No. ________ October Term, 2018 In the Supreme Court of the United States Frank LaPena, Petitioner, v. George Grigas, et al. Respondents. Motion for Leave to Proceed In Forma Pauperis Rene Valladares Federal Public Defender, District of Nevada *JONATHAN M. KIRSHBAUM JEREMY C. BARON Assistant Federal Public Defenders 411 E. Bonneville Ave., Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 *Counsel for LaPena Petitioner Frank LaPena respectfully asks for leave to file the attached petition for writ of certiorari without prepayment of costs and to proceed in forma pauperis. LaPena has been granted leave to so proceed in the District Court and in the United States Court of Appeals. Counsel was appointed by the United States District Court for the District of Nevada under 18 U.S.C. § 3599(a)(2). See also SUPREME COURT RULE 39.1 (authorizing leave to proceed in forma pauperis). Accordingly, no affidavit is attached. Dated October 24, 2018. Respectfully submitted, Rene L. Valladares Federal Public Defender /s/Jonathan M. Kirshbaum Jonathan M. Kirshbaum Assistant Federal Public Defender No. ____________ October Term, 2018 In the Supreme Court of the United States Frank LaPena, Petitioner, v. George Grigas, et al. Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Petition for Writ of Certiorari [CORRECTED COPY] Rene Valladares Federal Public Defender, District of Nevada *JONATHAN M. KIRSHBAUM JEREMY C. BARON Assistant Federal Public Defenders 411 E. Bonneville Ave., Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 [email protected] *Counsel for LaPena QUESTION PRESENTED The year was 1974. The town—Las Vegas. Organized crime dominated the Strip. Gangsters and their associates controlled the casinos. Mafia syndicates had found a river of money flowing through the parched desert valley, and they protected it at all costs. This setting has produced many wild stories, but none as incredible as Frank LaPena’s. His odyssey began when the State accused him of an unlikely crime, one that seems ripped from the pages of a pulp novel. Frank was a handsome young bell captain at the Hacienda. He was dating Rosalie Maxwell, a beautiful cocktail waitress at Caesars. Rosalie was two-timing Frank with Marvin Krause, a middle- aged slot manager (also at Caesars). Marvin showered Rosalie with cash and gifts, but Marvin’s wife Hilda controlled the Krause fortune. According to the State, Frank and Rosalie wanted Hilda’s money, and they hatched a convoluted plot to get it. They hired their pal Jerry Weakland to kill Hilda. With Hilda gone, Rosalie would swoop in and marry Marvin. Then something untoward might happen to Marvin. By the end of this scheme, the money would have passed from Hilda to Marvin and then to Rosalie—with Frank, her true love, waiting in the wings to share it. At least, that’s the story Weakland told, after the State offered him a sweetheart deal and after he confessed to murdering Hilda. Only one problem— which is the issue in this petition: Weakland didn’t kill Hilda. He’s always said he slit her throat with a single cut, no more, but that’s not how she died. Instead, someone strangled her, then slit her throat, then stabbed her, repeatedly and violently, in the neck—a crime of passion, not a clinical contract killing. Weakland’s testimony about the murder doesn’t begin to match up with the physical evidence. Because no rational juror could conclude Weakland killed Hilda, Frank cannot be guilty of a contract killing. Four decades later, we may never know who killed Hilda. But one thing is certain—Frank had nothing to do with it. The issue presented in this petition is the following: Whether the Nevada Supreme Court’s decision rejecting the legal insufficiency claim was unreasonable because, even under a highly deferential review, no rational juror could have concluded Weakland killed Hilda when his description of the manner of death was inconsistent in every way with the physical evidence? i LIST OF PARTIES The only parties to this proceeding are those listed in the caption. ii TABLE OF CONTENTS Question Presented ......................................................................................................... i List of Parties ................................................................................................................. ii Table of Contents .......................................................................................................... iii Table of Authorities ...................................................................................................... iv Petition for Writ of Certiorari ....................................................................................... 1 Opinions Below .............................................................................................................. 1 Jurisdiction .................................................................................................................... 1 Statement of the Case ................................................................................................... 2 1. Hilda’s Murder ............................................................................... 2 2. Nearly One-to One Discrepancy Between Weakland’s Testimony About the Murder and the Physical Evidence ........... 5 Reasons for Granting the Petition ................................................................................ 7 II. The Nevada Supreme Court’s decision rejecting the legal insufficiency claim was unreasonable because, even under a highly deferential review, no rational juror could have concluded Weakland killed Hilda when his description of the manner of death was inconsistent in every way with the physical evidence ................................................................................................. 7 Conclusion .................................................................................................................... 12 Certificate of Service .................................................................................................... 13 Index of appendix ......................................................................................................... 14 iii TABLE OF AUTHORITIES Federal Cases Cavazos v. Smith, 565 U.S. 1 (2011) ..................................................................... 7, 11 Jackson v. Virginia, 443 U.S. 301 (1979) .................................................................... 7 Souter v. Jones, 395 F.3d 577 (6th Cir. 2005) ............................................................. 8 Federal Statutes 18 U.S.C. § 3599 ........................................................................................................... 2 28 U.S.C. § 1254 ............................................................................................................ 2 28 U.S.C. § 2254 ........................................................................................................... 1 28 U.S.C. § 2254(d) ................................................................................................ 7, 11 iv In The Supreme Court of the United States October Term, 2018 __________________________ Frank LaPena, Petitioner, v. George Grigas, et al., Respondents. ___________________________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ____________________________ PETITION FOR WRIT OF CERTIORARI Petitioner Frank LaPena respectfully prays that a writ of certiorari issue to review the memorandum opinion of the United States Court of Appeals for the Ninth Circuit. See Appendix B. OPINIONS BELOW The panel decision of the United States Court of Appeals for the Ninth Circuit affirming the denial of LaPena’s petition for a writ of habeas corpus, issued on June 5, 2018, is unpublished. See Appendix B. JURISDICTION The United States District Court for the District of Nevada had original jurisdiction over this case, pursuant to 28 U.S.C. § 2254. The district court denied a Certificate of Appealability. See Appendix D. The Ninth Circuit affirmed the district court’s decision and, on July 16, 2018, denied LaPena’s petition for rehearing. See 1 Appendix A. This Court has jurisdiction pursuant to 28 U.S.C. § 1254. See also Sup. Ct. R. 13(1). STATEMENT OF THE CASE 1. Hilda’s Murder Just after dawn on January 14, 1974, at least two assailants broke into the home of Hilda and Marvin Krause, and somebody killed Hilda. We may never know what really happened, but the following series of events seems likely. At least two perpetrators, Gerald (“Jerry”) Weakland and Tom Boutwell, entered the Krause home that morning. Weakland was a former boxer who worked as a pool boy at Caesars Palace. Boutwell was a former football player who was visiting Las Vegas and staying with his old teammate, Robert (“Bobby”) Webb. Weakland and Webb were friends. On January 12, 1974, Boutwell and Webb ran into Weakland at Caesars. Weakland said he had a job for Webb. Early on Monday, January 14, Weakland came to Webb’s house to pick him up for the job. Webb proposed that Boutwell go instead. Weakland told Boutwell the plan was to rob a man who car-ried alot of cash on him. Boutwell agreed to help out. Boutwell didn’t know it at the time, but Weakland’s target was Marvin Krause, a slot manager at Caesars. Hilda herself was a part owner of Caesar’s. Marvin left for work early on Mondays and Fridays to attend the slot “drop,” when Caesars em- ployees collected coins from the machines. That’s when