McKnight v. Warden Baker et al

Filing 5

ORDER that directing the Clerk to file the petition for a writ of habeas corpus and motion for appointment of counsel; motion for appointment of counsel is denied; grounds 4, 7(1), 7(3), 8(B), 10, and 12 of the petition are dismissed; C lerk directed to add AG as counsel for respondents and electronically serve respondents a copy of the petition and this order (e-served on 05/21/2018); Clerk directed to send petitioner a copy of the petition (mailed on 05/21/2018); respondents have until 07/05/18 to answer or otherwise respond to the petition; petitioner has (45) days from the date the answer was served to file a reply; paper copies of any electronically filed exhibits need not be provided to chambers or to the staff attorney, unless later directed by the Court. Signed by Judge Miranda M. Du on 5/21/2018. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

DERRICK LAMAR MCKNIGHT,
Petitioner,

10

Case No. 3:17-cv-00681-MMD-VPC
ORDER

v.
11
WARDEN BAKER, et al.,
12
Respondents.
13
14

I.

SUMMARY

15

Petitioner has paid the filing fee. The Court has reviewed the petition pursuant to

16

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

17

The Court will dismiss some grounds. The Court will serve the petition upon respondents

18

for a response to the remaining grounds.

19

II.

BACKGROUND

20

Petitioner and a co-defendant were tried in state district court. The jury found

21

petitioner guilty of burglary, conspiracy to commit robbery, robbery with the use of a deadly

22

weapon, and first-degree murder with the use of a deadly weapon.

23

§ 175.552(1)(a), the jury set the penalty for first-degree murder at life imprisonment without

24

eligibility for parole.1 The state district court judge set the remaining penalties. (ECF No.

25

1-1 at 28.) Petitioner’s direct appeal and state post-conviction habeas corpus petition

26

were unsuccessful.

Under NRS

27
28

1The

jury sentenced the co-defendant, Burnside, to death. (ECF No. 1-1 at 67 n.1.)
The prosecution did not seek the death penalty for petitioner.

1

III.

DISCUSSION

2

For grounds 1 through 11, petitioner has copied his opening brief on direct appeal.

3

Ground 4 is a claim that the trial court erred when it denied petitioner’s motion to

4

impanel a separate jury and alternative motion to sever his trial from the co-defendant’s

5

trial. A joint trial with petitioner, for whom the prosecution was not seeking the death

6

penalty, and the co-defendant, for whom the prosecution was seeking the death penalty,

7

does not violate the Sixth Amendment’s right to trial by an impartial jury. See Buchanan

8

v. Kentucky, 483 U.S. 402 (1987).2 Ground 4 is without merit on its face.
Ground 7 contains three claims that the trial court gave erroneous instructions. Two

9
10

claims are without merit.

11

Ground 7(1) is a claim that the trial court instructed the jury that robbery was a

12

general intent crime, and he argues that robbery should be considered a specific intent

13

crime.3 This is purely a matter of state law that does not implicate either the Constitution

14

or the laws of the United States. See 28 U.S.C. § 2254(a). Ground 7(1) is without merit

15

on its face.

16

Ground 7(3) is a claim that the jury instruction defining reasonable doubt is

17

unconstitutional. The Court of Appeals for the Ninth Circuit has held that it is constitutional.

18

Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir. 1998). Ground 7(3) is without merit on its

19

face.
Ground 8 contains three claims that the trial court gave erroneous instructions. One

20
21

claim is without merit.

22

///

23

///

24

///

25
26
27
28

2In

the direct-appeal brief, which petitioner has copied for his petition, appellate
counsel acknowledged Buchanan but tried to convince the Nevada Supreme Court to rule
otherwise.
3In

the direct-appeal brief, appellate counsel acknowledged that under state law
robbery is a general intent crime but nonetheless argued that the Nevada Supreme Court
should rule that robbery is a specific intent crime.
2

1

Ground 8(B) claims that the instruction defining premeditation and deliberation

2

blurred the distinction between the two elements of first-degree murder. Petitioner alleges

3

that this instruction was given:
Premeditation is a design, a determination to kill distinctly formed in the mind
by the time of the killing.

4
5

Premeditation need not be for a day, an hour, or even a minute. It may be
as instantaneous as successive thoughts of the mind. For if the jury believes
from the evidence that the act constitution [sic] the killing has been preceded
by and has been the result of premeditation, no matter how rapidly the act
follows the premeditation, it is premediated.

6
7
8
9

(ECF No. 1-1 at 58.) In Byford v. State, 994 P.2d 700 (Nev. 2000), the Nevada Supreme

10

Court noted that earlier jury instructions defining premeditation, deliberation, and

11

willfulness blurred the distinctions between these three elements of first-degree murder.

12

The Nevada Supreme Court then set forth the correct instructions to give to juries. The

13

premeditation instruction that the jury received in petitioner’s case is the instruction that

14

the Nevada Supreme Court set forth in Byford. Id. at 714. Ground 8(B) is without merit

15

on its face.

16

In ground 10, petitioner alleges that during the penalty phase of the trial the state

17

district court allowed the jury to hear evidence that petitioner had committed another

18

murder, but that murder case was pending at the time. “Other than the fact of a prior

19

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

20

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi

21

v. New Jersey, 530 U.S. 466, 490 (2000).
[T]he “statutory maximum” for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In other words, the relevant
“statutory maximum” is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any
additional findings.

22
23
24
25
26

Blakely v. Washington, 542 U.S. 296, 303-304 (2004) (citations omitted) (emphasis in

27

original). The sentence that the jury imposed, life imprisonment without eligibility for

28

///
3

1

parole, is within the statutory limits for first-degree murder. See NRS § 200.030(4)(b).

2

There was no violation of Apprendi. Ground 10 is without merit on its face.

3

Ground 12 concerns petitioner’s state post-conviction habeas corpus petition. He

4

filed a petition in the state district court, but he did not allege any grounds. Instead, he

5

asked the state district court to appoint counsel to develop claims of ineffective assistance

6

of trial counsel. The state district court did not appoint counsel, and the state district court

7

denied the petition because petitioner did not allege any grounds. On appeal, the Nevada

8

Supreme Court affirmed. (ECF No. 1-1 at 83-84.) Now, petitioner alleges that his claims

9

of ineffective assistance of trial counsel are procedurally defaulted, in contravention of

10
11
12
13
14
15
16
17
18
19

Martinez v. Ryan, 566 U.S. 1 (2012), which held:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding, a prisoner may establish cause for
a default of an ineffective-assistance claim in two circumstances. The first
is where the state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral proceeding, where
the claim should have been raised, was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a
prisoner must also demonstrate that the underlying ineffective-assistanceof-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell,
537 U.S. 322 (2003) (describing standards for certificates of appealability to
issue).
Id. at 14 (emphasis added).
Ground 12 has two problems. First, petitioner has not alleged in the current federal

20

petition any claims of ineffective assistance of trial counsel.

Non-existent claims of

21

ineffective assistance of trial counsel are not procedurally defaulted, and they are not

22

substantial. They simply do not exist. Petitioner cannot use Martinez to overcome a

23

procedural default of his claims of ineffective assistance of trial counsel because he has

24

no claims of ineffective assistance of trial counsel.

25

Second, to the extent that petitioner is claiming that the state courts denied him his

26

right to appointed counsel in the state post-conviction proceedings, he is wrong. Martinez

27

did not create a constitutional right to appointed counsel in state post-conviction

28

proceedings, and the rule remains that petitioner has no such right.
4

Coleman v.

1

Thompson, 501 U.S. 722, 752 (1991). Without that right, petitioner at best has alleged an

2

error in the state post-conviction proceedings. “[A] petition alleging errors in the state post-

3

conviction review process is not addressable through habeas corpus proceedings.”

4

Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh v. Stewart, 129

5

F.3d 1027, 1045 (9th Cir. 1997). Ground 12 is without merit on its face.

6

Petitioner also has filed a motion for appointment of counsel. Whenever the court

7

determines that the interests of justice so require, counsel may be appointed to any

8

financially eligible person who is seeking habeas corpus relief.

9

§ 3006A(a)(2)(B). “[T]he district court must evaluate the likelihood of success on the

10

merits as well as the ability of the petitioner to articulate his claims pro se in light of the

11

complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983).

12

There is no constitutional right to counsel in federal habeas proceedings. McCleskey v.

13

Zant, 499 U.S. 467, 495 (1991). The factors to consider are not separate from the

14

underlying claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d at 954.

15

After reviewing the petition, the Court finds that appointment of counsel is not warranted.

16

IV.

17
18
19
20

18 U.S.C.

CONCLUSION
It is therefore ordered that the Clerk of the Court file the petition for a writ of habeas

corpus.
It is further ordered that the Clerk of the Court file the motion for appointment of
counsel.

21

It is further ordered that the motion for appointment of counsel is denied.

22

It is further ordered that grounds 4, 7(1), 7(3), 8(B), 10, and 12 of the petition are

23
24
25

dismissed.
It is further ordered that the Clerk add Adam Paul Laxalt, Attorney General for the
State of Nevada, as counsel for respondents.

26

It is further ordered that the Clerk electronically serve upon respondents a copy of

27

the petition and this order. In addition, the Clerk must return to petitioner a copy of the

28

petition.
5

1

It is further ordered that respondents have forty-five (45) days from the date on

2

which the petition was served to answer or otherwise respond to the petition.

3

Respondents must raise all potential affirmative defenses in the initial responsive

4

pleading, including untimeliness, lack of exhaustion, and procedural default. Successive

5

motions to dismiss will not be entertained. If respondents file and serve an answer, then

6

they must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United

7

States District Courts, and then petitioner has forty-five (45) days from the date on which

8

the answer is served to file a reply. If respondents file a motion, then petitioner will have

9

fourteen (14) days to file a response to the motion, and respondents will have seven (7)

10

days from the date of filing of the response to file a reply.

11

It is further ordered that, notwithstanding Local Rule LR IC 2-2(g), paper copies of

12

any electronically filed exhibits need not be provided to chambers or to the staff attorney,

13

unless later directed by the Court.

14

DATED THIS 21st day of May 2018.

15
16
17
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
6