Michael Wilson v. Robert Legrand

FILED
NOT FOR PUBLICATION
NOV 06 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL DUANE WILSON, No. 17-15153
Petitioner-Appellant, D.C. No.
3:14-cv-00071-RCJ-VPC
v.
ROBERT LEGRAND, Warden; and MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted October 19, 2018**
San Francisco, California
Before: WALLACE, KLEINFELD, and GRABER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Michael Duane Wilson, a Nevada state prisoner, appeals from the district
court’s order denying his petition for writ of habeas corpus. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. We AFFIRM.
Wilson asserts six separate “Grounds” for habeas relief. Ground One is
divided into subsections 1(a), 1(b), and 1(c): 1(a) challenges the sufficiency of the
evidence to support a conviction under the standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979); 1(b) challenges the state trial court’s decisions to
deny Wilson’s pretrial motions for improper grand jury involvement, improper
forum-shopping, and failure to sever the counts; and 1(c) challenges the standards
of review applied by the trial court in denying Wilson’s motion for judgment of
acquittal or new trial. Wilson argues that the three Ground One subsections are
part of one overarching claim for insufficient evidence under Jackson.
The district court dismissed all six Grounds for habeas relief. In dismissing
Ground One, the district court analyzed subsections 1(a), 1(b), and 1(c) as separate
claims. Claim 1(a) was denied on the merits. Claims 1(b) and 1(c) were dismissed
for lack of exhaustion “to the extent they set forth federal constitutional claims
separate from the insufficiency of evidence claim” in claim 1(a). (Emphasis
added.) The other Grounds were similarly denied on the merits or dismissed for
lack of exhaustion.
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A motions panel of this court granted a Certificate of Appealability limited
to the following issues: “whether the district court erred by (1) reorganizing
Ground One in the amended habeas petition, and (2) finding that the reorganized
subclaims were unexhausted.” We review the district court’s dismissal for lack of
exhaustion de novo, but may also affirm on any ground supported by the record.
Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005); White v. Klitzkie, 281
F.3d 920, 922 (9th Cir. 2002).
The district court properly considered the Ground One subsections as
separate claims. As alleged in the petition, 1(b) and 1(c) are irrelevant to a due
process claim under Jackson. Cf. Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th
Cir. 2008) (“[A] petitioner has ‘fairly presented’ a claim not named in a petition if
it is ‘sufficiently related’ to an exhausted claim.”). Wilson argues that 1(b) and
1(c) “enhance” the Jackson claim because the trial court and justice court both
viewed the evidence to be weak.1 Jackson, however, requires considering the
sufficiency of the evidence—not what different courts or judges thought about the
evidence. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en
banc) (holding that a “reviewing court must [first] consider the evidence presented
1
Justice courts are state courts in Nevada with limited jurisdiction over
criminal matters.
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at trial in the light most favorable to the prosecution” under Jackson (emphasis
added)).
We affirm the district court’s judgment dismissing the 1(b) claim. Claim
1(b) can be divided into three subclaims. The claimed improper grand jury
involvement, failure to sever, and improper forum-shopping claims were not
federalized and are unexhausted. See Petrocelli v. Baker, 869 F.3d 710, 725 (9th
Cir. 2017), cert. denied, 138 S. Ct. 984 (2018); Galvan v. Alaska Dep’t of Corr.,
397 F.3d 1198, 1205 (9th Cir. 2005) (holding petitioners asserting federal
constitutional claims must “explicitly alert[]” state courts that they are making such
claims despite contextual inquiry as to exhaustion).
We also affirm the dismissal of the 1(c) claim. The 1(c) claim is either
duplicative of the 1(a) Jackson claim or a matter of state law. The district court
found 1(c) unexhausted only to the extent that it alleged a separate claim from the
general 1(a) Jackson claim. If Wilson meant to collapse 1(a) and 1(c) into one due
process claim for insufficiency of evidence, that claim has already been addressed
and denied on the merits. Exhaustion or lack thereof played no role in the denial.
The district court properly reviewed the evidence and the Nevada Supreme Court’s
determination—and not the actions of the trial court. See Murray v. Schriro, 745
F.3d 984, 996 (9th Cir. 2014) (“Under AEDPA, we review the last reasoned
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state-court decision.”). To the extent the 1(c) claim concerns the application of the
wrong standard of review under state law, separate from any federal due process
concerns, the matter is one merely of state law. See Hudson v. Louisiana, 450 U.S.
40, 44 n.5 (1981) (“Whether a state trial judge in a jury trial may assess evidence
as a ‘13th juror’ is a question of state law”). The 1(c) claim has therefore been
denied properly on the merits as part of the 1(a) Jackson claim or is not a claim
covered under federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”); Gutierrez v. Griggs, 695 F.2d 1195, 1199
(9th Cir. 1983) (“Insofar as [the petitioner] simply challenges his conviction as a
matter of state law, § 2254 and, consequently, the doctrine of exhaustion are not
applicable.”).
For these reasons, we AFFIRM the district court’s judgment. We decline to
broaden the Certificate of Appealability. See Hiivala v. Wood, 195 F.3d 1098,
1104 (9th Cir. 1999) (explaining that broadening of a certificate of appealability
requires “substantial showing of the denial of a constitutional right” (quoting 28
U.S.C. § 2253(c)(2))).
AFFIRMED.
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