Eubanks (Charles) Vs. Warden ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CHARLES SHEA EUBANKS, No. 80780
Appellant,
vs.
BRIAN WILLIAMS, WARDEN, FILED
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Fifth Judicial District
Court, Nye County; Robert W. Lane, Judge. Appellant Charles Shea
Eubanks argues that the district court erred in denying his petition as
procedurally barred without an evidentiary hearing. We affirm.
Eubanks filed the petition nearly three years after remittitur
issued in his direct appeal. Eubanks v. State, Docket No. 64116 (Order of
Affirmance, October 15, 2014). Thus, his petition was untimely filed. See
NRS 34.726(1). The petition was also successive because he had previously
litigated a postconviction petition for a writ of habeas corpus. See NRS
34.810(1)(b), (2); Eubanks v. State, Docket No. 68628 (Order of Affirmance,
May 9, 2016). Eubanks petition was procedurally barred absent a
demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS
34.810(1)(b), (3). Good cause "may be demonstrated by a showing that the
factual or legal basis for a claim was not reasonably available" to be raised
in a timely petition. Hathaway u. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003) (internal quotation marks omitted). Prejudice requires showing
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errors causing actual and substantial disadvantage. State v. Huebler, 128
Nev. 192, 197, 275 P.3d 91, 95 (2012). We defer to the district court's factual
findings that are supported by substantial evidence and not clearly wrong,
but review its application of the law to those facts de novo. Lader v. Warden,
121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
Eubanks argues that he has shown good cause and prejudice
because the State violated Brady v. Maryland, 373 U.S. 83 (1963). We
disagree. A Brady claim requires a showing that the evidence is favorable
to the claimant, the State withheld the evidence, and the evidence was
material. Huebler, 128 Nev. at 198, 275 P.3d at 95. When a Brady claim is
raised in an untimely postconviction habeas petition, showing that evidence
was withheld generally establishes good cause and that evidence was
material generally establishes prejudice in order to overcome the procedural
bar. Id. A Brady claim raised in an untimely postconviction habeas petition
must be raised within a reasonable time after the discovery or disclosure of
the withheld evidence. Id. at 198 n.3, 275 P.3d at 95 n.3; see also Gray v.
Netherland, 518 U.S. 152, 162 (1996) (observing that a Brady claim could
be procedurally barred when the petitioner knew of the grounds but did not
raise it in the first state petition). When the defense specifically requested
the withheld evidence, the evidence is material if there is a reasonable
possibility that the result would have been different if the evidence had been
disclosed. Mazzan v. Warden, 116 Nev. 48, 74, 993 P.2d 25, 41 (2000).
However, when the defense did not request or only requested the withheld
evidence generally, evidence is only material if there is a reasonable
probability of a different outcome. Id. We review Brady claims de novo. Id.
at 66, 993 P.2d at 36.
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Eubanks first argues that the State withheld Detective Vitto's
plan to testify favorably at Danny Jarvis's sentencing hearing. Jarvis was
a jailhouse informant who testified that Eubanks boasted about the murder.
The record belies that Vitto and Jarvis had an undisclosed arrangement.
Each testified that Vitto had not promised Jarvis anything in exchange for
his testimony, and Eubanks has not offered any evidence showing that a
tacit deal was in place. Cf. Akrawi v. Booker, 572 F.3d 252, 262-64 (6th Cir.
2009) ("[T]he mere fact of favorable treatment received by a witness
following cooperation is also insufficient to substantiate the existence of an
agreement."). Eubanks has not shown that any evidence was withheld in
this regard, and trial counsel was able to cross-examine Jarvis thoroughly
on his motivations for testifying. Moreover, insofar as Eubanks argues that
the existence of a deal could be inferred from the bare fact of Vitto's
testifying favorably at Jarvis's hearing, such a claim on that ground was
available to be raised in a timely petition because Jarvis was cross-
examined at trial on his imminent sentencing, which occurred soon after
and was a matter of public record. Eubanks has not shown a meritorious
Brady claim in this regard and thus has not shown good cause. The district
court therefore did not err in denying this claim without conducting an
evidentiary hearing. See Nika v. State, 124 Nev. 1272, 1300-01, 198 P.3d
839, 858 (2008) (providing that a petitioner is entitled to an evidentiary
hearing when the claims asserted are supported by specific factual
allegations that are not belied or repelled by the record and that, if true,
would entitle the petitioner to relief).
Eubanks next argues that the State withheld evidence that
Karisma Garcia, Troy Jackson, and Jarvis had previously worked as
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confidential informants in unrelated cases. Garcia was a jailhouse
informant who testified that Eubanks admitted the murder to her. Jackson
was Eubanks coperpetrator who pleaded guilty. It appears the evidence as
to Garcia and Jackson was not disclosed. The Jarvis claim is based on court
minutes that are "matter[s] of public record that [were] not and could not
be withheld by the State." Rippo v. State, 134 Nev. 411, 431-32, 423 P.3d
1084, 1103-04 (2018). Even if the Jarvis evidence had been withheld as
well, the record shows that Eubanks did not specifically request this
confidential-informant evidence, but only generally requested it, if at all.
Accordingly, the evidence is material only if reasonably probable to lead to
a different outcome.
The evidence was not material as to any of these three
witnesses. That Jarvis had assisted law enforcement in unrelated cases
would offer only minor additional impeachment value, as he was already
thoroughly impeached and evidence of other instances of Jarvis's past
cooperation with law enforcement was not relevant to his truthfulness. See
United States v. Hamaker, 455 F.3d 1316, 1328-29 (11th Cir. 2006) (finding
no Brady violation where the additional impeachment value to be gained
from questioning a witness on his status as a confidential informant in an
unrelated case was at best marginal); Pyles v. Johnson, 136 F.3d 986, 1000
(5th Cir. 1998) (concluding that evidence of additional informant activities
would provide only incremental impeachment value that did not meet the
level of Brady materiality). Likewise, trial counsel cross-examined Garcia
and Jackson in pretrial depositions on their motives and agreements with
the State to testify, Garcia's hoped-for benefit and Jackson's anticipation of
none, and their criminal records. The confidential-informant evidence
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would offer minor incremental impeachment value as to Garcia and
Jackson, as each had already been impeached on related grounds and
additional, unrelated informant experience would not bear on their
truthfulness. Also, Jackson's testimony regarding the attack was
corroborated by physical evidence and the accounts of other witnesses and
participants.
Moreover, the incremental impeachment evidence was not
material in light of the overwhelming evidence of Eubanks guilt. That is,
the record shows that (1) Eubanks confessed the murder to his girlfriend,
four jailhouse informants, and two others who pleaded guilty to offenses
related to the murder; (2) Eubanks' coperpetrator admitted to their crimes;
(3) two children at the house where Eubanks fled after the killing described
Eubanks throwing bags into a fire from which the murder weapons were
later recovered; (4) the surviving victim's sister testified that Eubanks and
his accomplices arrived at the house immediately before the murder and
attempted murder; and (5) Eubanks admitted to the investigating detective
that he went to the residence to rob the victims before the situation
deteriorated when the victims had nothing of value. Eubanks has not
shown meritorious Brady claims in these regards, and the district court
therefore did not err in denying them as procedurally barred without
conducting an evidentiary hearing.
Eubanks next argues that the State withheld evidence of a
benefit that Andrew Kaufman received for his testimony. Kaufman was a
jailhouse informant who testified that Eubanks admitted to committing
murder and attempted murder. Kaufman testified in a pretrial deposition
that, in exchange for his testimony, he expected the State to write a letter
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to federal authorities on his behalf describing his assistance. The State
acknowledged this agreement, and trial counsel cross-examined him on the
matter. Subsequent to Eubanks trial, Kaufman's sentence on a federal case
was reduced. Eubanks has not shown any agreement or benefit that was
withheld. Eubanks' claim that it was certain, not merely hoped for, that
Kaufman would receive relief from his federal sentence—beyond the letter
from the State describing his cooperation—is a bare claim unsupported by
the record. As Eubanks has not shown a meritorious Brady claim in this
regard, the district court did not err in denying it as procedurally barred.
Eubanks next argues that the State withheld evidence that his
accomplice Victoria Garcia had testified against a codefendant in a previous
unrelated case. Her prior testimony is a matter of public record that the
State could not withhold. Rippo, 134 Nev. at 431-32, 423 P.3d at 1103-04.
Even if it could have been withheld, noting that it was not specifically
requested, there is not a reasonable probability that this evidence would
have affected the outcome. Garcia drove Eubanks and Jackson to the
surviving victim's residence where they committed the murder and the
attempted murder. The fact that Garcia testified against a coperpetrator in
an unrelated case was not material. Any motive to testify falsely would be
illustrated by the lesser sentence she received for cooperation in this case
and her relationship with Jackson—both of which were disclosed and
elicited at trial. Moreover, whatever impeachment value this might offer is
marginal in light of the overwhelming evidence of Eubanks' guilt and the
corroboration of Garcia's testimony by physical evidence and other
witnesses' testimony. Eubanks has not shown a meritorious Brady claim in
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this regard, and the district court therefore did not err in denying it as
procedurally barred without conducting an evidentiary hearing.
Eubanks next argues that the State withheld evidence of a
conflict of interest in that the same attorney had represented Garcia and
Jarvis and another had represented Garcia and another jailhouse
informant. This evidence is neither favorable nor material. Eubanks does
not allege that this created an actual conflict of interest adversely affecting
his counsel's performance, Leonard v. State, 108 Nev. 79, 81, 824 P.2d 287,
289 (1992), and the mere fact of this representation does not bear on the
truthfulness of their testimony. Further, it is not clear that the State
possessed or withheld this evidence. Insofar as Eubanks suggests that
these attorneys synced their clients testimony against him, evidence of any
such conspiracy is not within the State's possession and is mere speculation.
Eubanks has not shown a meritorious Brady claim in this regard, and the
district court therefore did not err in denying it as procedurally barred
without conducting an evidentiary hearing.
Eubanks next argues that the State withheld evidence
regarding contacts between witnesses while in custody. The witnesses were
cross-examined in pretrial depositions on their contacts with one another
while in custody, in transport, and in detention before court proceedings in
this matter. The record thus belies that the State withheld any evidence in
this regard. While Eubanks speculates that the witnesses may have
collaborated on their accounts during these contacts, he has not alleged that
the State possessed or withheld any actual evidence of any purported
collaboration. Moreover, the evidence of the witnesses' contacts was not
material. The record contains overwhelming evidence of Eubanks' guilt and
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the allegedly withheld evidence offered only marginal additional
impeachment value in light of the witnesses impeachment by the
substantial charging benefits each received or hoped to receive. Eubanks
has not shown a meritorious Brady claim in this regard, and the district
court therefore did not err in denying it as procedurally barred without
conducting an evidentiary hearing.
Eubanks next argues that the cumulative impact of any
withheld evidence would have affected the trial's outcome. We disagree.
See Lisle v. State, 113 Nev. 540, 548, 937 P.2d 473, 478 (1997) (considering
the cumulative effect of withheld evidence); see also Kyles v. Whitley, 514
U.S. 419, 437 (1995) (providing that the "net effect" of undisclosed evidence
should be considered in assessing materiality). Eubanks has identified only
marginal additional impeachment evidence that was not specifically
requested, even if the matters of public record are considered as well. Each
of the witnesses addressed had already been impeached with evidence more
probative of their motivation to testify truthfully in this matter and with
their criminal records. In no instance does Eubanks put forward withheld
impeachment evidence that contradicts any of these witnesses' accounts.
Moreover, this incremental impeachment evidence is not material in light
of the overwhelming evidence of Eubanks' guilt. Eubanks has not shown a
meritorious Brady claim in this regard, and the district court therefore did
not err in denying it as procedurally barred without conducting an
evidentiary hearing.
Eubanks next argues that trial counsel provided ineffective
assistance and that good cause exists to raise this claim in a second,
untimely petition because he was not represented by counsel in the first
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postconviction proceedings. But this court has determined the failure to
appoint discretionary postconviction counsel in the first postconviction
proceeding does not provide good cause. Brown v. McDaniel, 130 Nev. 565,
571, 331 P.3d 867, 871-72 (2014). Thus, the district court did not err in
determining that there was no good cause to litigate these claims.
The State also pleaded laches. A petition may be dismissed if
the delay in filing prejudices the State's ability to respond to the petition
unless the petitioner could not have known of the grounds for the petition
by the exercise of reasonable diligence. NRS 34.800(1)(a). A petition may
also be dismissed if the delay prejudices the State's ability to retry the
petitioner unless the petitioner shows a fundamental miscarriage of justice.
NRS 34.800(1)(b). The district court found that the State showed prejudice
on both of these prongs. Eubanks has not shown that the district court
erred in determining that the petition was barred by laches. Eubanks new
Brady claims arose from an interview that counsel's investigator conducted
with the witnesses. The record supports the district court's finding that
these claims could have been timely raised with the exercise of reasonable
diligence. See NRS 34.800(1)(a). And Eubanks did not demonstrate a
fundamental miscarriage of justice, that he was actually innocent of the
charges. See NRS 34.800(1)(b); see also Berry v. State, 131 Nev. 957, 974,
363 P.3d 1148, 1159 (2015) (recognizing that showing for fundamental
miscarriage of justice for statutory laches is actual innocence). Eubanks
has not overcome the findings of prejudice to the State.
We conclude that the district court therefore correctly applied
the mandatory procedural bars and did not abuse its discretion in
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determining the petition was barred by laches. See State v. Eighth Judicial
Dist. Court (Riker), 121 Nev. 225, 231, 233, 112 P.3d 1070, 1074-75 (2005).
Having considered Eubanks contentions and concluded that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.'
Hardesty
A1,43G.,-1)
Stiglich
cc: Hon. Robert W. Lane, District Judge
Federal Public Defender/Reno
Federal Public Defender/Las Vegas
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
'The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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