ROBERT C. JONES, District Judge.
Before the court for a decision on the merits is an application for a writ of habeas corpus filed by Anthony Prentice, a Nevada prisoner. ECF No. 32.
This case arises from the brutal killing of Daniel Miller in his Las Vegas apartment in late August or early September of 2002. The Nevada Supreme Court recounted the facts and circumstances of the crime as follows:
ECF No. 38-3, p. 2-6.
In April of 2004, Prentice was convicted, pursuant to jury verdicts, in Nevada's Eighth Judicial District Court of conspiracy to commit murder and first degree murder with use of a deadly weapon. On the latter charge he was sentenced to consecutive life sentences without the possibility of parole. In a decision rendered on June 15, 2005, the Nevada Supreme Court rejected Prentice's direct appeal.
On March 17, 2006, Prentice filed a state post-conviction petition. The state district court entered an order denying relief on March 10, 2008. On July 22, 2010, that denial was affirmed by the Nevada Supreme Court.
On November 29, 2010, this court received a pro se habeas petition from Prentice that initiated this action. The court appointed counsel for Prentice on June 14, 2011. The amended petition now before the court for decision was filed on July 23, 2013.
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) 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.
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.
Prentice's amended petition presents five separate clams premised on the legal theory that he was deprived of his constitutional right to effective assistance of counsel. Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, a petitioner must satisfy two prongs to obtain habeas relief: deficient performance and prejudice. 466 U.S. at 687. With respect to the performance prong, a petitioner must carry the burden of demonstrating that his counsel's performance was so deficient that it fell below an "objective standard of reasonableness." Id. at 688. A reviewing court "must indulge a `strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689).
With respect to the prejudice prong, the court must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent [counsel's] errors. Strickland, 466 U.S. at 696. Put another way, a habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Court in Strickland emphasized that the ultimate focus of an ineffective assistance of counsel inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. If the defendant makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Id. at 697.
Id.
In its decision adjudicating Prentice's post-conviction petition, the Nevada Supreme Court correctly identified Strickland as the clearly established federal law governing Prentice's ineffective assistance of counsel claims. ECF No. 38-5, p. 2. Thus, the question for his court is whether the Nevada Supreme Court's application of the Strickland standard was reasonable.
In Ground One, Prentice claims that his counsel were ineffective by "failing to investigate the usability of the VCR tape of the apartment complex, instead of relying on the explanation by the police that the tape was unusable." ECF No. 32, p. 8. Prentice argues that counsel, by not reviewing the tape, failed in their duty to conduct a reasonable investigation as required by Strickland. He further claims that this court has prevented him from demonstrating prejudice by denying his motion for leave to conduct discovery.
The Nevada Supreme Court decided this claim in Prentice's post-conviction proceeding as follows:
ECF No. 38-5, p. 3.
Prentice acknowledges that police officers testified at trial that the tape was unusable, but contends that their testimony is not to be believed because the same officers violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Be that it as may, he has not offered any facts that suggest the tape would provide exculpatory evidence. Accordingly, he has not established "good cause" for this court to order the production of the tape, assuming it is still available. Cf. McDaniel v. United States Dist. Ct. ("Jones"), 127 F.3d 886, 888 (9th Cir.1997) (upholding the lower court's discovery order where petitioner's claims "do not appear purely speculative or without any basis in the record).
Given the complete lack of proof that Prentice suffered any prejudice as a result of counsel's failure to review the VCR tape in question, the Nevada Supreme Court's decision to deny the claim is objectively reasonable and, therefore, entitled to deference under § 2254(d). Ground One is denied.
In Ground Two, Prentice claims that his counsel were ineffective by "failing to seek an expert witness to testify on the use of swastikas in racist groups." ECF No. 32, p. 10. At trial, the State presented testimony and made argument that the presence of a swastika carved in the victim's back inculpated Prentice because it was consistent with his admitted association with Nazi or Aryan groups. According to Prentice, an expert on white supremacists could have refuted such evidence and argument by testifying that neither the Hammerskins nor the Creativity Movement used the swastika as a symbol.
The Nevada Supreme Court decided this claim in Prentice's post-conviction proceeding as follows:
ECF No. 38-5, p. 5.
Even if Prentice is permitted to supplement the record herein, the material he has proffered (located at ECF No. 38-6 and 38-7) still fails to identify an expert willing to provide the testimony that he describes. The evidence presented at trial established that Prentice belonged to, or strongly identified with, white supremacist organizations (including some other than the Hammerskins and the Creativity Movement). In addition, Prentice admitted to the police that he had a swastika tattoo on his wrist that he had covered over. ECF no. 37, p. 27. Based on the record, the Nevada Supreme Court correctly concluded that Prentice did not suffer Strickland-type prejudice as a result of counsel's failure to retain an expert on the use of swastikas. Ground Two is denied.
In Ground Three, Prentice claims that his counsel were ineffective by "failing to seek to exclude any reference to his incarceration following his arrest for this crime." ECF No. 32, p. 13. As grounds for this claim, Prentice cites to three instances wherein the prosecutor, in questioning witnesses, mentions or refers to Prentice being in jail. Prentice argues that these references could be construed by the jury as evidnence of guilt.
The Nevada Supreme Court decided this claim in Prentice's post-conviction proceeding as follows:
ECF No. 38-5, p. 3.
Here again, Prentice has not shown that the state court's rejection of his claim was an unreasonable application of the Strickland standard. Prentice approximates the prejudicial effect of the prosecutor's passing references to that of bringing him into the courtroom in shackles. Objectively speaking, however, a shackled defendant clearly would have greater impact on the jury, and Prentice cites no reported cases in which a court has granted relief based on a claim that counsel was ineffective in failing to object to shackling. Ground Three is denied.
In Ground Four, Prentice claims that his counsel were ineffective by "failing to suppress his statement to the police because he was not read the warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)." ECF No. 32, p. 14-15. On the same day Miller was found dead in his apartment, detectives for the Las Vegas Metropolitan Police Department (LVMPD) located Prentice at an apartment in Henderson, Nevada, where his girlfriend was staying. Prentice was transported to the LVMPD's homicide offices where he agreed to a taped interview with Detective Long and Detective Ramos. Prentice was not provided with notice of his rights under Miranda prior to or during the interview.
At trial, Detective Long testified that Prentice voluntarily accompanied him to the homicide offices and readily agreed to provide information about the investigation. ECF No. 37, p. 13. He further testified that Prentice was placed in handcuffs while being transported, but only as a security measure, and that the handcuffs were removed upon arrival at the homicide office. Id., p. 15-16. In addition, Long stated that, at the time of the interview, Prentice was not a suspect and was not in custody. Id., p. 16-17.
The Nevada Supreme Court decided this claim in Prentice's post-conviction proceeding as follows:
ECF No. 38-5, p. 5-6.
Miranda warnings are required when a suspect is in custody and subjected to interrogation by the state. Miranda, 384 U.S. at 444. If a defendant has not been issued Miranda warnings and validly waived his rights, his statements made in the course of a custodial interrogation are inadmissible at trial. Id. at 479. To determine whether the defendant was in custody for the purposes of Miranda, "a court must examine all of the circumstances surrounding the interrogation, but `the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement' of the degree associated with formal arrest.'" Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983). The question is an objective one, which the Ninth Circuit Court of Appeals has characterized as whether a "reasonable innocent person in such circumstances" would conclude that he or she could refuse to answer officers' questions and leave. United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981).
In arguing that the Nevada Supreme Court's decision was an objectively unreasonable application of Strickland, Prentice contends that Detective Long's testimony at trial is contradicted by his arrest report, which indicates that Prentice had been arrested for a parole violation. See arrest report, ECF No. 38-8, p. 1-6. It appears as if the arrest report was part of the record provided to the Nevada Supreme Court prior to its decision (ECF No. 46-4. p. 53), but, in his arguments to that court, Prentice did not mention a probation violation arrest as grounds for triggering his Miranda rights (id. at 64-66). Instead, he relied upon other factors: "the location of the interview (homicide office), the manner of transport (police car in handcuffs), and the fact that the [he] was never let out of custody" after his first contact with the police. Id. Moreover, the only reference to the probation violation arrest in his brief to the Nevada Supreme Court was in his statement of facts wherein he noted that, after the interrogation, he was booked into jail for an alleged violation of probation. Id. at 53.
If the Nevada Supreme Court had denied Prentice's claim after finding that Prentice had been placed under arrest for a probation violation prior to police questioning (as Prentice now claims is the case), this court would be troubled by the state supreme court's decision. Under the circumstances, however, it was reasonable for the Nevada Supreme Court to not make such a finding. As noted, Prentice did not argue the point in his brief to the court. Moreover, Detective Long's sworn testimony at trial carries more evidentiary weight than a notation in his arrest report. And, as noted below, Prentice made comments during questioning that suggest that he had not been placed under arrest.
The question then is whether, based on the remaining circumstances, fairminded jurist could find that Prentice was not in custody. Dyer v. Hornbeck, 706 F.3d 1134, 1139 (9th Cir. 2013). In Dyer, the Ninth Circuit applied § 2254(d) to a decision by the California Court of Appeal that a defendant who had been detained in a locked squad car while detectives searched her home, then transported to a sheriff's office thirty minutes away for a four hour interview, was not in custody for Miranda purposes. Id. at 1136. The Ninth Circuit noted several factors supporting a finding that the interrogation was custodial ("its four-hour duration, the time of night at which it was conducted, the distance between the police station and Dyer's home, and the extent to which Dyer was confronted with evidence of her own guilt"), but nonetheless concluded that the state court decision was not objectively unreasonable. Id. at 1139.
In reaching this conclusion, the court relied on several cases, including Oregon v. Mathiason, 429 U.S. 492 (1977) and Beheler, in which the court held that the defendant was not in custody when he either voluntarily agreed to go to the police station, was expressly advised that he as not under arrest, or both. Id. The court also considered other factors such as the "physical surroundings of the interrogation" and the "tone of the interrogation." Id. at 1140. With respect to the former, the court noted that interrogations are not necessarily custodial simply because they take place in a station house and that "circumstances may soften the police station's inherently intimidating atmosphere." Id. (citing Beheler, 463 U.S. at 1125). As for the tone of the interrogation, the court explained that an accusatory, coercive, or threatening tone weighs in favor of a finding of custody whereas an investigatory tone does not. Id. at 1140-41.
Here, Prentice was interviewed at the homicide office for approximately ninety minutes. ECF Nos. 38-9 and 38-10. He was not in handcuffs during the interview, and, beyond the fact that the interview took place in an interview room at a police station, there is no indication in the record to suggest that the physical surroundings were oppressive or intimidating. At the outset of the interview, Prentice seemed eager to volunteer information about the murder ("I'll tell you who did it right now."). ECF No. 38-9, p. 3. The first part of the interview was investigatory in tone, but later became more accusatory after Prentice contradicted himself several times and became excited and upset.
About half way through the interview, the following exchange took place:
ECF No. 38-9, p. 44-45. That exchange was followed by this one a few minutes later:
ECF No. 38-10, p. 8.
These exchanges tend to dispel Prentice's claim that he had already been arrested for a probation violation before questioning even began. Detective Long explicitly advised Prentice that he was not under arrest. When Prentice questioned Long about whether or not he was going to be arrested, Long deftly changed the subject. While Prentice made comments indicating that, in his mind, he did not think he was free to go, the test is objective, not subjective. Based on the record before this court, a reasonable innocent person in the same circumstances as Prentice would understand that he could refuse further questioning and leave. At a minimum, fairminded jurists could at least disagree on the question, which is enough to preclude habeas relief from this court. See Dyer, 706 F.3d at 1139 (denying habeas relief based on the conclusion that "fairminded jurist could, on this record, find that Dyer was not in custody, because many presumably fairminded jurists have indeed so found on facts similar to these"). Ground Four is denied.
In Ground Five, Prentice claims that his counsel were ineffective by "failing to object to admission of the codefendant's statements as a violation of [his] right to confrontation." ECF No. 32, p. 29. The statements were made by James Harrison and admitted through the testimony of two witnesses (Monique Cleary and Gary Hoffman) and Hoffman's transcribed interview with the police, the latter of which was introduced by defense counsel.
Here are the statements at issue as recounted in Prentice's petition:
ECF No. 32, p. 30-31 (citations to the record omitted). Relying on Bruton v. United States, 391 U.S. 400 (1965), Prentice argues that, because he was not able to cross examine Harrison, the admission of these statements violated his rights under the Confrontation Clause of the Sixth Amendment.
The Nevada Supreme Court decided this claim in Prentice's post-conviction proceeding as follows:
ECF No. 38-5, p. 6.
According to Prentice, the Nevada Supreme Court's decision is erroneous because the statements facially implicate him when placed in the context of the State's theory of the case — that being that Prentice encouraged Harrison to commit the crime in order "to earn lightning bolt tattoos." ECF No. 32, p. 32. Prentice notes that in Harrington v. California, 395 U.S. 250 (1969), statements that did not specifically name the defendant, but implicated him in the crime were considered a violation of Bruton. See Harrington, 395 U.S. at 253.
The facts in Harrington, however, bear little resemblance to this case. The statements at issue in that case were made as part of the confessions of two of four co-defendants, all of whom were tried together. Id. at 252; see Bruton, 391 U.S. at 135-36 (highlighting the potential prejudice resulting "where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial"). In addition, while the statements did not specifically name the defendant, they described his age, weight, height, and race, the last of which was particularly incriminating because the defendant was white and his three co-defendants were black. Id. at 253. In any case, the Court ultimately concluded that admission of the statements constituted harmless error. Id. at 254.
Here, Harrison was tried separately from Prentice. Cleary's testimony about what she heard Harrison say did not refer to Prentice at all, even indirectly. Hoffman's direct testimony, as elicited by the state, mentions the "National Socialist Regime," but does not refer to Prentice in particular. The references to Prentice in Hoffman's police interview link Prentice to the crime, but not in a way that was not strongly developed by other evidence presented by the State. Moreover, as respondents point out, Prentice's counsel used the transcript of the interview to effectively cross-examine Harrison. See ECF No. 45, p. 21. Thus, even if it were to look past the deference required by § 2254(d), this court must conclude that Prentice cannot satisfy either prong of the Strickland standard with respect to this claim. Ground Five is denied.
For the reasons set forth above, Prentice'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.
Having reviewed its determinations and rulings in adjudicating Prentice's petition, the court finds that reasonable jurists could debate the court's resolution of Claim Four — i.e., whether Prentice is entitled to relief based on his claim that counsel provided ineffective assistance by not moving to suppress his statements to police pursuant to Miranda. The court declines to issue a certificate of appealability for its resolution of any procedural issues or any of Prentice's other habeas claims.
The certificate is otherwise denied.
