Malone v. Williams

• Court: District Court, D. Nevada
• Decided: July 13, 2020
• Docket: 2:18-cv-01146
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 DOMONIC RONALDO MALONE, Case No. 2:18-cv-01146-RFB-NJK 6 Petitioner, 7 ORDER v. 8

9 BRIAN WILLIAMS, et al.,

10 Respondents.

11 12 13 I. INTRODUCTION 14 In this habeas corpus action, brought by Nevada prisoner Domonic Ronaldo 15 Malone (“Petitioner” or “Malone”), represented by appointed counsel, the respondents 16 have filed a motion to dismiss. (ECF No. 22). The Court will grant the motion in part and 17 deny it in part. 18 II. BACKGROUND 19 Petitioner Domonic Malone was convicted of kidnapping and murdering Victoria 20 Magee and Charlotte Comabado with co-defendant Jason McCarty. Malone was 21 sentenced to four consecutive sentences of life in prison without the possibility of parole 22 for the murders, and various other prison sentences for the other crimes. See Judgment 23 of Conviction, Exh. 365 (ECF No. 29-54). 24 Malone appealed. See Notice of Appeal, Exh. 368 (ECF No. 29-57); Appellant’s 25 Opening Brief, Exh. 376 (ECF No. 30-6). The Nevada Supreme Court affirmed the 26 judgment of conviction on December 18, 2013. See Order of Affirmance, Exh. 385 27 (ECF No. 30-15). The remittitur was issued on January 15, 2014. See Remittitur, Exh.387 1 Malone filed a pro se petition for writ of habeas corpus in state court on August 13, 2 2014. See Petition for Writ of Habeas Corpus, Exh. 390 (ECF Nos. 30-20, 30-21, 30-22, 3 30-23, 30-24); see also Amended Supplemental Petition for Writ of Habeas Corpus, Exh. 4 415 (ECF Nos. 30-49, 30-50); Supplemental Memorandum of Points and Authorities, Exh. 5 429 (ECF No. 30-64). The state district court denied Malone’s petition in a written order 6 filed on May 5, 2017. See Findings of Fact, Conclusions of Law and Order, Exh. 437 (ECF 7 No. 30-72). Malone appealed. See Notice of Appeal, Exh. 439 (ECF No. 30-74); 8 Appellant’s Informal Brief, Exh. 447 (ECF No. 31-7). The Nevada Supreme Court affirmed 9 the denial of Malone’s petition on February 15, 2018. See Order of Affirmance, Exh. 474 10 (ECF No. 31-35). The remittitur was issued on March 15, 2018. See Remittitur, Exh. 481 11 (ECF No. 31-42). 12 This Court received a pro se petition for writ of habeas corpus from Malone, 13 initiating this action, on June 25, 2018. See Petition for Writ of Habeas Corpus (ECF No. 14 1-1). The Court granted Malone’s motion for appointment of counsel, and appointed 15 counsel to represent him. See Order entered July 16, 2018 (ECF No. 4); Order entered 16 August 31, 2018 (ECF No. 7). With counsel, Malone filed an amended petition on January 17 29, 2019 (ECF No. 11). 18 In his amended petition, Malone asserts the following grounds for habeas corpus 19 relief:

20 1. Malone’s federal constitutional rights were violated “when he was forced to accept the Special Public Defender’s Office as his lawyers.” 21 2. Malone’s federal constitutional rights were violated as a result of 22 ineffective assistance of his trial counsel, because of trial counsel’s “failure to challenge prospective juror #484.” 23 3. Malone’s federal constitutional rights were violated as a result of 24 ineffective assistance of his trial counsel, because of trial counsel’s failure “to investigate the incomplete cellphone records or hire and expert to 25 reconstruct them.”

26 4A. Malone’s federal constitutional rights were violated because the prosecutor, in closing argument, committed prosecutorial misconduct by 27 referring “to a dumped out purse as evidence of a ‘struggle’ during the 4B. Malone’s federal constitutional rights were violated as a result of 1 ineffective assistance of his trial counsel, because of trial counsel’s failure to object to the State’s improper commentary during closing arguments. 2 5. Malone’s federal constitutional rights were violated as a result of 3 improper jury instructions.

4 6. Malone’s federal constitutional rights were violated because his first- degree kidnapping conviction was not supported by sufficient evidence. 5 7. Malone’s federal constitutional rights were violated because the trial 6 court allowed the testimony of an accomplice and improperly instructed the jury about how to weigh the accomplice testimony. 7 8A. Malone’s federal constitutional rights were violated as a result of 8 ineffective assistance of his trial counsel, because of the cumulative effect of trial counsel’s errors. 9 8B. Malone’s federal constitutional rights were violated as a result of 10 ineffective assistance of his appellate counsel.

11 12 Amended Petition for Writ of Habeas Corpus (ECF No. 11). 13 On September 9, 2019, Respondents filed their motion to dismiss (ECF No. 22) 14 arguing: Grounds 2, 5, 6 and 7 of Malone’s amended petition are barred by the statute of 15 limitations; Grounds 2 and 7 are partly or wholly unexhausted in state court; and Grounds 16 4, 5, 6 and 7 are partly or wholly procedurally defaulted. Malone filed an opposition to the 17 motion to dismiss on September 24, 2019 (ECF No. 36). Respondents filed a reply on 18 October 14, 2019 (ECF No. 37). 19 III. DISCUSSION 20 a. Statute of Limitations 21 Respondents argue in their motion to dismiss that Grounds 2, 5, 6 and 7 of 22 Malone’s amended petition are barred by the statute of limitations. See Motion to Dismiss 23 (ECF No. 22), pp. 17–21. Ground 2 is Malone’s claim that his trial counsel was ineffective 24 for “failure to challenge prospective juror #484;” Ground 5 is his claim that the trial court 25 gave improper jury instructions; Ground 6 is his claim that his first-degree kidnapping 26 conviction was not supported by sufficient evidence; and Ground 7 is his claim that the 27 trial court improperly allowed the testimony of an accomplice and improperly instructed 1 the jury about how to weigh the accomplice testimony. See Amended Petition for Writ of 2 Habeas Corpus (ECF No. 11). 3 The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, 4 established a one-year statute of limitations for federal habeas petitions filed by prisoners 5 challenging state convictions; the statue provides:

6 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State 7 court. The limitation period shall run from the latest of —

8 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 9 seeking such review;

10 (B) the date on which the impediment to filing an application created by State action in violation of the 11 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 12 (C) the date on which the constitutional right asserted 13 was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made 14 retroactively applicable to cases on collateral review; or

15 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 16 exercise of due diligence. 17 28 U.S.C. 2244(d)(1). The statutory limitations period is tolled during the time that a 18 properly filed application for state post-conviction or other collateral review is pending in 19 state court. See 28 U.S.C. § 2244(d)(2). 20 Malone’s conviction became final, and the limitations period for his federal habeas 21 petition began to run on March 18, 2014—90 days after the Nevada Supreme Court ruled 22 on his direct appeal. The limitations period ran for 148 days, from March 18, 2014, to 23 August 13, 2014, when Malone initiated his state habeas action. The limitations period 24 was tolled, under 28 U.S.C. § 2244(d)(2), from August 13, 2014, to March 15, 2018, when 25 the remittitur was issued after the Nevada Supreme Court ruled on the appeal in Malone’s 26 state habeas action. The limitations period then began to run again on March 15, 2018, 27 and it expired 217 days later, on October 18, 2018. Malone filed his original petition on 1 January 29, 2019, well after the limitations period expired. This much is undisputed. See 2 Motion to Dismiss (ECF No. 22), pp. 17–21; Opposition to Motion to Dismiss (ECF No. 3 36), pp. 11–12. 4 The question whether Grounds 2, 5, 6 and 7 of Malone’s amended petition are 5 barred by the statute of limitations turns on whether those claims relate back to his original 6 petition. In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court held that “[s]o long as 7 the original and amended petitions state claims that are tied to a common core of 8 operative facts, relation back will be in order,” but “[a]n amended habeas petition ... does 9 not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new 10 ground for relief supported by facts that differ in both time and type from those the original 11 pleading set forth.” Mayle, 545 U.S. at 650, 664. 12 In his opposition to the motion to dismiss, Malone points to the following language 13 in his original petition, arguing that it incorporated into the petition the operative facts of 14 Grounds 2, 5, 6 and 7:

15 I hereby preserve all the issue[s] raised within my Amended Supplemental Petition For Writ of Habeas Corpus (Post-Conviction) filed 16 2/18/2016 @ 11:51:39 AM likewise to the Supplemental Memorandum of Points And Authorities in Support of Amended Supplemental Petition for 17 Writ of Habeas Corpus (Post Conviction) filed on 11/9/2016. 18 Opposition to Motion to Dismiss (ECF No. 36), pp. 11-12, quoting Petition for Writ of 19 Habeas Corpus (ECF No. 1-1), p. 3, which in turn refers to Amended Supplemental 20 Petition for Writ of Habeas Corpus, Exh. 415 (ECF Nos. 30-49, 30-50), and Supplemental 21 Memorandum of Points and Authorities, Exh. 429 (ECF No. 30-64). Malone argues:

22 The document filed in February 2016 is, in fact, Mr. Malone’s state postconviction petition. ECF 15-27, p. 2. It contains all of the claims which 23 are asserted in the federal Amended Petition. By incorporating the state postconviction petition via reference, Mr. Malone’s original federal petition 24 was clearly also asserting those claims in the specific, cognizable terms laid out in the state petition. 25 26 Opposition to Motion to Dismiss (ECF No. 36), pp. 11–12. 27 The Court agrees with Petitioner. In the case Ross v. Willams, the Ninth Circuit 1 appended written instrument, including state court briefing of the state habeas petition. 2 950 F.3d 1160, 1168-166 (9th Cir. 2020). Ross concerned a particular application of the 3 incorporation-by-reference doctrine. Incorporation by reference permits a court to 4 incorporate by reference documents whose contents are alleged in the complaint and 5 whose authenticity no party questions, but which are not physically attached to the 6 pleading. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a 7 document is not attached to a complaint, it may be incorporated by reference into a 8 complaint if the plaintiff refers exclusively to the document or the document forms the 9 basis of the plaintiff’s claim). Although Malone did not attach the referenced briefing in his 10 original petition, the Court does not agree with Respondents that the mere fact that 11 Malone did not attach the documents—explicitly referenced in the petition and the 12 contents of which neither party disputes—means that Petitioner could not incorporate the 13 documents by reference. Bearing this principle in mind, and the general rule that the Court 14 should construe pro se documents liberally, the Court will therefore incorporate by 15 reference Malone’s state postconviction motion. The state court postconviction motion 16 does sufficiently articulate Grounds 2, 5, 6, and 7. See Amended Supplemental Petition 17 for Writ of Habeas Corpus (Ex. 52) (ECF No. 15-27), at 12, 24 (Ground 6); at 22 (Ground 18 5); at 43 (Ground 2); at 25 – 26 (Ground 7). The Court therefore does not find that the 19 grounds are time-barred. 20 b. Exhaustion 21 In their motion to dismiss, Respondents argue that Grounds 2 and 7 are partly or 22 wholly unexhausted in state court. See Motion to Dismiss (ECF No. 22), pp. 14–17. 23 Respondents argue that Ground 2 is unexhausted because Malone did not present the 24 Nevada Supreme Court with the juror number, juror’s name or specific statements the 25 juror made during voir dire in his previous state court petition. Id. This, Respondents 26 argue, fundamentally altered the claim such that it is no longer a bare allegation of juror 27 bias. 1 Fair presentation of federal habeas claims to the state court requires that the 2 petition describe in the state proceedings both the operative facts and the federal legal 3 theory on which the claim is based. Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). 4 “Exhaustion, however, does not require that a ‘habeas petition . . . present to the state 5 courts every piece of evidence supporting his federal claims in order to satisfy the 6 exhaustion requirement.” Id. at 1009. “Rather, to exhaust the factual basis of the claim, 7 the petitioner must only provide the state court with operative facts, that is, all of the facts 8 necessary to give application to the constitutional principle upon which the petitioner 9 relies.” Id. (internal citations omitted). 10 In his state petition, Petitioner had alleged that trial counsel was ineffective for 11 failing to strike pro-prosecution jurors during voir dire and cited to one juror of African 12 descent. See Amended Supplemental Petition for Writ of Habeas Corpus (Exh. 52) (ECF 13 No. 15-27) p. 43. Specifically, Petitioner mentioned that “[o]ne juror revealed that he was 14 a retired homicide police detective,” and that “[a]though [the] juror was of African descent, 15 as is the Petitioner, the petitioner did not want this juror to decide his fate in a death 16 penalty case” due to the juror’s “obvious pro-prosecution bias.” Id. 17 The district court’s order, which the Nevada Supreme Court affirmed, dismissed 18 this ground, specifically noting that Petitioner had cited “only to one juror of African 19 descent,” and had provided no juror number. Exh. 437 (ECF No. 30-72) p.12. 20 In his amended petition before this Court, Petitioner adds significantly more facts, 21 including the juror’s name, number, and statements that the juror made during voir dire 22 that Petitioner contends should have subjected him to a peremptory strike. 23 Respondents argue that these new facts created a fundamentally different claim 24 such that the claim was not fairly presented before the state court. The Court agrees. The 25 state court explicitly cited the paucity of facts Petitioner pled in the lower court petition as 26 an explicit reason why it rejected Petitioner’s argument. Exh. 437 (ECF No. 30-72) pp. 27 12-13. While the Court is not convinced that Petitioner’s new facts would have changed 1 was deprived of an opportunity to consider the issue on the facts that have been 2 presented before this Court. Accordingly, the Court finds that this claim has not been 3 exhausted. 4 Ground 7 is an argument that that Petitioner’s trial counsel was ineffective because 5 the testimony of Petitioner Donald Herb was insufficiently corroborated under section 6 175.291 of the Nevada Revised Statutes (“NRS”). Petitioner also argues that an improper 7 jury instruction was given that omitted language that evidence tending to connect the 8 defendant with the offense is not equivalent to corroboration. Respondents argue that this 9 framing of Ground 7 was not fairly presented to the state courts. 10 The Court disagrees with Respondent that this claim was not fairly presented to 11 the state courts. Petitioner’s state court petition also cites the same corroboration statute. 12 See Amended Supplemental Petition for Writ of Habeas Corpus (Ex. 52) (ECF No. 15- 13 27) at 25. Petitioner’s state petition does specifically discuss the testimony of Sarah 14 Matthews and the ways in which it contradicted Mr. Herb’s testimony. See Amended 15 Supplemental Petition for Writ of Habeas Corpus (Ex. 52) (ECF No. 15-27) p. 25. 16 However, the Court does not find that the differences are so significant as to say they 17 were not fairly presented to the state court. The operative facts—the contradictions in Mr. 18 Herb’s testimony and what Petitioner alleges to be the failure of the testimony to be 19 corroborated—are the same. The Court therefore finds that Ground 7 has been fairly 20 presented to the state courts. 21 c. Procedural Default 22 Respondents next argue that Grounds 4, 5, 6 and 7 should be dismissed as 23 procedurally defaulted. See Motion to Dismiss (ECF No. 22), pp. 12–14. 24 Ground 4 has two parts: in Ground 4A, Malone claims that the prosecutor 25 committed prosecutorial misconduct in closing argument by referring “to a dumped out 26 purse as evidence of a ‘struggle’ during the alleged kidnapping;” in Ground 4B, Malone 27 claims that his trial counsel was ineffective for failing to object to the State’s improper 1 Respondents argue that Ground 4A is procedurally defaulted. In part of Ground 5, Malone 2 argues that Jury Instruction Nos. 8, 26, and 36 lessened the State’s burden of proof. 3 Ground 6 claims that Malone’s federal constitutional rights were violated because his first- 4 degree kidnapping conviction was not supported by sufficient evidence. In part of Ground 5 7 Malone argues that his federal constitutional rights were violated because the trial court 6 allowed the testimony of an accomplice and improperly instructed the jury about how to 7 weigh the accomplice testimony. 8 In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails 9 to comply with the state’s procedural requirements in presenting his claims is barred by 10 the adequate and independent state ground doctrine from obtaining a writ of habeas 11 corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731–32 (1991) (“Just as in 12 those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner 13 who has failed to meet the State’s procedural requirements for presenting his federal 14 claims has deprived the state courts of an opportunity to address those claims in the first 15 instance.”). Where such a procedural default constitutes an adequate and independent 16 state ground for denial of habeas corpus, the default may be excused only if “a 17 constitutional violation has probably resulted in the conviction of one who is actually 18 innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting 19 from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 20 To demonstrate cause for a procedural default, the petitioner must “show that 21 some objective factor external to the defense impeded” his efforts to comply with the state 22 procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment 23 must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 24 U.S. 467, 497 (1991). With respect to prejudice, the petitioner bears “the burden of 25 showing not merely that the errors [complained of] constituted a possibility of prejudice, 26 but that they worked to his actual and substantial disadvantage, infecting his entire 27 [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 1 Respondents argue that, on the appeal in Malone’s state habeas action, the 2 Nevada Supreme Court ruled the claims in Grounds 4A, 5, 6, and 7 to be procedurally 3 barred because they could have been, but were not, asserted on Malone’s direct appeal. 4 See Motion to Dismiss (ECF No. 22), pp. 12–14. Respondents point to the following 5 passage in the Nevada Supreme Court’s order on the appeal in Malone’s state habeas 6 action:

7 Additionally, Malone raises numerous claims of pretrial, district court, and prosecution error that could have been raised on direct appeal. These 8 include claims that the district court abused its discretion by (1) denying Malone pretrial habeas relief, (2) denying his posttrial motion 9 for a new trial, (3) reappointing counsel from the Special Public Defender's office to represent him, and (4) overruling defense objections to certain jury 10 instructions, one of which Malone unsuccessfully contested on direct appeal; (5) that his initial arrest was not supported by probable cause; 11 (6) that the testimony of Mr. Herb, Ms. Estores, and Ms. Phillips violated the Confrontation Clause; (7) that insufficient evidence supported his 12 kidnapping convictions; (8) that Ms. Matthew’s testimony was inadequately corroborated per NRS 175.291; and that the State (9) failed to properly 13 investigate all witnesses or the relevant phone records, (10) failed to properly test the DNA evidence taken from the golf club, and 14 (11) committed prosecutorial misconduct by eliciting false statements by Ms. Phillips and regarding Malone’s interaction with the victims, the 15 dumped-out purse, and use of Malone’s phone. These claims were procedurally barred absent a showing of good cause and prejudice, 16 NRS 34.810(1)(b)(2); NRS 34.810(3), which Malone has not made. The district court therefore did not err in denying these claims without an 17 evidentiary hearing. 18 Order of Affirmance, Exh. 474, p. 4 (ECF No. 31-35, p. 5). In response, Malone 19 argues that he can show cause and prejudice with respect to the procedural default 20 of Ground 4A, 5, 6, and 7 because of ineffective assistance of his appellate counsel 21 in not asserting the claims on his direct appeal. See Opposition to Motion to 22 Dismiss (ECF No. 36), pp. 2–6. 23 Malone might be able to overcome the procedural default of the claims in Grounds 24 4A, 5, 6, and 7 by showing that his appellate counsel was ineffective for not asserting the 25 claim on his direct appeal. This cause-and-prejudice argument mirrors a claim of 26 ineffective assistance of appellate counsel in Ground 8B. See Amended Petition for Writ 27 of Habeas Corpus (ECF No. 11), p. 86. Therefore, as the issue of the possible procedural 1 || the merits of Ground 4B, perhaps—the Court determines that it will be better resolved 2 || after Respondents file their answer and Malone files his reply. The Court will deny 3 || Respondents’ motion to dismiss with respect to Grounds 4,5,6, and 7, without prejudice 4 || to Respondents’ reasserting the procedural default defense to those claim in their answer, 5 || along with their argument on the merits of the claims. 6 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 22) 7 || is GRANTED IN PART AND DENIED IN PART. Ground 2 of Petitioners Amended 8 || Petition for Writ of Habeas Corpus (ECF No. 11) are dismissed. 9 || In all other respects, the Motion to Dismiss is denied. 10 IT IS FURTHER ORDERED that Respondents will have 90 days from the date of 11 || this order to file an answer, responding to Petitioner’s remaining claims. In all other 12 || respects the schedule for further proceedings set forth in the order entered 13 || August 31, 2018 (ECF No. 7) will remain in effect. 14 15 DATED THIS 13" day of July, 2020. 16 17 C 3 □ RICHARD F: ARE, Il, 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28