Opinion
3:12-cv-00125-RCJ-VPC
09-30-2014
CHRIS DEYERLE, Petitioner, v. LA GRANT, et al., Respondents.
ORDER
Chris Deyerle, a Nevada prisoner, has submitted a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. Section 2254 (ECF No. 6). In a previous order, the Court granted in part Respondents' motion to dismiss Deyerle's petition for failure to exhaust a number of his federal claims in state court. (May 17, 213 Order, ECF No. 27). Deyerle now requests that the Court grant his Motion for Stay and Abeyance (ECF Nos. 32, 34) so that he may return to state court to properly exhaust his federal claims. For the reasons contained herein, the Court DENIES the motion
I. PROCEDURAL HISTORY AND FACTS
On September 17, 2004, a jury found Deyerle guilty of first degree murder with the use of a deadly weapon and sentenced him to life in prison with the possibility of parole after twenty years (exhibits to motion to dismiss, ECF No. 15, Ex. 51). At sentencing, the state district court imposed an identical consecutive sentence for a deadly weapon enhancement and rejected Deyerle's argument that the court should impose the weapon enhancement based on a statutory amendment that became effective after he committed the charged offense but before the state district court imposed the sentence (Ex. 55).
All exhibits referenced in this order are exhibits to respondents' motion to dismiss (ECF No. 15), and may be found at ECF Nos. 16-21.
Deyerle filed a direct appeal (Ex. 70). The Nevada Supreme Court affirmed the state district court on February 4, 2009 (Ex. 79). On July 31, 2009, Deyerle filed a proper person state post-conviction petition for a writ of habeas corpus and a motion for counsel (Exs. 90, 91). The state district court granted the motion for appointment of counsel, and appointed counsel then filed a supplemental post-conviction habeas petition as well as a motion seeking funds to retain two expert witnesses (Exs. 97, 98). The state district court held an evidentiary hearing on August 24, 2010 (Ex. 113). At the outset of the hearing, the court indicated that it did not "intend to grant the motion" for funds for experts (id. at 4). At the end of the hearing, the state district court denied the petition from the bench and issued the written order denying the petition on October 12, 2010 (Ex. 113, at 72-73; Ex. 114).
Deyerle, through counsel, appealed to the Nevada Supreme Court (Ex. 124). The Nevada Supreme Court affirmed the denial of the petition on February 8, 2012 (Ex. 132), and remittitur issued on March 5, 2012 (Ex. 133). On March 6, 2012, this court received petitioner's federal petition for writ of habeas corpus (ECF No. 6). Defendants subsequently filed a motion to dismiss Deyerle's petition, and on May 17, 2013 this Court granted in part and denied in part Defendants' motion to dismiss for Deyerle's failure to exhaust all state remedies. Specifically, the Court held that Deyerle failed to properly exhaust state remedies as to Ground 5, Ground 6, Ground 7, Ground 9, Ground 8, and Ground 11 of his petition. (May 17, 2013 Order 8-9). This decision left Deyerle with a "mixed petition," meaning that his habeas petition contained both exhausted and unexhausted claims. Thereafter, Deyerle elected to voluntarily abandon Ground 8 of his petition (Deyerle Decl. ¶ 5(b), ECF No. 33) and seek a stay and abeyance of the remaining exhausted claims while he returns to state court to properly exhaust the remaining claims. Deyerle filed two separate motions requesting a stay and abeyance (ECF Nos. 32, 34), but later withdrew his first filed motion and requested that the Court rule only on the second. (Pet'r Reply 3, ECF No. 36). The Court grants that request and now considers Deyerle's second filed motion for stay and abeyance.
II. LEGAL STANDARDS
Under Rhines v. Weber, a stay and abeyance is available "only in limited circumstances." 544 U.S. 269, 277 (2005). Indeed, a "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. However, even if a petitioner succeeds in demonstrating good cause for his failure to exhaust, the court would nevertheless abuse its discretion in granting a stay "when his unexhausted claims are plainly meritless." Id. "On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id.
The precise contours of what constitutes "good cause" in this context remain to be fully developed in the jurisprudence. The Ninth Circuit holds that "good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure [to exhaust]." Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). "An assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner's failure to exhaust." Id. Moreover, when a petitioner asserts good cause under Rhines based on allegations of ineffective assistance of trial counsel, he or she is not required to make any stronger a showing of cause then the standard articulated in Martinez v. Ryan, 132 S. Ct. 1309 (2012). Id. at 984.
In Martinez, the Supreme Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 132 S. Ct. at 1315. Under the rule of procedural default, "a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a procedural rule." Id. at 1316; see also Coleman v. Thompson, 501 U.S. 722, 747-48 (1991). A prisoner can overcome this rule, however, if he or she can show "cause for the default and prejudice from a violation of federal law." Martinez, 132 S. Ct. at 1316. The unique nature of initial-review collateral proceedings led the Court to classify it "in many ways" as "the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim." Id. at 1317. The Court determined that where there is appointed counsel in the initial-review collateral proceeding and the prisoner alleges that counsel failed to raise specific claims, courts should determine whether counsel was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
Accordingly, where a habeas petitioner argues good cause to warrant a stay under Rhines due to the alleged ineffective assistance of trial counsel, the Ninth Circuit's decision in Blake requires that the prisoner demonstrate that the counsel's assistance was deficient under the Strickland standard. See Blake, 745 F.3d at 984. The Strickland standard is comprised of two prongs. First, the petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Second, the petitioner must demonstrate that he or she was prejudiced by the deficient assistance of counsel. Id. at 691. With this standard in mind, the Court proceeds to evaluate whether Deyerle sufficiently demonstrated good cause for his failed exhaustion, and whether his claims otherwise have merit.
III. ANALYSIS
Deyerle's unexhausted claims allege the following: Ground 5 claims that "trial counsel failed to request a mental health expert to testify about his ADD in violation of [Deyerle's] Fifth, Sixth and Fourteenth Amendment rights to a fair trial and the effective assistance of counsel . . . ." (May 17, 2013 Order 6). Ground 6 claims that "[Deyerle's] Fifth, Sixth, and Fourteenth Amendment rights were violated because the district court erred when it refused to allow defendant to admit evidence of the methamphetamine use of the victim, and the effect of the same upon the person which would clarify the victim's abusive behavior." (Id. at 6-7). Ground 7 claims that Deyerle's rights to a fair trial and effective assistance of counsel were violated because "trail counsel failed to remove biased jurors after questioning them and finding out their prejudice and contamination cause" and that counsel was ineffective for failing to raise this issue on direct appeal. (Id. at 7). Ground 9 claims violation of Deyerle's rights to a fair trial and effective assistance of counsel because "counsel failed to investigate and present pictorial evidence that would have impeached a key state witness." (Id.). Finally, Ground 11 claims violations of Deyerle's rights to a fair trial and the effective assistance of counsel because "trial counsel failed to petition the court for a change of venue despite petitioner's repeated requests that he do so . . . ." (Id. at 8). The Court addresses each ground in turn.
A. Ground 5
Deyerle fails to provide the Court with good cause as to Ground 5 of his petition. Deyerle's assertion is that trial counsel was ineffective because he failed to request a mental health expert to testify about Deyerle's ADD in support of a heated passion defense. (Id. at 6). Strickland requires that the petitioner show that counsel's performance was objectively unreasonable. 466 U.S. at 659. However, Deyerle has not presented the Court with any evidence that he even has ADD. Since the Court is not confronted with any evidence that Deyerle has this condition, it is difficult for the Court to find that Deyerle's trial counsel was unreasonable by not requesting a health expert to testify. Deyerle's situation on Ground 5 of his petition is at factual odds with the situation in Blake. In Blake, the court found good cause to justify a stay while the petitioner exhausted his claims in state court where the petitioner presented the federal court with concrete evidence of his mental state, which trial counsel never presented during the state proceedings. 745 F.3d at 982-83. The evidence included a history of mental illness compiled by his federal post-conviction counsel along with neuropsychological and psychological evaluations demonstrating numerous mental conditions. Id. In contrast, Deyerle has not provided any evidence of his condition.
Further, Respondents argue that even if Deyerle does suffer from ADD, that evidence would be irrelevant to the heat-of-passion defense since the defense employs a reasonable person standard. (Resp'ts Opp'n 7, ECF No. 38). The Court agrees. Nevada law is clear that the mental or physical frailties of a defendant are not relevant when considering the heat-of-passion defense. See Crawford v. State, 121 P.3d 582, 591 (finding it erroneous under Nevada law to include heat-of-passion jury instructions incorporating the defendant's mental and physical frailties). Deyerle's counsel could not have acted unreasonably for failing to request testimony that likely would have been found irrelevant. Therefore, the Court does not find that Deyerle has presented good cause as to why he did not exhaust Ground 5.
B. Ground 6
Deyerle likewise fails to present the Court with good cause of why he failed to exhaust his claim on Ground 6. The majority of Deyerle's motion for stay focuses on the Supreme Court's decision in Martinez, which deals with showing cause as it relates to the ineffective assistance of counsel. See Martinez, 132 S. Ct. at 1315 (identifying the "precise question" in that case as "whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trail may provide cause for a procedural default in a federal habeas proceeding"). However, Deyerle argues in Ground 6 that the district court erred by refusing to admit certain evidence. (May 17, 2013 Order 6). Nowhere in Martinez does the Court address any sort of error by the district court. Therefore, the Court finds that Deyerle did not carry his burden to demonstrate good cause for granting the stay as to Ground 6.
C. Ground 7
Deyerle fails to show good cause for granting a stay as to Ground 7 as well. Deyerle claims that his trial counsel was constitutionally ineffective for failing to remove biased jurors "after questioning them and finding out their prejudice and contamination cause." (Id. at 7). He also alleges that counsel was ineffective for failing to raise this issue on direct appeal. (Id.). As an initial matter, Martinez does not reach a claim of ineffective assistance of appellate counsel. See Martinez, 132 S. Ct. at 1315. Accordingly, the Court must agree with Respondents that Deyerle fails to show good cause for a stay to the extent he claims ineffective assistance of counsel during his direct appeal.
"Establishing Strickland prejudice in the context of juror selection requires a showing that, as a result of trial counsel's failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased." Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2003). To make this determination, the court should evaluate whether a juror "had such fixed opinions that he could not judge impartially the guilt of the defendant." Id. (internal quotations omitted). In this case, Deyerle has not provided the Court with any evidence that the jurors in question actually held fixed opinions that impaired their ability to be impartial. Had Deyerle included excerpts from the jurors' answers to the voir dire questions with his motion, then the Court would be in a better position to make a determination of prejudice under Strickland. However, without such evidence the Court cannot conclude that Deyerle satisfies Strickland, and therefore, the Court finds that Deyerle has not presented good cause for granting the stay as to Ground 7.
The Court also notes that Deyerle's assertion that trial counsel's actions under Ground 7 are presumptively prejudicial under Strickland is inaccurate. (Pet'r Reply 3, ECF No. 41). The Court in Strickland listed a number of limited situations in which a prejudice analysis was unnecessary because prejudice could be assumed. Those situations include the state's actual denial of the assistance of counsel, the state's interference with counsel's assistance, and counsel's own actual conflict of interest. Strickland, 466 U.S. at 692. None of these scenarios are at play in the present case. Thus, Deyerle is mistaken that the Court may presume prejudice.
D. Ground 9
Deyerle also fails on Ground 9 to demonstrate good cause for granting the stay. Ground 9 alleges that Deyerle's right to a fair trial and effective assistance of counsel was violated because trial counsel "failed to investigate and present pictorial evidence that would have impeached a key state witness." (May 17, 2013 Order 7). The Court again finds the prejudice prong of the Strickland standard to be dispositive here. To demonstrate prejudice under Strickland, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. If the Court were to assume that Deyerle's trial counsel failed to impeach a state witness by producing photographs contradicting the witness's testimony, Deyerle provides no additional evidence that the outcome of the trial would have been different. The Nevada Supreme Court stated that there was overwhelming evidence of Deyerle's guilt. (Ex. 132, at 2-4). Based on that conclusion, the Court is hard pressed to conclude that there is a reasonable probability that the impeachment of a single witness would have altered the outcome of Deyerle's trial. Therefore, the Court finds that there is not good cause to grant the stay as to Ground 9.
E. Ground 11
Deyerle also has not provided the Court with good cause to warrant a stay on Ground 11. Ground 11 alleges that Deyerle's rights to a fair trial and effective assistance of counsel were violated because "trial counsel failed to petition the court for a change of venue, despite petitioner's repeated request that he do so." (May 17, 2013 Order 8). Under Nevada law, a change of venue is justified only if "the ambiance of the place of the forum has been so thoroughly perverted that the constitutional imperative of a fair and impartial panel of jurors has been unattainable." Ford v. State, 717 P.2d 27, 29 (Nev. 1986). This implicates the jury selection process "and explains why a motion for a change of venue must be presented to the court after voir dire of the venire." Id. In Deyerle's case, the in-depth voir dire process resulted in the empaneling of a jury that appeared on its face to be impartial. (Ex. 41A-41D). The voir dire process reflected in the exhibit attached to Respondents' motion is sufficiently detailed to demonstrate that Deyerle's trial counsel was not objectively unreasonable for failing to request a change of venue. Rather, Nevada law strongly suggests that had the motion been made, the trial court would have denied it. Moreover, Deyerle does not present any evidence that his trial would have gone differently in another venue. In fact, the Nevada Supreme Court's finding that there was overwhelming evidence of guilt supports the opposite conclusion. (Ex. 132, at 2-4). Deyerle thus fails to show good cause for a stay as to Ground 11 of his petition.
Because Deyerle's motion does not provide good cause for granting a stay and abeyance as to any of the grounds in his habeas petition, the Court DENIES his motion.
CONCLUSION
IT IS HEREBY ORDERED that Petitioner's Motion for Stay and Abeyance (ECF No. 32) is considered voluntarily withdrawn by Petitioner.
IT IS FURTHER ORDERED that Petitioner's Motion for Stay and Abeyance (ECF No. 34) is DENIED.
IT IS FURTHER ORDERED that Petitioner shall have thirty (30) days from the date of entry of this order to do one of the following: (1) inform this Court in a sworn declaration that he wishes to dismiss the unexhausted grounds of his petition and proceed only on the remaining grounds for relief, or (2) inform this Court in a sworn declaration that he wishes to dismiss his petition to return to state court to exhaust his state remedies with respect to the claims set out in the unexhausted grounds of his petition. Failure to comply will result in the dismissal of this action.
IT IS SO ORDERED. Dated: September 30, 2014.
APPROVED
/s/_________
ROBERT C. JONES
United States District Judge