Todd Honeycutt v. Bill Donat

concurring in part, dissenting in part.

I agree with the majority’s conclusions and join in Parts I through VI of their disposition. However, I write separately in dissent, because I disagree that the Nevada Supreme Court unreasonably applied Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), or Maine v. Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985), when it denied Honeycutt’s Massiah claim.

The majority rests its conclusion on its view that this case is indistinguishable from Moulton . Even a cursory reading of Moulton contradicts this view. In Moul-ton, the police wired an informant (one of the co-defendants) to record a pre-planned meeting between the informant and Moulton. 474 U.S. at 164-65 , 106 S.Ct. 477 . The police later admitted that they were aware that the informant and Moulton planned to discuss the charges already pending against Moulton. Id. at 165 , 106 S.Ct. 477 . During the meeting, the informant encouraged Moulton to engage in “a prolonged discussion of the pending *630 charges.Id. While Moulton had previously suggested killing a witness, that plan was quickly dismissed during the conversation. Id. The state never…

FILED

NOT FOR PUBLICATION AUG 01 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD M. HONEYCUTT, No. 09-16758

Petitioner - Appellant, D.C. No. 2:06-cv-00634-RLH-RJJ

v.

MEMORANDUM*

BILL DONAT, Warden and ATTORNEY

GENERAL OF THE STATE OF

NEVADA,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted April 17, 2013 San Francisco, California

Before: NOONAN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.

Petitioner Todd M. Honeycutt appeals the district court’s denial of his

petition for a writ of habeas corpus (the “Petition”). We affirm in part and reverse

in part.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. I

The Nevada Supreme Court reasonably applied clearly established federal

law when it denied Honeycutt’s prosecutorial misconduct claims. “A prosecutor’s

actions constitute misconduct if they ‘so infected the trial with unfairness as…

MEMORANDUM *

Petitioner Todd M. Honeycutt appeals the district court’s denial of his petition for a writ of habeas corpus (the “Petition”). We affirm in part and reverse in part.

I

The Nevada Supreme Court reasonably applied clearly established federal law when it denied Honeycutt’s prosecutorial misconduct claims. “A prosecutor’s actions constitute misconduct if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir.2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986)). “On habeas review, constitutional errors of the ‘trial type,’ including prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993)).

In this case, the Nevada Supreme Court reasonably concluded that the choking incident constituted misconduct, but did not prejudice Honeycutt. The relevant factors under Brecht demonstrate that the choking incident did not have a “substan *627 tial and injurious…