Thomas v. Palmer

Full title: EDDIE JAMES THOMAS, JR., Petitioner, v. JACK PALMER, et al., Respondents

Court: United States District Court, D. Nevada

Date published: Aug 23, 2010

Case No. 3:09-CV-00455-HDM-(RAM) (D. Nev. Aug. 23, 2010)

Opinion

Case No. 3:09-CV-00455-HDM-(RAM).

August 23, 2010

ORDER

HOWARD McKIBBEN, Chief Judge

Petitioner has submitted a second amended petition (#18). The court has reviewed it pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The court will serve the second amended petition upon respondents for a response.

IT IS THEREFORE ORDERED, as per prior agreement, that the clerk of court shall add Attorney General Catherine Cortez Masto (listed under Cortez) as counsel for respondents and shall make informal electronic service of this order and the second amended petition (#18) upon respondents by directing a notice of electronic filing to her office. In addition, the clerk shall return to petitioner a copy of the second amended petition (#18).

IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the date on which the second amended petition (#18) was served to answer or otherwise respond to the second amended petition (#18). If respondents file and serve an answer, then they shall comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, and then petitioner shall have forty-five (45) days from the date on which the answer is served to file a reply.

IT IS FURTHER ORDERED that henceforth, petitioner shall serve upon respondents or, if appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the respondents or counsel for the respondents. The court may disregard any paper received by a district judge or magistrate judge that has not been filed with the clerk, and any paper received by a district judge, magistrate judge, or the clerk that fails to include a certificate of service.

"SECOND AMENED" PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 BY A PERSON IN STATE CUSTODY ( NOT SENTENCED TO DEATH)

Eighth Judicial District Court, Clark County; Valorie Vega 12/10/07 5/16/07 District Court Clark County 2/21/08 5/16/07 7/27/10 Attach to this petition a copy of all state court written decisions regarding this conviction. 3:09-CV-00455-HDM-LAM United States District Court District of Nevada C219039 3 Consecutive 96 months to 240 months 4-19-07 Release Date unavailable 5 Counts of Statory Serual Seduction pro se Pro se Parient and Yampolsky Same Yampolsy Eddie Thomas Eddie Thomas

1. Name and location of court, and name of judge, that entered the judgment of conviction you are challenging: . 2. Full date judgment of conviction was entered: . (month/day/year) 3. Did you appeal the conviction? Yes ___ No. Date appeal decided: . 4. Did you file a petition for post-conviction relief or petition for habeas corpus in the state court? Yes ___ No. If yes, name the court and date the petition was filed: . Did you appeal from the denial of the petition for post-conviction relief or petition for writ of habeas corpus? Yes ___ No. Date the appeal was decided: . Have all of the grounds stated in this petition been presented to the state supreme court? Yes ___ No. If no, which grounds have not? _________________________ _______________________________________________________________________________________________________. 5. Date you are mailing (or handing to correctional officer) this petition to this court: . 6. Is this the first federal petition for writ of habeas corpus challenging this conviction? Yes No. If no, what was the prior case number? . And in what court was the prior action filed? . Was the prior action ___ denied on the merits or dismissed for procedural reasons (check one). Date of decision: ___/___/___. Are any of the issues in this petition raised in the prior petition? Yes ___ No. If the prior case was denied on the merits, has the Ninth Circuit Court of Appeals given you permission to file this successive petition? ___ Yes No. 7. Do you have any petition, application, motion or appeal (or by any other means) now pending in any court regarding the conviction that you are challenging in this action? ___ Yes No. If yes, state the name of the court and the nature of the proceedings: ______________________________ ____________________________________________________________________________________________________. 8. Case number of the judgment of conviction being challenged: . 9. Length and terms of sentence(s): . 10. Start date and projected release date: . 11. What was (were) the offense(s) for which you were convicted: . 12. What was your plea? ___ Guilty Not Guilty ___ Nolo Contendere. If you pleaded guilty or nolo contendere pursuant to a plea bargain, state the terms and conditions of the agreement: ___________________________________________________________________________________________________. 13. Who was the attorney that represented you in the proceedings in state court? Identify whether the attorney was appointed, retained, or whether you represented yourself (without counsel). Name of Attorney Appointed Retained arraignment and plea ________________________________________ ______ _____ trial/guilty plea ______ ______ sentencing ______ ______ direct appeal ______ ______ 1st post-conviction petition ______ ______ appeal from post conviction ______ ______ 2nd post-conviction petition ________________________________ ______ ______ ______ appeal from 2nd post-conviction _____________________________ ______ ______ ______

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 4

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 14^th Amendment right to Due Process, Fair Trial and, Effective Assitance of Counsel. based on these facts:

1) The Trial Court introduced the petitioner's 1995 conviction of Sexual Assault as Prior to Bad Acts. The prior to bad acts should not have been admissible under the law at trial because A) The Nevada law clearly states that the Trial Court must first explain to the Jury why they must require to give Limiting Instruction Prior to the Introduction of the exidence which could not be considered to show criminal predisposition. B) The Jury was not properly Instructed Prior to Deliberations. 2) Petitioner's appellant counsel filed on his direct appeal making arguments on district court committed manifest error by admitting prior bad act evidence at trial. Specifically appellant counsel claims that petitioner's 1995 conviction for sexual assault was too remote in time, and that the more recent allegation, for conduct involving the instant victim in Texas, was not proven by clear and convincing evidence. Appellant counsel further argues that the prior bad acts were admitted, in violation of NRS 48.045(2) to prove that he was "act in conformity therewith," and that the prejudicial nature of the evidence outweighted any potential probative value. 3) The Nevada Supreme Court disagreed by making it's arguments on, the record reveil that the district court indeed conducted a Petrocelli Hearing and determine that the prior to bad acts were relevant to motive, proven by clear and convincing evidence, and more probative than prejudicial. Petitioner's appellant counsel should have argued what the Nevada Supreme Court made claims and grounds on. "We note that the District Court did not provide the Jury with a limiting instruction prior to the introduction of the evidence, informing them that evidence could not be considered to show criminal predisposition but only for the limited purpose allowable under NRS 48.045(2)." Petitioner is now making claims that appellant counsel was Ineffective for not making these claims in support for his client. 4) Appellant Counsel should have argued these issues on petitioner's direct appeal. "The jury was not properly instructed prior to deliberations and not providing the Jury with a limiting instruction prior to the introduction." Therefore petitioner is now making these claims and issue before the court. Resulting in violating the petitioner's 14^th Amend. Rights under the united states constitution of due process. 5) It was clear error by the trial court in admitting/allowing prior to bad acts evidence of the Sexual assault after an offer to stipulate based upon not properly instructing the prior to the jury when it's deliberation time occured. 6) Due to not having Proper Jury Instruction given at trial deliberation which limited the scope of the Jury to deliberate and decide the petitioner's case. Petitioner's 14^th Amend. Right under the United states Constitution were violated due to petitioner's counsel did not raise these issues and ground not having Proper Jury Instructions, depriving petitioner his due process rights. 7) Prosecutial Misconduct: ADA (Pate) Committed Prosecutial Misconduct when referring to the petitioner (Thomas) as a "Predator" in front of the jury. (Trial Transcripts Page 87, Line 1). That was intended to "invoke emotion" and try to cloud the jurys determination of the "facts" from the case before them, violating the petitioner's 14^th Amend. Rights. 8) Given the similarities between the two cases and the equivalent Nevada provision, petitioner conclude that the court's analysis is compelling. More specifically, like its federal counter part, NRS 48.035(1) provides that "[a]lthough relevant, evidence is not admissible if its probative value is substantially outweighted by the danger of unfair prejudice, of confusion of the issues or of misleading the jury." In the instant case and Texas one of petitioner's prior conviction were for the Same or Similar to this case, as that for which he was accused and the danger of unfair prejudice was clear. In petitioner view, the state's argument supposedly respecting jury nullification failed to establish a convincing, valid reason why acceptance of petitioner's concession of his ex-felon status, rather than the admission of the actual records of his prior conviction, would have hindered the effectiveness of its case. Rather, the prosecutor's remarks in this regard suggest that the state's goal was to subtly place petitioner's bad character in issue before the jury by making statements such as calling petitioner a "Predator" in front of the jury. The Prosecutor Cannot give his or her own assumption or belief in front of the jury. The Prosecutor must stick with the facts at hand. Because of Prosecutor inappropriate comment calling petitioner a Predator and for not properly providing the Jury with a limiting instruction prior to the introduction. These are clear errors and should be vacated and remanded, back to the district court. Exhaustion of state court remedies regarding Ground 4:

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court? ___ Yes No. If no, explain why not: Ineffective Assitance of Counseling.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus? ___ Yes No. If no, explain why not: Counsel refuse to turn over Direct Appeal Motion.

If yes, name of court: _______________________________ date petition filed ___/___/___. Did you receive an evidentiary hearing? ___ Yes No. Did you appeal to the Nevada Supreme Court? Yes ___ No. If no, explain why not: _____________________________________________ ________________________________________________________________.

If yes, did you raise this issue? Yes ___ No. If no, explain why not: ________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? ___ Yes ___ No. If yes, explain why: ____________________________________________________________ ________________________________________________________________. If yes, name of court: ___________________________________________ date petition filed ___/___/___. Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: ________________________________________________________ ________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ____________________________ ________________________________________________________________.

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? Yes ___ No. If yes, explain: Tried to but the Nevada Supreme Court would not hear the issue because if was not litigated in the Lower Court.

State concisely every ground for which you claim that the state court conviction and/or sentence is

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 5

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 6^th Amendment right to Due Process, Fair Trial and Effective Assitance of Counsel during Direct Appeal, based on these facts:

1) Petitioner is now making arguments on his 6^th Amend, Rights was violated when A) Counsel did not obtain witnesses in favor for the petitioner during his trial B) District Court allowed known perjury testimonies be presented to the Jury without correcting the facts. C) Counsel did not object to Proposed Jury Instructions was not used at trial which was, you may have to decide which witness to believe and which witness not to believe. You may believe everything a witness says or only part of it or none of it. 2) Petitioner contends that while he was preparing for trial his Trial Counsels made no contact visit or discuss Trial strategies with him, causing Ineffective Assitance of Counsel which violates his 6^th Amend. Rights. Petitioner asserts that his Counsels visit with him only two times which was Aug. 25, 2006 and April of 2007. Petitioner went to trial on Feburary of 2007. Petitioner wanted Julie Huggins Ross, Tiya Thomas, and Yvonne Alaga Bay lis to testify on his behalf. Afore said witness was key witnesses for the defense, which petitioner will show. 3) Counsels performance was ineffective on a number of grounds which falls under adopting the strick land two prond test. Trial counsels failed petitioner by not calling key witnesses to testify on his behalf, by not showing more in consistencies, and for not cross-examining witnesses appropriate. 4) Known to be perjury testimonies to the jury: Detectives Molnar and Fay conduted an interview with Bryt'ni Johnson. Detective Molnar leading the interview clearly ask Bryt'ni, "was there any other sexual activity going on." Bryt'ni replied, "no it was just sey." Please view Trial Transcript Page 81, Lines 6-10 and Trial Transcript. Page 115, Lines 9-22 and T.T. Page 110, Lines 3-14. Before Detective Molnar began the interview he stated to Bryt'ni, "you must tell the truth at all times." View Police Report, Page 3. 5) During trial Prosecutor ADA (Pate) tried to cover up Bryt'ni's conflicting testimonies by telling the Jury that Bryt'ni was not comfortable Speaking with a male figure about performing oral sex when Bryt'ni stated in her interview with detective that, "it was just sex." When asked, "was their any other sexual activity going on." Please view T.T. Page 59, Lines 18-25. 6) However Counsel for petitioner failed to bring out the true fact which counsel should have made arguments on Bryt'ni never made no such Statement on, she was not comfortable speaking with a male figure about performing oral sex on petitioner during the interview or during trial. Petitioner believes this was done dilbrately to cloud the minds of the jury from seeing the true facts of this case. It was improper for (ADA) Pate to bolster the evidence or to mislead the jury an attempt to bolster or mislead the credibility of the state's witness false statement which would be perjury to the jury. 7) When the testimony of the state's witness is as conflicting as Bryt'ni was, this case should have been left to argument on the evidence. The jury may or may not have found Bryt'ni's testimony believable, however without the Court Room Antic's of ADA Pate the Jury was denied the opportunity on their own to decided if Bryt'ni's testimony was believable or not about performing oral sex on petitioner. 8) During cross-examination of Bryt'ni, Defense Counsel handed Bryt'ni a copy of her Police Report and asked her to read from it on performing oral sex on the petitioner. Her Police statement was conflicting from her testimony. Bryt'ni then testified that Detective Molnar did not let her finish her statement during the interview about performing oral sex. Please review Police Report Page 39. The state's witness gave as false testimony to the jury. The Police Report clearly shows that Molnar did in fact allowed Bryt'ni to finish her statement throughout the interview. Please view T.T. page 91, Lines 2-14. The petitioner contends that he has submitted adguette proof by the record that Bryt'ni Johnson gave complete conflicting testimonies. Please view Bryt'ni's statement at trial Page 67, Lines 1-25. View Sophia's statement at trial Page 139, Lines 21-25 and Page 140, Lines 1-4. 9) Antiones statement concerning the allegation made by the allege victim Bryt'ni and her claim to have sex with petitioner. No drive was ever taken to picking up video games or anything else as claimed by the allege victim Bryt'ni, Brandaris, Jeremy, Petitioner, or myself. If their was a need to go and get anything we would have rode with Jeremy and not the petitioner because Jeremy owned his own car. Please view T.T. Page 171, Lines 1-25 and Page 172, Lines 1-14. 10) Bryt'ni made more statements stating that they were alone when Bryt'ni and petitioner left the residence to go too El Pollo Loco, however under Sophia's statement she recall that Bryt'ni jumped up and asked if she could go with petitioner and step-son Christopher to get some ice cream. Please view Bryt'ni's statement at trial Page 48, Lines 10-25, also view Sophia's statement at Trial Page 143, Lines 1-4. 11) Bryt'ni went on by given many more prejury testimonies to the Jury. Petitioner's 5 witnesses who was allowed to testified continue upon exposing Bryt'ni character but (ADA) Pate told the jury the petitioner's witnesses could not be trusted because they were his family members and that they would do anything or say anything to protect him (petitioner) but ADA Pate never provided proof to the jury that all 5 of petitioner's witnesses presented or gave any false statements or testimonies to the trial court or to the jury. 12) Petitioner argues he has a Constitutional Right to Compulsory Process to obtain witnesses in his favor. Petitioner will show clear and convincing evidence how (excluded) witnesses would have expose Bryt'ni's false testimonies given to the trial jury. Defense Witnesses: Yvonne Alaga Baylis could have testified to if trial counsel had subpoena or call to testify for petitioner. Yvonne was not at the Thomas resident for the month of June or July of 2004. That Sophia and Ash'li never took her home or any place of the matter as Bryt'ni alleged. Sophia Thomas would have testified to the fact if trial counsel had asked during cross-examining that Yvonne did not visit their home during June of 2004 while Bryt'ni and Ash'li visited and stayed at the Thomas home. Therefore Sophia could not have taken Yvonne home. Tiya Thomas could have testified to if trial counsel had subpoena or call to testify for petitioner. Tiya would have testified to petitioner dropped off Bryt'ni and Ash'li at her apartment to visit with her daughter Rey'elle and that petitioner did not get out of his vehicle, only Bryt'ni, Ash'li. Therefore petitioner and Bryt'ni could not have arrived and left his brother's and sister-in-law's apartment together, then drove to a laundry room and allegedly had sex on top of a wash machine. 13) If trial counsel had ask Rey'elle Thomas during cross-examining Rey'elle would have testified to the jury that petitioner did in fact dropped off Bryt'ni and Ash'li over to spend time with her (Rey'elle) but petitioner never got out of the car. He simply dropped of the girls then left. 14) Julie Huggins Ross questioned Bryt'ni about giving Jeremy money. Bryt'ni gave sworn testimony that she did not give Jeremy money. If Julie was given a chance to testify, she would have testified to the jury that Bryt'ni did in fact give Jeremy money. 15) If trial counsel had subpena and cross-examined all the above witnesses, this would have been a great chance for the trial counsel to prove his clients innocences before the jury. Instead counsel allowed these matters go unchallenged. Because of counsel ineffectiveness which clearly violates petitioner's 6^th Amend Rights. Please view Sentencing Day Transcript Page 13, Lines 16-25 and Page 14, Lines 1-7. T.T. Page 56, Lines 1-7 and Page 57 Lines 2-4. T.T. Page 87, Lines 9-16. T.T. Page 111, Lines 13-15. T.T. Page 61, Lines 21-23. T.T. Page 73, Lines 10-23 and T.T. statements from Rey'elle Thomas Page 181, Lines 3-25. 16) Ineffective Assistance of Counsel not objecting to Jury Instruction not being applied to during deliberation: Counsel fell below an objective standard when counsel allowed the D.A. and the district court to Omit Jury Instructions that could have been used to decide petitioner's case. 17) As the district court presented inconsistant, and inaccuracies throughtout the petitioner's case with their witness Brytni Johnson. Please view Proposed Jury Instructions Not used at Trial. This particular Jury Instructions was taken out so the Jurors could not see it. Petitioner's 6^th Amend. Rights under the united states Constitution were violated due to counsel not objecting to district court with holding Jury Instructions given during deliberation, which limited the scope of the jury to decided on how to make any decision on false statements and testimonies such as harmless error or perjury which could determine the factor and decision of petitioner's case. 18) Petitioner has clearly shown how the State Witness (Bryt'ni Johnson) has given many perjury testimonies to the jury. Because of the many perjury testimonies and statements, the petitioner is asking for Impeachment of the state witness (Bryt'ni Johnson) If the court do decide with the petitioner that the witness did comment many perjury testimonies and grant petitioner Impeachment of the witness. Petitioner is asking the court to vacant and remand back to the district Court. Exhaustion of state court remedies regarding Ground 5

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court? ___ Yes No. If no, explain why not: Ineffective Assitance of Counseling.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus? ___ Yes No. If no, explain why not: Counsel did not turn over Trial Transcripts so I could show inconsistencies and false statements.

If yes, name of court: ______________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes No. Did you appeal to the Nevada Supreme Court? Yes ___ No. If no, explain why not: _________________________________________ ________________________________________________________________.

If yes, did you raise this issue? ___ Yes No. If no, explain why not: Could not prove or show the false statements and inconsistencies.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? ___ Yes ___ No. If yes, explain why: _____________________________________________________ ________________________________________________________________.

If yes, name of court: ______________________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: ________________________________________________________ ________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ____________________________________ ________________________________________________________________.

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? ___ Yes No. If yes, explain: ______________________________________________________ ________________________________________________________________.

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 6

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 14^th Amendment right to Due Process, Fair Trial, and Effective Assitance of Counsel, based on these facts:

1) Petitioner is making arguments on his 14^th Amend. Rights was violated when the district court brought in alleged sexual assault that was from alleged victim Bryt'ni Johnson statement from Texas. The trial court allowed admit evidence of other crimes into trial based on Texas non-conviction charge, Sufficient proof of the sexual assault that was pending in Texas was dissmissed, not charging petitioner with the sexual assault. Therefore the district court should not have used or allowed alleged pending charge from Texas brought into trial because the petitioner never went to trial or was never convicted of the Crime, violating petitioner's 14^th Amend. Rights. 2) The district court violated petitioner's 14^th Amend Rights by holding an Evidentiary Hearing so they may present the non-conviction testimony from Texas into trial. The statements from Texas was based on hearsay. Therefore the district court violated petitioner's 14^th Amend. Rights by allowing state witness Bryt'ni's inconsistent testimonies into trial. State witness Bryt'ni's testimonies cannot be trusted because of many inconsistencies during trial. Bryt'ni constantly changes her statements. Because of conflicting statements and testimonies. Bryt'ni's testimonies does not collabrate with her trial transcripts and with her evidentiary hearing. The district court allowed the state witness (Bryt'ni) knowingly and willingly give perjury statements which violates petitioner's 14^th Amend. Rights to a fair trial. 3) The district court may not knowingly use perjury testimony which is material to quilt or Punishment. A conviction obtain by introduction of perjury testimony violates petitioner's 14^th Amend Rights to a fair trial if A) The prosecution knowingly solicited the perjury testimony or B) The prosecution failed to correct testimony it knew was perjured. A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. This clearly violates petitioner's 14^th Amend. Rights to a fair trial. 4) The district court has not proven beyond a reasonable doubt that the state witness testimonies are clear and convincing to admit as evidence once petitioner's has and will show in consistencies and false statements given to the jury. [Due Process] is a requirement that cannot be deemed to be stratified by mere notice and hearing if the district court has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a petitioner of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjury." 5) "[This] court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgement of the jury. 6) In those cases, the court has applied a strict standard of materiality, not just because they involve prosecution misconduct, but more importantly because they involved a corruption of the truth seeking functions of the trial process. 7) It is fundamentally unfair for a prosecutor to knowingly present perjury to a jury. Over forty years ago the Supreme Court made it clear that a conviction obtained through the use of false evidence, known to be such by representatives of the State must fall under the 14^th Amend. The same result obtained when the district court, although not soliciting false evidence allows it to go uncorrected when it appears. 8) Because of state witness inconsistencies (Bryt'ni) and perjury testimonies given at trial to the jury. The statements from Texas should not have been admissiable in trial. This clearly violates petitioner's 14^th Amend. Rights to a fair trial. Petitioner is asking for impeachment of the witness Bryt'ni Johnson. 9) Bryt'ni's Inconsistencies and Perjury statements given to the Jury: Please view Evidentiary Hearing Transcripts Pages 15-17, Lines and Pages 26-34 Lines 1-24. Bryt'ni's statements during Evidentiary Hearing and Trial Transcript (T.T.) Page 138, Lines 7-20. Q: And before you spoke to the detectives in Las Vegas, you spoke to detectives in Texas, correct? A: Correct Q: And you gave them information? A: Yes, I did. Q: And you obviously wanted to tell them the truth? A: Correct Q: And you wanted to be accurate — A: Yes. Q: — and complete as possible? A: Yes. View T.T. Page 87, Lines 9-13. Q: Did you see Eddie and his family once you returned to Texas? A: Correct. They came with us to go back to Texas. Q: Oh, so you'd all flown in the plane together? A: Correct. Q: And when you get there, did they stay with you and your family for any period of time? A: Yes, they did. They with us for two days, Please view Julie Ross's Affidavit statement Lines 14-21. Suzanne Huggins, Bryt'ni Johnson, and Ash'li Davis all testified under oath that Bryt'ni and Ash'li flew back to Texas with defendant Eddie Thomas, his wife Sophia Thomas, and their four (4) children. I am here to state that Bryt'ni and Ash'li did not fly back to Texas with defendant Eddie Thomas, his wife, and children. I personally drove my own vehicle; picked up the Thomas family at their home on July 1, 2004. I dropped off the Thomas family at McCarran Airport to catch a flight to attend their family reunion in Louisiana. Bryt'ni and Ash'li were not present in my vehicle or at McCarran Airport on the day that I picked up and dropped off defendant Eddie Thomas and his family at the airport. Bryt'ni and Ash'li had previously flown back four (4) days earlier to Texas. Evidentiary Hearing Page 34, Lines 1-24 Q: About how long were you at the pool? A: I don't know. May be twenty minutes. Q: Did you go in the water? A: No, I couldn't go in Q: Why not? A: I was on my cycle. Q: oh, okay. So when you had sex, you were on your cycle? A: Yes. Q: And this was on your bed? A: Yes. Q: On — on the bedspread? A: Yes. Q: Was there any blood or discoloration on the bedspread? A: No, there wasn't. Q: And when you did the load of laundry, you didn't wash your bed spread? A: Not at that time, but later on I did. Q: Later on that day? A: No. The next day. Evidentiary Hearing Page 28, Lines 6-21. Q: Now, he — After he was kissing you, were you backing up towards your bed? A: At that time, yes By that time I had already had my clothes off. Q: Okay. And you took — you took your capri Ponts off? A: Yes, I did. Q: And you took your under wear off? A: Yes. Q: And then at that time was Eddie fully clothed? A: No, he wasn't. Q: He had taken his pants off? A: His shorts. Yes Q: Oh, he was just wearing shorts. So he took his shorts off, and he didn't have anything below the shorts? A: No, he didn't. Evidentiary Hearing Page 30, Lines 1-5. Q: And did — While he was in your room, did he wipe himself off? A: No. Q: He didn't. He — he just pulled his shorts up? A: Yes. Trial Transcript Page 91, Lines 11-13. Q: Okay. So what happens after he kind of shuts — cracks the door as you described? A: He told me to come here. And I had on capri Pants and a tee shirt. And he kissed me, and took off my capri pants and under wear. Trial Transcript Page 135, Lines 24 and 25. Q: Okay. At that time, he was wearing red shorts, correct? A: No, he had on clothes. Q: He had on clothes and he took his — was he wearing Pants or Shorts? A: He had on Pants. Q: Okay. He took his pants off? A: No, he didn't need to. Q: He unzipped his pants? A: Correct. Q: So he just unzipped his pants? A: Correct. Q: And he took out his penis? A: Correct. Q: He didn't take his pants off? A: No. Q: Okay. Now, you took — you took your pants off, (continue from page 135-137) A: Capri's? My Capri's, Correct. Q: And your under wear off? A: Correct, with assistance. Q: And Eddie didn't take his pants off? A: No. Q: Do you remember testifying in this courtroom on Oct. 26 of 2006? A: Yes, I do. Q: Now, do you remember saying that Eddie took his pants off, at that time? A: No, I don't. 10) After reviewing the Trial Transcripts and the Evidentiary Hearing Transcripts, the testimonies and statements clearly are untrusting and conflicting with each other. These statements are clearly perjury to the jury. With testimonies like these, how can petitioner receive a fair trial. This is clearly Plain error and should be reverse and remanded back for a new trial or vacant and remand back to court.

Exhaustion of state court remedies regarding Ground 6:

Exhaustion of state court remedies regarding Ground 3:

Direct Appeal: Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court? ___ Yes No. If no, explain why not: Ineffective Assitance of Counsel.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus? ___ Yes No. If no, explain why not: Could not prove the inconsistencies that I'm providing now, didn't have the Trial Transcripts.

If yes, name of court: __________________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes No. Did you appeal to the Nevada Supreme Court? Yes ___ No. If no, explain why not: _________________________________ ________________________________________________________________.

If yes, did you raise this issue? Yes ___ No. If no, explain why not: _________________________ ________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? ___ Yes ___ No. If yes, explain why: ___________________________________________________ ________________________________________________________________.

If yes, name of court: ________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: _________________________________________ ________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ________________________________ ________________________________________________________________.

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? Yes ___ No. If yes, explain: I filed a supplement Brief with Nevada Supreme Court, they place the Brief on Received, not filed.. Eddie J. Thomas July 27, 2010

________________________ (Name of person who wrote this (Signature of Plaintiff) complaint if not Plaintiff) (Date) _______________________________________ (Signature of attorney, if any) _______________________________________ _______________________________________ _______________________________________ (Attorney's address telephone number)

DECLARATION UNDER PENALTY OF PERJURY

I understand that a false statement or answer to any question in this declaration will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.N.N.C.C. July 27, 2010 96556 IN THE SUPREME COURT OF THE STATE OF NEVADA Supreme Court No. 51156 Executed at on . (Location) (Date) ___________________ (Signature) (Inmate prison number) EDDIE JAMES THOMAS, Appellant, vs. THE STATE OF NEVADA, District Court Case No. C219039 Respondent.

REMITTITUR

TO: Charles J. Short, Clark District Court Clerk

Pursuant to the rules of this court, enclosed are the following:

Certified copy of Judgment and Opinion/Order.

Receipt for Remittitur.

DATE: May 20, 2008

Tracie Lindeman, Clerk of Court

By: A. Ingorsou

Deputy Clerk

cc (without enclosures):

Hon. Valorie Vega, District Judge

Attorney General Catherine Cortez Masto/Carson City

Clark County District Attorney David J. Roger

Eddie James Thomas

RECEIPT FOR REMITTITUR

Received of Tracie Lindeman, Clerk of the Supreme Court of the State of Nevada, the REMITTITUR issued in the above-entitled cause, on __________________________. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ORDER ____________________________________ District Court Clerk EDDIE JAMES THOMAS, JR., Petitioner, Case No. 3:09-CV-00455-HDM-(RAM) vs. JAMES BENEDETTI, et al., Respondents. Petitioner has submitted an amended petition (#11). The court has reviewed it pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner must further amend the petition.

Ground 1 is actually two separate claims. First, petitioner alleges that he did not receive adequate notice that the prosecution intended to seek adjudication of him as a habitual criminal. Second, he alleges that his counsel provided ineffective assistance by not objecting to the lack of adequate notice. The ineffective-assistance claim is distinct from the underlying claim and should be pleaded in a separate ground. See Kimmelmann v. Morrison, 477 U.S. 365, 373-74 n. 1 (1986).

Also in ground 1, petitioner argues that Nev. Rev. Stat. § 34.810 is not an adequate and independent state-law reason for denying relief. This argument is premature. Respondents would first need to move to dismiss ground 1 because of procedural default before this argument becomes relevant.

In ground 2, petitioner first alleges that the prosecution did not conduct a hearing fifteen days before sentencing on whether petitioner's prior convictions were obtained with the effective assistance of counsel. This allegation has two defects. First, the Constitution does not require a particular method of proving the existence of prior convictions that are used to support a finding of habitual criminality. Dretke v. Haley, 541 U.S. 386, 395-96 (2004). Second, the state statutes that petitioner cites do not support his allegations. The prosecution may charge petitioner with being a habitual criminal either in the criminal information or in a separate filing after conviction of the primary offense. If the prosecution chooses the latter method, then sentencing must occur no less than 15 days after the filing of habitual-criminal charges. Nev. Rev. Stat. § 207.016(2). If there is some question about the existence of the prior convictions, then the state district court must conduct a hearing on the matter, but nothing requires that hearing to be separate from, let alone fifteen days before, the sentencing hearing. See Nev. Rev. Stat. § 207.016(3). This part of ground 2 is without merit on its face, and amendment cannot cure the defect.¹

1 To the extent that petitioner is claiming that he did not receive adequate notice of the intent to seek habitual-criminal adjudication, ground 2 duplicates ground 1, and the court would dismiss it for being redundant.

Second, petitioner alleges that counsel provided ineffective assistance because counsel did not raise the above-discussed issue before petitioner was sentenced. A petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,"id. at 694. "[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. Counsel did not perform deficiently, because, as noted above, the statutes do not require what petitioner alleges that they require.

As with ground 1, petitioner argues that Nev. Rev. Stat. § 34.810 is not an adequate and independent state-law reason for denying relief. This argument is moot because the court is dismissing ground 2 for lack of merit.

Ground 3 clarifies a vague allegation of how petitioner was adjudicated to be a habitual criminal. In the original petition (#4), petitioner appeared to allege that the prosecution was relying upon multiple counts from one prior judgment of conviction to justify treatment of petitioner as a habitual criminal. Nev. Rev. Stat. § 207.010 does not allow prior judgments of conviction to be used that way. Rezin v. State, 596 P.2d 226, 227 (Nev. 1979). Accord, Halbower v. State, 606 P.2d 536, 537 (Nev. 1980). The court gave petitioner leave to amend to allege what one prior judgment of conviction was used in this fashion. In ground 3 of the amended petition (#11), the claim has changed. Petitioner was convicted of five counts of statutory sexual seduction. The trial court imposed the enhanced sentence for being a habitual criminal on all counts, with some terms running concurrently and some terms running consecutively. Petitioner now alleges that the trial court should have applied the enhanced sentence as a habitual criminal to only one count of statutory sexual seduction. However, Nev. Rev. Stat. § 207.010 authorizes a habitual-criminal sentence for each count. Ground 3 is without merit on its face.

Ground 4 contains multiple claims. In paragraphs 1, 5, and 7 through 15, Petitioner again alleges that the prosecution violated Nev. Rev. Stat. § 50.090 when witnesses testified about his prior sexual conduct. The court already has explained to petitioner once that § 50.090 prohibits him from inquiring into the victim's prior sexual conduct, but the statute does not prohibit a witness from testifying against petitioner about his prior sexual conduct. Petitioner needs to omit allegations concerning § 50.090 from his second amended complaint.

In paragraphs 7 through 15, petitioner also argues that the prosecution violated a witness' privilege against self-incrimination, guaranteed by the Fifth Amendment. "A defendant has no standing to argue that a witness' effort to exercise the privilege against self-incrimination was in some way undermined." United States v. Ceniceros, 427 F.2d 685, 689 (9th Cir. 1970) (citing Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965)). Petitioner needs to omit allegations concerning the privilege against self-incrimination from his second amended complaint.

In addition to correcting the defects noted above, Petitioner needs to re-allege his other grounds in the amended petition, or they will be waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

Petitioner has submitted an application to proceed in forma pauperis (#13). The application is moot because petitioner has paid the filing fee.

Petitioner has submitted a motion for appointment of counsel (#14). Whenever the court determines that the interests of justice so require, counsel may be appointed to any financially eligible person who is seeking habeas corpus relief. 18 U.S.C. § 3006A(a)(2)(B). "[T]he district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983). There is no constitutional right to counsel in federal habeas proceedings. McCleskey v. Zant, 499 U.S. 467, 495 (1991). The factors to consider are not separate from the underlying claims, but are intrinsically enmeshed with them. Weygandt, 718 F.2d at 954. After reviewing the petition, the court concludes that appointment of counsel is not warranted.

IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (#13) is DENIED as moot.

IT IS FURTHER ORDERED that the motion for appointment of counsel (#14) is DENIED.

IT IS FURTHER ORDERED that grounds 2 and 3 of the amended petition (#11) are DISMISSED.

IT IS FURTHER ORDERED that the clerk of the court shall send Petitioner a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner shall have thirty (30) days from the date that this order is entered in which to file a second amended petition to correct the noted deficiencies. Failure to comply with this order will result in the dismissal of grounds 1 and 4.

IT IS FURTHER ORDERED that petitioner shall clearly title the second amended petition as such by placing the phrase "SECOND AMENDED" immediately above "Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254" on page 1 in the caption, and petitioner shall place the docket number, 3:09-CV-00455-HDM-(RAM), above the phrase "SECOND AMENDED."

DATED: July 12, 2010.

__________________________________ HOWARD D. MCKIBBEN United States District Judge DISTRICT COURT CLARK COUNTY, NEVADA THE STATE OF NEVADA, Plaintiff, CASE NO. C219039 — vs — DEPT. NO. II EDDIE JAMES THOMAS #0801243 Defendant.

JUDGMENT OF CONVICTION (JURY TRIAL)

The Defendant previously entered a plea of not guilty to the crimes of COUNTS 1 — 5 — STATUTORY SEXUAL SEDUCTION (Category C Felony), in violation of NRS 200.364, 200.368; and the matter having been tried before a jury and the Defendant having been found guilty of the crimes of COUNTS 1 — 5 — STATUTORY SEXUAL SEDUCTION (Category B Felony), in violation of NRS 200.364, 200.368; thereafter, on the 19^TH day of April, 2007, the Defendant was present in court for sentencing with his counsels, MACE J. YAMPOLSKY, ESQ. and MICHAEL D. PARIENTE, ESQ., and good cause appearing.

THE DEFENDANT IS HEREBY ADJUDGED guilty of said offenses under the Small Habitual Criminal Statute and, in addition to the $25.00 Administrative Assessment Fee, $150.00 DNA Analysis Fee including testing to determine genetic markers, and $800.00 Psycho-Sexual Evaluation Fee, the Defendant is SENTENCED to the Nevada Department of Corrections (NDC) as follows: AS TO COUNT 1 — TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM Parole Eligibility of NINETY-SIX (96) MONTHS; AS TO COUNT 2 — TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM Parole Eligibility of NINETY-SIX (96) MONTHS, COUNT 2 to run CONSECUTIVE to COUNT 1; AS TO COUNT 3 — TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM Parole Eligibility of NINETY-SIX (96) MONTHS, COUNT 3 to run CONSECUTIVE to COUNTS 1 2; AS TO COUNT 4 — TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM Parole Eligibility of NINETY-SIX (96) MONTHS, COUNT 4 to run CONCURRENT with COUNTS 1, 2, 3; AS TO COUNT 5 — TO A MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM Parole Eligibility of NINETY-SIX (96) MONTHS, COUNT 5 to run CONCURRENT with COUNTS 1, 2, 3, 4; with FOUR HUNDRED FORTY-EIGHT (448) DAYS credit for time served.

DATED this 30^th day of April, 2007

_______________________________ VALORIE J. VEGA DISTRICT JUDGE IN THE SUPREME COURT OF THE STATE OF NEVADA EDDIE JAMES THOMAS, No. 49486 Appellant, vs. THE STATE OF NEVADA, Respondent.

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of statutory sexual seduction (counts I-V). Eighth Judicial District Court, Clark County; Valorie Vega, Judge. The district court adjudicated appellant Eddie James Thomas as a habitual criminal and sentenced him to serve three consecutive prison terms of 96-240 months (counts I-III) and two prison terms of 96-240 months (counts IV-V) to run concurrently with counts I-III.

Thomas contends that the district court committed manifest error by admitting prior bad act evidence at trial. Specifically, Thomas claims that his 1995 conviction for sexual assault was too remote in time, and that the more recent allegation, for conduct involving the instant victim in Texas, was not proven by clear and convincing evidence. Thomas further argues that the prior bad acts were admitted, in violation of NRS 48.045(2), to prove that he was "acting in conformity therewith," and that the prejudicial nature of the evidence outweighed any potential probative value. We disagree with Thomas' contention.

The record reveals that the district court conducted aPetrocelli hearing^1a and determined that the prior bad acts were relevant to motive, proven by clear and convincing evidence, and more probative than prejudicial.² We agree. We note that the district court did not provide the jury with a limiting instruction prior to the introduction of the evidence, informing them that the evidence could not be considered to show criminal predisposition but only for the limited purposes allowable under NRS 48.045(2), because defense counsel objected to the State's proffered instruction and expressly requested, for tactical reasons, that the district court not provide such an instruction at that time.³ And Thomas does not allege on appeal that the jury was not properly instructed prior to deliberations. Accordingly, we conclude that the district court did not err in admitting the prior bad act evidence.

1a Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985),modified on other grounds by Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996).

2 See Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997); see also Ledbetter v. State, 122 Nev. 252, 261-62, 129 P.3d 671, 678-79 (2006); Rhymes v. State, 121 Nev. 17, 21, 107 P.3d 1278, 1281 (2005).

3 See Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001).

Having considered Thomas' contention and concluded that it is without merit, we

ORDER the judgment of conviction AFFIRMED.⁴ ORDR

4 Because Thomas is represented by counsel in this matter, we decline to grant him permission to file documents in proper person in this court. See NRAP 46(b). Accordingly, this court shall take no action and shall not consider the proper person documents Thomas has submitted to this court in this matter.

___________________, J. Gibbons ___________________, J. Cherry ___________________, J. Saitta DAVID ROGER Clark County District Attorney Nevada Bar #002781 CARRIE MORTON Chief Deputy District Attorney Nevada Bar #0010160 200 Lewis Avenue Las Vegas, Nevada 89155-2212 (702) 671-2500 Attorney for Plaintiff DISTRICT COURT CLARK COUNTY, NEVADA THE STATE OF NEVADA, ) Plaintiff, ) ) ) CASE NO: C219039 — vs — ) ) ) DEPT NO: II EDDIE J. THOMAS, ) Eddie James Thomas ) #0801243 ) ) Defendant. )

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DATE OF HEARING: April 15, 2008 TIME OF HEARING: 9:00 A.M.

THIS CAUSE having come on for hearing before the HONORABLE JUDGE VALERIE VEGA, District Judge, on the 15th day of April, 2008, the Petitioner not being present, Proceeding in Forma Pauperis, the Respondent being represented by DAVID ROGER, District Attorney, by and through CARRIE MORTON, Deputy District Attorney, and the Court having considered the matter, including briefs, transcripts, arguments of counsel, and documents on file herein, now therefore, the Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. On January 30, 2006, an Information was filed charging Eddie J. Thomas (hereinafter "Defendant") with two counts of STATUTORY SEXUAL SEDUCTION (Felony — NRS 200.364, 200.368).

2. On February 10, 2006, an Amended Information was filed charging Defendant with five (5) counts of STATUTORY SEXUAL SEDUCTION (Felony — NRS 200.364, 200.368). Additionally, Defendant was placed on notice that, in accordance with NRS 207.010, punishment imposed pursuant to the above-stated habitual criminal statute would be urged upon this Court if Defendant was found guilty on any of the primary offenses.

3. A jury trial in the matter began on February 26, 2007 and concluded on March 1, 2007. On March 1, 2007, the jury returned a verdict of guilty as to all five (5) counts.

4. Sentencing took place on April 19, 2007. In addition to the $25.00 Administrative Assessment Fee, $150.00 DNA Analysis Fee including testing to determine genetic markers, and $800.00 Psycho-Sexual Evaluation Fee, this Court sentenced Defendant to the Nevada Department of Corrections (NDC) as follows: COUNT 1 — MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM parole eligibility of NINETY-SIX (96) MONTHS; COUNT 2 — MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM parole eligibility of NINETY-SIX (96) MONTHS, to run CONSECUTIVE with COUNT 1; COUNT 3 — MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM parole eligibility of NINETY-SIX (96) MONTHS, to run CONSECUTIVE with COUNTS 1 2; COUNT 4 — MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM parole eligibility of NINETY-SIX (96) MONTHS, to run CONCURRENT with COUNTS 1, 2 3; COUNT 5 — MAXIMUM of TWO HUNDRED FORTY (240) MONTHS with a MINIMUM parole eligibility of NINETY-SIX (96) MONTHS, to run CONCURRENT with COUNTS 1, 2, 3 4. With FOUR HUNDRED FORTY-EIGHT (448) DAYS credit for time served. Judgment of Conviction was entered on May 1, 2007.

5. On May 16, 2007, Defendant filed a Notice of Appeal with the Nevada Supreme Court. The Nevada Supreme Court affirmed Defendant's Judgment of Conviction on December 10, 2007.^1b Remittitur issued on January 4, 2008.

1b Thomas v. State, Case No. 49486.

6. On, February 21, 2008, Defendant filed the instant Petition for Writ of Habeas Corpus (Post-Conviction).^2a The State filed a Response and Motion to Dismiss Defendant's Petition for Writ of Habeas Corpus (Post-Conviction) on April 10, 2008.

2a On February 22, 2008, Defendant again filed a Notice of Appeal to the Nevada Supreme Court. Thomas v. State, Case No. 51156.

7. On April 15, 2008, this Court denied Defendant's Petition for Writ of Habeas Corpus (Post-Conviction) and based its decision upon the following:

a. Defendant's petition is defective in a number of respects; including the lack of verification.

8. Even if this Court were to consider Defendant's petition, Defendant's petition would be denied because it has no merit:

a. Defendant's claims regarding the sufficiency of the evidence to convict him and improper admission of evidence are not properly raised in this petition because they should have been raised on appeal; and

b. Defendant received effective assistance of counsel.

9. This Court finds that since Defendant's petition can be resolved without expanding the record, Defendant's motion for an evidentiary hearing should be denied.

CONCLUSIONS OF LAW

1. Nevada Revised Statute 34.730 requires that a petition must be verified by the petitioner. Defendant's failure to verify the petition may, in the court's discretion, preclude consideration of Defendant's petition as well. See Miles v. State, 120 Nev. 383, 91 P.3d 588 (2004) (holding that once the district court acquires jurisdiction by the timely filing of the petition for the writ, any defects in the petition may be cured by amendment, even after the statutory time limit for filing the petition has elapsed).

2. Under NRS 34.810(1)(b)(2) and Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994), issues that a defendant failed to raise on direct appeal, are deemed waived. As such, those claims are barred, and courts will not consider them. Nevada Revised Statute 34.810(1)(b)(2) provides as follows:

1. The court shall dismiss a petition if the court determines that:

(b) The petitioner's conviction was the result of a trial and the grounds for the petition could have been:

(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or post-conviction relief; unless the court finds both cause for the failure to present the grounds and actual prejudice to the petitioner.

3. "A lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval." Brookhart v. Janis, 384 U.S. 1, 8, 86 S.Ct. 1245 (1966). The client may make decisions regarding the scope and ultimate objectives of representation, but the trial lawyer alone is empowered to make decisions regarding legal tactics. Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002).

4. In the case of court appointed counsel, "[o]nce counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate — and ultimate-responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop." Id., citing Wainright v. Sykes, 433 U.S. 72, 93, 97 S.Ct. 2497 (1977). Counsel's strategy decision is a "tactical" decision and will be "virtually unchallengeable absent extraordinary circumstances." Doleman v State, 112 Nev. 843, 846, 921 P.2d 278, 280 (1996); Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990); Strickland v. Washington, 466 U.S. 688, 691, 104 S.Ct. 2052, 2066 (1984).

5. In order to assert a claim for ineffective assistance of counsel the defendant must prove that he was denied "reasonably effective assistance" of counsel by satisfying the two-prong test of Strickland v. Washington, 466 U.S. 668, 686-687, 104 S.Ct. 2052, 2063-2064 (1984); State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322, 323 (1993). Under this test, the defendant must show first that his counsel's representation fell below an objective standard of reasonableness, and second, that but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 687-688 and 694, 104 S.Ct. at 2065 and 2068; Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505 (1984) (adopting Strickland two-part test in Nevada).

6. "Effective counsel does not mean errorless counsel, but rather counsel whose assistance is `[w]ithin the range of competence demanded of attorneys in criminal cases.'" Jackson v. Warden, 91 Nev. 430, 432, 537 P.2d 473, 474 (1975) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 (1970)). Based on the above law, the role of a court in considering allegations of ineffective assistance of counsel, is "not to pass upon the merits of the action not taken but to determine whether, under the particular facts and circumstances of the case, trial counsel failed to render reasonably effective assistance." Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (citing Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977)).

7. This analysis does not mean that the court "should second guess reasoned choices between trial tactics nor does it mean that defense counsel, to protect himself against allegations of inadequacy, must make every conceivable motion no matter how remote the possibilities are of success." Donovan, 94 Nev. at 675, 584 P.2d at 711. In essence, the court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

8. Even if a defendant can demonstrate that his counsel's representation fell below an objective standard of reasonableness, he must still demonstrate prejudice and show a reasonable probability that, but for counsel's errors, the result of the trial would have been different. McNelton v. State, 115 Nev. 396, 403, 990 P.2d 1263, 1268 (1999) (citing Strickland, 466 U.S. at 687). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citing Strickland, 466 U.S. at 687-89, 694).

9. Counsel is not required to raise every issue Defendant felt was pertinent to the case. Ennis v. State, 122 Nev. 694, 137 P.3d 1095, 1103 (2006). Also, trial counsel need not lodge futile objections. Id. Rather, Defendant must show that, but for counsel's errors, there is a reasonable probability that the result in the case would be different. Id. at 1102.

10. If a petition can be resolved without expanding the record, then no evidentiary hearing is necessary. Marshall v. State, 110 Nev. 1328, 885 P.2d 603 (1994); Mann v. State, 118 Nev. 351, 356, 46 P.3d 1228, 1231 (2002).

11. A defendant must prove that he is entitled to an evidentiary hearing. Mann, 118 Nev. at 356, 46 P.3d at 1231; Pellegrini, 117 Nev. at 883, 34 P.3d at 534.

12. NRS 34.770 provides the manner in which the district court decides a post conviction proceeding:

1. The judge or justice, upon review of the return, answer and all supporting documents which are filed, shall determine whether an evidentiary hearing is required. A petitioner must not be discharged or committed to the custody of a person other than the respondent unless an evidentiary hearing is held.

2. If the judge or justice determines that the petitioner is not entitled to relief and an evidentiary hearing is not required, he shall dismiss the petition without a hearing.

ORDER

THEREFORE, IT IS HEREBY ORDERED that Defendant's Petition for a Post-Conviction Writ of Habeas Corpus and his Motion for an Evidentiary Hearing shall be, and are, hereby denied.

DATED this 1^st day of May, 2008.

________________________________ DISTRICT JUDGE DAVID ROGER

DISTRICT ATTORNEY

Nevada Bar #002781

BY ____________________________ CARRIE MORTON Chief Deputy District Attorney Nevada Bar #0010160 CM/MR/slb