the first trial, which
6
ended in a mistrial, Reberger had knowledge of them prior to the commencement of the
7
second trial. Regarding the log, it does not appear that the log contained any pertinent
8
information that Reberger’s trial counsel did not already know from the copies of the
9
underlying letters contained in the log. Accordingly, because the Nevada Supreme Court
10
reasonably rejected Reberger’s prosecutorial misconduct claim, Reberger is denied
11
federal habeas relief for Ground Five, Subpart D.
12
Because Reberger has failed to demonstrate that the foregoing instances of
13
alleged prosecutorial misconduct warrant the granting of federal habeas relief, the
14
cumulative effect of the alleged prosecutorial misconduct does not warrant the granting
15
of federal habeas relief.
16
D.
Ground Six
17
In Ground Six, Reberger alleges that his federal constitutional rights were violated
18
when Harvey was allowed to testify even though she was incompetent. (ECF No. 65 at
19
76.) Secondly, Reberger asserts that there was a lack of independent corroboration
20
regarding Harvey’s testimony. (Id. at 78.)
21
Regarding the first part of Ground Six, incompetence, in Reberger’s appeal of his
22
judgment of conviction, the Nevada Supreme Court held: “Reberger appeals, arguing
23
that the district court erred in numerous respects. We remain unpersuaded by
24
Reberger’s arguments because . . . Reberger produced no credible evidence . . .
25
demonstrat[ing] why jurors could not properly determine the veracity of his co-
26
defendant’s testimony.” (ECF No. 32-1 at 2.) This Court previously dismissed
27
Respondents’ argument that Reberger failed to rely on federal constitutional provisions
28
29
1
in his direct appeal, so this Court found this portion of Ground Six to be exhausted. (ECF
2
No. 94 at 6.)
3
Regarding the second part of Ground Six, corroboration, in Reberger’s appeal of
4
his judgment of conviction, the Nevada Supreme Court held: “We remain unpersuaded
5
by Reberger’s argument[ that the district court erred] because . . . evidence independent
6
of testimony rendered by Reberger’s co-defendant . . . connected Reberger to the
7
crimes, see D’Agostino v. State, 107 Nev. 1001, 823 P.2d 283 (1991).” (ECF No. 32-1
8
at 2.) Reberger also raised this claim in his appeal of the denial of his first state habeas
9
petition, but the Nevada Supreme Court stated that the claim was barred by the doctrine
10
of the law of the case because it had already held on direct appeal that the claim lacked
11
merit. (ECF No. 38-9 at 8-9 & n.4.) In response to Respondents’ contention in the motion
12
to dismiss that Reberger raised this claim as a state-law claim only on direct appeal, this
13
Court held that the Nevada Supreme Court implicitly considered the federal claims in
14
the appeal of the denial of the state postconviction petition. (ECF No. 94 at 4.) As the
15
Nevada Supreme Court only implicitly considered the federal claims, the question here
16
is whether Reberger has shown that there was no reasonable basis for the Nevada
17
Supreme Court to deny relief. See Harrington, 562 U.S. at 98 (“Where a state court’s
18
decision is unaccompanied by an explanation, the habeas petitioner’s burden still must
19
be met by showing there was no reasonable basis for the state court to deny relief.”).
20
Prior to his trial, Reberger moved to limit Harvey’s testimony. (ECF No. 23-7.) A
21
hearing on the motion was held on November 20, 1992, wherein the state district court
22
indicated that it “think[s] there is a lot of circumstantial evidence that [Reberger is]
23
involved, but [it] need[s] something to connect him to the crime.” (ECF No. 23-11 at 16.)
24
The state district court then indicated that it would reserve ruling on the issue. (Id. at 23.)
25
A second hearing on the motion was held on December 3, 1992, and again, the state
26
district court “h[e]ld a ruling on this issue in abeyance” because it wanted “to see how
27
the case goes.” (ECF No. 23-14 at 17.) A third hearing on the motion was held on
28
December 9, 1992, and at this time the state district court denied “[t]he motion to limit
30
1
the testimony of Amber Lynn Harvey.” (ECF No. 23-17 at 17.) The state district court
2
explained that “[t]here is a whole composite of facts and circumstances established by
3
a number of witnesses that the accused was linked to the accomplice by association,
4
motive, opportunity, knowledge. The whole gambit of their relationship is enough.” (Id.)
5
The state district court also explained, “it doesn’t have to be enough to prove guilt; the
6
slightest evidence that tends to connect. And I believe, based upon what the State says,
7
they can prove that’s sufficient.” (Id.)
8
Reberger first takes issue with Harvey’s testimony because she was on drugs,
9
including heroin, crank, marijuana, and alcohol, when the crimes were committed. (ECF
10
No. 29-2 at 67, 70.) Further, Harvey was taking Thorazine when she testified at
11
Reberger’s trial. (Id. at 67) Jack Jurasky, a physician and psychiatrist, testified that
12
“Thorazine is a very powerful antipsychotic” drug. (ECF No. 30-2 at 11-13.)
13
Next, Reberger takes issue with Harvey’s testimony because of her cognitive
14
abilities. Harvey testified that she “ha[s] a little retardness [sic] in [her].” (ECF No. 29-2
15
at 69.) And Lewis Marvin Etcoff, a licensed psychologist and a clinical
16
neuropsychologist, testified that he met with Harvey and determined that “[h]er
17
intelligence test score, her verbal intelligence, came out to an I.Q. of 68, which falls in
18
the mildly mentally retarded range.” (ECF No. 30-2 at 16-18.) Dr. Etcoff explained that
19
he “wasn’t convinced that [Harvey] was relating the facts to [him] as they actually
20
occurred. [He] wasn’t sure that [Harvey] was able to or even remembered exactly what
21
occurred, because she seemed to have changed her story several times from the
22
information that [he] had been provided.” (Id. at 18.) Dr. Etcoff explained that he thought
23
Harvey was “confused and mixed up, which would probably account for her telling
24
different stories at different times to different people.” (Id. at 26.)
25
Third, Reberger takes issue with Harvey’s testimony because she told
26
inconsistent stories. Harvey testified that she believed she told Coos Bay law
27
enforcement that she had never seen the gun before and that “the only reason [she]
28
went along was because Lance put a gun up against [her] son’s head.” (ECF No. 29-2
31
1
at 57-58.) Harvey admitted that this was not true and that she lied because she was
2
scared, had not slept for days, was sick, was pregnant and was on drugs. (Id. at 30, 57.)
3
Later, in a statement to the Henderson Police Department, Harvey said that she heard
4
two muffled shots when she was in the vehicle, saw somebody dressed all in black, and
5
had possession of the gun. (Id. at 61-62, 66.) Harvey later told an inmate that she did
6
not have anything to do with the crimes in question. (Id. at 57.) Finally, in her interview
7
with the Department of Parole and Probation, Harvey said she “only provided an
8
interview to the police because they threatened [her] with rape” and that “she had no
9
memory of the instant offense, the actual crime.” (Id. at 88; see also ECF No. 29-4 at
10
12.) However, in her written statement given to Joy Mundy-Neal, the Department of
11
Parole and Probation officer who wrote Harvey’s presentence investigation report,
12
Harvey wrote the following: “I know I was wrong doing a burglary, but I swear on my life,
13
I did not know about the robbery and murder.” (Id. at 23.)
14
Similar to Ground Four, there was a question about Harvey’s competence and
15
whether, under Nevada law, there was corroborating evidence supporting Harvey’s
16
testimony. See LaPena v. Sheriff, 91 Nev. 692, 694, 541 P.2d 907, 909 (1975)
17
(explaining that Nevada law “prohibits a conviction on testimony of an accomplice unless
18
he is corroborated”). However, in order to prevail on a federal habeas claim, Reberger
19
must demonstrate that Harvey’s “testimony is almost entirely unreliable and that the
20
factfinder and the adversary system will not be competent to uncover, recognize, and
21
take due account of its shortcomings.” Barefoot, 463 U.S. at 899, superseded on other
22
grounds by 28 U.S.C. § 2253(c)(2). Here, the jury was aware that Harvey was on drugs
23
when the crimes occurred, was on medication while testifying at Reberger’s trial, had
24
limited cognitive abilities, and told previous inconsistent stories. Further, as was also
25
pointed out in Ground Four, the jury was instructed about credibility and believability of
26
a witness. (ECF No. 30-1 at 11.) Because the jury was aware of the potential
27
shortcomings of Harvey’s testimony and was able to weigh Harvey’s credibility in light
28
of these shortcomings, the Nevada Supreme Court reasonably concluded that Reberger
32
1
failed to demonstrate why the jury could not determine Harvey’s veracity. Accordingly,
2
it cannot be concluded that Reberger’s trial was rendered fundamentally unfair due to
3
Harvey’s alleged incompetence. McGuire, 502 U.S. at 67.
4
Further, regarding the corroboration issue, it is Reberger’s burden to demonstrate
5
a lack of congruence with United States Supreme Court precedent. Reberger only cites
6
case law regarding sufficiency of the evidence; however, he fails to cite any apposite
7
constitutional decisions by the Supreme Court regarding corroborating evidence.
8
Reberger has failed to show that there was no reasonable basis for the Nevada
9
Supreme Court to deny relief. See Harrington, 562 U.S. at 98.
10
Reberger is denied federal habeas relief for Ground Six.
11
E.
12
In Ground Seven, Reberger alleges that his federal constitutional rights were
13
violated when the jury engaged in premature deliberations. (ECF No. 65 at 81.)
14
Reberger elaborates that the state district court should have engaged in further inquiry
15
after being informed that some jurors were discussing the case prematurely. (Id.) In
16
Reberger’s appeal of his judgment of conviction, the Nevada Supreme Court held:
17
“Reberger appeals, arguing that the district court erred in numerous respects. We
18
remain unpersuaded by Reberger’s arguments because . . . Reberger produced no
19
credible evidence of prejudicial juror misconduct.” (ECF No. 32-1 at 2.)
Ground Seven
20
On January 20, 1993, Deanna Domingo was called as a witness for the defense
21
at Reberger’s trial. (ECF No. 29-3 at 3, 27.) The following day, January 21, 1993, outside
22
the presence of the jury, Reberger’s trial counsel informed the state district court that
23
“Miss Domingo, who testified yesterday, apparently contacted [Reberger] yesterday and
24
advised him that when she was downstairs, she overheard the jury talking about how
25
they felt sorry for Amber and were upset at what Lance might have put Amber through.”
26
(ECF No. 29-5 at 5.) The state district court replied that it “d[id]n’t know if that’s true or
27
what,” and indicated, in response to Reberger’s trial counsel suggesting that an inquiry
28
33
1
could be made of Domingo, it was “not going to do anything. You can if you think there
2
is a problem, but [it] didn’t see any.” (Id.)
3
Reberger’s trial counsel later insisted on making a record of Domingo’s
4
observations regarding the jury. (Id. at 36.) Domingo testified outside the presence of
5
the jury that as she was walking alongside a couple of people in the courthouse, she
6
heard them say, “‘Lance is taking it pretty good.’ And another girl said, ‘I kind of felt sorry
7
for the girl.’” (Id. at 37.) A little while later, after the lunchbreak, Domingo recognized the
8
people she heard speaking sitting as jurors in Reberger’s trial. (Id.) During cross-
9
examination, Domingo testified that she told Reberger this information when he called
10
her the night before. (Id. at 38.) Domingo also explained that she had visited Reberger
11
in jail approximately twenty-five times. (Id. at 39.) The state district court then ruled on
12
the issue:
13
14
15
16
17
18
19
20
21
I don’t know if she’s talking about our jury or what they were talking about.
There are two juries, two or three juries, out there. Two of them are outside
our courtroom. There’s one outside our courtroom that’s not even our jury
who’s been sitting around here.
She didn’t identify who the people were. I have no idea what she’s talking
about. And if they’re even jurors, or if they were our jurors, or if they were
witnesses or - - I don’t even know. She wasn’t very clear about when and
where and what, who or anything.
The Court will admonish the jury not to discuss this case again. But I think
I’ve done that, and I don’t have any credible evidence that they’ve been
doing otherwise.
(Id. at 40.)
22
The Supreme Court has explained that “due process does not require a new trial
23
every time a juror has been placed in a potentially compromising situation,” rather, due
24
process guarantees “a jury capable and willing to decide the case solely on the evidence
25
before it, and a trial judge ever watchful to prevent prejudicial occurrences and to
26
determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S.
27
209, 217 (1982). If juror misconduct is alleged, “the remedy . . . is a hearing in which the
28
defendant has the opportunity to prove actual bias.” Id. at 215. Following that hearing,
34
1
the court must assess “whether or not the misconduct has prejudiced the defendant to
2
the extent that he has not received a fair trial.” United States v. Klee, 494 F.2d 394, 396
3
(9th Cir. 1974).
4
Reberger was given an “opportunity to prove actual bias,” Smith, 455 U.S. at 215,
5
by having Domingo testify about her observations. Thereafter, the state district court
6
concluded that Domingo was not credible and, as such, no action was warranted beyond
7
further admonishment of the jury. (ECF No. 29-5 at 40.) The relationship between
8
Reberger and Domingo supports the state district court’s credibility determination. See
9
generally Rice v. Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing
10
the record might disagree about the prosecutor’s credibility, but on habeas review that
11
does not suffice to supersede the trial court’s credibility determination.”). Indeed,
12
Domingo testified that she had visited Reberger in jail approximately twenty-five times
13
and had spoken to him on the telephone the evening that she allegedly observed the
14
jury members conversing. (ECF No. 29-5 at 38-39.) Accordingly, the Nevada Supreme
15
Court’s conclusion that Reberger failed to produce sufficient support that a prejudicial
16
occurrence took place was reasonable. See Smith, 455 U.S. at 217. Because Reberger
17
fails to show a violation of his federal constitutional rights, he is denied federal habeas
18
relief for Ground Seven.
19
F.
Ground Eight
20
In Ground Eight, Reberger argues that his federal constitutional rights were
21
violated when the state district court refused to give two proposed jury instructions which
22
were based on his theory of defense. (ECF No. 65 at 82.) In Reberger’s appeal of his
23
judgment of conviction, the Nevada Supreme Court held that “the district court
24
adequately instructed the jury regarding Reberger’s theory of the case.” (ECF No. 32-1
25
at 2.) As with Ground Four and Six, Reberger also raised this claim in his appeal of the
26
denial of his first state habeas petition, but the Nevada Supreme Court stated that the
27
claim was barred by the doctrine of the law of the case because it had already held on
28
direct appeal that the claim lacked merit. (ECF No. 38-9 at 9 & n.4.) In response to
35
1
Respondents’ contention in the motion to dismiss that Reberger raised this claim as a
2
state-law claim only on direct appeal, this Court held that the Nevada Supreme Court
3
implicitly considered the federal claims in the appeal of the denial of the state
4
postconviction petition. (ECF No. 94 at 4.) As the Nevada Supreme Court only implicitly
5
considered the federal claims, the question here is whether Reberger has shown that
6
there was no reasonable basis for the Nevada Supreme Court to deny relief. See
7
Harrington, 562 U.S. at 98 (“Where a state court’s decision is unaccompanied by an
8
explanation, the habeas petitioner’s burden still must be met by showing there was no
9
reasonable basis for the state court to deny relief.”).
10
Issues relating to jury instructions are not cognizable in federal habeas corpus
11
unless they violate due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); see also
12
Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“[W]e have never said that the possibility of
13
a jury misapplying state law gives rise to federal constitutional error.”). The question is
14
“‘whether the ailing instruction by itself so infected the entire trial that the resulting
15
conviction violates due process’, . . . not merely whether ‘the instruction is undesirable,
16
erroneous, or even universally condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154
17
(1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)). A challenged
18
instruction “‘may not be judged in artificial isolation,’ but must be considered in the context
19
of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp,
20
414 U.S. at 147); see also United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999)
21
(explaining that a court inquires as to “whether the instructions as a whole are misleading
22
or inadequate to guide the jury’s deliberation” (internal citations omitted)). Furthermore,
23
jurors are presumed to follow the instructions that they are given. See United States v.
24
Olano, 507 U.S. 725, 740 (1993). Even if an instruction contains a constitutional errors,
25
the court must then “apply the harmless-error analysis mandated by Brecht[ v.
26
Abrahamson, 507 U.S. 619 (1993)].” Calderon v. Coleman, 525 U.S. 141, 146 (1998).
27
The question is whether the error had a “substantial and injurious effect or influence in
28
determining the jury’s verdict.” Id. at 145.
36
1
The heart of Reberger’s argument is that the district court prevented him from
2
establishing his defense theory by denying his proposed instructions. See Mathews v.
3
United States, 485 U.S. 58, 63 (1988) (“As a general proposition a defendant is entitled
4
to an instruction as to any recognized defense for which there exists evidence sufficient
5
for a reasonable jury to find in his favor.”). Reberger’s trial counsel proposed two jury
6
instructions. (ECF No. 30-2 at 38.) The first proposed instruction provided that “the State
7
has introduced evidence which was discovered approximately two years after the crime
8
was committed. In deciding what weight to give this evidence, you must consider the time
9
which has passed between the date the crime was committed and the date the evidence
10
was discovered.” (Id. at 38-39.) The second proposed instruction provided that “the jury
11
has little knowledge as to the type of pressures and inducement that the jail inmates are
12
under to cooperate with the State and to say anything that is helpful to the State’s case.
13
Therefore, such testimony should be carefully evaluated.” (Id. at 39.)
14
Reberger’s trial counsel explained that “[t]he Court refused [his second proposed]
15
instruction. However, we compromised on an instruction which is now Number 12.” (Id.)
16
Following comment from the State, the state district court explained:
17
18
19
20
21
22
The Court - - in regards to Defense Instruction Number B, the Court declined
to give that instruction because the Court did not feel that it was - - the Court
did not approve of the way it was written. The Court thought it was confusing
and that it was not the law, per se.
However, the Court did find an instruction - - we fashioned one which would
take care of the problems that the defense wanted to cure, and that is having
a jailhouse person come into court and testify to the admission that was
made by the defendant and that his testimony should be looked at with
caution and with great scrutiny.
23
24
25
26
The Court felt that Instruction Number 12 would alleviate concerns that our
Supreme Court expressed in the D’Agostino case. And also the Court would
note that the instruction that the defense proposed came out of D’Agostino,
which specifically went to the penalty phase of the hearing and not to the
guilt phase. And the Court thinks Instruction Number 12 states what the
defense wanted to state about the witness who was in custody.
27
28
In reference to defense Instruction Number 8, basically the Court found this
instruction to be consuming also. I mean, I don’t know what the - - it’s just a
37
1
2
3
4
5
6
7
8
9
statement that the case - - some evidence was found two years after the
crime was committed; and that they must consider the time between the
time that the crime happened and when the evidence was submitted. I don’t
know. That’s not stating any law, and it just made one blanket statement.
Of course, in a murder case sometimes it’s 20 years before evidence is
discovered, in order to convict a person for murder. There is no statute of
limitations on murder and on the evidence that can be used.
Therefore, that’s why the Court gave this instruction, although you can
always argue weight and inferences to be drawn from any evidence. And
that’s your prerogative during closing argument. The Court is not going to
foreclose that to you. However, the Court doesn’t think it’s proper in a jury
instruction.
(Id. at 40-41.)
10
Turning first to Reberger’s proposed jury instruction about later-discovered
11
evidence, this proposed instruction regarded Harvey taking law enforcement to the desert
12
“[t]o show them the stuff that [Harvey and Reberger had] ditched,” which occurred “a
13
couple months” before Reberger’s trial. (See ECF No. 29-2 at 30; see also ECF No. 23-
14
25.) Reberger’s proposed instruction was based on Bishop v. State, which explained that
15
the passage of time between the crime and the discovery of evidence “goes to the weight
16
rather than the admissibility” of that evidence. 554 P.2d 266, 273 (Nev. 1976). Although
17
the jurors were not instructed about consideration of later-discovered evidence
18
specifically, they were instructed about the consideration of evidence generally. (See ECF
19
No. 30-1 at 6 (“Although you are to consider only the evidence in the case in reaching a
20
verdict, you must bring to the consideration of the evidence [their] everyday common
21
sense and judgment as reasonable men and women.”).) Because the jury was instructed
22
to use their common sense and judgment in considering the evidence against Reberger,
23
the jury was adequately instructed about Reberger’s defense theory that the evidence
24
was unreliable. See Mathews, 485 U.S. at 63. Therefore, because Reberger fails to
25
demonstrate a due process violation, Estelle, 502 U.S. at 72, Reberger has failed to show
26
that there was no reasonable basis for the Nevada Supreme Court to deny relief.
27
Harrington, 562 U.S. at 98.
28
38
1
Turning to Reberger’s proposed instruction about evaluating inmate testimony,
2
Reberger cites to D’Agostino v. State, which provided that “[a] legally unsophisticated jury
3
has little knowledge as to the types of pressures and inducements that jail inmates are
4
under to ‘cooperate’ with the state and to say anything that is ‘helpful’ to the state’s case.”
5
823 P.2d 283, 284 (Nev. 1991). Reberger’s proposed jury instruction copies this language
6
from D’Agostino and then adds that “such testimony should be carefully evaluated.” (ECF
7
No. 30-2 at 39.) Instead of Reberger’s proposed instruction, the state district court
8
instructed the jury as follows: “You have heard testimony that the Defendant made an
9
oral admission to a person in custody. Evidence of an oral admission by a Defendant
10
ought to be viewed with caution.” (ECF No. 30-1 at 13.) Although the jury was not
11
instructed about the pressures an inmate is under to cooperate, which is more akin to
12
argument, the jury was instructed about the careful evaluation that ought to be given to
13
inmate testimony, which was the basis of Reberger’s proposed instruction and defense
14
regarding inmate testimony. Accordingly, the jury was adequately instructed about
15
Reberger’s defense theory, see Mathews, 485 U.S. at 63, such that Reberger fails to
16
demonstrate a due process violation, see Estelle, 502 U.S. at 72, and fails to show that
17
there was no reasonable basis for the Nevada Supreme Court to deny relief, see
18
Harrington, 562 U.S. at 98.
19
Reberger is denied federal habeas relief for Ground Eight.
20
G.
21
In Ground Nine, Reberger alleges that his federal constitutional rights were
22
violated due to eight instances of ineffective assistance of his trial counsel. (ECF No. 65
23
at 83-93.) In Strickland, the Supreme Court propounded a two-prong test for analysis of
24
claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1)
25
that the attorney’s “representation fell below an objective standard of reasonableness,”
26
and (2) that the attorney’s deficient performance prejudiced the defendant such that
27
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
28
of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
Ground Nine
39
1
688, 694 (1984). A court considering a claim of ineffective assistance of counsel must
2
apply a “strong presumption that counsel’s conduct falls within the wide range of
3
reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that
4
counsel made errors so serious that counsel was not functioning as the ‘counsel’
5
guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish
6
prejudice under Strickland, it is not enough for the habeas petitioner “to show that the
7
errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
8
Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial
9
whose result is reliable.” Id. at 687.
10
Where a state district court previously adjudicated the claim of ineffective
11
assistance of counsel under Strickland, establishing that the decision was unreasonable
12
is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United
13
States Supreme Court instructed:
14
15
16
17
18
19
20
The standards created by Strickland and § 2254(d) are both “highly
deferential,” [Strickland, 466 U.S. at 689]; 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 [v. Mirzayance, 556 U.S. 111,
123 (2009)]. The Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at 123, 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 not whether counsel’s
actions were reasonable. The question is whether there is any reasonably
argument that counsel satisfied Strickland’s deferential standard.
21
Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th
22
Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews a state
23
court’s Strickland determination under AEDPA, both AEDPA and Strickland’s deferential
24
standards apply; hence, the Supreme Court’s description of the standard as doubly
25
deferential.”).
26
1. Subpart A
27
In Ground Nine, Subpart A, Reberger argues that his trial counsel erred in failing
28
to call Corrine Kemp to testify. (ECF No. 65 at 84.) Reberger explains that Kemp, the
40
1
girlfriend of jailhouse informant Dean Salvador Zuniga, would have undermined Zuniga’s
2
testimony. (Id. at 84-85.) In Reberger’s appeal of the denial of his first state habeas
3
petition, the Nevada Supreme Court held:
4
5
6
7
8
9
[A]ppellant claimed counsel were ineffective for failing to call C. Kemp as a
witness to impeach the credibility of the jailhouse informant. Appellant failed
to demonstrate deficiency or prejudice. Kemp testified at the evidentiary
hearing that she arrived at the courthouse too late to testify, was high on
heroin when she arrived, and would not have gone into the courtroom so
“loaded.” We therefore conclude that the district court did not err in denying
this claim.
(ECF No. 38-9 at 3.)
10
As was explained in Ground Four, Zuniga, Reberger’s former cellmate, testified
11
at Reberger’s trial that Reberger had told him that “he capped” someone. (ECF No. 29-
12
1 at 43-45.) Kemp, who had previously been in a relationship with Zuniga and had a son
13
with him, testified at the post-conviction evidentiary hearing that Zuniga told her
14
approximately two months prior to Reberger’s trial that Zuniga “did not . . . know that
15
Lance killed that kid” and that “he didn’t know that that’s what [he] did or that’s what [he
16
was] in there for.” (ECF No. 34 at 51, 61-62, 72.) Kemp was “never called to [Reberger’s]
17
trial in 1993” because she “was doing illegal activity, . . . was on drugs and . . . didn’t
18
show up for court.” (Id. at 53-55.) In fact, Kemp testified that she went to the courthouse
19
during Reberger’s trial “because [she] was told that they brang [sic] Dean down for court.
20
So, [she] was going to go to court and tell them that Dean was lying.” (Id. at 57.)
21
However, Kemp testified that she was using heroin and PCP during that time and missed
22
Zuniga’s testimony. (Id. at 58, 67.) Later, after Reberger’s trial, Kemp wrote Reberger a
23
letter telling Reberger “that [Zuniga] was lying.” (Id. at 58, 61; see also ECF No. 39-1
24
(Kemp’s letter to Reberger in which she states “if I can get sapenad [sic] [and] test a fi
25
[sic] in your appeal that Dino lied[,] I will do it”).) Kemp believed that Zuniga “was
26
testifying against [Reberger] to get out of prison.” (ECF No. 34 at 63.)
27
Kemp explained that she was contacted by Reberger’s trial counsel prior to his
28
trial. (Id. at 53.) “[A] detective that was helping Lance” came to her house, and Kemp
41
1
spoke to him more than once. (Id. at 66, 68.) On one occasion, Reberger’s “investigator
2
put a tape recorder in [her] baby’s crib so [they] could catch the conversation between
3
the DA’s office and [Kemp].” (Id.; see also ECF No. 23-23 (transcript of Officer White’s
4
conversation with Kemp at Kemp’s home).) Kemp testified that she “probably” told
5
Reberger’s investigator what Zuniga had told her regarding being unaware of
6
Reberger’s crime, but she did not recall whether she told the investigator whether she
7
had prior felony convictions. (ECF No. 34 at 67, 73.)
8
Trial “counsel has a duty to make reasonable investigations.” Strickland, 466 U.S.
9
at 691. Reberger’s trial counsel satisfied this requirement, as they sent an investigator
10
to speak with Kemp on several occasions prior to the trial. (ECF No. 34 at 66, 68.) Even
11
if Kemp could have discredited Zuniga’s statement that Reberger told him that he
12
“capped” someone (ECF No. 29-1 at 45), that does not lead to a conclusion that
13
Reberger’s trial counsel were deficient in not calling Kemp as a witness. See Strickland,
14
466 U.S. at 688. Kemp was using several illegal drugs around the time of Reberger’s
15
trial and had prior felony convictions. (ECF No. 34 at 53-55, 67.) Accordingly, refraining
16
from calling Kemp as witness may have been strategic, such that the Nevada Supreme
17
Court reasonably concluded that Reberger failed to demonstrate deficiency. See
18
Strickland, 466 U.S. at 688. And even if Reberger’s trial counsel was deficient, the
19
Nevada Supreme Court also reasonably concluded that Reberger could not
20
demonstrate prejudice. See id. at 694. Kemp’s drug use and prior convictions cast doubt
21
on her credibility, and Zuniga’s testimony was already questionable without further
22
impeachment evidence from Kemp. In fact, Zuniga testified at the trial that Detective
23
White told him that he would “speak on [Zuniga’s] behalf” via a letter to the parole board
24
if Zuniga testified against Reberger. (ECF No. 29-1 at 46.)
Reberger is denied federal habeas relief for Ground Nine, Subpart A.
25
26
///
27
///
28
///
42
1
2. Subpart B
2
In Ground Nine, Subpart B, Reberger argues that his trial counsel failed to
3
investigate and call two alibi witnesses. (ECF No. 65 at 85.) In Reberger’s appeal of the
4
denial of his first state habeas petition, the Nevada Supreme Court held:
5
6
7
8
9
[A]ppellant claimed counsel were ineffective for failing to locate and call at
trial two alibi witnesses. Appellant failed to demonstrate deficiency or
prejudice. At the evidentiary hearing on the instant petition, counsel testified
and appellant presented a report demonstrating that defense investigators
attempted to locate the alibi witnesses. Counsel further testified that they
did not call any alibi witness because appellant had confessed to the crimes
and counsel would not suborn perjury. We therefore conclude that the
district court did not err in denying this claim.
10
11
(ECF No. 38-9 at 3.)
12
On December 9, 1991, a report was issued by Louis Smit, the Director of
13
Investigations at Selgae Associates. (ECF No. 39-10.) On the request of Dunleavy, Smit
14
interviewed Reberger, who provided two individuals who he believed “may provide an
15
alibi for his whereabouts on or about November 4, 1990” because “he believed he was
16
in the Skyline Casino” at the time the crime was committed. (Id. at 2.) After contacting
17
the Skyline Casino, Smit learned the name of one of the potential witnesses, Heidi
18
Hubbard, and her contact information. (Id. at 3.) Smit concluded his report by indicating
19
that “[f]urther follow-up and contact of these individuals will be suspended until there is
20
a further conference between myself and Attorney Philip Dunleavy.” (Id. at 5.)
21
After the case was submitted to the jury for deliberation, the state district court
22
allowed Reberger the opportunity to lodge “any objections he may have to the defense
23
counsel as to the manner in which defense counsel . . . conducted his defense.” (ECF
24
No. 30-3 at 58-59.) Reberger explained that he had “two alibis in this case. But
25
unfortunately when it was investigated, went to the Skyline Casino where I was at the
26
time, the two change girls that were there were nowhere to be found.” (Id. at 62.) In
27
response, Dunleavy called Steven Jensen, an investigator with Selgae Associates, to
28
testify. (Id. at 63-64.) Jensen testified that he “went to the Skyline Casino and talked to
43
1
the change manager,” however, “[n]o one there knew anybody with [the given]
2
description or [given first] name that worked about approximately that time.” (Id. at 64.)
3
Dunleavy’s co-counsel, Patrick McDonald, Esq. testified years later at the post-
4
conviction evidentiary hearing that he did not remember seeing Smit’s report. (ECF No.
5
36-2 at 60, 73; ECF No. 34-1 at 217.) And Dunleavy testified that his investigator “found
6
a potential alibi witness,” but Dunleavy did not call her to testify because she was not
7
credible and would have lied. (ECF No. 34 at 85, 124.) Dunleavy elaborated that
8
Reberger told him “on multiple occasions” that he “was at the scene of the crime” and
9
told Dunleavy he committed the crime. (Id. at 125.) Therefore, Dunleavy refused to call
10
Hubbard to testify because she would have committed perjury “if she said [Reberger
11
was] at the casino at the time of the crime.” (Id.) Reberger refuted Dunleavy’s testimony
12
when he testified at the post-conviction evidentiary hearing that “Dunleavy lied when
13
claiming [he] allegedly confessed to this crime.” (ECF No. 37-1 at 122, 125.) Reberger
14
explained that “Dunleavy failed to interview one of my alibi witnesses, Heidi
15
Hubbard . . . , when her address was provided to Mr. Dunleavy” and his “two alibi
16
witnesses would have put [him] at Skyline Casino at the time of this crime.” (Id. at 132.)
17
Although it appears that Jensen’s testimony during Reberger’s trial was
18
erroneous because Smit’s report clearly stated that he had obtained Hubbard’s name
19
and contact information, the Nevada Supreme Court reasonably concluded that
20
Reberger’s trial counsel was not deficient for failing to investigate and call Hubbard or
21
another Skyline Casino employee to testify. See Strickland, 466 U.S. at 688. Dunleavy
22
refrained from calling an alibi witness because Reberger had previously confessed to
23
committing the crimes to him, so Dunleavy was prevented from presenting false
24
information. See Nix v. Whiteside, 475 U.S. 157, 173 (1986) (“[T]he right to counsel
25
includes no right to have a lawyer who will cooperate with planned perjury.”). Further,
26
the Nevada Supreme Court reasonably concluded that Reberger failed to establish
27
prejudice because it is unclear what either of Reberger’s two alleged alibi witnesses’
28
testimony would have been. See Strickland, 466 U.S. at 694. It is mere speculation that
44
1
they would have testified that Reberger was at the Skyline Casino on November 4, 1990.
2
See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not
3
established by mere speculation.”). Because the Nevada Supreme Court reasonably
4
concluded that Reberger’s ineffective assistance of counsel claim was meritless,
5
Reberger is denied federal habeas relief for Ground Nine, Subpart B.
3. Subpart C
6
7
In Ground Nine, Subpart C, Reberger argues that his trial counsel improperly
8
waived his speedy trial rights because the State was able to build a stronger case
9
against him after the sixty-day time period had expired. (ECF No. 65 at 86.) In
10
Reberger’s appeal of the denial of his first state habeas petition, the Nevada Supreme
11
Court held:
12
13
14
15
16
[A]ppellant claimed counsel were ineffective for waiving his right to a speedy
trial without discussing it with him. Appellant failed to demonstrate
deficiency. Counsel testified at the evidentiary hearing that they did discuss
appellant’s right, how counsel could not be ready in 60 days, and that
appellant agreed to waive the right. We therefore conclude that the district
court did not err in denying this claim.
(ECF No. 38-9 at 4.)
17
At Reberger’s arraignment on March 3, 1992, his trial counsel “waive[d] the 60-
18
day [r]ule.” (ECF No. 22-10 at 4.) Reberger’s first trial commenced later that year on
19
December 29, 1992. (ECF No. 24-1 at 2.) Years later at the post-conviction evidentiary
20
hearing held in 2010, Reberger testified that he “specifically told Mr. Dunleavy [he]
21
wanted to invoke [his] 60-day right to a speedy trial rule.” (ECF No. 37-1 at 122.)
22
Reberger elaborated that he “specifically told Mr. Dunleavy . . . that [he] wanted to go to
23
trial as soon as possible” since he “knew the prosecution had no case on [him], and [he]
24
knew [he] did not commit this crime. And [he] didn’t want to stay in jail for a crime [he]
25
did not commit.” (Id.) Reberger explained that “Mr. Dunleavy . . . waived [his] right to a
26
speedy trial to allow the prosecution to gather as much evidence as possible before he
27
took [Reberger] to trial to make sure [Reberger] would be convicted,” and “Mr. McDonald
28
agreed with Mr. Dunleavy’s decision on waiving [Reberger’s] 60 day rule right to a
45
1
speedy trial because he also wanted [Reberger] to go to trial and help the prosecution
2
convict [him].” (Id. at 123.)
3
Dunleavy’s testimony at the post-conviction evidentiary hearing contradicted
4
Reberger’s testimony. Dunleavy explained that he and McDonald “talked to [Reberger]
5
repeatedly about the need to actually prepare to do an investigation and that if
6
[Reberger] insisted on the 60-day speedy trial rule, [trial counsel] may not be able to get
7
it all done.” (ECF No. 34 at 86, 117.) After speaking with Reberger “at least twice” about
8
waiving the 60-day rule, “[Reberger] specifically told [Dunleavy and McDonald that he]
9
wanted to waive [his] speedy trial and have [trial counsel] prepare.” (Id. at 117-118.) In
10
those discussions, Dunleavy and Reberger “talked about the need in a capital case to
11
do a thorough preparation and that it’s impossible to properly prepare a capital case in
12
60 days. It usually takes over a year.” (Id. at 121.) Dunleavy also explained that “almost
13
all defense cases get better with age” and that Reberger’s case “is the only case
14
[Dunleavy] ever had where [the State] went out and found evidence like a year and a-
15
half afterwards.” (Id.) Similarly, McDonald testified at the post-conviction evidentiary
16
hearing that he agreed with Dunleavy’s decision to waive the 60-day rule because
17
Reberger’s case was complex. (ECF No. 36-2 at 60, 76-77.) However, McDonald
18
explained that Reberger’s case is “the only case [he had] seen . . . in 23 years” where
19
evidence come out after the waiver of the 60-day rule. (Id. at 77.) McDonald testified
20
that, in hindsight, it would have been better to have taken “the case to trial four months
21
before Amber Harvey.” (Id. at 78.)
22
Although the State obtained further evidence against Reberger after he waived
23
his right to a trial within 60 days, that does not lead to a conclusion that Reberger’s trial
24
counsel acted deficiently in waiving that right. Indeed, Dunleavy and McDonald both
25
explained that Reberger’s case was the only case they had ever had where the State
26
was able to obtain further evidence after the waiver. (See ECF No. 34 at 121; ECF No.
27
36-2 at 77.) Reberger’s trial counsel were not deficient for failing to anticipate these rare,
28
unfortunate, future circumstances. Further, contrary to Reberger’s contentions and
46
1
testimony, Dunleavy testified that he spoke with Reberger about the waiver and that
2
Reberger specifically authorized the waiver in order to give his trial counsel adequate
3
time to prepare for his complex, capital case. (ECF No. 34 at 117-118.) Accordingly, the
4
Nevada Supreme Court reasonably determined that Reberger failed to show deficiency
5
on the part of his trial counsel. See Strickland, 466 U.S. at 688.
6
7
Reberger is denied federal habeas relief for Ground Nine, Subpart C.
4. Subpart D
8
In Ground Nine, Subpart D, Reberger argues that his trial counsel introduced
9
incriminating evidence against him at the trial. (ECF No. 65 at 87.) Specifically, Reberger
10
alleges that his trial counsel called the State’s handwriting expert as a witness to testify
11
about letters allegedly written to Reberger from Harvey; however, that testimony
12
included the fact that the expert believed Reberger had altered the letters. (Id. at 87-88.)
13
This error was allegedly compounded by Reberger’s trial counsel later moving for the
14
admission of the altered letters. (Id. at 87.) In Reberger’s appeal of the denial of his first
15
state habeas petition, the Nevada Supreme Court held:
16
17
18
19
20
21
22
23
[A]ppellant claimed counsel were ineffective for failing to interview the
State’s handwriting expert prior to calling him as a defense witness.
Appellant failed to demonstrate prejudice. The expert testified at trial that
appellant likely changed one word in each of two letters written by the
codefendant to appellant. Appellant failed to demonstrate that, but for this
testimony, there was a reasonable probability of a different outcome at trial.
The State’s case against appellant was based primarily on the testimony of
the codefendant, who had already been convicted and sentenced for the
crime and had not been promised anything to induce her testimony, and
was corroborated by appellant’s own incriminating writings. We therefore
conclude that the district court did not err in denying this claim.
(ECF No. 38-9 at 4-5.)
24
During Reberger’s cross-examination of Harvey, Harvey answered in the
25
affirmative when asked if she wrote letters to Reberger “wherein [she] said that [she]
26
shot the man.” (ECF No. 29-2 at 80.) In fact, Harvey explained that she wrote that
27
information in a couple of letters to Reberger. (Id.) Following a discussion outside of the
28
jury, Harvey’s cross-examination continued wherein Harvey was asked whether she
47
1
wrote a specific letter which stated, “[t]hey know I shot that guy.” (Id. at 80, 83-84.)
2
Harvey responded that she “didn’t put that in that letter then.” (Id. at 84.) Harvey then
3
clarified that she “didn’t write none [sic] of those [letters] that said [she] shot anybody.”
4
(Id.) After admitting that the letter was in her handwriting, Harvey explained that she
5
“didn’t put those records in there.” (Id. at 85.)
6
Later, during Reberger’s case-in-chief, William Leaver, a document examiner
7
with the Las Vegas Metropolitan Police Department, was called and asked if he was
8
“provided with some letters last night and asked to look them over.” (ECF No. 29-5 at
9
14; ECF No. 29-2 at 103.) Leaver responded in the affirmative and explained that he
10
looked at several handwritten letters and envelopes from Harvey to Reberger. (ECF No.
11
29-5 at 14-15.) Although he could not confirm whether Harvey wrote the letters due to
12
the lack of a comparison sample, Leaver found that “[t]here was common authorship,
13
for the most part, with the exception of a few words in which a determination could not
14
be made.” (Id. at 16, 28.)
15
Leaver explained that in two of the handwritten letters, the “particular word, K-N-
16
O-W, [was] dissimilar to the other writing[s]” on the pages. (Id. at 17, 20.) Leaver
17
clarified, regarding the first letter, “there’s been erasure, overwriting, retouching,
18
resimulation of that word, K-N-O-W, and I believe it to be sufficiently dissimilar; that it
19
was not written by the same person who wrote the remaining body of this letter.” (Id. at
20
18.) Similarly, regarding the word “know” in the second letter, Leaver stated that “there
21
is overwriting and retouching on that particular word. And it is dissimilar to the point that
22
my opinion is it was not written by the same person that wrote the body of this particular
23
document.” (Id. at 20.) The full sentence from the first letter that contained the altered
24
word “know,” read, “‘[t]hey know I shot that guy, because Bob had the weapon back, if
25
you know what I mean.’” (Id. at 17-18.) And the full sentence from the second letter that
26
contained the altered word “know,” read, “‘[y]ou will pay for this. You just got me life in
27
prison, because they know I shot that guy. So you better start talking a little more than
28
you are.” (Id. at 21.) Leaver also testified that he believed that the “know” replaced the
48
1
word “think” in the first letter. (Id. at 33.) Because he had previously analyzed Reberger’s
2
writing in the examination of his letters, Leaver stated that “[t]here were similarities with
3
[Reberger’s writings], but [he could not] identify absolutely any other person as having”
4
written the altered “know” in Harvey’s two letters. (Id. at 18-19.) Reberger’s trial counsel
5
then moved for the admission of Harvey’s letters into evidence. (Id. at 24.)
6
Dunleavy later testified at the post-conviction evidentiary hearing that Harvey’s
7
handwritten letters were used to impeach her direct examination testimony. (ECF No.
8
34-1 at 35, 175.) Dunleavy explained that Harvey admitted authoring the letter “wherein
9
she admitted she shot the person,” however, Harvey also indicated “that some of [the
10
letter] had been changed.” (Id. at 175.) Dunleavy testified that he and McDonald “did not
11
know [the letters] had been doctored at the time” and that Reberger’s alterations to the
12
letters “[c]hanged the content” of the letters. (Id. at 177.)
13
Although Reberger’s trial counsel may have been deficient in calling Leaver to
14
testify about the letters without sufficiently questioning him beforehand about the
15
possibility that the letters had been altered, especially in light of Harvey’s previous
16
testimony that they were altered, the Nevada Supreme Court reasonably determined
17
that Reberger failed to demonstrate prejudice. See Strickland, 466 U.S. at 694; see
18
generally Crisp v. Duckworth, 743 F.2d 580, 587 (7th Cir. 1984) (concluding that
19
“[a]though [the defendant]’s contention [that his trial counsel elicited damaging testimony
20
from a prosecution witness] has some merit, the snippet of testimony was not sufficiently
21
damaging . . . to shake our confidence in the reliability of the jury’s verdict”); United
22
States v. Gooch, 842 F.3d 1274, 1279 (D.C. Cir. 2016) (concluding that no prejudice
23
resulted from the defendant’s trial counsel’s open-ended question when cross-
24
examining a police detective about why the defendant had ceased going to a particular
25
area, which led the detective to respond “[b]ecause he shot the people” because this
26
was a “fleeting remark” made during a month-long trial and the evidence of guilt was
27
substantial). Indeed, as was discussed in Ground One and will be discussed in Ground
28
Nine, Subpart E, Reberger wrote letters to Harvey stating, among other things, that
49
1
“[y]ou don’t know how he died only I know how,” and “[w]e fucked up, I am is [sic] good
2
as dead[,] you will be out in 10 or 20 years if your [sic] lucky but not me[.] . . . we should
3
have never done it in the first place now we are going to pay for it big time.” (ECF No.
4
19 at 4; ECF No. 18-9 at 3.) This incriminating evidence demonstrates the
5
reasonableness of the Nevada Supreme Court’s holding that Reberger “failed to
6
demonstrate that, but for [Leaver’s] testimony, there was a reasonable probability of a
7
different outcome at trial.” (ECF No. 38-9 at 4-5.) Further, the jury was instructed that
8
“[e]vidence that a defendant . . . tried to manufacture evidence . . . is not sufficient in
9
itself to prove guilt and its weight and significance, if any, are matters for your
10
determination.” (ECF No. 30-1 at 12.) Accordingly, because the Nevada Supreme
11
Court’s rejection of Reberger’s Strickland claim was reasonable, Reberger is denied
12
federal habeas relief for Ground Nine, Subpart D.
13
5. Subpart E
14
In Ground Nine, Subpart E, Reberger argues that his trial counsel failed to
15
sufficiently challenge the letters he wrote to Harvey. (ECF No. 65 at 88.) Specifically,
16
Reberger argues that his trial counsel failed to contact an expert to refute that Reberger
17
wrote the letters; failed to call those familiar with Reberger’s handwriting to testify that,
18
unlike the admitted letters, Reberger always wrote in cursive and used correct grammar;
19
failed to challenge the chain of custody of the letters; and failed to seek suppression of
20
the letters as derivative of the right to counsel violation. (Id. at 88-89.) In Reberger’s
21
appeal of the denial of his first state habeas petition, the Nevada Supreme Court held:
22
23
24
25
26
[A]ppellant claimed counsel were ineffective for failing to call appellant’s
handwriting expert at trial to prove appellant did not write certain
incriminating letters. Appellant failed to demonstrate deficiency or prejudice.
Appellant failed to demonstrate that he had requested counsel to retain a
specific handwriting expert or that the expert would have concluded that
appellant did not author the letters. The expert that counsel did retain opined
that appellant had authored the letters and was thus not called at trial. We
therefore conclude that the district court did not err in denying this claim.
27
28
(ECF No. 38-9 at 3.)
50
Reberger wrote Harvey three letters from the Coos County Corrections facility.
1
2
(ECF Nos. 18-9, 18-10, 19.) In one of the letters, Reberger wrote:
3
6
We fucked up, I am is [sic] good as dead[,] you will be out in 10 or 20 years
if your [sic] lucky but not me[.] After we go to court together you will never
see me again[,] we should have never done it in the first place now we are
going to pay for it big time. . . . Tell me the trueth [sic] on what you said[,]
they don’t know how he died[,] no camera saw that[. A]ll they can go by is
what we tell them.
7
(ECF No. 18-9 at 3.) In a second letter, Reberger wrote, “[p]lease listen to me I want to
8
get out of this alive[.] If you fuck up[,] I’m dead and if you don’t[,] we will make it together.”
9
(ECF No. 18-10 at 4.) Reberger later wrote:
4
5
10
You and me both know I did not kill him[,] he killed himself but only I really
know that. We can get out of this with less time if you listen to me, and I
mean it! Don’t talk to anyone but your PD all they have on us is armed
robbery because of the money.
11
12
13
(Id. at 5.) In a third letter, Reberger wrote, “I hope that you didn’t tell the cops from Las
14
Vegas much when you spoke to them. If we get time it will be your fault and if we get
15
over 2 year for this[,] you will never see me again.” (ECF No. 19 at 3.) Later, Reberger
16
wrote:
17
19
You don’t know how he died only I know how and that’s the trueth [sic]. . . .
Amber I just hope you didn’t blow it for us, but we will see if you did. We
may have done a burglary[,] but we did not do anything els [sic] [and] I did
not kill anyone we both know he killed himself.
20
(Id. at 4.) Reberger maintained that he did not write the letters; rather, he believed that
21
“Detective Richard Perkins wrote all three of them [sic] Oregon incriminating letters
22
thinking I was illiterate because Amber Harvey was illiterate.” (ECF No. 37-1 at 126-27.)
23
Prior to the trial, Reberger’s trial counsel moved to suppress the “written
24
statements allegedly made and/or written by [Reberger] while in a custodial setting in
25
the Coos County, Oregon Jail, Coos Bay, Oregon.” (ECF No. 19-11.) The state district
26
court denied the motion, and, at the trial, the State called Officer Jackson to explain how
27
the letters were obtained. (ECF No. 29 at 4.) Officer Jackson testified that because
28
Reberger was on suicide watch, “it is part of the policy to check his mail.” (Id. at 11, 13,
18
51
1
28.) Reberger’s letters were then given to Dale Willis, a lieutenant with the Coos County
2
Sheriff’s office, who sent them to the Henderson Police Department. (Id. at 32, 35-37,
3
43.) The State then called Harvey to testify that the letters were “the letters Lance wrote
4
to [her].” (ECF No. 29-2 at 34.) Harvey testified that she knew Reberger wrote the letters
5
due to his handwriting and the content of the letters. (Id. at 34-37) During cross-
6
examination, Reberger’s trial counsel questioned Harvey about whether she had
7
previously told a doctor that she could not read or write and whether she had observed
8
Reberger’s handwriting on any occasion before receiving these letters. (Id. at 38-39.)
9
Finally, regarding the letters, the State called William Leaver, the Las Vegas
10
Metropolitan Police Department document examiner, who testified that he compared
11
Reberger’s letters to “a handwriting exemplar” from Reberger. (ECF No. 29-2 at 103,
12
107.) Leaver determined that Reberger had written the letters. (Id. at 108-109, 111.)
13
Leaver also identified latent fingerprints on two of the letters that matched Reberger’s.
14
(Id. at 110-111.)
15
Later, at the post-conviction evidentiary hearing, Reberger explained that his trial
16
counsel “failed and refused to contact [his] handwriting expert to thoroughly examine
17
those three Oregon letters” even though he “tried to give [his trial counsel] all the
18
information on [his] handwriting expert.” (ECF No. 37-1 at 124-25.) Reberger received a
19
letter from R. David Crisp, a forensic document examiner, stating that he “examined the
20
documents [Reberger] sent [him] again, and [his] opinion [was] inconclusive.” (ECF No.
21
40-5 at 2.) Mr. Crisp explained that “[a]ny examiner would have to have definite known
22
letters or other writing from the same period, (1990), in order to make a proper
23
examination in order to arrive at a definite opinion.” (Id.) Reberger was also in contact
24
with Trisha Berry of Nationwide Document Examiners, Inc. regarding the review of his
25
handwriting and the letters. (See ECF No. 39-3.) Berry indicated that her colleague, Mr.
26
Phillips, attempted to call Reberger’s trial counsel, but that telephone call was not
27
answered and not returned as of a week and a half later. (Id. at 4.) In one of Berry’s
28
letters, she indicated that “[i]t’s important that you have comparison writing from the time
52
1
that the letters you claim convicted you were (allegedly) written.” (ECF No. 39-2 at 4.)
2
Reberger also presented testimony of his sister-in-law, Sandra Reberger, during the
3
post-conviction evidentiary hearing. (ECF No. 37-1 at 50-51.) Sandra Reberger testified
4
that the letters Reberger sent to her during his incarceration—unlike the letters Reberger
5
allegedly wrote to Harvey—were in cursive handwriting, contained correct grammar, and
6
had no spelling mistakes.
7
McDonald testified at the post-conviction evidentiary hearing that a handwriting
8
expert was retained, and Reberger’s letters were sent to him for his review. (ECF No.
9
36-2 at 95-96.) That expert, Huntzinger, concluded that “Reberger had written the
10
letters.” (Id. at 96.) This was the reason he was not called to testify. (Id.)
11
Because Reberger’s trial counsel moved to suppress the letters, cross-examined
12
Harvey on her ability to identify the letters, and retained an expert to analyze the letters,
13
the Nevada Supreme Court reasonably concluded that Reberger’s trial counsel were
14
not deficient in attempting to challenge the letters. See Strickland, 466 U.S. at 688.
15
Reberger asserts that his trial counsel should have retained the experts he contacted.
16
However, Reberger’s experts were not able to analyze the letters without a writing
17
exemplar from the same time period. Reberger also asserts that his trial counsel should
18
have challenged the letters in other ways. This argument fails because trial counsel is
19
not required to use certain approaches to challenge evidence; rather, they are given
20
latitude to decide how best to approach a problem. See Harrington, 562 U.S. at 106
21
(“Rare are the situations in which the wide latitude counsel must have in making tactical
22
decisions will be limited to any one technique or approach.”); see also Strickland, 466
23
U.S. at 688-89 (“No particular set of detailed rules for counsel’s conduct can
24
satisfactorily take account of the variety of circumstances faced by defense counsel or
25
the range of legitimate decisions regarding how best to represent a criminal
26
defendant.”). Accordingly, because the Nevada Supreme Court reasonably rejected
27
Reberger’s Strickland claim, Reberger is denied federal habeas relief for Ground Nine,
28
Subpart E.
53
1
6. Subpart F
2
In Ground Nine, Subpart F, Reberger argues that his trial counsel failed to
3
challenge Detective Richard Perkins’ demonstrably false claims at the suppression
4
hearing. (ECF No. 65 at 90.) Reberger asserts that these failures by his trial counsel
5
prejudiced him because Detective Perkins’ testimony provided probable cause for
6
Reberger’s arrest. (ECF No. 101 at 111.) In Reberger’s appeal of the denial of his first
7
state habeas petition, the Nevada Supreme Court held:
8
9
10
11
12
Appellant claimed counsel did not impeach a police officer at a hearing on
a motion to suppress, but he failed to state what counsel should have done
to impeach the officer. . . . Further, appellant failed to state . . . how the
outcome at trial would have changed had counsel acted differently. We
therefore conclude that the district court did not err in denying these claims.
(ECF No. 38-9 at 6.)
13
Reberger takes issue with three lines of Detective Perkins’ pretrial suppression
14
hearing testimony from June 17, 1992. (See ECF No. 23 at 61.) Frist, Detective Perkins
15
testified that he had “determined that Amber and Lance . . . stayed at a Shady Rest
16
Motel in Henderson the week prior to this incident.” (Id. at 83.) Reberger asserts that his
17
trial counsel should have challenged Detective Perkins on this testimony because
18
Harvey’s ex-husband, Robert Harvey, told Detective Perkins in an interview on
19
November 8, 1990, that Harvey had been staying with him at his “place for the last two
20
or three weeks.” (ECF No. 39-20 at 9.) Although Harvey also stated on November 9,
21
1990, that she had “been living with [her] ex-husband” prior to the incident, she also
22
provided that she stayed in a motel with Reberger for one night around the time of the
23
murder. (ECF No. 39-22 at 2.) Even though Detective Perkins’ testimony may have been
24
challengeable based on the timing of Harvey and Reberger’s stay at the motel, the
25
Nevada Supreme Court reasonably concluded that Reberger failed to establish
26
prejudice. See Strickland, 466 U.S. at 694. Indeed, Reberger fails to demonstrate how
27
“the result of the proceeding would have been different” had his trial counsel challenged
28
54
1
the fact that the motel stay was close in time to the murder as opposed to a week prior.
2
Id.
3
Next, Reberger takes issue with Detective Perkins’ testimony regarding a
4
witness, Mary Ellen Quant. Detective Perkins testified that he had “interviewed a Mary
5
Ellen Quant who had conversations with Miss Harvey over the telephone.” (ECF No. 23
6
at 84.) Quant told Detective Perkins that Harvey had told her that “‘[she] didn’t pull the
7
trigger; he did.’” (Id.) Detective Perkins explained that Quant and Harvey were good
8
friends and that “a couple weeks prior to the incident, . . . Amber Harvey asked Mary
9
Ellen Quant if she wanted to go with her and Lance to California; and that they were
10
going to do something very illegal prior to going.” (Id.)
11
Reberger argues that Quant and Harvey were not actually friends because during
12
Quant’s November 8, 1990, statement to Detective Perkins, she stated that Harvey
13
“went out with my old man and stuff, and I didn’t like her much and then I, look, started
14
talkin [sic] to her and stuff like that.” (ECF No. 39-20 at 5.) Contrarily, Robert Harvey
15
stated that he would say that Harvey and Quant were friends. (ECF No. 39-21 at 3.)
16
Further, Reberger argues that Harvey did not tell Quant that she was going to do
17
something illegal prior to traveling to California. Quant’s statement to Detective Perkins
18
provided that Harvey had asked her “if [she] wanted to go to California. She asked, she
19
said she was gonna [sic] do something [sic] illegal.” (ECF No. 39-20 at 7.) The Nevada
20
Supreme Court reasonably concluded that Reberger failed to demonstrate prejudice
21
regarding either of these two allegedly challengeable statements. See Strickland, 466
22
U.S. at 694. The statement about Harvey and Quant being friends was supported by
23
Robert Harvey’s police statement. And Detective Perkins’ testimony about Harvey
24
stating that she was going to do something illegal was similar to her actual statement to
25
Quant such that it cannot be concluded that “the result of the proceeding would have
26
been different” had Reberger’s trial counsel corrected Detective Perkins. Id.
27
Finally, Reberger takes issue with Detective Perkins’ statements regarding
28
Reberger’s warrant. Detective Perkins testified that he instructed someone to enter a
55
1
message into the NCIC database at the end of his shift on November 8, 1990, that
2
Reberger was on “a temporary want.” (ECF No. 23 at 61, 75-76, 87-88.) Detective
3
Perkins testified that he entered a “temporary want,” which is “merely a request for
4
apprehension if they find the suspect that you’re looking for,” because he believed there
5
was probable cause to arrest Reberger. (Id. at 81-82, 89.) Detective Perkins applied for
6
the actual warrant the following morning, November 9, 1990, but that application was
7
denied. (Id. at 70, 87-88.) The warrant for Reberger’s arrest was not secured until “[a]fter
8
[law enforcement] traveled to Coos Bay and . . . talked to Mr. Reberger.” (Id. at 96.)
9
Reberger argues that this testimony should have been impeached because, in
10
response to the Coos Bay Police Department’s message on November 9, 1990 that they
11
had Reberger in custody (ECF No. 39-6 at 2), the operator at the Henderson Police
12
Department provided that Reberger’s “temporary warrant has been confirmed” (ECF No.
13
39-7 at 2). The operator at the Henderson Police Department also reported later that
14
day, November 9, 1990, that “we have 2 detectives that are our [sic] district atty’s office
15
right now picking up the warrants.” (ECF No. 40-8 at 2.) These messages that a warrant
16
was being secured and picked up appear to be untrue based on the fact that the
17
application for Reberger’s warrant was originally denied. However, importantly,
18
Reberger’s trial counsel did impeach Detective Perkins with this information. In response
19
to Reberger’s trial counsel’s question, Detective Perkins admitted that a warrant had not
20
been granted even though he had previously sent a “telex out indicating [he was] walking
21
a warrant.” (ECF No. 23 at 70.) Also, in response to a question posed by Reberger’s
22
trial counsel, Detective Perkins admitted that there was no “warrant in existence at 1:45
23
a.m. on November 9, 1990, as to Mr. Reberger” even though he had “put a temporary
24
want” into NCIC for Reberger at that time. (Id. at 75-76.) Accordingly, because
25
Reberger’s trial counsel adequately impeached Detective Perkins, the Nevada Supreme
26
Court reasonably concluded that Reberger’s ineffective assistance of counsel claim
27
should fail. See Strickland, 466 U.S. at 688, 694.
28
Reberger is denied federal habeas relief for Ground Nine, Subpart F.
56
1
7. Subpart G
2
In Ground Nine, Subpart G, Reberger argues that his trial counsel failed to
3
challenge the search warrant of his vehicle. (ECF No. 65 at 92.) In Reberger’s appeal
4
of the denial of his first state habeas petition, the Nevada Supreme Court held:
5
Appellant claimed that counsel failed to investigate . . . the search warrant
for his vehicle, . . . but he failed to state what the results of such
investigations would have been. Further, appellant failed to state . . . how
the outcome at trial would have changed had counsel acted differently.
6
7
8
(ECF No. 38-9 at 6.)
9
The search warrant application explained that Harvey and Reberger were
10
arrested “on outstanding fugitive complaints” and that Harvey had given a taped
11
statement. (ECF No. 18-6 at 3.) Harvey told law enforcement that Reberger “robbed the
12
Fantasy Video and shot the clerk three times in the head. That she and Lance drove to
13
Fantasy Video in the vehicle owned by Lance Reberger. That Amber described that
14
vehicle as a Camero, black in color.” (Id.) Following Harvey and Reberger’s arrests, the
15
“1977 Chevrolet Camero, black in color bearing Florida license # HLG 89L was taken
16
into custody, sealed, and transported to the Coos Bay City shops, pending a search
17
warrant.” (Id.) The application sought a search of the vehicle for the murder weapon,
18
ammunition, cameras, currency, pipes, business cards, sexual novelties, shell casings,
19
cassette tapes, and other property connected to the store. (Id. at 3-4.) Detective Perkins
20
testified that “a folding-type knife” and five .22 caliber bullets were found as a result of
21
the search warrant of Reberger’s vehicle. (ECF No. 28-2 at 9, 15-16, 26.)
22
The Nevada Supreme Court reasonably determined that Reberger failed to
23
demonstrate prejudice because he failed to demonstrate how the result of the trial would
24
have changed had his trial counsel challenged the search warrant. See Strickland, 466
25
U.S. at 694. Although a successful challenge of the search warrant could have
26
suppressed the introduction of the knife and bullets found in Reberger’s vehicle, there
27
still would have been evidence presented that Reberger wrote incriminating letters to
28
Harvey (ECF Nos. 18-9, 18-10, 19), Reberger admitted to his former cellmate that he
57
1
shot someone (ECF No. 29-1 at 43-45, 50), and Reberger told Harvey at the jail that
2
she did not have anything to worry about because she was not in the room when it
3
happened (ECF No. 29 at 4, 10). Accordingly, because the Nevada Supreme Court
4
reasonably denied Reberger’s Strickland claim, Reberger is denied federal habeas relief
5
for Ground Nine, Subpart G.
6
8. Subpart H
7
In Ground Nine, Subpart H, Reberger argues that his trial counsel failed to object
8
to Jury Instruction Number 16, which provided that intent may be proven by
9
circumstantial evidence, because it allowed the jury to draw an adverse inference from
10
his silence at trial. (ECF No. 65 at 92-93.) Reberger also asserts that his trial counsel
11
should have requested a no-adverse-inference instruction. (Id. at 93.)
12
Reberger presented this argument in his appeal of the denial of his first state
13
habeas petition. (See ECF No. 38-6 at 83-84). However, the Nevada Supreme Court did
14
not address this argument in its order. (See ECF No. 38-9.)
15
28 U.S.C. § 2254(d) generally applies to unexplained as well as reasoned state-
16
court decisions: “[w]hen a federal claim has been presented to a state court and the
17
state court has denied relief, it may be presumed that the state court adjudicated the
18
claim on the merits in the absence of any indication or state-law procedural principles to
19
the contrary.” Harrington, 562 U.S. at 99. When the state court has denied a federal
20
constitutional claim on the merits without explanation, the federal habeas court
21
“determine[s] what arguments or theories supported or . . . could have supported, the
22
state court’s decision; and then it must ask whether it is possible fairminded jurists could
23
disagree that those arguments or theories are inconsistent with the holding in a prior
24
decision of [the United States Supreme] Court.” Id. at 102; see also Johnson v. Williams,
25
568 U.S. 289, 301 (2013) (“When a state court rejects a federal claim without expressly
26
addressing that claim, a federal habeas court must presume that the federal claim was
27
adjudicated on the merits.”).
28
Jury Instruction Number 16 provided:
58
1
2
3
4
5
6
7
Intent may be proved by circumstantial evidence. It rarely can be
established by any other means. While witnesses may see and hear and
thus be able to give direct evidence of what a defendant does or fails to do,
there can be no eyewitness account of a state of mind with which the acts
were done or omitted, but what a defendant does or fails to do may indicate
intent or lack of intent to commit the offense charged.
In determining the issue as to intent, the jury is entitled to consider any
statements made and acts done or omitted by the accused, and all facts
and circumstances in evidence which may aid determination of state of
mind.
8
(ECF No. 30-1 at 17.) Contrary to Reberger’s contention, Jury Instruction Number 16
9
did not allow the jury to draw an adverse inference from his silence at trial. In fact, Jury
10
Instruction 16 does not discuss trial testimony; rather, it simply discusses a defendant’s
11
actions and omission related to the commission of the crime. Because Jury Instruction
12
16 does not permit the jury to make impermissible inferences as Reberger claims, his
13
trial counsel was not deficient in not objecting to it. See Strickland, 466 U.S. at 688.
14
Regarding Reberger’s assertion that his trial counsel failed to request a no-
15
adverse-inference instruction regarding his decision to remain silent, Reberger’s trial
16
counsel specifically indicated that he did not want the state district court “to give the
17
instruction on remaining silent.”7 (ECF No. 30-2 at 43.) Reberger’s trial counsel did not
18
explain the reasoning behind this decision. However, Reberger fails to demonstrate that
19
this decision was deficient. See Strickland, 466 U.S. at 688. Although the jury was not
20
specifically instructed that they could not make an adverse inference regarding
21
Reberger’s decision to remain silent, when reviewing the instructions as a whole, it can
22
be concluded that such an instruction was implied. See Estelle, 502 U.S. at 72. Indeed,
23
the jury was strictly instructed regarding what they were allowed to consider in their
24
deliberations, and Reberger’s silence was not included. (See ECF No. 30-1 at 10 (Jury
25
Instruction Number 9 instructed the jury that “[t]he evidence which you are to consider
26
in this case consists of the testimony of the witnesses, the exhibits, and any facts
27
28
is noted that Reberger did not testify “because of the alleged, supposed, bogus
confession they said I said.” (ECF No. 30-2 at 37.)
7It
59
1
admitted or agreed to by counsel”).) Because the Court determines that fairminded
2
jurists would agree that this reasoning establishing that Reberger’s federal constitutional
3
rights were not violated was not inconsistent with prior decisions of the United States
4
Supreme Court, Harrington, 562 U.S. at 102, Reberger is not entitled to relief on Ground
5
Nine, Subpart H.
6
V.
CERTIFICATE OF APPEALABILITY
7
This is a final order adverse to Reberger. As such, Rule 11 of the Rules Governing
8
Section 2254 Cases requires this Court to issue or deny a certificate of appealability
9
(“COA”). Therefore, the Court has sua sponte evaluated the claims within the petition for
10
suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281
11
F.3d 851, 864-65 (9th Cir. 2002).
12
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner
13
“has made a substantial showing of the denial of a constitutional right.” With respect to
14
claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would
15
find the district court’s assessment of the constitutional claims debatable or wrong.” Slack
16
v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
17
(1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate
18
(1) whether the petition states a valid claim of the denial of a constitutional right and (2)
19
whether the court’s procedural ruling was correct. See id.
20
Applying these standards here, the Court finds that a certificate of appealability is
21
warranted for Reberger’s Brady claim contained in Ground One. Reasonable jurists could
22
debate whether prejudice ensued from the State’s suppression of the deal with Harvey
23
for her testimony against Reberger. Although the State introduced evidence of
24
incriminating letters Reberger wrote to Harvey, testimony from Reberger’s former
25
cellmate that Reberger admitting to shooting someone, and testimony that a correctional
26
officer overheard Reberger tell Harvey that she did not have anything to worry about
27
because she was not in the room when it happened, Harvey’s testimony that Reberger
28
shot the victim was otherwise uncorroborated and was relied upon heavily by the State.
60
1
Evidence that there was a deal between the State and Harvey would have severely
2
impeached her testimony, such that reasonable jurists could debate whether the
3
confidence in Reberger’s verdict was undermined pursuant to Brady.
This court declines to issue a certificate of appealability for its resolution of any
4
5
6
procedural issues or any of Reberger’s habeas claims on the remaining grounds.
VI.
CONCLUSION
7
It is therefore ordered that the Second Amended Petition for Writ of Habeas Corpus
8
Pursuant to 28 U.S.C. § 2254 (ECF No. 65) is granted for Ground One’s Napue claim.
9
Lance Reberger will be released from custody within 60 days unless the Respondents file
10
in this action, within that 60-day period, a written notice of election to retry Reberger, and
11
the State thereafter, within 180 days after the filing of that notice, commences
12
proceedings toward the retrial. Any party may request a reasonable modification of the
13
time limits set forth in this paragraph.
14
The judgment in this action will be stayed pending the conclusion of any appellate
15
or certiorari review in the Ninth Circuit Court of Appeals or the United States Supreme
16
Court, or the expiration of the time for seeking such appellate or certiorari review,
17
whichever occurs later.
18
It is further ordered that Reberger is granted a certificate of appealability for
19
Ground One’s Brady claim. It is further ordered that a certificate of appealability is denied
20
as to Reberger’s remaining grounds.
21
The Clerk of Court is directed to enter judgment accordingly.
22
DATED THIS 23rd day of March 2020.
23
24
25
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
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