Sonner v. Bean (DEATH PENALTY)

• Court: District Court, D. Nevada
• Decided: February 11, 2025
• Docket: 2:00-cv-01101
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 MICHAEL SONNER, Case No. 2:00-cv-01101-ART-DJA 7 Petitioner, ORDER 8 v.

9 WILLIAM GITTERE, et al.,

10 Respondents.

11 12 In prior orders, this Court concluded that all of the claims in Michael 13 Sonner’s operative federal habeas petition (ECF No. 96), except for Claims G, H, 14 I, M1, M3, N, GG, II, PP4, TT2, TT10, TT11, ZZ. GGG, HHH, and KKK, are 15 barred from federal review by the procedural default doctrine absent a showing 16 of cause and prejudice or a fundamental miscarriage of justice. ECF Nos. 280 at 17 10. The ourt gave Sonner an opportunity to demonstrate that he could make 18 such a showing. ECF No. 285. With both parties having briefed the matter, the 19 Court now concludes that Sonner has failed to demonstrate that the procedural 20 default of his claims should be excused. However, the Court defers, until after 21 merits briefing, its decision on whether initial state habeas counsel’s 22 ineffectiveness is cause to excuse the default of Sonner’s ineffective assistance 23 of trial counsel claims. 24 I. Standards for consideration of procedurally defaulted claims 25 Federal courts will consider a procedurally defaulted claim only if the 26 petitioner demonstrates cause and prejudice or a fundamental miscarriage of 27 justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause requires a 28 showing “that some objective factor external to the defense impeded counsel's 1 efforts to comply with the State's procedural rule ... [such as] a showing that 2 the factual or legal basis for a claim was not reasonably available to counsel, ... 3 or that some interference by officials made compliance impracticable.” Murray v. 4 Carrier, 477 U.S. 478, 488 (1986) (internal quotations and citations omitted). 5 Prejudice requires “showing, not merely that the errors at his trial created a 6 possibility of prejudice, but that they worked to his actual and substantial 7 disadvantage, infecting his entire trial with error of constitutional dimensions.” 8 United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). The 9 court need not examine the existence of prejudice if the petitioner fails to 10 establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. 11 Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991). To establish that a 12 fundamental miscarriage of justice would occur if a claim were not heard on the 13 merits in federal court, a petitioner must demonstrate that “a constitutional 14 violation has probably resulted in the conviction of one who is actually 15 innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). 16 II. Discussion 17 Sonner’s claims are procedurally defaulted because he failed to comply 18 with Nev. Rev. Stat. § 34.726(1), Nevada’s time limit for seeking post-conviction 19 relief. See ECF No. 138-6. Nev. Rev. Stat. § 34.726(1) provides that a petition for 20 post-conviction relief is untimely if filed later than one year after the entry of the 21 judgment of conviction or, if an appeal has been taken from the judgment, 22 within one year after the Nevada Supreme Court issues its remittitur. Sonner 23 argues the procedural default of his claims should be excused because he can 24 establish both cause and prejudice and a fundamental miscarriage of justice. 25 He also claims that an evidentiary hearing is necessary to resolve factual issues 26 related to his arguments. 27 A. Cause and prejudice 28 Sonner argues that there were four “causes” of his procedural default in 1 the state court: (1) ineffective assistance of trial counsel, (2) ineffective 2 assistance of appellate counsel, (3) ineffective assistance of initial state habeas 3 counsel, and (4) deficiencies in Nevada’s capital system. The Court addresses 4 each in turn. 5 1. Ineffective assistance of trial counsel 6 Sonner argues that his trial counsel caused the default of 14 claims— 7 Claims M, O–P, R, W, CC10, HH, KK–LL, NN–OO, PP7, and QQ–RR—because 8 counsel failed to bring these claims to the trial court’s attention or otherwise 9 preserve them for appeal. In order for attorney error to constitute “cause” to 10 excuse a procedural default, it must rise to the level of a constitutional violation 11 of the right to counsel under Strickland v. Washington, 466 U.S. 478, 488 12 (1984). Carrier, 477 U.S. at 488. 13 With the exception of Claim NN, each of these claims allege some type of 14 trial court error. Claim NN alleges prosecutorial misconduct during penalty 15 phase closing argument. For each claim, Sonner points to what he contends is a 16 corresponding ineffective assistance of counsel claim that establishes cause for 17 the default. For many of the claims, however, he fails to establish a sufficient 18 nexus between the default of the particular claim and trial counsel’s alleged 19 deficient performance.1 Moreover, as Sonner concedes, the appellate courts in 20 Nevada will consider claims of plain error or defects affecting substantial rights 21 even if the issue was not brought to the attention of the trial court. See Calvin v. 22 State, 147 P.3d 1097, 1101 (Nev. 2006) (citing Nev. Rev. Stat. § 178.602). In the 23 absence of a more detailed showing, the Court is not convinced that ineffective 24

25 1 For example, Claim M alleges that the trial court erred in refusing to suppress various statements made by Sonner. ECF No. 96 at 55-62. Sonner cites Claim EE8 as cause for 26 the default of Claim M. ECF No. 301 at 50. Claim EE8 alleges that counsel was ineffective by failing to present witnesses, object to evidence, or adequately prepare for 27 the suppression motion hearing. ECF No. 96 at 51-52. Even if it was ineffective assistance, counsel’s alleged conduct had no bearing on Sonner’s ability to raise Claim 28 M in compliance with Nevada’s procedural rules. 1 assistance of trial counsel prevented or impeded Sonner from raising any of the 2 14 claims on direct appeal. 3 2. Ineffective assistance of appellate counsel 4 Sonner argues that his appellate counsel caused the default of Claims A– 5 F, J–AA, BB1, BB4, CC, HH, JJ, NN1, OO–SS (except PP4), UU–WW, AAA–DDD, 6 LLL–RRR, VVV, and YYY, by failing to raise them on direct appeal. Because a 7 defendant’s constitutional right to counsel extends to his direct appeal, an 8 attorney’s deficient performance during an appeal may provide cause to excuse 9 a procedural default. See Coleman v. Thompson, 501 U.S. 722, 754 (1991); 10 Evitts v. Lucey, 469 U.S. 387, 396 (1985). However, the ineffectiveness claim 11 advanced as cause must have been independently exhausted in state court. 12 Carrier, 477 U.S. at 489. If the ineffectiveness claim is itself defaulted, it cannot 13 serve as cause unless the petitioner can establish cause and prejudice with 14 respect to that ineffectiveness claim too. Edwards v. Carpenter, 529 U.S. 446, 15 452-54 (2000). 16 Respondents argue that Sonner has not exhausted the ineffective 17 assistance of appellate counsel claims that he cites as cause because he did not 18 present the claims in his initial post-conviction proceeding and, in his second 19 post-conviction proceeding, he merely asserted a catchall claim that appellate 20 counsel was ineffective for failing to raise all meritorious claims. Sonner 21 concedes that the claims were not presented in his initial post-conviction 22 proceeding, but disputes that the claims were not exhausted in his second post- 23 conviction proceeding. Even if the ineffective assistance of appellate counsel 24 claims were exhausted in that proceeding, however, they are nonetheless 25 procedurally defaulted. See ECF No. 138-6. Because he fails to show that the 26 default should excused due to cause and prejudice, Sonner cannot rely on 27 ineffective assistance of appellate counsel as cause to excuse the default of the 28 claims at issue. 1 3. Ineffective assistance of initial state habeas counsel 2 Sonner argues that ineffective assistance of counsel in his first state 3 habeas proceeding serves as cause to excuse the default of Claims DD–FF, MM, 4 TT, and YYY. Sonner relies on Martinez v. Ryan, 566 U.S. 1 (2012), in which the 5 Supreme Court held that “[i]nadequate assistance of counsel at initial-review 6 collateral proceedings may establish cause for a prisoner’s procedural default of 7 a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. The parties 8 agree that the Court should defer its decision on whether Sonner can make the 9 necessary Martinez showing until after Sonner’s claims have been briefed on the 10 merits. Thus, the Court will reserve judgment on the issue until that time. 11 4. Deficiencies in Nevada’s capital system 12 Sonner argues that deficiencies in Nevada’s capital system at the trial, 13 appellate, and post-conviction level prevented him from developing and 14 presenting all his claims in compliance with Nevada’s procedural rules. He cites 15 insufficient funding and resources for public defenders in capital cases at the 16 time of his trial, the Nevada Supreme Court’s failure to provide fair appellate 17 and post-conviction review in capital cases, and the public pressure Nevada’s 18 popularly-elected judges face when adjudicating capital cases. According to 19 Sonner, he would not have been sentenced to death, would have had his 20 sentence reversed, or would have been in a position to raise all meritorious 21 claims if not for these deficiencies. 22 Sonner’s arguments are unavailing. As noted above, ineffective assistance 23 of trial or appellate counsel can provide cause for a procedural default if it rises 24 to the level of a constitutional violation. While lack of funding or resources may 25 be a contributing factor to counsel’s allegedly deficient representation, the 26 relevant analysis is the one already discussed in sections A.1. and A.2. 27 The remaining alleged deficiencies—i.e., the Nevada Supreme Court’s 28 failure to provide fair appellate and post-conviction review in capital cases and 1 the pressure faced by popularly-elected judges—strike at the heart of why 2 prisoners are entitled to federal habeas review. Alleged shortcomings or 3 injustices in the state process that resulted in the prisoner’s conviction and 4 sentence are the intended subjects of a petition for writ of habeas corpus. They 5 are not, however, objective factors external to the defense that stood in the way 6 of Sonner raising his habeas claims in compliance with Nevada's procedural 7 rules. 8 B. Fundamental miscarriage of justice 9 Sonner claims the failure to consider his habeas claims would result in a 10 miscarriage of justice because he stands to be executed even though he (1) was 11 incompetent at the time of his trial, (2) was insane at the time of the crime, 12 (3) is currently mentally ill, and (4) was convicted by a jury containing at least 13 one biased juror. Sonner recognizes that “the miscarriage of justice exception 14 applies when a petitioner ‘can demonstrate that the alleged constitutional error 15 has resulted in the conviction of one who is actually innocent of the underlying 16 offense or, in the capital sentencing context, of the aggravating circumstances 17 rendering the inmate eligible for the death penalty.’” ECF No. 292 at 117 18 (quoting Dretke v. Haley, 541 U.S. 386, 388 (2004)). The Supreme Court has 19 “emphasized ‘the narrow scope’ of the exception.” Calderon v. Thompson, 523 20 U.S. 538, 559 (1998); see Carrier, 477 U.S. at 495-96, 106 S.C (explaining that 21 a “fundamental miscarriage of justice” occurs “in an extraordinary case, where 22 a constitutional violation has resulted in the conviction of someone who is 23 actually innocent”). Nonetheless, Sonner argues that the exception includes the 24 theories he advances. 25 In Schlup, the case that clarified the standard that governs the 26 miscarriage of justice inquiry, the Court held that “[t]o ensure that the 27 fundamental miscarriage of justice exception would remain ‘rare’ and would 28 only be applied in the ‘extraordinary case,’ while at the same time ensuring that 1 the exception would extend relief to those who were truly deserving, this Court 2 explicitly tied the miscarriage of justice exception to the petitioner's innocence.” 3 Schlup 513 U.S. at 321. In a subsequent case the Court emphasized that 4 “’actual innocence’ means factual innocence, not mere legal insufficiency.” 5 Bousley v. United States, 523 U.S. 614, 623 (1998). 6 Sonner fails to cite a single case holding that incompetence at the time of 7 trial qualifies as a fundamental miscarriage of justice for the purpose of 8 excusing a petitioner’s procedural defaults. 9 Insanity at the time of the crime presents a closer question. In Jaramillo 10 v. Stewart, 340 F.3d 877, 833 (9th Cir. 2003), the Ninth Circuit considered 11 petitioner Jaramillo’s claim of justification based on self-defense under Schlup’s 12 actual innocence rubric. The problem for Sonner is that Schlup requires a 13 petitioner to support a claim of actual innocence with “new reliable evidence” 14 such that it is more likely than not that “no reasonable juror would have 15 convicted him in light of the new evidence.” Schlup, 513 U.S. at 324 (citing 16 “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 17 physical evidence” as examples of “new reliable evidence”). In Jaramillo, for 18 example, Jaramillo discovered the existence of an undisclosed witness who 19 swore that Jaramillo’s victim initiated the aggression that resulted in the 20 victim’s death and that he (the witness) had been interviewed by the 21 prosecution shortly after the incident. Jaramillo, 340 F.3d at 879. Jaramillo also 22 proffered an autopsy report which showed that his victim “covered his right 23 hand with a glove, and then wrapped a bandana around his palm … to protect 24 his hand from the non-hilted shank” and “photographs taken by the medical 25 examiner [that] appear[ed] to show that the same fabric tied around [the 26 victim’s] hand was also found on the shank, supporting Jaramillo's claim that 27 [the victim] had attempted to use the shank against him.” Id. at 883. 28 // 1 Here, Sonner relies on the declarations of a clinical psychologist, Dr. 2 Karen Froming, who evaluated him in 2002, 18 years after he committed the 3 crimes at issue. Dr. Froming’s initial report contains a lengthy social history for 4 Sonner and her neuropsychological assessment of him. ECF No. 183-5. In a 5 supplemental report, she takes issue with the evaluations of the six doctors 6 who evaluated Sonner in 1994. ECF No. 183-13. Nowhere in either report, 7 however, does she address whether Sonner may have met the standard 8 necessary for a successful insanity defense in Nevada. Sonner notes that his 9 “social history includes evidence of exposure to toxins in vitro, physical and 10 mental abuse as a child, toxins as a result of substance abuse, incest, and a 11 life-long history of mental health disabilities.” ECF No. 301 at 37. That falls 12 short, however, of showing that he was insane at the time of the crime—i.e., 13 that he was incapable of knowing or understanding the nature and quality of 14 his act or incapable of distinguishing right from wrong. See ECF No. 208-16. In 15 sum, Sonner has not proffered new evidence establishing that he can meet the 16 Schlup standard in relation to his insanity defense. 17 Sonner argues that dismissal of his claims will result in a miscarriage of 18 justice because his mental illness renders him ineligible for the death penalty. 19 He attempts to analogize his situation to intellectually disabled defendants and 20 defendants who were juveniles at the time of the crime. See Atkins v. Virginia, 21 536 U.S. 304, 321 (2002) (holding that the execution of intellectually disabled 22 offender violates the Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 578 23 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death 24 penalty on offenders who were under the age of 18 when their crimes were 25 committed.”). This argument lacks merit for the simple reason that Sonner fails 26 to cite any persuasive legal authority supporting his position that he is 27 ineligible for the death penalty due to his alleged mental illness. Finally, 28 Sonner’s argument based on the presence of a biased juror on his jury is 1 explicitly foreclosed by language in Schlup. See Schlup, 513 U.S. at 316 2 (“Without any new evidence of innocence, even the existence of a concededly 3 meritorious constitutional violation is not in itself sufficient to establish a 4 miscarriage of justice that would allow a habeas court to reach the merits of a 5 barred claim.”). 6 Based on the foregoing, Sonner has not established that failure to 7 consider his defaulted claims will result in a miscarriage of justice. 8 C. Evidentiary hearing 9 Sonner argues that this Court should hold an evidentiary hearing to 10 resolve whether he can establish cause and prejudice or a miscarriage of 11 justice. He contends that, unless the Court rules in his favor based on the 12 existing record, an evidentiary hearing is necessary to resolve factual disputes 13 related to the arguments discussed above. The Court does not agree. 14 Sonner’s cause arguments based on ineffective assistance of trial counsel 15 and ineffective assistance of appellate counsel fail as a matter of law. The Court 16 also sees no factual issues that must be resolved in relation to Sonner’s 17 miscarriage of justice arguments. Sonner’s claims of ineffective assistance of 18 initial post-conviction counsel must be analyzed under Martinez, which requires 19 the Court to determine the underlying ineffective assistance of trial counsel 20 claim is “substantial” and whether the petitioner had ineffective counsel during 21 his initial post-conviction review proceeding. Trevino v. Thaler, 569 U.S. 413, 22 423 (2013) (citing Martinez, 566 U.S. at 14). The Court recognizes that this can 23 be a fact-intensive inquiry. However, in Shinn v. Ramirez, 596 U.S. 366, 387 24 (2022), the Supreme Court concluded that the equitable rule announced in 25 Martinez does not permit a federal court to dispense with the limits on 26 evidentiary hearings imposed by 28 U.S.C. § 2254(e)(2)2 “because a prisoner's 27 2 Section 2254(e)(2) provides that, if a prisoner “has failed to develop the factual basis of 28 1 state postconviction counsel negligently failed to develop the state-court 2 record.” Ramirez, 596 U.S. at 371. The Court held that “a federal habeas court 3 may not conduct an evidentiary hearing or otherwise consider evidence beyond 4 the state-court record based on ineffective assistance of state postconviction 5 counsel.” Id. at 382. 6 Sonner argues that Ramirez does not bar a hearing because he is not 7 asking for a hearing on the merits of his ineffective assistance of trial counsel 8 claims, only on the issue of cause and prejudice. While that may be, Ramirez 9 makes it abundantly clear that evidence adduced at such a hearing cannot be 10 considered “to evaluate the merits of the underlying ineffective-assistance 11 claim.” Id. at 388-89. Thus, a hearing on the Martinez issue would be nothing 12 more than an academic exercise and a poor use of judicial resources. 13 III. Conclusion 14 Sonner has not demonstrated that the procedural default of the claims 15 that he presented in his second state post-conviction proceeding should be 16 excused. However, several of those claims are ineffective assistance of trial 17 counsel claims that are subject to a Martinez analysis. For those claims, the 18 Court will wait until the parties have briefed the merits of the claims before 19 making a Martinez ruling. The Court also recognizes that three other claims— 20 Claims M1, M3, and N—are not procedurally defaulted and have yet to be 21 addressed on the merits. 22 IT IS THEREFORE ORDERED that all of the claims in Sonner’s operative 23 federal petition (ECF No. 96), except for Claims M1, M3, N, DD–FF, MM, TT, and 24 YYY, are barred from federal review by the procedural default doctrine. 25 IT IS FURTHER ORDERED that the respondents’ answer to the remaining 26 claims is due within 120 days from the entry of this order. Sonner will have 90 27 a claim in State court proceedings,” a federal court may hold “an evidentiary hearing 28 on the claim” in only two circumstances, neither of which apply to in this case. 1 || days following service of an answer to file and serve a reply. Respondents shall 2 || thereafter have 60 days following service of a reply to file and serve a response 3 || to the reply. 4 5 Dated this 11t* day of February, 2025. 6 Re Aas jot? 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]