Elvik v. Bunce

PETER QUINN ELVIK, Petitioner, v. DON BUNCE, et al., Respondents.

Case No.: 3:04-cv-00471-GMN-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: December 4, 2013

ORDER

This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. This matter comes before the Court on the merits of the second amended petition.

I. FACTUAL BACKGROUND

In its order denying petitioner's direct appeal, the Nevada Supreme Court summarized the facts of this case in a published decision:

At the time of the events leading to his conviction, the appellant, Peter Quinn Elvik, was fourteen years old and lived with his grandparents in Carson City, Nevada. Until approximately one week before Elvik committed the charged offenses, he resided with his mother in Tustin, California, where he had a thirteen-year-old girlfriend. Several hours before dawn on August 31, 1995, Elvik took a twelve-gauge shotgun from his grandparents' home and walked 14.7 miles to the Carson City Gun Range. A sixty-two-year-old man named William Gibson arrived at the range shortly thereafter and commenced target shooting with a pistol. Elvik shot Mr. Gibson several times with the twelve-gauge shotgun, took Mr. Gibson's pistol, and fled in Mr. Gibson's car. [Footnote 1: Elvik concedes that he shot Mr. Gibson, but claims that, after Elvik "made a statement about" Mr. Gibson's car keys, Mr. Gibson began to draw his pistol from its holster, causing Elvik to fire the shotgun in self-defense]. On the following day, police officers located Mr. Gibson's car in the parking lot of a motel in Costa Mesa, California. Elvik and his girlfriend were registered at the motel and fled when the police arrived. Elvik's girlfriend was apprehended near the motel shortly thereafter, and Elvik was arrested near his mother's home on the following evening.

After his arrest, Elvik was taken to the Tustin Police Department, where Tustin police detectives interrogated him for two hours and twenty minutes. Elvik's mother was not present at the interrogation, and he did not yet have legal counsel. The detectives informed Elvik of his Miranda rights, and he agreed to speak with the detectives. [Footnote 2: SeeMiranda v. Arizona, 384 U.S. 436, 479 (1966).] During the interrogation, Elvik repeatedly claimed that he did not remember being involved in the shooting because he was under the effects of a large dose of LSD at the time; however, near the end of the interrogation, Elvik discussed the shooting incident. Elvik was then booked into the Orange County Juvenile Hall. The following day, Elvik signed a written waiver of his Miranda rights and was interrogated by one of the Tustin detectives and two detectives from the Carson City Sheriff's Office for approximately ninety minutes.

A Nevada arrest warrant and criminal complaint were filed on September 4, 1995, and, on September 6, 1995, Elvik was charged with open murder with the use of a deadly weapon (Count I) and robbery with the use of a deadly weapon (Count II). Elvik was extradited to Carson City on September 14, 1995, and formally arraigned on September 15, 1995. Elvik was tried before a jury and, following a conviction on each count, the district court sentenced Elvik to a prison term of life with the possibility of parole for Count I, plus an identical term for a deadly weapon enhancement. For Count II, Elvik was sentenced to a term of 48 to 150 months, plus an identical term for a deadly weapon enhancement. All of the terms are to run consecutively.

Exhibit 109, at pp. 1-3; Elvik v. State, 114 Nev. 883, 965 P.2d 281 (Nev. 1998).¹

II. PROCEDURAL HISTORY

On September 4, 1995, petitioner Elvik was charged by Criminal Complaint with one count of Open Murder With The Use Of A Deadly Weapon, a felony in violation of NRS 200.010, NRS 200.020, NRS 200.030, and NRS 193.165; and one count of Robbery With The Use Of A Deadly Weapon, in violation of NRS 200.380 and 193.165. (Exhibit 1).² On September 6, 1995, an Amended Criminal Complaint was filed in which the language of theCriminal Complaint was amended. (Exhibit 2). On September 27, 1995, a preliminary hearing was conducted after which petitioner was bound over to district court for arraignment on both counts of the amended criminal complaint. (Exhibit 6). On October 9, 1995, a criminal information was filed charging petitioner with one count of open murder with the use of a deadly weapon, a felony in violation of NRS 200.010, NRS 200.020, NRS 200.030,and NRS 193.165; and one count of robbery with the use of a deadly weapon, a felony in violation of NRS 200.380 and NRS 193.165. (Exhibit 9).

A jury trial was conducted from October 21, 1996, through November 1, 1996. (Exhibits 42-70). After presentation of the guilt phase of the trial, the jury found petitioner guilty of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. (Exhibit 60). After presentation of the penalty phase of the trial, the jury imposed a sentence of imprisonment for life with the possibility of parole. (Exhibit 66).

On December 9, 1996, petitioner was sentenced to a minimum of 48 months and a maximum of 150 months in prison for robbery and an additional 48 months minimum and maximum of 150 months in prison for use of a deadly weapon; the sentences to be served consecutive to each other and to the sentence for murder with the use of a deadly weapon. (Exhibit 75, at p. 17).

On December 10, 1996, a second amended judgment of conviction was entered in which petitioner was adjudged guilty of Count I, open murder with the use of a deadly weapon. Petitioner was sentenced to life imprisonment with the possibility of parole and a consecutive sentence of life with the possibility of parole for the use of a deadly weapon. Petitioner was also adjudicated guilty of Count II, robbery with the use of a deadly weapon. Petitioner was sentenced to a minimum of 48 months and a maximum of 150 months in prison for robbery, and a consecutive minimum 48 and maximum 150 months in prison for use of a deadly weapon. The sentence for Count II is to be served consecutive to the sentence for Count I. (Exhibit 78).

On January 8, 1997, petitioner appealed his conviction to the Nevada Supreme Court. (Exhibit 81). On July 17, 1997, petitioner's attorney filed an opening brief. (Exhibit 96). On September 2, 1998, the Nevada Supreme Court filed its opinion affirming the district court's judgment in its entirety. (Exhibit 109; reported at Elvik v. State, 114 Nev. 883, 965 P.2d 281(1998)). Remittitur issued on September 22, 1998. (Exhibit 111).

On September 23, 1999, petitioner's counsel filed his state post-conviction petition for a writ of habeas corpus. (Exhibit 113). On September 22 and 28, 2000, the state district court conducted an evidentiary hearing on petitioner's claims. (Exhibits 132-134). On December 15, 2000, the district court issued its written order denying the petition. (Exhibit 135).

On January 19, 2001, petitioner filed his notice of appeal from the denial of his state habeas petition. (Exhibit 137). On November 5, 2002, the Nevada Supreme Court issued its order affirming the district court's judgment. (Exhibit 176). Remittitur issued on December 3, 2002. (Exhibit 178).

Petitioner's federal habeas petition was filed in this Court on August 31, 2004. (ECF No. 2). Petitioner filed an amended petition on December 13, 2004. (ECF No. 8). On February 10, 2005, this Court issued an order appointing counsel for petitioner. (ECF No. 22). On June 23, 2006, the second amended petition was filed. (ECF No. 42).

Respondents moved to dismiss the second amended petition. (ECF No. 51). On September 27, 2007, this Court dismissed the second amended habeas corpus petition as untimely. (ECF No. 60). Judgment was entered the same date. (ECF No. 61). Petitioner appealed. (ECF No. 60).

In an unpublished memorandum opinion, filed June 16, 2009, the Court of Appeals for the Ninth Circuit reversed this Court's dismissal of the petition. (ECF No. 65). Specifically, the Court of Appeals held that petitioner is entitled to equitable tolling of the AEDPA statute of limitations, and remanded the action to this Court "to consider the merits of Elvik's petition forhabeas corpus." (ECF No. 65, at p. 3). The Court of Appeals issued its mandate on August 4, 2009. (ECF No. 68).

On October 27, 2009, this Court directed respondents to answer the second amended petition. (ECF No. 70). Respondents filed a motion to dismiss specific claims in the second amended petition. (ECF No. 75). In the motion, respondents renewed certain arguments made in the previous motion to dismiss which were not considered by this Court. (Id. ).

On January 4, 2011, this Court granted in part and denied in part respondents' motion to dismiss. (ECF No. 84). The Court found that Grounds 3 and 4 of the second amended petition were unexhausted. (Id.). Petitioner was given the option of returning to state court to exhaust Grounds 3and 4, or abandoning those unexhausted grounds. (Id. ) Petitioner elected to formally abandon Grounds 3 and 4 and proceed on the remaining claims in the second amended petition. (ECF No. 88). This Court directed the filing of an answer and a reply. (ECF No. 90). Respondents filed an answer on April 17, 2011. (ECF No. 91). Petitioner, through counsel, filed a reply on July 19, 2011. (ECF No. 96). The Court now addresses the remaining grounds of the second amended petition. (ECF No. 42).

III. FEDERAL HABEAS CORPUS STANDARDS

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that

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