ORDER

LARRY R. HICKS, District Judge.

I. INTRODUCTION

This case is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Shaquille Hazelwood, a Nevada prisoner. This case is before the Court for adjudication of the merits of Hazelwood's remaining claims. The Court will deny Hazelwood's habeas petition, will deny him a certificate of appealability, and will direct the Clerk of the Court to enter judgment accordingly.

II. BACKGROUND

At approximately 6:00 a.m. on April 22, 2007, the victim, Cheryl Black, drove to an alleyway in Las Vegas, Nevada, which was known for being a drug and crime area, to purchase some drugs. ECF No. 20-5 at 69-70, 76-77; ECF No. 21-2 at 107. While still in the driver's seat of her vehicle, the victim purchased drugs from Hazelwood through the passenger-side window. ECF No. 20-5 at 86-87. Following the transaction and deciding that she wished to make another purchase, the victim retrieved her money and started counting it. Id. at 87. Hazelwood, upon noticing the large sum of money, ran from the passenger side of the vehicle to the driver's side of the vehicle, pulled out a gun, and pointed the gun at the victim through the open window. Id. at 87-88. Hazelwood demanded that the victim give him her money, and when she refused and attempted to drive away, Hazelwood shot the victim in her head. Id. at 88-89.

Following a jury trial in Nevada's Eighth Judicial District Court, Hazelwood was convicted of first-degree murder with the use of a deadly weapon and attempted robbery with the use of a deadly weapon. ECF No. 21-7 at 2. Hazelwood was sentenced to 20 years to life for the first-degree murder conviction plus an equal and consecutive term of 20 years to life for the deadly weapon enhancement and 24 to 60 months for the attempted robbery conviction plus an equal and consecutive term of 24 to 60 months for the deadly weapon enhancement. Id. at 3. The Nevada Supreme Court affirmed Hazelwood's convictions. ECF No. 22-4.

Hazelwood filed a state petition for a writ of habeas corpus. ECF No. 22-7. Hazelwood later filed a counseled, supplemental petition. ECF No. 22-13. The state district court denied Hazelwood's petition, and the Nevada Supreme Court affirmed. ECF No. 22-22; ECF No. 22-28.

Hazelwood dispatched his federal habeas petition on or about December 16, 2013. ECF No. 12. Hazelwood's counseled, first-amended petition was filed on November 13, 2014. ECF No. 18. Hazelwood's first-amended petition alleges the following violations of his federal constitutional rights:

Id. The Respondents filed a motion to dismiss Hazelwood's first-amended petition. ECF No. 26. Hazelwood opposed the motion, and the Respondents filed a reply. ECF Nos. 31, 34. This Court granted the Respondents' motion in part. ECF No. 38. Specifically, this Court dismissed Ground 1(A)(1) with prejudice as procedurally defaulted. Id. at 7. The Respondents filed an answer to the remaining grounds in Hazelwood's first-amended petition on August 22, 2017. ECF No. 51. Hazelwood filed a reply on March 7, 2018. ECF No. 59.

III. STANDARD OF REVIEW

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"):

A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75 (quoting Williams, 529 U.S. at 413). "The `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

The Supreme Court has instructed that "[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, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

IV. DISCUSSION

A. Ground 1(A)(2)1

In Ground 1(A)(2), because he was only sixteen years old, Hazelwood argues that his federal constitutional rights were violated when his trial counsel failed to move for the appointment of a guardian ad litem when Hazelwood sought the withdrawal of his guilty plea. ECF No. 18 at 12. Hazelwood explains that he was prejudiced by this deficiency because if his trial counsel had moved for this appointment, that motion would have been granted, and he would have not withdrawn his guilty plea and received a stricter sentence. Id. at 13-14. Hazelwood elaborates that aside from his trial counsel, he had no responsible adult providing guidance in his life, he suffered abuse at home, he had documented mental health issues, and he was immature and unable to process and make complex legal decisions. Id. at 12-13. Hazelwood contends that while there is no statute in Nevada specifically providing for the appointment of a guardian ad litem in a criminal case, there is also no statute in Nevada specifically precluding the appointment of a guardian ad litem in a criminal case. ECF No. 59 at 11.

In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

ECF No. 22-28 at 3-4.

Hazelwood was charged with murder with the use of a deadly weapon and robbery with the use of a deadly weapon. ECF No. 19-4. Hazelwood, who was sixteen years old, pleaded not guilty at his initial arraignment on August 22, 2007. ECF No. 19-5. During a calendar call hearing on October 24, 2007, Hazelwood's trial counsel informed the state district court that the State had made a reasonable offer to Hazelwood. ECF No. 19-6 at 3. The state district court continued the previously-set trial date to allow Hazelwood's trial counsel time to explain the offer to Hazelwood. Id. at 4. On December 13, 2007, Hazelwood sought a hearing for the purpose of changing his plea. ECF No. 19-7. The change of plea hearing was held on December 19, 2007. ECF No. 19-9. Hazelwood's trial counsel informed the state district court that the case had been negotiated, but Hazelwood had since decided to proceed to trial. Id.

At the calendar call hearing on March 5, 2008, Hazelwood's trial counsel informed the state district court that the case had been negotiated. ECF No. 19-12. An amended information was filed during the hearing charging Hazelwood with voluntary manslaughter with the use of a deadly weapon and robbery with the use of a deadly weapon. ECF No. 19-11. The state district court canvassed Hazelwood and accepted his guilty plea. ECF No. 19-12 at 4-8; see also ECF No. 19-10 (executed guilty plea agreement).

At his sentencing hearing on July 2, 2008, Hazelwood's trial counsel informed the state district court that Hazelwood wished to withdraw his plea because the guilty plea agreement indicated that he was eligible for probation on both charges when that was not true. ECF No. 37-1 at 4-5; see also ECF No. 21-6 (statement by Hazelwood's trial counsel during his later sentencing on June 24, 2009, that "it appears to counsel that part of what caused this young man, this minor child, to back out of negotiations was somehow or another to punish his mother"). The state district court indicated that there was "an incorrect statement at line 21 and 23 on page 2 of the guilty plea agreement." ECF No. 37-1 at 6. The state district court then appointed attorney James Ruggeroli "for the special and limited purpose of consulting with [Hazelwood] and reviewing the file" to "mak[e] a determination if [he], in [his] best legal judgment, believes there is a basis for [Hazelwood] to file a motion to withdraw his plea." Id. at 10. The state district court explained to Hazelwood that it was appointing Mr. Ruggeroli "[b]ecause there might be a conflict between the special public defender's office and [Hazelwood] in evaluating whether they did the best job for you in explaining the guilty plea agreement." Id. at 11.

Mr. Ruggeroli filed a motion to withdraw Hazelwood's guilty plea on September 26, 2008. ECF No. 19-19. A hearing was held on the motion on October 1, 2008. ECF No. 19-20. At the hearing, the State indicated that it was "not opposing the motion" and was "look[ing] forward to taking this case to trial" because "[i]n hindsight . . . it was a mistake to offer him a deal anyway." Id. at 4. The state district court granted the motion, reinstated the original information, and clarified with Hazelwood whether he "still want[ed] to go forward and withdraw [his] guilty plea" since he was "facing life without the possibility of parole if [he was] found guilty." Id. at 5. Hazelwood confirmed that he wanted to withdraw his guilty plea. Id. The state district court reappointed the special public defender's office and discharged Mr. Ruggeroli. Id. at 6.

In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the 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." 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, the errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

Where a state district court previously adjudicated the claim of ineffective assistance of counsel, under Strickland, establishing that the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United States Supreme Court instructed:

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) ("When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as `doubly deferential.'").

In analyzing a claim of ineffective assistance of counsel under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.

Hazelwood asserts that his trial counsel was ineffective under Strickland because she did not move for the appointment of a guardian ad litem. Nevada law provides generally that "[a]ny court of competent jurisdiction may appoint . . . [g]uardians ad litem." Nev. Rev. Stat. § 159A.0487(4). However, while Nevada law allows for the appointment of a guardian ad litem in a civil context, there is no statutory provision governing the appointment of a guardian ad litem in the criminal context. Cf. Nev. R. Civ. P. 17(c)(2) ("The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incapacitated person who is not represented in an action."); Nev. Rev. Stat. § 65.010 (indicating that a guardian ad litem is appointed for an infant or insane or incapacitated person). Therefore, while it would not have been amiss to move for the appointment of a guardian ad litem, there was no obligation or provision that demanded that Hazelwood's trial counsel do so in this criminal context.

This Court acknowledges that Hazelwood had a troubled background and social history, see ECF No. 19-17 (Hazelwood's trial counsel's sentencing memorandum highlighting Hazelwood's worrisome upbringing), and that "children are constitutionally different from adults for purposes of sentencing," Miller v. Alabama, 567 U.S. 460, 471 (2012) (explaining that "children have a lack of maturity and an underdeveloped sense of responsibility, . . . children are more vulnerable . . . to negative influences and outside pressures, . . . [and children] have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings") (internal quotation marks and citations omitted), as was pointed out by Hazelwood. Nonetheless, this does not change the fact that there was no requirement for Hazelwood's trial counsel to move for the appointment of a guardian ad litem. Accordingly, it cannot be determined that Hazelwood's trial counsel's actions "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.

Moreover, it is worth noting that the state district court appointed Mr. Ruggeroli "for the special and limited purpose of consulting with [Hazelwood] and reviewing the file" to "mak[e] a determination if [he], in [his] best legal judgment, believe[d] there [was] a basis for [Hazelwood] to file a motion to withdraw his plea." ECF No. 37-1 at 10. While he was not appointed as a guardian ad litem, Mr. Ruggeroli's role in consulting with Hazelwood for the precise purpose of determining whether Hazelwood should continue to move to withdraw his plea was similar to the role that a guardian ad litem would have played. However, Hazelwood, with the assistance of Mr. Ruggeroli, still decided to move to withdraw his plea. See ECF No. 19-19; ECF No. 19-20 at 5. Therefore, it is mere speculation that Hazelwood would have decided to preserve his guilty plea even if a guardian ad litem had been appointed. See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) ("Strickland prejudice is not established by mere speculation.").

Thus, the Nevada Supreme Court's ruling that "Hazelwood fails to demonstrate that an objectively reasonable attorney in trial counsel's place would have requested such an appointment," ECF No. 22-28 at 3, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 1(A)(2).

B. Ground 1(B)

In Ground 1(B), Hazelwood argues that his federal constitutional rights were violated when his trial counsel failed to move to suppress a witness's identification of him. ECF No. 18 at 14. Hazelwood explains that Claire Daniels identified him through an unreliable, single photographic lineup; that Daniels was a long-term drug addict; and that Daniels was inconsistent in her testimony regarding how long she knew him. Id. at 14-15. The Respondents argue that Daniels' identification of Hazelwood was not impermissibly suggestive because she knew Hazelwood before the shooting. ECF No. 51 at 10.

In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

ECF No. 22-28 at 4-5.

Daniels testified that she lived in a home near the alleyway where the shooting took place. ECF No. 20-5 at 3, 6. On April 22, 2007, Daniels was walking through the alley "to see a church member," when she saw the victim, who looked familiar. Id. at 7, 15. Daniels explained that Hazelwood was at the victim's car, and "[a]s [she] approached the car, . . . [Hazelwood] looked at [her], and [she] looked at him." Id. at 64-65. Daniels was speaking to the victim through the driver-side window and asked if she could have "a hit" of the drugs that the victim had just purchased from Hazelwood. Id. at 17, 20-21. Hazelwood saw the victim's money through the passenger-side window, ran around the front of the vehicle, pulled a gun out from his waist, and pointed the gun at the victim. Id. at 22-23. Daniels heard Hazelwood tell the victim to give him the money and heard the victim's passenger, Aaron Noble, tell the victim to leave. Id. at 25-26. Daniels then saw Hazelwood shoot the victim in her head. Id. at 26.

Daniels testified that she knew "Hazelwood from hanging around in the alley." Id. at 12. During direct examination, she explained that she knew Hazelwood for "five, five to ten years or more." Id. at 13. However, during cross examination, Daniels clarified that she met Hazelwood when he was "teenage age," which calculated to only knowing him for much less time. Id. at 57-58.

Daniels explained that Detective Clint Ryan came to talk to her "a week and [a] half to two weeks after" the shooting. Id. at 30-31. The State asked Daniels about that interview:

Id. at 31-33.

During the preliminary hearing, Daniels answered "I think he is" when asked if the person who shot Cheryl Black was in the courtroom. Id. at 62-63. During the trial, Daniels explained this statement: "I do wear glasses, okay, and . . . I was sitting there and like was — he's somewhat dark complected [sic], and he had on blue. And I had to focus for a minute. I said, I think he is. But then, yes, it was him." Id. at 66. Daniels testified at the trial that there was no "doubt in [her] mind" that Hazelwood was "the man that shot Cheryl Black in that alley." Id. at 36.

Detective Ryan testified that on April 25, 2007, a search warrant was executed by Officer Arnona at Shalmane Owens' apartment, which was near the alleyway where the victim was killed, for drugs. ECF No. 21-2 at 106-07, 112, 116. During that search, Officer Arnona recovered a Glock .40 caliber semiautomatic handgun. Id. at 117. Owens told Officer Arnona that the gun belonged to Hazelwood, who resided with Owens. Id. Based on this information, Hazelwood became a suspect in the investigation. Id. at 121.

Detective Ryan conducted an interview with Daniels on April 27, 2007. Id. at 121. Detective Ryan testified about that interview:

Id. at 122-23. Detective Ryan also explained that the photograph of Hazelwood presented to Daniels was two to three years old, meaning that Hazelwood was thirteen or fourteen years old at the time the photograph was taken. Id. at 130.

"To constitute a due process violation, the photographic identification procedure must be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Denham v. Deeds, 954 F.2d 1501, 1504 (9th Cir. 1992); see also Simmons v. United States, 390 U.S. 377, 384 (1968) (holding that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"). The court engages in a two-step inquiry when determining whether a pretrial identification procedure violates a suspect's due-process rights. United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). "First, it must be determined whether the procedures used were impermissibly suggestive. If so, it must then be determined whether the identification was nonetheless reliable." Id. In determining the likelihood of misidentification, the following factors are considered:

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Turning first to the question of whether the procedures used were impermissibly suggestive, Daniels was shown the photograph of only one individual: Hazelwood. ECF No. 21-2 at 123. And "identifications arising from single-photograph displays may be viewed in general with suspicion." Mason v. Brathwaite, 432 U.S. 98, 116 (1977) (explaining that "it would have been better had [the officer] presented [the witness] with a photographic array including `so far as practicable . . . a reasonable number of persons similar to any person then suspected whose likeness is included in the array'"). However, Daniels testified that she knew the name of the shooter before the photograph was shown, that she told Detective Ryan the name of the shooter before the photograph was shown, and that the photograph was only shown to confirm that the shooter was Hazelwood. See ECF No. 20-5 at 31. Accordingly, because Daniels was able to identify the shooter without the need to select him from an array of individuals in a photographic lineup and because the single photograph of Hazelwood was only used to confirm Daniels' identification of Hazelwood, it cannot be concluded that the procedures used were impermissibly suggestive. See Love, 746 F.2d at 478.

However, even if the procedures used were impermissibly suggestive, assessment of the Biggers factors as a whole confirm that Daniels' identification of Hazelwood was reliable. First, Daniels had an adequate opportunity to view the shooter at the time of the crime: Daniels testified that "[a]s [she] approached the car, . . . [Hazelwood] looked at [her], and [she] looked at him." ECF No. 20-5 at 64-65. Second, Daniels' degree of attention appears to be somewhat lacking. Although Daniels testified that she knew "Hazelwood from hanging around in the alley," she initially stated that she had known Hazelwood for up to ten years but then later altered that to only knowing him for a few years. Id. at 12-13, 57-58. Also, Daniels admitted to smoking crack cocaine the night before the shooting, which may have impaired her degree of attention. See id. at 37. Third, Daniels was able to describe the shooter—Hazelwood—with what appears to be sufficient accuracy prior to being shown his photograph. See id. at 33 (describing Hazelwood as being "brown skinned, not like (unintelligible) cut, but close-cut hair, it's kinda like — I'd say like a little short natural, and that he was like not tall, but not short, a little stocky like"); see also ECF No. 21-2 at 129 (testimony of Detective Ryan that Hazelwood was 5'6" or 5'7" when he was arrested). Fourth, Daniel's level of certainty at the confrontation was fairly strong. Detective Ryan testified that Daniels "gasped" when she saw Hazelwood's photograph. ECF No. 21-2 at 123. He also explained that "[s]he just kind of took a deep breath in and said, That's him." Id. Fifth, the length of time between the shooting and the confrontation is a little attenuated, but not overly so. The shooting happened on April 22, 2007, see ECF No. 20-5 at 14, and Daniels' interview with Detective Ryan, in which she was shown the photograph of Hazelwood, was conducted five days later on April 27, 2007. ECF No. 21-2 at 121.

Although Daniels' degree of attention may have been lacking, after assessing the totality of the circumstances, it cannot be concluded that Daniels' identification violated Hazelwood's right to due process. See Manson, 432 U.S. at 116 ("Surely, we cannot say that under all the circumstances of this case there is `a very substantial likelihood of irreparable misidentification.'" (citation omitted)). Because Daniels' identification of Hazelwood did not violate his right to due process, his trial counsel's "representation [did not] f[a]ll below an objective standard of reasonableness" in not filing a motion to suppress Daniels' identification, as such a motion would not have been meritorious. Strickland, 466 U.S. at 688; see also Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) ("[P]etitioner must show that (1) the overlooked motion to suppress would have been meritorious and (2) there is a reasonable probability that the jury would have reached a different verdict absent the introduction of the unlawful evidence." (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). Therefore, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 1(B).

C. Ground 1(C)

In Ground 1(C), Hazelwood argues that his federal constitutional rights were violated when his trial counsel disclosed his juvenile criminal record and detention to the jury. ECF No. 18 at 16. Hazelwood elaborates that it was an unreasonable strategy for his trial counsel to have elicited this evidence because it diluted the presumption of innocence. Id. In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

ECF No. 22-28 at 5-6.

Hazelwood points to three alleged deficiencies committed by his trial counsel. First, during opening statements, Hazelwood's trial counsel explained that "[t]he evidence in this case will show that Shaquille Hazelwood probably was, in all likelihood, in that alley, probably, in all likelihood, selling drugs, along with many other people, many other people." ECF No. 20-4 at 25, 27. Second, also during opening statements, Hazelwood's trial counsel explained that:

Id. at 31-32; see also ECF No. 20-5 at 102 (noting a lack of objection by Hazelwood's trial counsel when the State asked Noble during direct examination if he was "ever housed in the same module as the defendant" at the Clark County Detention Center).

Third, during Hazelwood's trial counsel's cross-examination of Detective Ryan, Hazelwood's trial counsel asked if he "contact[ed] Spring Mountain Youth Camp regarding Mr. Hazelwood." ECF No. 21-2 at 106-07, 136. After Detective Ryan answered in the affirmative, Hazelwood's trial counsel then asked "what [his] purpose [was] in contacting Spring Mountain Youth Camp." Id. at 136. A bench conference was held at the request of the State. Id. Thereafter, Hazelwood's trial counsel moved on with her questioning. See id. Later, outside the presence of the jury, the state district court brought up the bench conference and explained "[w]e came up to the bench because there was a concern expressed. I was told it wasn't an issue by the defendant. They were merely doing it for the source of the photograph. We all said, Are [sic] you really sure, and we went on about our business." Id. at 151. Hazelwood's trial counsel then explained the reasoning behind her question about the Spring Mountain Youth Camp:

Id. Hazelwood's trial counsel then answered in the affirmative when the state district court clarified, "so this is a strategic decision on the part of the defense?" Id.

Turning first to Hazelwood's trial counsel's statement that Hazelwood was likely selling drugs in the alleyway, ECF No. 20-4 at 27, it cannot be determined that this comment "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The State had already told the jury that Hazelwood was selling drugs. See ECF No. 20-4 at 17 (opening statement of the State commenting that "Hazelwood was selling rock cocaine in the alley and Cheryl — I'm sorry, Claire brought him over to the vehicle to sell the drugs to Cheryl"). And due to the circumstances that brought the victim to the alleyway in the early morning hours of April 22, 2007, it was reasonable for Hazelwood's trial counsel to have assumed that testimony showing that Hazelwood was selling drugs would be presented. Therefore, it was sound trial strategy for Hazelwood's trial counsel to have been forthright in conceding that fact in order to gain integrity with the jury. See Yarborough v. Gentry, 540 U.S. 1, 9 (2003) (rejecting argument that defense counsel was ineffective for referring to his client as a "`bad person, lousy addict, stinking thief, jail bird'" since "[b]y candidly acknowledging his client's shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case"); see also Fairbanks v. Ayers, 650 F.3d 1243, 1255 (9th Cir. 2011) ("Even though at times trial counsel did not paint [the defendant] in the most sympathetic light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in a useless charade." (internal quotation marks and citation omitted)).

Turning next to Hazelwood's trial counsel's comment that Hazelwood and Noble shared a cell at the jail, see ECF No. 20-4 at 31-32, see also ECF No. 20-5 at 102 (noting Hazelwood's trial counsel's lack of an objection when the State asked Noble about being housed in the same jail as Hazelwood), it also cannot be determined that this comment "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. One of Hazelwood's defenses was that he was wrongly identified. See ECF No. 20-4 at 27 (argument of Hazelwood's trial counsel that "the evidence in this case will show you that what's even more tragic is that the evidence does not provide enough information for you to discern who did it. It just isn't enough") at 31 ("[Noble's] description given at the interview that is immediately following the shooting does not square with the appearance of Shaquille Hazelwood."). Hazelwood's trial counsel's emphasis on the fact that Noble did not recognize Hazelwood even though they shared a jail cell for a week aids this defense.

Finally, Hazelwood's trial counsel asked Detective Ryan why he contacted Spring Mountain Youth Camp, ECF No. 21-2 at 136; however, before he could answer, there was a bench conference. Although Hazelwood's trial counsel later explained that she was planning to inquire about the Spring Mountain Youth Camp due to her belief that the jury would not be surprised to learn that Hazelwood had juvenile delinquency issues, see id. at 151, there does not appear to have been any reason to go into Hazelwood's connection with the Spring Mountain Youth Camp. Indeed, the basis for asking Detective Ryan why he contacted the camp was to demonstrate only where he obtained a photograph of Hazelwood. See id. However, even though Hazelwood's trial counsel's purpose for inquiring into the camp seems extraneous, it cannot be concluded that her questioning of Detective Ryan in this regard "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. See Harrington, 562 U.S. at 107 (2011) ("Counsel was entitled to formulate a strategy that was reasonable at the time."); see also Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight."). Moreover, there was no discussion regarding the fact that the Spring Mountain Youth Camp was a detention center. Accordingly, even if Hazelwood's trial counsel was deficient, there was no prejudice to Hazelwood. Strickland, 466 U.S. at 694.

Therefore, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 1(C).

D. Ground 1(D)

In Ground 1(D), Hazelwood argues that his federal constitutional rights were violated when his trial counsel failed to request an instruction on the lesser-included offense of voluntary manslaughter. ECF No. 18 at 17. Hazelwood explains that there was evidence presented at the trial demonstrating that the victim's death may have been accidental, demonstrating that he acted without malice such that a voluntary manslaughter instruction would have been appropriate. Id.

In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

ECF No. 22-28 at 6-7.

Noble, a friend of the victim, testified that the victim picked him up around 3:30 a.m. on April 22, 2007, so that they could purchase some drugs. ECF No. 20-5 at 68, 70-71. Noble explained that the victim had "around 740 bucks" with her to pay rent, but she was using some of that money to purchase drugs. Id. at 74-75. The victim bought some drugs in an alleyway from an individual, but the victim required change from the transaction. Id. at 80. While Noble and the victim were waiting for the change, their third passenger, who had exited the vehicle previously to find someone to buy drugs from, returned to the vehicle with Daniels and Hazelwood. Id. at 82-83. Daniels and the victim start conversing, Hazelwood left upon finding out that the victim had already purchased drugs from someone else, and the third passenger returned to the backseat of the vehicle. Id. at 83.

The victim then requested to buy some drugs from Daniels, who left to obtain the drugs. Id. at 84. Daniels was taking a long time to return, so the victim, Noble, and the third passenger decided to leave. Id. While the victim started to drive away, Daniels and Hazelwood appeared, so the victim stopped the car. Id. at 86. Hazelwood went to the passenger-side window, where Noble was seated, so the victim, who was driving the vehicle, handed her money to Noble who handed it to Hazelwood. Id. at 86-87. Hazelwood gave Noble the drugs, and Noble conversed with Hazelwood for a few minutes out of the passenger-side window while the victim spoke to Daniels out of the driver-side window. Id. at 87.

The victim decided to buy some more drugs from Daniels, so she retrieved her rent money and started to count it. Id. Noble told the victim to put the money away, which "brought Mr. Hazelwood's attention to the money." Id. Hazelwood then looked at Daniels, looked back at Noble, and then "just started around the car. By the time he got in front of the car he already had a gun pulled out." Id. at 88. When Hazelwood got to the driver's side of the car, he stuck "the gun in the window and said, give me that money." Id. The victim said, "I can't believe you're going to rob me after I spent my money with you, and [then she] smashed on the gas." Id. Noble then explained:

Id. at 89.

Similarly, as explained previously, Daniels testified that Hazelwood saw the victim's money through the passenger-side window, ran around the front of the vehicle, pulled a gun out from his waist, and pointed the gun at the victim. Id. at 22-23. Daniels heard Hazelwood tell the victim to give him the money and heard Noble tell the victim to leave. Id. at 25-26. Daniels then saw Hazelwood shoot the victim in her head. Id. at 26.

Judy Fassette, a firearms and tool mark examiner with the Las Vegas Metropolitan Police Department, performed an examination on the semiautomatic firearm and the ammunition used to kill the victim. ECF No. 21-2 at 28-29, 32-33, 56. Ms. Fassette testified that the both safeties were functioning on the gun. Id. at 53. The State asked Ms. Fassette "if the gun were struck against a hard object like a wall or the frame of a vehicle, the window frame of a vehicle, could it discharge accidentally that way." Id. Ms. Fassette responded in the negative and explained that "the only way to discharge this gun would be to pull the trigger. As long as both safeties are functioning, it is necessary to pull the trigger, both the trigger safety and the trigger, to the rear in order to discharge this firearm." Id. at 53-54. Ms. Fassette also explained that she "determined that it takes approximately 7 and a quarter to 7 and a half pounds of pressure . . . to discharge the firearm." Id. at 54.

The heart of Hazelwood's argument is that his trial counsel "fail[ed] to procure favorable jury instructions[, which] constituted ineffective assistance of counsel." United States v. Alferahin, 433 F.3d 1148, 1161 (9th Cir. 2006). Specifically, Hazelwood asserts that in addition to allowing the jury to determine whether he was guilty of first- or second-degree murder, see ECF No. 21-4 at 14, a lesser-included voluntary manslaughter option should have also been available. Accordingly, the issue is whether a voluntary manslaughter jury instruction was warranted by the facts of the crime and Nevada law such that Hazelwood's trial counsel was ineffective in not seeking the inclusion of such an instruction.

"Murder is the unlawful killing of a human being . . . [w]ith malice aforethought, either express or implied." Nev. Rev. Stat. § 200.010(1). Contrarily, "[m]anslaugther is the unlawful killing of a human being, without malice express or implied, and without any mixture of deliberation." Nev. Rev. Stat. § 200.040(1). "The presence of malice precludes an instruction on the crime of manslaughter." Graves v. State, 84 Nev. 262, 266, 439 P.2d 476, 478 (1968). "Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof." Nev. Rev. Stat. § 200.020(1). And malice is "implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." Nev. Rev. Stat. § 200.020(2).

An "[i]ntent to kill . . . may be ascertained or deduced from the facts and circumstances of the killing, such as use of a weapon calculated to produce death, the manner of use, and the attendant circumstances." Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409 (1977); see also Nev. Rev. Stat. § 193.200 ("Intention is manifested by the circumstances connected with the perpetration of the offense."); Sharma v. State, 118 Nev. 648, 659, 56 P.3d 868, 875 (2002) ("[A] specific intent to kill may be inferred from an external circumstance, i.e., the intentional use of a deadly weapon upon the person of another at a vital part."). Here, Noble testified that once Hazelwood noticed that the victim had a large sum of money on her person, he went around the front of the victim's car to the driver-side window where the victim was located, pulled out a gun, and demanded the victim's money. ECF No. 20-5 at 87-88. Hazelwood then fired the gun at the victim's head as she attempted to drive her vehicle away. Id. at 89. Daniels also testified that Hazelwood ran around the front of the victim's vehicle, pointed a gun at the victim, and then shot the victim in the head. Id. at 22-23, 26. Because Hazelwood pointed a gun at the victim in an attempt to rob her and then fired that weapon when she did not comply with his request to give him her money, an "[i]ntent to kill . . . may be . . . deduced." Dearman, 93 Nev. at 367, 566 P.2d at 409. Therefore, because the facts and circumstances demonstrate that Hazelwood acted with express malice, see Nev. Rev. Stat. § 200.020(1), an instruction on manslaughter was prohibited. Graves, 84 Nev. at 266, 439 P.2d at 478.

Hazelwood argues the following statement by Noble demonstrates that the killing could have been accidental: "when [Hazelwood] hit that windshield, the gun went off. Now, if he meant to kill her I don't know. I really don't think so." ECF No. 20-5 at 89. However, a firearms examiner testified that the gun would not have accidentally discharged if it "were struck against a hard object like a wall or the frame of a vehicle." ECF No. 21-2 at 53-54. Rather, she explained that "the only way to discharge this gun would be to pull the trigger." Id. at 54. Accordingly, this argument lacks merit.

Because a voluntary manslaughter jury instruction was not warranted by the facts of the crime and Nevada law, it cannot be determined that Hazelwood's trial counsel's actions in not seeking to include this jury instruction "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Therefore, the Nevada Supreme Court's ruling that "Hazelwood has failed to show that his counsel's performance was deficient," ECF No. 22-28 at 7, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 1(D).

E. Ground 2

In Ground 2, Hazelwood argues that his federal constitutional rights were violated when the state district court permitted him to withdraw his voluntary guilty plea. ECF No. 18 at 18. Hazelwood explains that although there was a typographical error in the guilty plea agreement, he did not provide any affidavit or verified statement indicating that he was, in fact, unaware that he would not receive probation and did not make any allegation that he was misled by his trial counsel. Id. at 19. Further, Hazelwood asserts that the state district court accepted his motion to withdraw his plea because the State vindictively did not oppose the motion, not because the state district court made a finding that there was a fair and just reason to permit withdrawal or that the plea was involuntary. ECF No. 59 at 27.

In Hazelwood's state direct appeal, the Nevada Supreme Court held:

ECF No. 22-4 at 4.

The federal constitutional guarantee of due process of law requires that a guilty plea be knowing, intelligent, and voluntary. See Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). "The voluntariness of [a petitioner's] plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 U.S. at 749. Addressing the "standard as to the voluntariness of guilty pleas," the Supreme Court has stated:

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957), rev'd on other grounds, 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (noting that the longstanding "test for determining the validity of guilty pleas" is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant").

As a reminder, Hazelwood changed his plea on March 5, 2008, after a successful negotiation with the State. ECF No. 19-12. Hazelwood executed a guilty plea agreement, which provided that, "[a]s to Count 2, I understand that I am eligible for probation for the offense to which I am pleading guilty. I understand that, except as otherwise provided by statute, the question of whether I receive probation is in the discretion of the sentencing judge." See ECF No. 19-10 at 3. This was a misstatement, as Hazelwood was not eligible for probation for this count, robbery with the use of a deadly weapon. See ECF No. 37-1 at 6; see also Nev. Rev. Stat. § 193.165(5)(d) ("The court shall not grant probation to or suspend the sentence of any person who is convicted of using a firearm . . . in the commission of . . . [a r]obbery."). This mistake was not corrected during the state district court's canvass of Hazelwood, as there was no discussion of the probation issue. See ECF No. 19-12 at 7. On July 2, 2008, during his sentencing hearing, Hazelwood indicated that he had "been trying to withdraw [his] plea for like the last month . . . [b]ecause the plea agreement [he] signed, it says both of the charges are probation, but both of the charges are not probation." ECF No. 37-1 at 4-5. Hazelwood confirmed that he wished to withdraw his plea on October 1, 2008, after meeting with Mr. Ruggeroli, who was appointed for the purpose of discussing with Hazelwood the withdrawal of his plea. ECF No. 19-20 at 5; see also ECF No. 19-19 at 4 (statement in the motion to withdraw guilty plea that "[t]he record in this case is completely devoid of any evidence that Mr. Hazelwood knew that pleading guilty to robbery with use of a deadly weapon . . . is not probationable").

Hazelwood's assertion that the state district court granted his motion to withdraw his guilty plea only because the State did not oppose it is belied by the foregoing facts. Indeed, as Hazelwood stated during his original sentencing hearing and Mr. Ruggeroli informed the state district court in the motion to withdraw, there was a misstatement in the guilty plea agreement regarding whether Hazelwood was eligible for probation. See ECF No. 37-1 at 4-5; ECF No. 19-19 at 4. A guilty plea is voluntary only if "entered by one fully aware of the direct consequences." Brady, 397 U.S. at 755. Because Hazelwood essentially informed the state district court that he was unaware that he was ineligible for probation for the charge of robbery with the use of a deadly weapon, the state district court could—although it did not fully articulate its reasoning—have reasonably concluded that Hazelwood's guilty plea was not voluntary, thus necessitating the granting of his motion to withdraw the guilty plea.

Hazelwood contends that the state district court should have held an evidentiary hearing to determine if he really was unaware that he was ineligible for probation for the robbery with the use of a deadly weapon charge. This is paradoxical. Hazelwood requested to withdraw his guilty plea but now he argues that the state district court should not have granted this request before testing its legitimacy. Hazelwood cannot have it both ways: it is nonsensical to argue that a request should be granted and then later argue that the request was a mistake and should not have been granted.

Therefore, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 2.

F. Ground 3

In Ground 3, Hazelwood argues that his federal constitutional rights were violated when the state district court allowed the introduction of improper victim-impact evidence. ECF No. 18 at 21. Specifically, Hazelwood asserts that the State made repeated attempts to influence the jury and appeal to its sympathies by referring to the victim as the primary caretaker of her triplet, infant grandchildren. Id. In Hazelwood's state direct appeal, the Nevada Supreme Court held:

ECF No. 22-4 at 3.

Hazelwood takes issue with two comments made during the State's opening statement, the State's direct examination of two witnesses, and two comments made during the State's closing argument. First, during its opening statement, the State commented:

ECF No. 20-4 at 14. Later, the State commented:

Id. at 18.

Next, Elijah Davis, who had previously dated the victim, testified about loaning the victim some money:

ECF No. 21 at 5-7. Hazelwood's trial counsel lodged an objection, which was overruled. Id. at 7. The State then continued:

Id. at 7-8.

Later, Howard Lewis, the victim's cousin, testified about the victim's substance abuse issues and home life:

Id. at 25, 28. Hazelwood's trial counsel lodged an objection, which was overruled. Id. at 28. The State then passed the witness. Id.

Finally, the State brought up the victim's grandchildren twice during its closing argument. The State commented:

ECF No. 21-3 at 9. Later, the State commented:

Id. at 71.

The heart of Hazelwood's argument is that evidence concerning the victim's grandchildren was irrelevant and unfairly prejudicial. See Nev. Rev. Stat. § 48.035(1) ("Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury."). However, "[a] habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005). "[C]laims deal[ing] with admission of evidence" are "issue[s] of state law." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see also Lewis v. Jeffers, 497 U.S. 764 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law."). Therefore, the issue before this Court is "whether the state proceedings satisfied due process." Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). In order for the admission of evidence to provide a basis for habeas relief, the evidence must have "rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Not only must there be "no permissible inference the jury may draw from the evidence," but also the evidence must "be of such quality as necessarily prevents a fair trial." Jammal, 926 F.2d at 920 (emphasis in original) (citation omitted).

The connection between the victim's triplet grandchildren and the money that Hazelwood attempted to rob from the victim is weak. Indeed, there is no evidence that the amount of money the victim had on her person the day she was killed was linked to her grandchildren other than by the fact that they lived with her and the money was for rent. Nonetheless, although the evidence of the victim's grandchildren was only thinly relevant to why the victim had the money, it cannot be concluded that this evidence was "of such quality as necessarily prevents a fair trial." Id.; see also Hovey v. Ayers, 458 F.3d 892, 923 (9th Cir. 2006) (explaining that "even if there are no permissible inferences the jury can draw from the evidence in question, due process is violated only if the evidence is `of such quality as necessarily prevents a fair trial'" and reasoning that "[w]e have held that admission of far more inflammatory evidence [than a young portrait and a description of the victim as a young girl] did not violate due process"). Further, "[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by `clearly established Federal law,' as laid out by the Supreme Court." Yarborough, 568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see also Dowling v. United States, 493 U.S. 342, 352 (1990) (explaining that the Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly"). And importantly, the Supreme Court "has not yet made a ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.

Therefore, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 3.

G. Ground 4

In Ground 4, Hazelwood argues that his federal constitutional rights were violated when the state district court allowed the introduction of evidence that witnesses felt threatened, despite the lack of evidence that Hazelwood threatened or caused them to be threatened. ECF No. 18 at 22. Hazelwood explains that this evidence was presented for the sole purpose of bolstering the testimony of the State's witnesses. Id. In Hazelwood's state direct appeal, the Nevada Supreme Court held:

ECF No. 22-4 at 3.2

Hazelwood takes issue with the testimony of three witnesses—Noble, Daniels, and Owens—and with the State's closing argument. First, Noble testified that he went "through three different facilities, not just modules or just different places in one jail. [He had] been to three different jails because of this — because of this case." ECF No. 20-5 at 104. Noble further explained:

Id. at 105.

Second, the State questioned Daniels about the effects of testifying in this case:

Id. at 33-35.

Third, Shalmane Owens was also questioned about the effects of testifying in this case:

ECF No. 21 at 116, 118, 142-143.

Finally, the State made several arguments during its closing about the threats:

ECF No. 21-3 at 23. The State also commented:

Id. at 25-26.

Similar to Ground 3, even if there was no relevance to the testimony that the three witnesses felt threatened by testifying, as the Nevada Supreme Court held, see ECF No. 22-4 at 3, the Supreme Court "has not yet made a clear ruling that admission of irrelevant . . . evidence constitutes a due process violation sufficient to warrant issuance of the writ." Yarborough, 568 F.3d at 1101. Therefore, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 4.

H. Ground 5

In Ground 5, Hazelwood argues that the cumulative errors of the previous grounds warrant reversal of his convictions. ECF No. 18 at 24. In Hazelwood's state direct appeal, the Nevada Supreme Court held, "Hazelwood claims that the cumulative effect of error mandates a new trial. We conclude that any error in this case, whether considered individually or cumulatively, does not warrant such relief. See Byford v. State, 116 Nev. 215, 241-42, 994 P.2d 700, 717-18 (2000)." ECF No. 22-4 at 3-4. Because Hazelwood has failed to demonstrate any errors, the Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 5.

V. CERTIFICATE OF APPEALABILITY

The standard for the issuance of a certificate of appealability requires a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).

Applying this standard, the Court finds that a certificate of appealability is unwarranted in this case. The Court will deny Hazelwood a certificate of appealability.

VI. CONCLUSION

IT IS THEREFORE ORDERED that the First Amended Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 18) is DENIED.

IT IS FURTHER ORDERED that Hazelwood is denied a certificate of appealability.

IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court is directed to substitute Jerry Howell for Howard Skolnik as the Respondent warden on the docket for this case.

IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly.