Troy White v. Nethanjah Breitenbach, et al.

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 TROY WHITE, Case No. 2:21-cv-01800-GMN-VCF 4 Petitioner, 5 ORDER v. 6 NETHANJAH BREITENBACH, et al., 7 Respondents. 8

9 10 Troy White, who is incarcerated at Nevada’s Lovelock Correctional Center, 11 brings this habeas corpus action under 28 U.S.C. § 2254 challenging his convictions of 12 second-degree murder with use of a deadly weapon; attempted murder with use of a 13 deadly weapon; carrying a concealed firearm; and child abuse, neglect or 14 endangerment. White is represented by appointed counsel. The respondents move to 15 dismiss certain claims in White’s amended petition, arguing that those claims are 16 unexhausted, procedurally defaulted and/or not cognizable in this federal habeas action. 17 The Court grants the motion to dismiss in part and denies it in part as is explained 18 below and sets a schedule for Respondents to file an answer, responding to White’s 19 remaining claims. 20 I. Background 21 On April 17, 2015, a Clark County jury found White guilty of second-degree 22 murder with use of a deadly weapon; attempted murder with use of a deadly weapon; 23 carrying a concealed firearm; and five counts of child abuse, neglect or endangerment. 24 ECF No. 21-19. The trial court sentenced White to what amounts to an aggregate 25 sentence of life in prison with parole possible after 31 years. ECF No. 21-44; see also 26 ECF No. 13 at 6. White appealed. See ECF No. 21-45 (opening brief on appeal). The 27 Nevada Supreme Court affirmed on April 26, 2017. ECF No. 22-10. 1 In its order affirming the judgment of conviction, the Nevada Supreme Court 2 described the background of the case as follows:

3 Appellant Troy White (White) and his wife Echo Lucas-White (Lucas) became estranged. During this time, Lucas remained in the home 4 with the children and White became aware that Lucas began romantically seeing a mutual friend, Joseph Averman. One afternoon, White arrived at 5 the home and requested to speak with Lucas. After the discussion escalated, he shot and killed Lucas. He then shot Averman two or three 6 times, but Averman survived. White fled to Arizona, where he turned himself in without conflict. 7 At trial, the State introduced over 100 text messages between 8 White and Lucas to demonstrate White’s intent to kill. White sought to rebut those messages by introducing two voicemails that he had left for 9 Lucas on the day of the shooting. The district court excluded the voicemails as cumulative hearsay. 10 White also proffered a jury instruction pertaining to whether 11 provocation for heat of passion may occur over time. The district court rejected the instruction because it did not accurately state Nevada law. 12 Instead, the district court offered standard voluntary manslaughter instructions. White was found guilty on all charges and is serving an 13 aggregate sentence of life in prison with the possibility of parole after 31 years. 14 15 Id. at 2–3; see also ECF No. 46-10 at 6–8 (State’s detailed description of crimes in 16 response to White’s second state post-conviction habeas petition). 17 On April 24, 2018, White filed a counseled post-conviction petition for writ of 18 habeas corpus in the state district court. ECF No. 22-13; see also ECF No. 22-19 19 (supplemental brief in support of petition). The state district court denied that petition in 20 a written order filed on April 13, 2021. ECF No. 22-41. White appealed. See ECF No. 21 22-49 (opening brief on appeal). The Nevada Court of Appeals affirmed on February 3, 22 2022. ECF No. 22-56. 23 Meanwhile, on September 29, 2021, this Court received from White a pro se 24 petition for writ of habeas corpus, initiating this action. ECF No. 1. The Court appointed 25 counsel for White (ECF No. 5), and with counsel White filed an amended petition—his 26 operative petition—on May 31, 2022. ECF No. 13. In his amended petition, White 27 asserts the following claims: 1. White’s federal constitutional rights were violated on account of 1 ineffective assistance of his trial counsel.

2 A. “Trial counsel was ineffective for not properly arguing for voluntary manslaughter.” 3 B. “Trial counsel’s handling of the child abuse, neglect, or 4 endangerment charges was ineffective.”

5 C. “Counsel was ineffective for not objecting to the weapon enhancement as unconstitutional under the Double Jeopardy 6 Clause.”

7 D. “Trial counsel was ineffective for not objecting to the prosecution misstating the standard for voluntary 8 manslaughter.”

9 E. “Trial counsel was ineffective for failing to object to the State’s insinuation of prior acts of domestic violence.” 10 F. “Trial counsel was ineffective for failing to object to 11 erroneous jury instructions.”

12 G. “White suffered cumulative prejudice from counsel’s errors.”

13 2. White’s federal constitutional rights were violated because the trial court “refus[ed] to allow the defense to introduce voicemails White 14 left Lucas that would have contradicted the State’s arguments and cast the evidence in a different light.” 15 3. White’s federal constitutional rights were violated as a result of 16 prosecutorial misconduct.

17 4. White’s federal constitutional rights were violated on account of ineffective assistance of his appellate counsel because his 18 appellate counsel failed to raise the following claims on his direct appeal: 19 A. A claim of prosecutorial misconduct regarding the 20 prosecution’s alleged misstatement in closing arguments of the legal standard for voluntary manslaughter. 21 B. A claim regarding the prosecution’s questioning of 22 Witnesses Tim Henderson and Amber Gains.

23 C. A challenge to the reasonable doubt instruction.

24 D. A challenge to the equal and exact justice instruction.

25 5. “The fundamental fairness of Troy White’s trial was undermined by the combined effect of the errors outlined in this petition.” 26 27 Id. 1 Respondents moved to dismiss White’s amended petition. ECF No. 23. 2 However, the Court granted a motion by White to stay the case to allow him to further 3 exhaust claims in state court and denied the motion to dismiss as moot. ECF No. 30. 4 The stay was imposed on January 9, 2023. Id. 5 White filed a second state post-conviction habeas petition on September 27, 6 2022. ECF No. 46-4. In a written order filed on March 16, 2023, the state district court 7 ruled that petition procedurally barred and denied White relief. ECF No. 46-13. White 8 appealed. See ECF No. 46-29 (opening brief on appeal). The Nevada Supreme Court 9 affirmed on May 15, 2024. ECF No. 46-36. 10 The stay was lifted on July 29, 2024. ECF No. 34. On April 30, 2025, 11 Respondents filed the motion to dismiss that is now before the Court. ECF No. 47. 12 White filed an opposition to the motion and Respondents filed a reply. ECF Nos. 52, 57. 13 II. Discussion 14 A. Exhaustion 15 A state prisoner first must exhaust state court remedies on a habeas claim before 16 presenting the claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This exhaustion 17 requirement ensures that the state courts, as a matter of comity, have the first 18 opportunity to address and correct alleged violations of federal constitutional 19 guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has 20 exhausted his federal claims when he has fully and fairly presented them to the state 21 courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O'Sullivan v. 22 Boerckel, 526 U.S. 838, 844–45 (1999)). To satisfy the exhaustion requirement, a claim 23 must have been raised through one complete round of either direct appeal or collateral 24 proceedings to the highest state court level of review available. O'Sullivan, 526 U.S. at 25 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). 26 To properly exhaust a claim, the claim as asserted in state court “must include 27 reference to a specific federal constitutional guarantee, as well as a statement of the 1 Netherland, 518 U.S. 152, 162–63 (1996) and Davis v. Silva, 511 F.3d 1005, 1009 (9th 2 Cir. 2008)). “A claim has not been fairly presented in state court if new factual 3 allegations either ‘fundamentally alter the legal claim already considered by the state 4 courts,’ or ‘place the case in a significantly different and stronger evidentiary posture 5 than it was when the state courts considered it.’” Dickens v. Ryan, 740 F.3d 1302, 1318 6 (9th Cir. 2014). 7 B. Procedural Default 8 Federal courts are barred from considering a state prisoner’s habeas claim if the 9 state courts denied the claim based on an independent and adequate state procedural 10 rule. Edwards v. Carpenter, 529 U.S. 446, 454-55 (2000). When a prisoner 11 “procedurally defaults” a federal claim, judicial review is barred unless he can show 12 either: (1) “cause for the default and actual prejudice as a result of the alleged violation 13 of federal law,” or (2) “that failure to consider the claims will result in a fundamental 14 miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate cause, a petitioner 15 must show that some external and objective factor impeded his efforts to comply with 16 the state's procedural rule. Maples v. Thomas, 565 U.S. 266, 280–81 (2012). Ignorance 17 or inadvertence does not constitute cause. Murray v. Carrier, 477 U.S. 478, 486–87 18 (1986). To show prejudice, a petitioner bears the burden of showing not merely that the 19 error created a possibility of prejudice, but that the error worked to his actual and 20 substantial disadvantage, infecting the entire proceeding with constitutional error. Id. at 21 494; Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019). 22 The Supreme Court has recognized that under certain circumstances it may be 23 appropriate for a federal court to anticipate a state-law procedural bar of an 24 unexhausted claim, and to treat such a claim as subject to the procedural default 25 doctrine. Thus, a federal court need not dismiss an exhausted claim if it is clear that the 26 state court would find the claim procedurally barred. Coleman, 501 U.S. at 731 (“An 27 unexhausted claim will be procedurally defaulted, if state procedural rules would now 1 489 U.S. 346, 351–52 (1989); Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014); 2 Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). 3 With one exception, Nevada’s standards for determining whether there is cause 4 and prejudice, such that a petitioner can overcome a state procedural bar, are 5 functionally identical to the federal standards for cause and prejudice. See Robinson v. 6 Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004); Mitchell v. State, 122 Nev. 1269, 7 1273–74, 149 P.3d 33, 35–36 (2006). The exception is—in noncapital habeas cases 8 only—a claim of ineffective assistance of trial counsel procedurally barred in state court, 9 where the petitioner claims, as cause, the ineffective assistance or absence of counsel 10 in the initial state postconviction habeas action. Under Nevada law, such ineffective 11 assistance or absence of post-conviction counsel cannot function as cause to excuse 12 the procedural bar. Brown v. McDaniel, 130 Nev. 565, 571–76, 331 P.3d 867, 871–75 13 (2014). But in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that, in 14 federal court, such ineffective assistance or absence of post-conviction counsel may 15 serve as cause. Under Martinez, to overcome the procedural, the petitioner must 16 demonstrate that (1) the claim of ineffective assistance of trial counsel is substantial; 17 (2) ineffective assistance or absence of post-conviction counsel was the cause of the 18 default; (3) the postconviction proceedings were the initial review proceedings for the 19 ineffective assistance of trial counsel claim; and (4) state law requires, or practically 20 requires, that the claim be raised in the initial postconviction proceedings. Trevino v. 21 Thaler, 569 U.S. 413, 423 (2013). 22 C. Analysis 23 1. Claim 1A 24 In Claim 1A, White claims that his federal constitutional rights were violated on 25 account of ineffective assistance of his trial counsel because his trial counsel did not 26 properly argue for manslaughter. ECF No. 13 at 10–20. 27 White admits in his amended petition that he did not assert Claim 1A in his first 1 habeas action (ECF No. 46-4 at 8–19), but that petition was ruled procedurally barred 2 (ECF No. 46-36). So, Claim 1A is subject to the procedural default doctrine in this case. 3 This much is undisputed. See ECF No. 52 at 17. 4 White argues, though, that he can overcome the procedural default of Claim 1A 5 under Martinez. Id. Anticipating that the cause-and-prejudice analysis under Martinez 6 will be intertwined with the analysis of the claim on its merits—because there will likely 7 be at least some overlap of the briefing of the two issues—the Court will defer the 8 question whether White can overcome the procedural default of Claim 1A until after the 9 parties have briefed the merits of White’s remaining claims. Therefore, Respondents’ 10 motion to dismiss Claim 1A will be denied, without prejudice to Respondents asserting 11 the procedural default defense to the claim in their answer. 12 2. Claims 1B and 1C 13 In Claim 1B, White claims that his federal constitutional rights were violated on 14 account of ineffective assistance of his trial counsel because “[t]rial counsel’s handling 15 of the child abuse, neglect, or endangerment charges was ineffective.” ECF No. 13 at 16 20–24. In Claim 1C, White claims that his federal constitutional rights were violated on 17 account of ineffective assistance of his trial counsel because his trial counsel did not 18 “object[ ] to the weapon enhancement as unconstitutional under the Double Jeopardy 19 Clause.” Id. at 24–27. 20 White concedes that he has never presented either of these claims in state court. 21 ECF No. 52 at 11. He takes the position that both claims are technically exhausted, 22 because if he was to present them in state court now, they would be ruled procedurally 23 barred. Id. He goes on to argue that he can overcome the anticipatory procedural 24 default under Martinez. As with Claim 1A, the Court will defer the question whether 25 White can overcome the procedural defaults of Claims 1B and 1C until the parties have 26 briefed the merits of White’s remaining claims. Respondents’ motion to dismiss Claims 27 1B and 1C will be denied without prejudice to Respondents asserting the procedural 1 3. Claim 1D 2 In Claim 1D, White claims that his federal constitutional rights were violated on 3 account of ineffective assistance of counsel because his trial counsel did not “object[ ] to 4 the prosecution misstating the standard for voluntary manslaughter.” ECF No. 13 at 27– 5 30. 6 Respondents argue that Claim 1D is unexhausted in state court. ECF No. 52 at 7 47–48. The Court determines, however, that White exhausted this claim by asserting it 8 on the appeal in his first state habeas action. See ECF No. 22-49 at 40–44. White 9 arguably presents the claim in more detail here than he did in state court, but that does 10 not necessarily render it unexhausted. To exhaust a claim, the petitioner must “fairly 11 present” it to the state courts, meaning he must describe “both the operative facts and 12 the federal legal theory on which his claim is based so that the state courts have a fair 13 opportunity to apply controlling legal principles to the facts bearing upon his 14 constitutional claim.” Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting 15 Davis, 511 F.3d at 1009). The claim as asserted in state court must be the “substantial 16 equivalent” of the claim asserted in federal court. Lopez v. Schriro, 491 F.3d 1029, 1040 17 (9th Cir. 2007) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). “[V]ariations in 18 the legal theory or factual allegations” are acceptable so long as the “ultimate question 19 for disposition” is the same. Picard, 404 U.S. at 277 (quoting United States ex rel. Kemp 20 v. Pate, 359 F.2d 749, 751 (7th Cir. 1966)). White’s claim as presented in this case is 21 not fundamentally altered or placed in a significantly different and stronger evidentiary 22 posture than in state court. See Dickens, 740 F.3d at 1318. The Court will deny 23 Respondents’ motion to dismiss Claim 1D. 24 4. Claim 1E 25 In Claim 1E, White claims that his federal constitutional rights were violated on 26 account of ineffective assistance of counsel because his trial counsel “fail[ed] to object 27 to the State’s insinuation of prior acts of domestic violence.” ECF No. 13 at 30–31. 1 White’s claim concerns the testimony of witnesses Tim Henderson and Amber Gains. 2 See id. 3 White claims he exhausted this claim in his first state habeas action. ECF No. 13 4 at 9. Respondents argue that Claim 1E is unexhausted to the extent the claim involves 5 the testimony of Gains. See ECF No. 52 at 7–8. But in making this argument, 6 Respondents apparently overlook a footnote in White’s opening brief on the appeal in 7 his first state habeas action. See ECF No 22-49 at 33 n.6. White did, in state court, 8 raise the issue with respect to the testimony of Gains. Ground 1E is fully exhausted. 9 The motion to dismiss Ground 1E will be denied. 10 5. Claim 1F 11 In Claim 1F, White claims that his federal constitutional rights were violated on 12 account of ineffective assistance of his trial counsel because his trial counsel “fail[ed] to 13 object to erroneous jury instructions.” ECF No. 13 at 32–33. White claims his trial 14 counsel should have objected to the jury instructions on reasonable doubt (Instruction 15 No. 27) and “equal and exact justice” (Instruction No. 38). Id. 16 White claims he exhausted this claim in his first state habeas action. ECF No. 13 17 at 9. The Court agrees. White asserted this claim on the appeal in his first state 18 habeas action, and the Nevada Court of Appeals, ruling on the merits of the claim, 19 affirmed the denial of relief on the claim. ECF No. 22-49 at 44–47; ECF No. 22-56 at 5– 20 6. The Court will deny the motion to dismiss Claim 1F. 21 6. Claim 2 22 In Claim 2, White claims that his federal constitutional rights were violated 23 because the trial court “refus[ed] to allow the defense to introduce voicemails White left 24 Lucas that would have contradicted the State’s arguments and cast the evidence in a 25 different light.” ECF No. 13 at 34–37. 26 White claims he exhausted this claim on his direct appeal. ECF No. 13 at 34. But 27 Respondents point to White’s opening brief on the direct appeal, and show that, while 1 that the exclusion of the voicemails from evidence violated his federal constitutional 2 rights. ECF No. 47 at 8–9. In his opposition to the motion to dismiss, White does not 3 contradict Respondents’ argument, but he argues that he claimed a federal 4 constitutional violation in his reply brief on the appeal. ECF No. 52 at 6–7. However, 5 under Nevada law, an appellant is not allowed to assert, in a reply brief on appeal, a 6 claim not raised in the opening brief. See NRAP 28(c) (reply brief is “limited to 7 answering any new matter set forth in the opposing brief”); Khoury v. Seastrand, 132 8 Nev. 520, 530 n.2, 377 P.3d 81, 88 n.2 (2016) (issue raised for first time in reply brief 9 forfeited); LaChance v. State, 130 Nev. 263, 277 n.7, 321 P.3d 919, 929 n.7 (2014) 10 (declining to consider issue raised for first time in reply brief). Indeed, the Nevada 11 Supreme Court did not, in its order of affirmance, discuss any federal constitutional 12 aspect of the claim regarding exclusion of the voicemails from evidence. See ECF No. 13 22-10 at 3–5. 14 Presenting a claim to the state’s highest court in a procedural context in which its 15 merits will not be considered absent special circumstances does not constitute fair 16 presentation of the claim. Castille v. Peoples, 489 U.S. 346, 351 (1989). Exhaustion 17 cannot be achieved by procedurally deficient or improper means. Id. Because petitioner 18 presented Claim 2 to the Nevada Supreme Court in a procedurally defective manner, 19 the claim was not exhausted. 20 Because White concedes that any attempt to return to state court now would be 21 procedurally barred, this claim is technically exhausted and procedurally defaulted. 22 Martinez does not apply because this is not a claim of ineffective assistance of trial 23 counsel. White does not make any argument that he can overcome this procedural 24 default. Respondents’ motion to dismiss Claim 2 will be granted on the ground of 25 procedural default. 26 7. Claim 3 27 In Claim 3, White claims that his federal constitutional rights were violated as a 1 he alleges is the prosecution’s misstatement in closing arguments of the legal standard 2 for voluntary manslaughter. See id. This is the substantive analog of the claim of 3 ineffective assistance of trial counsel claim in Claim 1D, discussed above. 4 White admits that he did not assert this substantive prosecutorial misconduct 5 claim in state court on his direct appeal, where under Nevada law it should have been 6 raised. See ECF No. 13 at 37. Rather, in Claim 1D, discussed above, he claims his trial 7 counsel was ineffective for not raising the issue at trial, and in Claim 4, discussed 8 below, he claims that his appellate counsel was ineffective for not raising the issue on 9 his direct appeal. 10 Here again, because White concedes that any attempt to return to state court 11 now would be procedurally barred, the claim is technically exhausted and procedurally 12 defaulted. White argues that he can overcome the procedural default by a showing of 13 cause and prejudice based on ineffective assistance of his trial and appellate counsel, 14 which claims of ineffective assistance of counsel are asserted in Claims 1D and 4. As 15 both of those claims of ineffective assistance of counsel are arguably procedurally 16 viable (see Edwards v. Carpenter, 529 U.S. 446, 451 (2000)), there is a possibility that 17 White will be able to overcome the procedural default. However, the cause-and- 18 prejudice analysis will be intertwined with the merits of White’s remaining claims, so the 19 Court will defer the question whether White can show cause and prejudice to overcome 20 the procedural default of Claim 3 until after the parties have briefed the merits of his 21 remaining claims. Respondents’ motion to dismiss Claim 3 will be denied, without 22 prejudice to Respondents asserting the procedural default defense to the claim in their 23 answer. 24 8. Claim 4 25 In Claim 4, White claims that he was denied his federal constitutional rights 26 because of ineffective assistance of appellate counsel. ECF No. 13 at 39–43. White 27 faults his appellate counsel for failing to raise the following claims on his direct appeal: A. A claim of prosecutorial misconduct regarding the 1 prosecution’s alleged misstatement in closing arguments of the legal standard for voluntary manslaughter. 2 B. A claim regarding the prosecution’s questioning of 3 Witnesses Tim Henderson and Amber Gains.

4 C. A challenge to the reasonable doubt instruction.

5 D. A challenge to the equal and exact justice instruction. 6 Id. 7 Respondents argue that these claims are unexhausted. ECF No. 47 at 9–10. 8 The Court disagrees. White asserted these claims on the appeal in his first state 9 habeas action. See ECF No. 22-49 at 32–37, 40–47. White has not, in presenting these 10 claims in this case, fundamentally altered them or placed them in a significantly different 11 and stronger evidentiary posture than in state court. See Dickens, 740 F.3d at 1318. 12 The Court will deny the motion to dismiss Claim 4. 13 9. Claims 1G and 5 14 Claims 1G and 5 are cumulative-error claims. In Claim 1G, White claims he 15 “suffered cumulative prejudice from [trial] counsel’s errors.” ECF No. 13 at 33–34. And 16 in Claim 5, White claims “[t]he fundamental fairness of [his] trial was undermined by the 17 combined effect of the errors outlined in this petition.” Id. at 43–44. 18 Respondents argue that these claims are not cognizable in this action, and that 19 at any rate they are not exhausted in state court. As it remains to be seen what, if any, 20 error the Court will find when the merits of White’s claims are addressed, it is not now 21 possible to determine the contours of these cumulative error claims. The Court will 22 therefore defer the consideration of Respondents’ arguments regarding these claims. 23 The motion to dismiss Claims 1G and 5 will be denied without prejudice to Respondents 24 asserting their arguments regarding the viability of these cumulative error claims in their 25 answer. 26 /// 27 /// 1 || Conclusion 2 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 3 || 47) is GRANTED IN PART AND DENIED IN PART. Claim 2 is dismissed. In all other 4 || respects the motion is denied, as explained above. 5 IT IS FURTHER ORDERED that Respondents will have 90 days from the date of 6 || entry of this order to file an answer, responding to Petitioner's remaining claims. In all 7 || other respects, the schedule set forth in the order entered July 30, 2024 (ECF No. 34) 8 || remains in effect. 9 10 DATED THIS _11__ day of February , 2026. 11 Vif

13 GND! STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28