JAMES C. MAHAN, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Rickey Cooper, a Nevada prisoner. ECF No. 51.
In November 1983, Cooper was convicted, pursuant to jury verdicts, of attempted robbery with the use of a deadly weapon, attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon, and first degree murder with the use of a deadly weapon. He is currently serving two consecutive life sentences without possibility of parole.
In a March 2006 decision denying post-conviction relief, the Nevada Supreme Court provided the following factual background:
ECF No. 65-9, p. 4-7.
Cooper's direct appeal of his conviction was dismissed by the Nevada Supreme Court on May 15, 1986.
On December 8, 1986, Cooper filed his first state post-conviction petition in the Eighth Judicial District Court. He filed an amended petition on May 22, 1987. On November 2, 1987, the state district court filed its order denying the petition. Cooper appealed. On September 21, 1988, the Nevada Supreme Court filed its order dismissing the appeal.
On July 12, 1990, Cooper filed a second state post-conviction petition. On November 2, 1990, the state district court dismissed the petition. Cooper appealed. On June 27, 1991, the Nevada Supreme Court dismissed the appeal.
On November 16, 1993, Cooper filed his first federal habeas petition in this court, initiating case number CV-N-93-685-DWH. On February 21, 1995, the petition was denied without prejudice. An amended petition was filed on May 21, 1995. On February 29, 1996, this court adopted the recommendation of the magistrate judge and dismissed the amended petition without prejudice.
On April 23, 1997, Cooper filed a federal habeas petition in this court that initiated the instant proceeding. The court appointed the Office of the Federal Public Defender to represent petitioner. An amended petition was filed on July 15, 1997. A second amended petition was filed on February 17, 1998. The magistrate judge filed a report and recommendation, concluding that all claims presented in the second amended petition were unexhausted. On February 23, 1999, the district judge adopted the recommendation of the magistrate, and the petition was dismissed without prejudice.
On August 21, 1997, Cooper filed a third state post-conviction petition. The state district court denied the petition. Cooper appealed. On July 24, 2000, the Nevada Supreme Court found the petition to be untimely, as it was filed more than 11 years after remittitur issued from the direct appeal. The court also found the petition was successive. The court held that the petition was procedurally barred absent a demonstration of cause and prejudice.
The Nevada Supreme Court affirmed the state district court's judgment, except in regard to Cooper's claim that a witness to the murder, Donnell Wells, had recanted his trial testimony and alleged that he had been pressured and paid to testify. The court concluded that this claim, if true, might provide cause to excuse procedural defaults and entitle petitioner to relief. As to the remaining contentions, the court concluded that Cooper had failed to demonstrate cause and prejudice to excuse the procedural defaults.
On remand, the state district court conducted an evidentiary hearing. The state district court denied the petition, finding that it was procedurally barred as untimely and successive. Cooper again appealed. On March 2, 2006, the Nevada Supreme Court affirmed the denial of the state habeas petition. Remittitur issued on May 16, 2006.
On May 12, 2006, Cooper filed a motion to re-open this action that was granted on September 27, 2006. Cooper, through counsel, filed a third amended petition on November 9, 2006. On August 11, 2008, this court granted respondents' motion to dismiss the petition, concluding that all the clams in petition were procedurally barred. Cooper appealed.
On April 1, 2011, the United States Court of Appeals for the Ninth Circuit affirmed, in part, and denied, in part, this court's judgment dismissing the petition. Cooper v. Neven, 641 F.3d 322 (9th Cir. 2011). The case was remanded for further proceedings on Grounds 7A(3), 8(3), 8(5), and Cooper's Brady
The respondents have filed an answer to the remaining grounds; and Cooper has filed a reply. Thus, the petition now stands before the court for a decision on the merits.
This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA:
28 U.S.C. § 2254(d).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).
"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court reasoned that the "backward-looking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made," and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id.
For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is de novo where a state court does not reach the merits, but instead denies relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 S.Ct at 1401 ("Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief."); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo).
Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review habeas claims by conducting a de novo review prior to applying the "contrary to or unreasonable application of" limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, however, the Court did not preclude such an approach. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id.
All of the remaining claims in Cooper's petition are premised on, or related to, the testimony of Donnell Wells at trial and/or his subsequent recantation of that testimony. According to the Ninth Circuit, the Nevada Supreme Court adjudicated Cooper's ineffective assistance of counsel claims (Grounds 7A(3), 8(3), and 8(5)) on the merits in Cooper's first state post-conviction proceeding. Cooper, 641 F.3d at 331. The passages from the state supreme court's decision that are relevant to those claims consist of the following.
ECF No. 57, p. 4-7.
According to the Ninth Circuit, the Nevada Supreme Court adjudicated Cooper's Brady and Napue related grounds (Grounds 1 and 2) on the merits in its March 2006 decision, when it addressed the claims in the context of determining whether Cooper could show cause and prejudice to excuse his procedural default of the claims. Cooper, 641 F.3d at 332-33. In addition to the factual background excerpted in Section I. above, the passages from that decision that are relevant to those grounds are as follows:
ECF No. 65-9, p. 8-19 (footnotes citing to state court record omitted).
In Ground 1, Cooper contends that his conviction is in violation of his constitutional rights because it is based on the false testimony of Donnell Wells. In July of 1997, Wells, then an inmate at Pioche Prison Camp, provided an investigator with the federal public defender's office a declaration stating that he did not see Cooper shoot the victims, that detectives pressured him to testify, and that he was compensated "roughly $100" for his testimony. ECF No. 62-4, p. 21. As recounted above, Wells testified at the state court evidentiary hearing in February 2004 about the circumstances surrounding his testimony at trial and his subsequent recantation.
Cooper makes no allegation under Ground 1 that the state withheld evidence favorable to the defense or that it knowingly fostered the presentation of false testimony. As such, it is does not present a prima facie case for relief under either Brady or Napue. Thus, despite Cooper's efforts to transform it into a Napue claim in his reply, Ground 1 is premised entirely on the theory that Cooper's conviction is in violation of his right to due process and a fair trial because it was based on Wells's false testimony.
As respondents point out, the mere recantation of testimony does not provide grounds for habeas relief. Hysler v. Florida, 315 U.S. 411, 413 (1942); Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979). "The essence of the due process violation is misconduct by the government, not merely perjury by a witness." Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004). Theoretically, the revelation that a defendant was convicted based on false testimony might provide grounds for habeas relief based on actual innocence. See McQuggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) ("We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence."). However, even in a capital case (which this is not), a freestanding actual innocence claim might warrant federal habeas relief only upon an "extraordinarily high" and "truly persuasive" threshold showing. Herrera v. Collins, 506 U.S. 390, 417 (1993).
Here, the Nevada Supreme Court addressed two separate, but related, cause-and-prejudice arguments — one based on a Brady claim that the state withheld evidence related to Wells's testimony and the other based on Wells's recantation, in and of itself. ECF No. 65-9, p. 15-16. As to the latter, the Nevada Supreme Court found that Wells's recantation was "not consistent, clear, or complete" and that he did not recant an important aspect of his testimony, i.e., that he "saw an altercation between Cooper and Williams some time before the shooting," which indicated that "Cooper had a motive to shoot Williams." Id., p. 16. The court then further concluded that, even if Wells's belated claim about not seeing the shooter was accurate, the jury would have still convicted Cooper without Wells's identification because Wells's account of the shooting at trial conflicted with the "bulk of the evidence" anyway and there was ample other evidence that Cooper was the shooter. Id., p. 16.
Thus, Nevada Supreme Court concluded that Wells's allegedly false testimony was harmless under a standard far less stringent than that which would apply to a freestanding actual innocence claim. That determination alone precludes relief, separate and apart from whether false testimony (in the absence of State wrongdoing) can provide grounds for habeas relief. Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (holding that federal court must defer to state court harmless error analysis unless it was in "conflict with the reasoning or the holdings of [Supreme Court] precedent" or if it "applied harmless-error review in an `objectively unreasonable' manner").
Ground 1 is denied.
In Ground 2, Cooper alleges that the state failed to produce material exculpatory and impeachment evidence related to Wells's testimony — i.e., that he was promised money in exchange for testimony that was coached by a district attorney investigator. Cooper argues that he has shown that Wells could not identify him as the shooter, but there "was an agreement between the district attorney investigator and Wells," which, as Wells understood it, provided that "he would testify that Cooper was shooter and then he would receive money." ECF No. 147, p. 55. Cooper contends that uncontradicted facts support a claim for habeas relief under Brady and Napue.
The evidence supporting this claim is described in the above excerpt from the 2006 Nevada Supreme Court decision. As noted, the Ninth Circuit determined that the Nevada Supreme Court's cause-and-prejudice analysis of Cooper's Brady claim was, in essence, a decision on the merits of the claim itself. Cooper, 641 F.3d at 332-33. Accordingly, Cooper would be entitled to relief on the claim only if the state court's decision is not worthy of deference under § 2254(d).
The Nevada Supreme Court concluded "that substantial evidence supports a finding that the investigators did not act improperly and therefore that the state did not withhold evidence in violation of Brady." ECF No. 65-9, p. 18. In support of this finding, the court noted that Wells's account of the investigators pressuring him and promising him money in exchange for fabricated testimony was unconvincing and that "it appears that Wells was simply paid witness fees for his trial appearance and pretrial meetings with investigators." Id, p. 16-17. Having reviewed the record herein, this court agrees.
Wells's testimony at the 2004 evidentiary hearing was confused, ambiguous, and internally inconsistent. As just one example and as mentioned by the Nevada Supreme Court, Wells initially testified that it was during his testimony at trial that the illicit pressuring occurred — more specifically, Wells implausibly claimed that proceedings were halted as he was testifying from a diagram at trial, whereupon the "detectives" took him out into the hallway to coach him before he resumed his testimony. ECF No. 62-5, pp. 16-17, 25-29, 31-32. After the deputy district attorney asked him to pinpoint in the trial transcript where that occurred and defense counsel asked him some leading questions, Wells modified his account to indicate that it was during a practice session that this occurred.
This court also assigns little weight to Wells's 1997 declaration, which is notably lacking in specific details about the events surrounding the purported coaching of his trial testimony.
The Nevada Supreme Court's determination that the state did not improperly withhold evidence in violation of Brady (or, by implication, knowingly present false testimony in violation of Napue) is objectively reasonable and, therefore, entitled to deference under § 2254(d). Moreover, for the reasons above, this court reaches the same conclusion based on its de novo review of the record. Even if Wells's testimony at trial was inaccurate, there is no Brady or Napue violation if the state did not withhold exculpatory evidence or have reason to know that Wells was providing false testimony.
Cooper argues that the Nevada Supreme Court determined that he had made a showing of good cause with respect to his Brady claim and, in so doing, concluded that he had satisfied the first two elements of his Brady claim. This argument is based, however, on a misreading of the Nevada Supreme Court's opinion. In the briefs he filed with the Nevada Supreme Court, Cooper advanced two distinct grounds for finding good cause and prejudice to excuse his defaults: 1) the state's suppression of "Brady/Giglio/Napue" information
Because it concluded that the state did not improperly withhold evidence in the first place, the Nevada Supreme Court did not specifically address whether the non-disclosed evidence was material. Instead, the court's prejudice analysis focused primarily on the ground for which it found good cause — i.e., Wells's recantation. In that regard, the court found insufficient prejudice because the recantation was "not consistent, clear, or complete" and Wells did not recant an important aspect of his testimony, i.e., that he "saw an altercation between Cooper and Williams some time before the shooting," which indicated that "Cooper had a motive to shoot Williams." ECF No. 65-9, p. 16. The court then further concluded that, even if Wells's belated claim about not seeing the shooter was accurate, the jury would have still convicted Cooper without Wells's identification because Wells's account of the shooting at trial conflicted with the "bulk of the evidence" anyway and there was ample other evidence that Cooper was the shooter. Id., p. 17.
In light of the foregoing, Cooper misses the mark with his arguments claiming that the Nevada Supreme Court did not apply the correct materiality standards under Brady and Napue. The Nevada Supreme Court correctly noted that the materiality inquiry under Brady asks whether "a reasonable probability exists that the result would have been different" had the evidence been disclosed. Id., p. 15. See United States v. Bagley, 473 U.S. 667, 682 (1985) (citing the same standard). And, while the Nevada Supreme Court was ostensibly applying only Brady, not Napue, the court held that, for state law reasons, a relaxed materiality standard applied to Cooper's claim. That is, the Nevada Supreme Court cited the relevant inquiry as whether "there is a reasonable possibility of a different result had there been disclosure," which is essentially the same as, and certainly no stricter than, the standard applied in cases of Napue error. Id., p. 15 (emphasis added). See United States v. Agurs, 427 U.S. 97, 103 (1976) (noting that a Napue violation is material when there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury). As such, it would not have been "contrary to" clearly established Supreme Court law for the purposes § 2254(d)(1) if the Nevada Supreme Court applied this standard. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that state court is not required to cite Supreme Court cases, or even be aware of them, to avoid its decision being "contrary to" Supreme Court precedent). As explained, however, the Nevada Supreme Court concluded that Cooper had not shown that the state improperly withheld evidence to begin with, so neither materiality standard was satisfied.
Cooper also argues that the Nevada Supreme Court "misapprehended Wells's testimony with respect to his recantation and has overlooked and minimized the impact that Wells's testimony had on the jury." ECF No. 147, p. 66. As to the former, Cooper contends that Wells's recantation "satisfied the criteria of reliability." Id., p. 68. For the reasons set forth above, however, this court agrees with the Nevada Supreme Court's characterization of Wells's recantation as being "not consistent, clear, or complete."
The Nevada Supreme Court's assessment of the impact of Wells's trial testimony is also objectively reasonable. Cooper is correct that the police statements, preliminary hearing testimony, and trial testimony of various witnesses to the shooting are rife with inconsistencies. However, as to the focal point of Wells's recantation (i.e., his identification of Cooper as the shooter), all of those sources taken together lead to the inescapable conclusion that Cooper fired the shots that killed Williams and injured Norman. Thus, Wells's testimony on that point added very little to the State's case against Cooper. As for witnessing an altercation between Cooper and Williams prior to the shooting, there is no evidence that Wells recanted that aspect of his testimony and, in fact, he confirmed it during his September 2001 interview with the district attorney investigator and in his testimony at the 2004 evidentiary hearing. ECF No. 62-4, p. 67; ECF No. 62-5 100, pp. 15, 25. And, the record before this court contains no discernible reason for Wells to have fabricated that portion of his testimony.
Lastly, Cooper argues that, irrespective of whether the money paid to Wells was a legitimate witness fee, the Nevada Supreme Court "disregarded the uncontradicted evidence that Wells believed that he was being offered `money' in exchange for his testimony against Cooper." ECF No. 147, p, 72. According to Cooper, the Nevada Supreme Court's failure to conclude that this "undisclosed financial reward for [Wells's] testimony" was Brady material constituted an unreasonable application of Supreme Court precedent and an unreasonable determination of the facts. Id., p. 75.
This argument is untenable to the extent that it suggests that the prosecutor was obligated to disclose to the defense Wells's perception of the payment he was to receive for his testimony. Cooper has not shown that the manner or amount that Wells was paid differed appreciably from the way other witnesses were compensated. NRS § 50.225 provides that each witness "attending the courts of this State in any criminal case, . . . in obedience to a subpoena, . . . is entitled . . . [t]o be paid a fee of $25 for each day's attendance." Moreover, Cooper concedes that the district attorney in this case had a "long-standing practice of witness fee payments for pretrial conferences." ECF No. 147, p. 74. Accordingly, the Nevada Supreme Court's conclusion that payment of the fee was not Brady material was not unreasonable. See United States v. Wicker, 933 F.2d 284, 293 (5th Cir. 1991) (holding that government's failure to disclose witness fees did not constitute a Brady violation where the procedure for paying of witness fees was public information and defense made no specific request for witness fee information).
For the foregoing reasons, Ground 2 does not entitle Cooper to habeas relief.
In Ground 7A(3), Cooper alleges that he received ineffective assistance of counsel, in violation of his constitutional rights, because his trial counsel failed to object to prosecutorial misconduct, specifically, improper vouching and commentary regarding Wells's credibility.
ECF No. 53-11, p. 40.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.
As indicated in the excerpt above from its decision in Cooper's first post-conviction proceeding, the Nevada Supreme Court concluded that the remark at issue was an appropriate comment on the evidence (i.e., "evidence showing that at least one witness had been warned not to testify") and, as such, counsel did no perform ineffectively in failing to object. Cooper argues that the Nevada Supreme Court unreasonably applied the Strickland standard by not finding that the comments went beyond the bounds of proper comment and constituted improper vouching. He further argues that the Nevada Supreme Court's failure to hold an evidentiary hearing resulted in a the court improperly "supply[ing] a tactical reason for an attorney's actions in order to deny an ineffective assistance of counsel claim." ECF No. 147, p. 83.
These arguments notwithstanding, the Nevada Supreme Court's decision is nonetheless entitled to deference under § 2254(d). Vouching occurs when the prosecution places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony. United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 2005); United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Vouching is "especially problematic in cases where the credibility of the witnesses is crucial." United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991). However, "prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence. . . ." Necoechea, 986 F.2d at 1276.
Here, whether or not the comments at issue constituted improper vouching is subject to reasonable debate. On the one hand, the focus of the comments was Wells's courage, not his veracity. And, as the Nevada Supreme Court noted, the assertion that it took courage for Wells to testify was a reasonable inference that could be drawn from evidence that at least one person had been warned not to testify. On the other hand, by referring to Wells as a "hero," the prosecutor was implicitly suggesting that he must be telling the truth. And, the prosecutor's claim that "[n]obody . . . sent him down here" is arguably a reference to extrinsic information that supported Wells's testimony.
"Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the `wide range' of permissible professional legal conduct." Necoechea, 986 F.2d at 1281 (citing Strickland, 466 U.S. at 689). And, even if Cooper's counsel did not consciously withhold an objection as a matter of strategy, the egregiousness of the comment must be taken into consideration in determining whether his failure to object fell below constitutional standards. See Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (pointing that even inadvertent omissions are not necessarily grounds for relief because "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight"). Viewed in terms most favorable to Cooper, the prosecutor's comments about Wells's testimony only marginally exceeded the bounds of proper comment and constituted, at most, a borderline case of improper vouching. As such, the Nevada Supreme Court's rejection of Cooper's ineffective assistance of counsel claim was not objectively unreasonable.
In Ground 8(3), Cooper alleges that he received ineffective assistance of appellate counsel, in violation of his constitutional rights, because his appellate counsel failed to raise an issue premised on the prosecutorial vouching discussed above. The Nevada Supreme Court denied this claim, concluding that Cooper had "failed to specifically identify and persuasively argue the existence of prosecutorial misconduct." ECF No. 57, p. 7. The court also concluded that "no prejudice flowing from such alleged misconduct has been shown which would overcome the overwhelming evidence of guilt presented at trial," so "any error would nevertheless be harmless." Id.
To obtain habeas relief based on a prosecutor's remarks, a petitioner must demonstrate that the remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Davis v. Woodford, 384 F.3d 628, 644 (9th Cir.2004) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). In addition, "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985). The Nevada Supreme Court uses the same standards in considering whether prosecutorial misconduct warrants reversal on direct appeal. Evans v. State, 926 P.2d 265, 286 (Nev. 1996). Accordingly, comments that are harmless beyond a reasonable doubt do not warrant reversal. Witherow v. State, 765 P.2d 1153, 1155 (Nev. 1988).
For reasons discussed above in relation to Ground 7A(3), the comments fell well short of rendering the trial so unfair that it deprived Cooper of due process. In fact, it is arguable that they did not impose any unfairness at all. In addition, the reviewing court must consider whether improper argument was mitigated by jury instructions. See United States v. Lopez-Alvarez, 970 F.2d 583, 597-98 (9th Cir. 1992) (dismissing prosecutorial misconduct charge because the jury was instructed that "the lawyers' statements are not evidence," and this was sufficient to neutralize any prejudice). At Cooper's trial, the court issued several instructions informing the jury that guilt or innocence was to be determined by the evidence presented, not argument. ECF No. 54 (Jury Instruction Nos. 1, 27, 28, and 35).
When considered in context, the prosecutor's comments were sufficiently harmless that the appellate counsel's failure to raise them as an issue on appeal did not amount to ineffective assistance of counsel. Alternatively, there is not a reasonable probability that the outcome of Cooper's direct appeal would have been more favorable if appellate counsel had raised the issue. Thus, Cooper is not entitled to relief based on Ground 8(3).
In Ground 8(5), Cooper alleges that he received ineffective assistance of appellate counsel, in violation of his constitutional rights, because his appellate counsel failed to raise an issue premised on the trial court's improper questioning and attempts to rehabilitate Wells. At the conclusion of Wells's testimony at trial, the trial court asked Wells: "Are you a religious young man?" and "Do you believe in God?" ECF No. 53-9, p. 3. The trial court then inquired whether Wells's failure to come forward earlier was because he was afraid. Id. Then, the following colloquy occurred:.
Id., p. 4-5.
After the side bar, the trial court asked Wells a series of questions regarding the identification of the vehicle involved in the shooting. Id. The trial court then pointed out that it had conducted its inquiry of Wells pursuant to NRS 50.145, after which, defense counsel noted his "objection for the record." Id.
In his first state post-conviction proceeding, Cooper argued that appellate counsel was ineffective because counsel did not argue that the trial court's inquiry into Wells's religious belief was "highly improper" and that the trial court "bolstered the State's case with the testimony from this witness." ECF No. 56-8, p. 33-34. The Nevada Supreme Court concluded that NRS 50.105,
Respondents argue that Cooper is not entitled to habeas relief because no United States Supreme Court case has ever held that a judge is not permitted to question a witness in the manner that the trial court questioned Wells. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (concluding that, because of the lack Supreme Court holdings supporting the petitioner's claim, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law'"). As Cooper points out, however, Ground 8(5) is an ineffective assistance of appellate counsel claim, not a substantive judicial interference claim.
Even so, Cooper does not cite any controlling authority on point that shows that an appellate argument based on the trial court's questioning of Wells had a reasonable chance of prevailing on direct appeal in the Nevada Supreme Court.
Though the court was conducting habeas review, it noted that on direct appeal "`the standard for reversing a verdict because of general judicial misconduct during trial is rather stringent'" and that, "[t]o sustain a claim of this kind, there must be an `extremely high level of interference' by the trial judge which creates `a pervasive climate of partiality and unfairness.'" Id. at 740 (quoted citations omitted). The trial court's questioning of Wells in this case does not approximate the type of misconduct that would provide grounds for reversal. Thus, Cooper's appellate counsel was not ineffective in failing to raise a judicial misconduct claim.
Ground 8(5) is denied.
For the reasons set forth above, Cooper's petition for habeas relief is denied.
This is a final order adverse to the petitioner. As such, Rule 11 of the Rules Governing Section 2254 Cases requires this court to issue or deny a certificate of appealability (COA). Accordingly, the court has sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id.
The COA standard is not high. Cooper must only "`sho[w] that reasonable jurists could debate'" the district court's resolution or that the issues are "`adequate to deserve encouragement to proceed further.'" Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc) (citations omitted). Having reviewed its determinations and rulings in adjudicating Cooper's petition, the court declines to issue a certificate of appealability for its resolution of any procedural issues or any of Cooper's habeas claims.
