Thomas Supranovich v. William Hutchings, et al.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA — 6 — * * * — 7 — THOMAS SUPRANOVICH, Case No. 2:21-cv-01269-RFB-BNW — 8 — Petitioner, ORDER — 9 — v. — 10 — WILLIAM HUTCHINGS, et al., — 11 — Respondents. — 12 — 13 I. INTRODUCTION 14 This habeas action is brought by Petitioner Thomas Supranovich under 22 U.S.C. 15 § 2254. Respondents filed a Motion to Dismiss (ECF No. 30) Supranovich’s Amended Petition 16 (ECF No. 18) as untimely and that certain claims should be dismissed as unexhausted. For the 17 reasons discussed below, the Court grants Respondents’ Motion to Dismiss, denies a certificate 18 of appealability, and instructs the Clerk of the Court to enter judgment and close this case. 19 II. BACKGROUND 20 In September 2014, during a welfare check, police discovered Supranovich’s 88-year-old 21 father, Demetry Supranovich (“Demetry”), dead on a couch lying naked in his own feces. See 22 ECF No. 32-44 at 13–14. Supranovich challenges a conviction and sentence imposed by the 23 Eighth Judicial District Court for Clark County. Pursuant to a jury verdict, Supranovich was 24 found guilty of the second-degree murder of a victim 60 years of age or older. On September 22, 25 2016, the state court entered an amended judgment of conviction and sentenced him to 10 to 25 26 years with an enhancement of 8 to 20 years. Supranovich appealed and on July 26, 2018, the 27 Nevada Court of Appeals affirmed the judgment of conviction. 28 On August 5, 2019, Supranovich filed a state post-conviction habeas petition. The state 1 district court denied the petition and Supranovich appealed. On November 9, 2020, the Nevada 2 Supreme Court affirmed the conviction. On December 4, 2020, remittitur issued. On July 6, 3 2021, Supranovich dispatched the instant federal habeas petition for filing. See ECF No. 1. 4 Following appointment of counsel, he filed his amended petition. See ECF No. 18. 5 Respondents now move to dismiss Supranovich’s petition as untimely. See ECF No. 30. 6 In addition, they argue that Grounds 1 and 2 should be dismissed as unexhausted and 7 procedurally barred. Supranovich does not dispute that his pro se petition was filed 201 days 8 late. Supranovich argues that he can overcome any procedural bars, including the statute of 9 limitations, on the basis that he is actually innocent. See ECF No. 36. 10 III. DISCUSSION 11 A. Actual Innocence Standard 12 Demonstrating actual innocence is a narrow “gateway” by which a petitioner can obtain 13 federal court consideration of habeas claims that are otherwise procedurally barred, including 14 claims filed after the expiration of the federal limitation period. See Schlup v. Delo, 513 U.S. 15 298 , 314–15 (1995); Lee v. Lampert, 653 F.3d 929 , 932 (9th Cir. 2011) (en banc) (A “credible 16 claim of actual innocence constitutes an equitable exception to AEDPA’s limitations period, and 17 a petitioner who makes such a showing may pass through the Schlup gateway and have his 18 otherwise time-barred claims heard on the merits.”); see also McQuiggin v. Perkins, 569 U.S. 19 383, 386 (2013). In this regard, “actual innocence” means actual factual innocence, not mere 20 legal insufficiency. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 339 (1992). “To be credible, [an 21 actual innocence] claim requires petitioner to support his allegations of constitutional error with 22 new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 23 accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324 . 24 The narrow Schlup standard is satisfied only if the new, reliable evidence, together with the 25 evidence adduced at trial, demonstrates that it is more likely than not that no reasonable juror 26 would have found the petitioner guilty beyond a reasonable doubt. See id. at 329. 27 “[T]enable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the 28 threshold requirement unless he persuades the district court that, in light of the new evidence, no 1 juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’” 2 McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329 ); see also House v. Bell, 547 U.S. 3 518, 538 (2006) (emphasizing that the Schlup standard is “demanding” and seldom met). When 4 conducting a Schlup gateway review, a court “must ‘assess how reasonable jurors would react to 5 the overall, newly supplemented record,’ including all the evidence the petitioner now proffers.” 6 Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014) (quoting Lee, 653 F.3d at 945). The court’s 7 “function is not to make an independent factual determination about what likely occurred, but 8 rather to assess the likely impact of the evidence on reasonable jurors.” Id. (quoting House, 547 9 U.S. at 538). 10 Supranovich contends that he is actually innocent. He asserts that trial counsel failed to 11 call independent pathologist, Dr. Todd Grey (“Dr. Grey”), to offer testimony disputing the 12 coroner’s cause of death assessment. Respondents argue that Supranovich fails to meet the 13 standard for passing through the actual innocence gateway because the allegedly new evidence is 14 not reliable and, nonetheless, it cannot overcome the evidence that the jury heard against 15 Supranovich. 16 B. Relevant Trial Evidence 17 At trial, the State presented testimony that Supranovich was inside the home when 18 officers arrived to perform a welfare check and found Demetry dead on the couch naked lying in 19 his feces. Supranovich did not initially answer the door when the police arrived at Demetry’s 20 home until the police observed Supranovich walking around the home through a window. During 21 the welfare check, it was observed that Supranovich acted suspiciously, used Demetry’s debit 22 card, had cash on him, and requested that no autopsy be performed because he wanted his father 23 cremated immediately. Supranovich withdrew money from Demetry’s account on ten different 24 occasions, including the day that the police arrived to perform a welfare check. Items of value, 25 like jewelry, were packed up in Demetry’s home. 26 Supranovich informed the police that he last saw Demetry at 4 A.M., that Demetry drank 27 an entire bottle of alcohol, and that Demetry fell. An autopsy report showed, however, that 28 Demetry had been dead for 12–24 hours, that Demetry did not ingest alcohol or food, and that 1 there was no sign that he had fallen. 2 The jury heard testimony that Supranovich had a “rocky” and at points “hostile” 3 relationship with Demetry. Demetry advised a hospice care nurse that Supranovich was not 4 permitted in his home. Another nurse was informed that Demetry had called the police. 5 Supranovich was not supposed to be inside his father’s home on the day of the welfare check. 6 The elected constable for Laughlin testified that he initiated eviction proceedings on Supranovich 7 at the request of Demetry. A nurse testified that Supranovich refused to leave despite receiving a 8 notice of eviction. 9 Demetry had an injury to his mouth that was consistent with being smothered and a 10 pillow was found in the home with blood on the corner of the pillow. There was no external 11 injury associated with a fall. A witness that worked at 7-Eleven testified that she observed 12 Supranovich with blood on his hands. 13 Dr. Dutra testified that Demetry was in deteriorating health and had changes in his heart 14 consistent with his age. Dr. Dutra concluded that the cause of death was undetermined but noted 15 that there were suspicious circumstances. On cross-examination, Dr. Dutra agreed that Demetry 16 was near the end of his life. He noted that Demetry had a small laceration of the tongue that 17 could have been caused by smothering but agreed that there were multiple reasons why a person 18 could get a laceration like that. Dr. Dutra did not rule out that Demetry could have fallen 19 resulting in him biting his tongue. 20 Dr. Dutra further testified that he found that Demetry had an enlarged heart, which could 21 cause heart failure, death, and arrhythmia—i.e., an abnormal beating of the heart. He testified 22 that such condition could be the cause of death. He testified that Demetry was receiving 23 treatment for chronic obstructive pulmonary disease (“COPD”), and that he also found that 24 Demetry had another life-threatening condition called moderately severe focally calcific 25 coronary artery arteriosclerosis. Dr. Dutra found that Demetry had previously suffered from a 26 heart attack. 27 Dr. Dutra testified that he did not find anything that was an indication of a defensive 28 wound. He agreed that smothering someone with a pillow would require firmly holding the 1 pillow against an individual’s face and that it would not be effective to use the corner of the 2 pillow. Dr. Dutra testified that he was not aware that Demetry was diagnosed with dementia but 3 that did not alter any of his opinions. 4 C. New Evidence 5 Supranovich asserts that trial counsel rendered ineffective assistance by failing to call 6 independent pathologist, Dr. Todd Grey (“Dr. Grey”), to testify regarding his findings that 7 disputed the State’s medical examiner’s two key findings. See ECF No. 18 at 5–20. In a letter to 8 trial counsel, Dr. Grey determined that the cause of death was likely arrhythmia: 9 I do not think the cause of death in this case is unknown. The decedent had multiple pathologic abnormalities that could easily explain death. His heart was in bad shape 10 with evidence of having had at least one episode of infarction in the past. In addition to having compromised arteries, he had enlargement that would increase the 11 demand for oxygen and blood. Further exacerbating his tenuous cardiac status is his lung disease that would also decrease delivery of oxygen to his body. All of — 12 — these factors would put him at risk for sudden death from an arrhythmia. — 13 — 14 ECF No. 18 at 16. 15 In addition, Dr. Grey disputed the theory that smother was a possible cause of death: 16 I do not agree that there is pathologic evidence of smothering in this case. The finding of a small laceration of the tongue can be equally explained by the 17 possibility of the decedent having bit his tongue while eating or if he stumbled and fell. (The decedent required a walker to ambulate). Another possibility is the tongue 18 injury resulted from terminal seizure activity that could result from inadequate delivery of blood and oxygen to the brain during the dying process. There is also — 19 — no evidence of injury to the lips, nose or adjacent areas. It is clear from the autopsy pictures that the decedent had fairly fragile skin and would be expected to bruise — 20 — easily if subjected to a forceful smothering. I also found no evidence of defensive 21 injuries. In a conscious victim, smothering is a very noxious event and would not be passively accepted without any attempts to unblock the airways. There is no 22 evidence of incapacitating injury or intoxication that would diminish or remove the decedent’s response to having his airways blocked. I do not agree with Dr. Dutra’s 23 contention that smothering can produce unconsciousness in as little as 15 seconds. While this may be true for strangulation (of which there is no evidence in this case) 24 it is not accurate for smothering. 25 Id. at 17. 26 D. The Nevada Appellate Court’s Relevant Ruling 27 On appeal of his second successive state post-conviction habeas petition, the Nevada 28 Court of Appeals addressed Supranovich’s actual innocence argument. The Nevada Court of 1 Appeals found that “Supranovich did not allege that Dr. Grey had independently examined the 2 victim, and Dr. Grey’s report indicates the opinion was based on certain materials submitted for 3 his review, such as an autopsy report and a transcript of the medical examiner’s preliminary 4 hearing testimony.” ECF No. 34-32 at 7. In addition, the Nevada Court of Appeals held that “Dr. 5 Grey’s report and any attendant testimony would have, at most, presented the jury with 6 conflicting opinions regarding the victim’s cause of death,” and “[a]lthough such evidence may 7 have been useful in establishing reasonable doubt, it does not amount to a colorable showing of 8 actual innocence.” Id. 9 E. Supranovich Fails to Meet the Schlup Standard. 10 The newly presented evidence does not demonstrate that that it is more likely than not 11 that no reasonable juror would have found Supranovich guilty beyond a reasonable doubt. 12 Supranovich attempts to discredit the State’s medical examiner, Dr. Dutra’s, findings based on 13 an independent pathologist’s conclusions that were not presented at trial. The jury, however, 14 heard testimony at trial from Dr. Dutra that Demetry had an enlarged heart, which could cause 15 heart failure, death, and arrhythmia and specifically that such condition could be the cause of 16 death. In addition, the jury heard Dr. Dutra agree that Demetry was near the end of his life, his 17 hospice care nurses testified at trial, and the jury was presented with testimony regarding the 18 multiple health conditions that Demetry had, including COPD and dementia. The jury also heard 19 Dr. Dutra testify that there were multiple reasons why a person could get a laceration on the 20 tongue, including that Demetry could have fallen resulting in him biting his tongue. Although 21 Supranovich’s new evidence could have supported the conclusion that Demetry died of natural 22 causes, the jury could have continued to believe the State’s theory of the case based on the 23 evidence presented at trial. 24 The Court is not persuaded that Dr. Grey’s findings demonstrates evidence so strong as to 25 undermine confidence in the jury’s verdict. None of the materials demonstrate Supranovich’s 26 actual innocence. By determining that Supranovich fails to meet the demanding Schlup standard, 27 the Court finds that Supranovich has not made a viable claim that actual innocence allows him to 28 bypass AEDPA’s statute of limitations and the Court grants Respondents’ motion to dismiss. ] F. Certificate of Appealability 2 Rule 11 of the Rules Governing Section 2254 Cases requires the Court to issue or deny a 3 | certificate of appealability (“COA”). Pursuant to 28 U.S.C. § 2253 (c)(2), a COA may issue only 4| when the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 5| US.C. § 2253(c)(2). With respect to claims rejected on the merits, a petitioner “must 6 | demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 7 | claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural 8 | rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a 9 | valid claim of the denial of a constitutional right and (2) whether this Court’s procedural ruling 10 | was correct. See id. To meet the threshold inquiry, a petitioner has the burden of demonstrating 11 | that the issues are debatable among jurists of reason; that a court could resolve the issues 12 | differently; or that the questions are adequate to deserve encouragement to proceed further. See 13 | Allen v. Ornoski, 435 F.3d 946, 950-51 (9th Cir. 2006). 14 Applying these standards, this Court finds that a certificate of appealability is 15 | unwarranted. 16 IV. CONCLUSION 17 For the foregoing reasons, IT IS HEREBY ORDERED that Respondents’ Motion to 18 | Dismiss (ECF No. 30) is GRANTED. Petitioner Thomas Supranovich’s Amended Petition (ECF 19 | No. 18) is dismissed. 20 It is further ordered that Petitioner is DENIED a certificate of appealability. 21 The Clerk of Court is directed to enter judgment accordingly and close this case. — 22 — 23 DATED: September 28, 2025. 25 RICHARD F. BOULWARE, I UNITED STATES DISTRICT JUDGE — 27 — — 28 — _7-