Farnum v. LeGrand

• Court: District Court, D. Nevada
• Decided: April 29, 2024
• Docket: 2:13-cv-01304
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 John Michael Farnum, Case No.: 2:13-cv-01304-APG-BNW

6 Petitioner Order Denying Remanded Claim 7 v.

8 Robert LeGrand, et al., [ECF No 82] 9 Respondents

11 In October 2022, the United States Court of Appeals for the Ninth Circuit issued a 12 Memorandum remanding this habeas case to this court to evaluate petitioner John Michael 13 Farnum’s claim that his counsel was ineffective “for failing to request a Miller hearing1 to 14 challenge alleged prior false allegations by the primary victim, A.R.” ECF No. 82 at 4 (footnote 15 added). The Memorandum instructs that 16 [i]n addition to (or instead of) addressing the merits, the district court should consider whether this claim is within the scope of Petitioner’s Second Amended 17 Habeas Petition; whether it was waived; whether Petitioner has exhausted this claim in state court; and whether the claim is procedurally barred (including 18 whether the government waived a procedural bar defense and whether any exceptions to procedural bar apply). 19 20 Id. (citations omitted). After considering the parties’ briefing on these issues, I conclude that the 21 claim is exhausted but fails on the merits. 22

1 As explained later in this order, a Miller hearing is required before a defendant in Nevada is 23 allowed to cross-examine a complaining witness about the witness’s prior false accusations of sexual assault. 1 A. Scope of the petition. 2 In his second amended habeas petition, Farnum claimed he was deprived of effective 3 assistance of counsel because his trial counsel failed to present evidence of prior or 4 contemporaneous false accusations of sexual abuse. ECF No. 53 at 93-102. In denying the

5 claim, I focused on accusations made by A.R.’s mother, Monica. ECF No. 76 at 6-8. My denial 6 of that claim was affirmed on appeal. ECF No. 82 at 2-4. 7 I did not address a claim that Farnum’s counsel was ineffective for failing to request a 8 Miller hearing to challenge alleged prior false allegations by A.R. because, based on the parties’ 9 filings, it did not appear to be an issue before me. In response to Farnum’s second amended 10 petition, the respondents argued that a Miller hearing would not have benefited Farnum because 11 his habeas claim “appears to be aimed at A.R.’s mother making false allegations of A.R. being 12 abused,” whereas “Miller applies to an alleged victim having made prior false allegations,” so 13 “Miller would only apply to A.R. having made prior false allegations, not her mother.” ECF No. 14 70 at 9 (emphasis in the original, citation omitted). In his reply, Farnum did not contest this

15 point by contending that he had, in fact, raised an ineffective assistance of counsel (IAC) with 16 respect to counsel’s failure to pursue a Miller hearing in relation to A.R.’s prior accusations. ECF 17 No. 74. Instead, Farnum argued that “Monica’s prior accusations, taken as false, fall squarely 18 under Miller.” Id. at 13. 19 On remand, Farnum “concedes that his Petition is verbose and may not always be clear,” 20 but contends that “it nevertheless adequately [presents a claim] that counsel was ineffective for 21 failing to seek a Miller hearing to impeach A.R.’s credibility before the jury.” ECF No. 91 at 14. 22 Unfortunately, the petition does not comply with Rule 2(c) and Rule 2(d) of the Rules Governing 23 Section 2254 Cases (Habeas Rules). Habeas Rule 2(c) requires a habeas petition to specify all 1 grounds for relief sought, state the facts supporting each ground, and state the relief requested. 2 Habeas Rule 2(d) requires the petitioner to “substantially follow” a form petition that requires 3 each ground for relief to be individually numbered and pleaded. See Habeas Rules, Appendix of 4 Forms. Farnum’s second amended petition contains lengthy sections of factual allegations and

5 lengthy sections of legal argument referencing factual allegations, but very few clearly 6 delineated grounds for relief. ECF No. 53. For the most part, the reader is required to formulate 7 individual grounds for relief based on allegations spread throughout the petition. See Habeas 8 Rule 2, Advisory Committee Notes, 1976 Adoption (explaining that the form petition 9 requirement was adopted to eliminate disorganized petitions that “were submitted to judges who 10 had to spend hours deciphering them”). 11 That said, I find that the petition contains a claim that counsel was ineffective for failing 12 to request a Miller hearing to challenge alleged prior false allegations by the primary victim, 13 A.R. Farnum’s petition consists entirely of claims that he was deprived of effective assistance of 14 counsel under Strickland v. Washington, 466 U.S. 668 (1984). While it is not clear what specific

15 instances of false accusations Farnum is referring to, the petition alleges that “[t]rial counsel filed 16 no Miller hearing, which if successful, would have permitted trial counsel to confront the 17 complainant and the complainant’s mother, Monica Zahniser, with these unsubstantiated 18 allegations.” ECF No. 53 at 81. The petition also asserts that “Petitioner’s trial counsel requested 19 no Miller hearing even though he had ample evidence of prior uncharged allegations that had 20 been made to impeach the complainant and the outcry witness with.” Id. at 83. Finally, the 21 petition contains a section entitled, “Ineffective for Failure to Present Evidence of Prior or 22 Contemporaneous False Accusations of Sexual Abuse,” that includes a discussion of the Miller 23 procedure and refers to “prior false allegations made by Monica and A.R.” Id. at 94-102. Having 1 concluded that the claim at issue is within the scope of petition, I must next determine whether 2 the claim has been waived. 3 B. Exhaustion. 4 A habeas petitioner challenging a state court judgment of conviction is required to

5 exhaust all available state court remedies before seeking relief through a federal writ of habeas 6 corpus. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion 7 requirement is a matter of comity intended to afford the state courts “an initial opportunity to 8 pass upon and correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 9 U.S. 270, 275 (1971) (internal quotation marks and citations omitted). “To provide the State 10 with the necessary ‘opportunity,’ the [petitioner] must ‘fairly present’ his claim in each 11 appropriate state court (including a state supreme court with powers of discretionary review), 12 thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29 (citing 13 Duncan v. Henry, 513 U.S. 364, 365–366 (1995); O’Sullivan v. Boerckel, 526 U.S. 838, 845 14 (1999). In order to “fairly present” an issue to a state court, a petitioner must “present the

15 substance of his claim to the state courts, including a reference to a federal constitutional 16 guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 17 573, 582 (9th Cir.2009). The petitioner bears the burden to prove a claim has been properly 18 exhausted. Lambrix v. Singletary, 520 U.S. 518, 523-24 (1997). 19 As clarified in Farnum’s brief on remand, the claim remaining before me is that effective 20 counsel would have filed a pretrial motion for a Miller hearing with respect to A.R.’s false 21 accusations against Farnum’s father, Robert Farnum, and Farnum’s brother, Billy Farnum. ECF 22 No. 91 at 11-13. Farnum insists that he exhausted this claim in his first state post-conviction 23 1 proceeding. After reviewing his briefs filed with the Supreme Court of Nevada, I conclude that 2 he is correct. 3 Like his federal petition, Farnum’s state appellate briefs are poorly organized with 4 individual IAC claims not clearly delineated. In his first opening brief,2 Farnum raises broad

5 IAC claims that challenge (1) trial counsel’s chosen defense and (2) counsel’s failure to conduct 6 an adequate investigation. ECF No. 21-3 at 4. Within the section devoted to the latter, the brief 7 discusses counsel’s “failure to file a motion to introduce contemporaneous allegations of sexual 8 assault alleged against Billy Farnum” but mentions only allegations made by Monica, not A.R. 9 Id. at 39.3 The brief then discusses counsel’s “failure to file a motion to introduce 10 contemporaneous allegations of sexual assault alleged against Robert Farnum” and mentions 11 “allegations made against him by [A.R.].” Id. at 39-40.4 In his reply brief, Farnum clarified that 12 counsel should have requested a Miller hearing with respect to the allegations against Billy and 13 Robert Farnum. ECF No. 21-14 at 19-20. 14 The Supreme Court of Nevada rejected Farnum’s appeal with respect to a claim on which

15 the state district court had held an evidentiary hearing (i.e., a claim that trial counsel was 16 ineffective for giving Farnum Xanax during trial), a claim that was insufficiently pleaded (i.e., a 17 claim that trial counsel was ineffective for failing to call an expert at trial), and a claim that could 18 be resolved on the record (i.e., a claim that trial counsel was ineffective for failing to object to a 19

20 2 As explained below, the Supreme Court of Nevada remanded the case for an evidentiary hearing. Thus, Farnun filed two opening briefs in his first state post-conviction proceeding. 21 3 The brief’s “statement of facts” describes an incident wherein Monica made allegations that Billy was molesting A.R. Id. at 24. Nowhere in the brief is there an allegation that A.R. accused 22 Billy of molestation. 4 The brief’s “statement of facts” describes an incident wherein A.R. “accused [Robert Farnum] 23 of having sex with her in a hotel room with her brother present and video taping [sic] it.” Id. at 23. 1 comment made during the State’s opening statement). ECF No. 21-19. For Farnum’s claims 2 “that trial counsel was ineffective for failing to present a defense at trial and for failing to 3 investigate,” the court determined that the lower court erred in denying the claims without an 4 evidentiary hearing and remanded the case for that purpose. Id. at 4.

5 At the evidentiary hearing on remand, Farnum presented the testimony of his trial counsel 6 (Donald Green), his wife (Elisa Farnum), his father’s neighbor (Shirley Grimsley), his sister 7 (Kimberly McEdwards), an acquaintance of Monica (Eva Raleigh), his former sister-in-law 8 (Lynn Raleigh), and himself. ECF Nos. 22-8 through 22-12. The state district court denied 9 relief, and Farnum appealed. In his opening brief after the remand, Farnum refers to A.R.’s 10 allegations regarding Billy and Robert Farnum and the fact that trial counsel had never requested 11 a Miller hearing. ECF No. 22-29 at 12-13. The brief also notes trial counsel’s failure to compel 12 discovery with respect to the allegations and subsequent investigations. Id. at 34. In his reply 13 brief, he faults trial counsel for his failure to investigate and present the “uncharged allegations” 14 against his brother and father “made by the victim.” Id. at 18.

15 In affirming the state district court’s decision to deny relief, the Supreme Court of 16 Nevada specifically rejected seven IAC claims. ECF No. 22-34. While the court did not discuss 17 counsel’s failure to request a Miller hearing with regard to alleged prior false allegations by 18 A.R., the issue was fairly presented in Farnum’s briefs. Because Farnum provided the Supreme 19 Court of Nevada an initial opportunity to consider and correct the alleged constitutional 20 violation, the claim is exhausted. And because the state court did not “decline[] to reach the 21 issue for procedural reasons,” the claim is not procedurally defaulted. Franklin v. Johnson, 290 22 F.3d 1223, 1230-31 (9th Cir. 2002). 23 \ \ \ 1 C. Merits. 2 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), I may not 3 grant a petition on a claim adjudicated on the merits in state court unless the state court’s 4 decision was (1) “contrary to, or involved an unreasonable application of, clearly established

5 Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an 6 unreasonable determination of the facts in light of the evidence presented in the State court 7 proceeding.” 28 U.S.C. § 2254(d)(1)–(2). But for any claim not adjudicated on the merits by the 8 state court, my review is de novo. See Patsalis v. Shinn, 47 F.4th 1092, 1097–98 (9th Cir. 2022). 9 Farnum argues that the Supreme Court of Nevada’s failure to address the merits of his 10 claim in its decisions means that AEDPA deference does not apply. ECF No. 91 at 13. The 11 Supreme Court of the United States has held, however, that when a state court addresses some 12 but not all of a petitioner’s claims, the federal court on habeas review must presume, subject to 13 rebuttal, that the unaddressed claims were adjudicated on the merits, thereby warranting AEDPA 14 deference. Johnson v. Williams, 568 U.S. 289 (2013). The presumption can be rebutted in

15 “limited” or “unusual circumstances.” Id. at 301–02. For example, the presumption does not 16 stand if the federal claim was “rejected as a result of sheer inadvertence.” Id. at 302–03. To 17 show this, however, “the evidence” must “very clearly” lead to “the conclusion that a federal 18 claim was inadvertently overlooked in state court.” Id. at 303. 19 Here, the Supreme Court of Nevada’s omission of any discussion of trial counsel’s failure 20 to request a Miller hearing in relation to A.R.’s false accusations was most likely due to 21 Farnum’s poor briefing of the issue rather than “a result of sheer inadvertence.” In any case, I 22 need not resolve the deference issue because the claim fails under de novo review. 23 1 In Nevada, a complaining witness is subject to cross-examination concerning prior false 2 accusations of sexual assault, provided the defendant is able “to prove by a preponderance of the 3 evidence, in a hearing outside the presence of the jury, that ‘(1) the accusation or accusations 4 were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the

5 evidence is more probative than prejudicial.’” Brown v. State, 166, 807 P.2d 1379, 1380 (Nev. 6 1991) (quoting Miller v. State, 779 P.2d 87, 90 (Nev. 1989)). If the witness denies making the 7 accusations, the defendant “may introduce extrinsic evidence to prove that, in the past, fabricated 8 charges were made.” Miller, 779 P.2d at 89. Farnum contends that trial counsel would have been 9 able to meet the Miller test with respect to A.R.’s false allegations against Robert Farnum and 10 Billy Farnum. 11 In his state post-conviction proceeding before the district court, Farnum submitted 12 affidavits from Billy Farnum and Robert Farnum. ECF No. 19-19 at 37-43. Billy’s affidavit 13 recounts him being informed by a detective from the Las Vegas Metropolitan Police Department 14 that he had been accused by Monica of “committing lewd and lascivious acts” with A.R. Id. at

15 37. After Billy informed him that he had never been alone with either of Monica’s children, the 16 detective told Billy that he would contact Monica and get back to him. Id. According to the 17 affidavit, the detective called Billy back later to apologize and to tell him that Monica had 18 confirmed what Billy had told him. Id. Nowhere in the affidavit does it indicate that A.R. was 19 the source of any accusations. In fact, the affidavit suggests that Monica made the accusation as 20 a part of her personal vendetta against the Farnum family. Id. And, according to Farnum’s 21 federal habeas petition, Monica made allegations of A.R. being sexually abused by several 22 people other than Billy and Robert, including A.R.’s father, a former babysitter, and Monica’s 23 mother’s boyfriend. ECF No. 53 at 14, 17-20. 1 Unlike Billy’s affidavit, Robert’s affidavit mentions allegations made by A.R. ECF No. 2 19-19 at 40. However, the affidavit is very vague on this subject, making only brief references to 3 A.R.’s allegations that he videotaped an “act of sexual contact” with her, and to A.R. providing 4 investigators with an erroneous description of his ejaculate. Id. According to the affidavit, a

5 search warrant was executed on his “entire property,” but a videotape “was never found, because 6 it never existed.” Id. at 40-41. Despite being provided with an evidentiary hearing, Farnum 7 failed to present testimony to develop or substantiate these allegations.5 Robert was not called as 8 a witness even though he attended the hearing. ECF No. 22-9 at 44. This failure prevents me 9 from considering new evidence to support Farnum’s claim. See 28 U.S.C. § 2254(e)(2) 10 (providing that if a prisoner “has failed to develop the factual basis of a claim in State court 11 proceedings,” a federal court may hold “an evidentiary hearing on the claim” in only two limited 12 scenarios (neither of which applies here)). And even if I could, Farnum has proffered no new 13 evidence. 14 Given the sparse evidence in the record, Farnum has not established a reasonable

15 probability that trial counsel could have successfully challenged alleged prior false allegations by 16 A.R. by availing himself of the Miller procedure. See Strickland, 466 U.S. at 694. In addition, 17

5 Farnum suggests that counsel’s failure to pursue a Miller motion was no longer an issue before 18 the state district court when it conducted the evidentiary hearing “because that claim had previously been denied by the state district court and had not been the subject of the state 19 supreme court’s remand.” ECF No. 91 at 8. He concedes, however, that the state district court had “summarily denied” his petition without addressing his individual claims. Id. at 7 (citing 20 ECF No. 21-17). Farnum is correct that the stated purpose of the Supreme Court of Nevada’s remand was to address his claims “that trial counsel was ineffective for failing to present a 21 defense at trial and for failing to investigate.” ECF No. 21-19 at 4. However, the Supreme Court of Nevada subsequently recognized seven distinct IAC claims within these two broader claims, 22 including a claim premised in part on counsel’s alleged failure to exploit Monica’s “false allegations of sexual abuse.” ECF No. 22-34 at 6. The record does not support a finding that 23 Farnum was not permitted to present evidence at the evidentiary hearing regarding A.R.’s alleged prior false allegations. 1}| Farnum’s trial counsel testified at the evidentiary hearing that he did not call Robert’s daughter, 2|| Kim McEdwards, as a witness because he learned before trial that Kim’s mother had accused Robert of having sexually abused Kim. ECF No. 22-9 at 40-45. He also learned that the federal government was investigating Robert for violations of federal child pornography laws. Jd. Trial counsel testified that there were “too many problems” with the Farnum family that “needed stay 6]| out of this trial” and that “[he] did not want to bring anymore family dynamics and issues into 7\\ it.” Id. at 46. Thus, trial counsel had a valid strategic reason for not raising A.R.’s allegations 8] against Robert as an issue in the case. See Strickland, 466 USS. at 690. 9 In sum, Farnum has failed to establish that he was deprived of effective assistance of counsel due to his trial counsel’s failure to request a Miller hearing to challenge alleged prior 11]| false accusations by the primary victim, A.R. 12 I THEREFORE ORDER that the claim remanded by the Ninth Circuit’s Memorandum No. 82)—+.e., that trial counsel was ineffective for failing to request a Miller hearing to challenge alleged prior false allegations by the primary victim, A.R.—is DENIED. The Clerk of Court is directed to enter judgment accordingly and close this case. 16 I FURTHER ORDER that a certificate of appealability is denied as jurists of reason 17|| would not find my decision to be debatable or incorrect. 18 Dated: April 29, 2024 19 G-~— US. District Judge Andrew P. Gordon 20 21 22 23