JAMES C. MAHAN, District Judge.
This habeas corpus action is brought by Shawn Shelton, a Nevada prisoner serving four terms of life in prison, with the possibility of parole, on convictions, entered July 9, 2007, in Nevada's Eighth Judicial District, for first degree kidnapping, sexual assault upon a minor under the age of sixteen, battery with intent to commit sexual assault, and use of a minor in the production of pornography. The court denies Shelton habeas corpus relief. The court also denies Shelton a certificate of appealability.
The evidence at Shelton's jury trial showed that on May 21, 2006, Shelton approached fourteen-year-old OC at a Las Vegas bus stop, showed him a badge and told him he was a police officer investigating a crime, coaxed him into his vehicle, drove him to different locations, handcuffed him, battered him when he resisted, sexually assaulted him, and took a photograph of him during the sexual assault.
At trial, OC testified for the prosecution. See Trial Transcript, April 11, 2007, Exhibit 55B, p. 57 — Exhibit 55C, p. 116.
Shelton then drove OC to a different location. Exhibit 55B, p. 62; Exhibit 55C, p. 103. Shelton told OC he was going to take his fingerprints, but he did not do so. Exhibit 55B, p. 62. Rather, Shelton put handcuffs on OC, handcuffing his hands behind his back. Id.; Exhibit 55C, pp. 103-05, 116.
Shelton then drove OC to another location, this one in a "desert area," which was evidently a vacant lot near a drugstore not far from OC's home. Exhibit 55B, p. 62; Exhibit 55C, p. 105-06; see also Exhibit 55C, pp. 134-35 (testimony of Marnie Carter). OC described the interior of the Hummer, and various items in the Hummer, in detail. Exhibit 55B, pp. 63-65. OC noticed that Shelton had Marlboro Light cigarettes in the Hummer. Id. at 65. He noticed that Shelton had a key chain with a long bullet hanging from it. Id. at 88. He also noticed that Shelton had a laptop computer. Id. at 63.
OC became suspicious when he saw a pornographic picture displayed on the computer, and he asked to see the badge again. Id. at 63-65. The pornography OC saw on Shelton's computer was a picture of two men engaged in oral sex. Id. at 87. Shelton then let OC out of the Hummer, telling him he would show him the badge again, and took him to the back passenger seat, and had him sit there so he could remove the handcuffs. Id at 65. Shelton then pushed OC down, climbed into the Hummer and onto OC, and tightened the handcuffs. Id. OC testified as follows about what then happened:
Id. at 65-68.
OC testified that the police came to his home, and took a statement, and took photographs of him, including photographs of red marks left by the handcuffs on his wrists. Id. at 69-70, 100-01. OC gave the police a description of the Hummer, and a description of Shelton, and the clothing, hat, and sunglasses he was wearing. Id. at 70-71. OC told the police that Shelton had told him that his friends called him "Johnny." Id. The police took OC to the place where he had been sexually assaulted, and they took photographs there. Id. at 72. OC testified that when he was running from the place where he was attacked, he used his shirt to wipe out his mouth, and the police took that shirt. Id. at 78, 87. The police also swabbed OC's mouth. Id. at 87-88. OC testified that, a few days later, he was taken to give a description of the attacker to a sketch artist. Id. at 85-86.
The prosecution then called OC's mother to the witness stand. Exhibit 55C, pp. 117-28. She testified that when OC returned home on May 21, 2006, after going out by bus to buy skateboard tape, he came into the house screaming and crying, and told her to call the police. Id. at 122-23. OC told his mother what had happened, and was scared that he was being followed. Id. at 123. She testified that the police arrived, took statements and photographs, and then took OC to where the sexual assault had taken place. Id. at 123-24. She testified that OC's nose was red, he had a scratch on his forehead, and he had marks on his wrists from the handcuffs. Id. at 124. When asked if she noticed any changes in OC after the incident, she testified:
Id. at 125-26.
Next, the prosecution called to the witness stand Marnie Carter, who had been a crime scene analyst with the Las Vegas Metropolitan Police Department (LVMPD). Exhibit 55C, pp. 129-46. Carter testified that on the night of May 21, 2006, she went with OC and LVMPD Detective Janice Blasko, to the place where OC had been assaulted. Id. at 134-35. Carter testified that at that location she observed and photographed footprints and tire prints. Id. at 135-46.
The prosecution then called Wendy Wilder. Exhibit 55C, pp. 147 — Exhibit 55D, p. 170. Wendy Wilder was a friend of Shelton's. Id. at 148-49, 153. She testified that Shelton had planned to move into a home with her and her two sons, who were then fifteen and thirteen years old. Id. at 150-53. She testified that Shelton was visiting them in Las Vegas between May 14 and 23, 2006. Id. at 150, 157. She testified that Shelton left Las Vegas on the evening of May 23, 2006. Id. at 157. She testified that she spoke with Shelton on May 24, 2006, and that she told him that it was dangerous for him to be driving his black Hummer wearing his black LA Dodgers hat, because a fourteen-year-old boy had been molested by a man in such a vehicle with such a hat. Id. at 158-59. The next day, May 25, 2006, feeling nervous about Shelton because he planned to move in with her and her two boys, Wendy called the police. Exhibit 55C, p. 160 — Exhibit 55D, p. 162. She told the police that Shelton had a black Hummer, was wearing a black LA Dodger's hat, and had a long bullet on a keychain. Exhibit 55D, pp. 163-64. She testified that she knew Shelton to smoke. Id. at 165. She testified that she had seen a police badge in Shelton's Hummer. Id. She described Shelton's sunglasses. Id. at 165-66. She also testified that Shelton mentioned that he had a gun in his vehicle. Id. at 166.
Next, the prosecution called Wade Wilder, Wendy's youngest son, who was thirteen in May 2006. Exhibit 55D, pp. 171-78. Wade remembered Shelton coming to his home in May 2006, and that he planned to move in with them. Id. at 172-73. He testified that Shelton had a black Hummer, and a keychain with a long bullet. Id. at 174. He testified that Shelton wore a black LA Dodgers hat, and he described Shelton's sunglasses. Id. at 175. He testified that he saw a computer in Shelton's Hummer. Id. at 175-76.
The prosecution then called Robert Montanez, a Corona, California, police officer. Exhibit 55D, pp. 179-87. Officer Montanez was involved in arresting Shelton in Corona, and he described that arrest. Id. at 179-82. Montanez testified that Shelton was cooperative when he was arrested, and described Shelton's demeanor as "indifferent" and unsurprised. Id. at 182, 187. Montanez testified that Shelton was searched when he was taken into custody. Id. at 185. Montanez testified that Shelton had, in his right front pocket, what appeared to be a California driver's license with his picture on it, but with the name "Johnny Wade." Id. at 185-86.
Next, the prosecution called Janice Blasko, an LVMPD detective. Exhibit 56A, p. 19 — Exhibit 56B, p. 59. Detective Blasko testified that she was dispatched to OC's residence on the night of May 21, 2006. Exhibit 56A, pp. 20-21. She testified that she conducted a tape-recorded interview of OC. Id. at 21-22. She testified that she noticed red marks on OC's wrists, which looked to her like handcuff marks, and she instructed patrol officers on the scene to take photographs of those marks. Id. at 23-24, 50. She testified that, based on information OC gave her, she collected his shirt from him. Id. at 24-28. She testified that she took OC, along with Marnie Carter, to the scene of the sexual assault to gather evidence. Id. at 28-30. She testified that she took swabs of OC's mouth. Id. at 30-32. She testified that she went to the Copeland's Sports store near Boulevard Mall to confirm that OC had been there. Id. at 32. She testified that, at Copeland's Sports, she obtained a receipt showing the purchase of skate board grip tape at 7:40 p.m. on May 21, 2006. Id. at 32-36, 44.
The prosecution then called LVMPD Detective Raymond Spencer. Exhibit 56B, pp. 61-97. Detective Spencer testified that on May 23, 2006, he drove with OC and viewed the locations where he had been with Shelton, following the route that Shelton drove. Id. at 65-73. He testified that OC told him about seeing Shelton's keys with the long bullet on the key chain. Id. at 71-72. Detective Spencer testified that on May 24, 2006, the police released, to the media, information regarding the description of the suspect and his vehicle, along with a composite drawing of the suspect. Id. at 76-77. Detective Spencer testified that the next day, May 25, 2006, he learned that Wendy Wilder had called the police and identified Shelton, and provided a detail that had not been released to the media: she described Shelton's key chain with the long bullet on it. Id. at 77. Detective Spencer testified that, as a result of the information provided by Wendy Wilder, Shelton was arrested in Corona. Id. at 78. Detective Spencer testified that, following Shelton's arrest, he participated in searching Shelton's Hummer. Id. at 79. He testified that, in that search, the police found: several police badges, handcuffs, sunglasses matching the description given by OC, a firearm, Marlboro Light cigarettes, a laptop computer, and a Polaroid camera. Id. at 79-81, 85. Also, Shelton's key chain, with the keys to the Hummer, had a long bullet attached to it. Id. Detective Spencer testified that he was present when a buccal swab was taken of Shelton's mouth. Id. at 81-82.
Next, the prosecution called Joseph Szukiewicz, a crime scene analyst with LVMPD. Exhibit 56B, p. 98 — Exhibit 56C, p. 140. Szukiewicz testified that he traveled to Corona on May 27, 2006, along with Detective Spencer and a Detective Matt Demas, to conduct a search of Shelton's Hummer. Id. at 103. Detective Szukiewicz testified about finding the following items in Shelton's Hummer: a loaded handgun in a holster, a laptop computer, Marlboro Light cigarettes, several police badges, sunglasses matching the description given by OC, handcuffs, and a Polaroid camera. Id. at 108-27, 135-36. In addition, Szukiewicz testified that there was a long bullet on the key chain with the keys to the Hummer. Id. at 118-19. Szukiewicz testified that he and Detective Spencer photographed Shelton, and took a buccal swab from his mouth. Id. at 128, 136-37.
The prosecution then called Michael Perkins, an LVMPD crime scene analyst supervisor. Exhibit 56C, p. 141 — Exhibit 56D, p. 154. Perkins testified that on June 1, 2006, he took exemplar tire track prints from the tires on Shelton's Hummer. Exhibit 56C, p. 146 — Exhibit 56D, p. 154.
Next, the prosecution called Joel Geller, a latent print examiner with the LVMPD. Exhibit 56D, pp. 154-67. Geller compared photographs of tire tracks found at the crime scene to the exemplar tire track prints from the tires on Shelton's Hummer. Id. at 158-62. Geller testified that the tire tracks at the crime scene were similar to — had the same tread design as — the exemplars taken from Shelton's Hummer. Id. at 162-63. Geller also compared a photograph of OC's shoes to a photograph of footprints found at the crime scene, and found them to be similar. Id. at 163-64.
The prosecution next called Kelly Gauthier, a forensic scientist in the LVMPD's DNA unit. Exhibit 56D, pp. 168-193. Gauthier testified that semen was detected in the swab taken from OC's mouth. Id. at 183, 191. She testified that, based on comparison done between the swab from OC's mouth and the swab from Shelton's mouth, Shelton could not be excluded as a contributor of DNA found in OC's mouth. Id. at 181-83. Gauthier also testified that sperm was found on the shirt that OC used to wipe out his mouth after he was sexually assaulted. Id. at 187-90, 193. Gauthier testified that DNA found on OC's shirt matched Shelton's DNA. Id. at 187-90.
The prosecution then rested its case. Exhibit 57A, p. 12.
The defense called as a witness Briana Legaspi, a friend of Shelton's in California. Exhibit 57A, pp. 15-23. Shelton had stayed at her home the night before he was arrested, and she and her mother were present, with Shelton in his Hummer, on May 26, 2006, when he was pulled over and arrested. Id. at 16-17. She testified that, after Shelton was arrested, she allowed the police to search her home. Id. at 21. On cross-examination, Legaspi testified that she believed that Shelton was in Las Vegas prior to his arrest. Id. at 21-22. On cross-examination, Legaspi also testified that she had some of her belongings in the Hummer, but the police badges, handcuffs, gun, and key chain were not hers. Id. at 22.
Shelton was then called to testify. Exhibit 57A, p. 23. However, before he testified, the jury was removed from the courtroom, and there was a conference between counsel and the court. Id. at 23-43. The defense then made a motion in limine "to preclude the District Attorney from making reference to Mr. Shelton's HIV status . . . [if] he takes the stand and raises the issue of consent with respect to the sexual contact he's alleged to have had with [OC]." Id. at 27. The trial court denied the motion in limine, ruling that if Shelton claimed his sexual contact with OC was consensual, then, especially given the evidence that semen was found in OC's mouth and sperm with Shelton's DNA was found on the shirt he used to wipe out his mouth, and the evidence that Shelton told OC to swallow his ejaculate, the question whether Shelton informed OC of his HIV/AIDS status was relevant to the question whether OC consented. Id. at 32-38. In light of that ruling, Shelton decided not to testify. Id. at 39-41. The defense then rested its case. Exhibit 57A, p. 44.
The jury found Shelton guilty of first degree kidnapping, sexual assault upon a minor under the age of sixteen, battery with intent to commit sexual assault, and use of a minor in the production of pornography; the jury found Shelton not guilty of robbery. Exhibit 57 B, p. 102; Exhibit 59. Shelton was sentenced, for the kidnapping, to life in prison with the possibility of parole after five years; for the sexual assault, to life in prison with the possibility of parole after twenty years; for the battery, to life in prison with the possibility of parole after five years; and for the use of a minor in the production of pornography, to life in prison with the possibility of parole after five years. Exhibit 62, p. 23; Exhibit 63. The sentences run consecutively. Id.
Shelton appealed, and on January 30, 2009, the Nevada Supreme Court affirmed. Exhibit 82. Shelton then filed, in the state district court, a post-conviction habeas petition. Exhibits 85, 86, 87, 91. The state district court denied the petition on September 16, 2010. Exhibit 97. Shelton appealed, and the Nevada Supreme Court affirmed. Exhibit 113.
On September 18, 2012, Shelton filed, in this court, a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1). Shelton subsequently filed an amended habeas petition (ECF No. 6). Respondents filed an answer (ECF No. 8), and Shelton filed a reply (ECF No. 38). Shelton's amended habeas petition is before the court with respect to the merits of his claims.
Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). 28 U.S.C. § 2254(d) sets forth the primary standard of review under AEDPA:
28 U.S.C. § 2254(d).
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] and nevertheless arrives at a result different from [the Supreme Court's] precedent." 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." Lockyer, 538 U.S. 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).
The Supreme Court has further 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, 131 S.Ct. 770, 786 (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. (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, __ U.S. __, 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)).
The state court's "last reasoned decision" is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state court's reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc).
If the state supreme court denies a claim but provides no explanation for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to federal habeas corpus relief only if "there was no reasonable basis for the state court to deny relief." Harrington, 131 S.Ct. at 784.
In Ground 1 of his amended habeas petition, Shelton claims that his federal constitutional rights were denied because he received ineffective assistance of trial counsel. See Amended Petition (ECF No. 6), pp. 4-6. Specifically, in Ground 1, Shelton claims that his trial counsel was ineffective for failing to obtain a ruling, before trial, regarding whether the State could cross-examine Shelton regarding his HIV/AIDS status if Shelton testified and claimed that the sexual contact with OC was consensual. See id. Shelton appears to claim that his counsel did not effectively argue the issue. See id. at 5. Shelton also claims that he was prejudiced because his trial counsel conceded that he had contact with OC, and told the jury that he would testify regarding that contact, then called him to the stand to testify, but had to change course and not present his testimony after the trial court ruled that his HIV/AIDS status would be admissible on cross-examination if he testified that OC consented. See id. at 4-6.
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 his 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; see also id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The inquiry under Strickland is highly deferential, and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Thus, to show deficient performance and satisfy the first prong of Strickland, a defendant must overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. "Failure to satisfy either prong of the Strickland test obviates the need to consider the other." Chapman v. Lampert, 371 Fed.Appx. 742, 746 (9th Cir.2010) (citing Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.2002)); United States v. Torres-Guardado, 502 Fed.Appx. 654, 655 (9th Cir.2012); see also Strickland, 466 U.S. at 697.
Shelton presented this claim to the Nevada Supreme Court on the appeal from the denial of his state-court habeas petition (see Appellant's Opening Brief, Exhibit 107, pp. 21-30), and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 113, pp. 2-3.
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 of the United States, and was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).
With respect to the evidentiary ruling underlying this claim — the state courts' ruling that, if Shelton testified and claimed that OC consented, the prosecution could inquire on cross-examination about Shelton's HIV/AIDS status — that ruling was a matter of state evidence law, and is beyond the scope of this federal habeas action. Shelton does not claim that his federal constitutional rights were violated by that evidentiary ruling.
Further, Shelton does not show that his trial counsel was ineffective with respect to his argument regarding the evidentiary issue. Shelton's trial counsel filed a pre-trial motion in limine seeking to exclude mention of Shelton's HIV/AIDS status, and that motion was granted without any indication whether Shelton's HIV/AIDS status would be excluded if Shelton testified that OC consented. See Exhibit 42 (motion in limine); Exhibit 46, pp. 14-15 (ruling on motion in limine). During trial, before commencing the examination of Shelton in his defense case, Shelton's trial counsel again raised the issue, and sought a ruling of the trial court with respect to whether the door would be open to cross-examination regarding Shelton's HIV/AIDS status if Shelton testified that OC consented. See Exhibit 57A, pp. 27-38. Counsel and the court then had the following exchange:
Exhibit 57A, pp. 27-38; see also id. at 39-41 (trial court's canvass of Shelton regarding his decision not to testify given the trial court's ruling on motion in limine).
Shelton makes no showing that his trial counsel was ineffective with respect to the motion in limine, either before or during his trial.
Plainly, if Shelton had testified that he was with OC on the night of May 21, 2006, and that OC consented to sexual contact between them, the cross-examination would have been devastating. Not only would Shelton's HIV/AIDS status have come into evidence, to undermine his consent defense, but he likely would also have been cross-examined regarding his cameras and the pornographic photographs that he had in his possession, and regarding previous inconsistent statements to the effect that he did not have sexual contact with OC. Shelton's trial counsel was able to obtain a preview of the cross-examination, and avoid exposing Shelton to it.
Regarding trial counsel's concession that Shelton had contact with OC (see Exhibit 57A, pp. 13-14), it is inconceivable that Shelton was prejudiced by that concession. There was overwhelming evidence showing that OC was with Shelton, and that they had sexual contact, on the evening of May 21, 2006. See discussion of evidence at trial, above, at pp. 2-9. That night, semen was found in a swab taken from OC's mouth, and sperm containing Shelton's DNA was found on a shirt used by OC to wipe out his mouth. See Exhibit 56D, pp. 187-90. Given the evidence, trial counsel's concession that Shelton had contact with OC was a statement of the obvious, and it did not prejudice Shelton.
With regard to Shelton's claim that he was prejudiced by his trial counsel's statement to the jury that Shelton would testify, and his calling of Shelton to testify, before raising the issue of the anticipated cross-examination, and before having to change course, and not have Shelton testify, the court agrees with the state court that Shelton was not prejudiced. At most, the effect was to highlight somewhat the fact that Shelton did not testify. However, the jury was properly instructed as follows:
Exhibit 58, Instruction 13. It is presumed that jurors follow their instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 211 (1987); Drayden v. White, 232 F.3d 704, 713 (9th Cir.2000), cert. denied, 532 U.S. 984 (2001). In accord with that presumption, and in light of the strong evidence against Shelton at trial (see discussion of evidence at trial, above, at pp. 2-9), this court concludes that the apparent indecision of the defense before the jury, about whether or not Shelton would testify, did not cause any prejudice to Shelton.
In his reply, Shelton asserts a new prejudice theory, requests an evidentiary hearing with respect to it, and agues that, in state court, he was denied the opportunity to develop the facts regarding it. See Reply(ECF No. 11), pp. 10-12. Shelton argues:
Id. at 11. In the state district court, Shelton made a request for an evidentiary hearing; however, in the Nevada Supreme Court, he did not argue that an evidentiary hearing should have been granted on the question whether he was prejudiced vis-a-vis an opportunity to negotiate a plea, and he never made any showing of what evidence he could produce at an evidentiary hearing with respect to that issue. See Appellant's Opening Brief, Exhibit 107, pp. 40-42; Appellant's Reply Brief, Exhibit 112. At any rate, even if this court were to accept Shelton's contention that in state court he was denied the opportunity to develop the factual basis for this argument, he is not entitled to an evidentiary hearing in this case, because his contention — that he was prejudiced because he would have negotiated a plea if he had determined before trial that he would not testify — is wholly speculative, conclusory, and unsupported. It is also belated; Shelton only made the argument that he was prejudiced vis-a-vis pre-trial plea negotiations, and his request for an evidentiary hearing regarding it, for the first time in this case in his reply. See Amended Petition, pp. 4-7. Shelton has never in this case made any specific factual allegations regarding any plea negotiations that were had, or that might have been possible, before trial. See id.; see also Reply, p. 11. Furthermore, the argument is unsupported by any proffer of any evidence whatsoever suggesting that Shelton would have been able, and willing, to negotiate a plea if he had determined before trial that he would not testify. See id. A habeas petitioner may be entitled to an evidentiary hearing if he alleges facts which, if proven, would entitle him to relief, and if he was denied the opportunity to fully and fairly develop those facts in state court. 28 U.S.C. § 2254(e)(2); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir.2005). However, the facts alleged must be specific, so as to form the basis of a colorable claim for relief. See Tilcock v. Budge, 538 F.3d 1138, 1145 (9th Cir.2008). Conclusory, unsupported, and speculative allegations are insufficient to warrant an evidentiary hearing. See Gonzalez v. Knowles, 515 F.3d 1006, 1014 (9th Cir.2008); Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001). Shelton is not entitled to an evidentiary hearing regarding his belated, speculative, conclusory, and unsupported contention that, had he known before trial that he was not going to testify, he would have negotiated a plea agreement.
In sum, then, this court finds that the Nevada Supreme Court's denial of the claim asserted by Shelton as Ground 1 of his federal habeas petition was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). The court will deny Shelton habeas corpus relief with respect to that claim.
In Ground 2 of his amended habeas petition, Shelton makes another claim that his federal constitutional rights were denied because he received ineffective assistance of trial counsel.
See Amended Petition, pp. 7-9. In Ground 2, Shelton claims that his trial counsel was ineffective for "failure to investigate and adequately prepare a defense." Id. at 7.
Shelton claims that his trial counsel "was surprised by the introduction of a receipt from Copeland's, a sporting goods store, which supported the alleged victim's version of the events." Id. Shelton faults his trial counsel for not learning, before trial, that OC would say that he bought the skateboard tape at the Copeland's Sports store, rather than at Boulevard Mall, and for not being prepared "to challenge the admissibility of the receipt despite the State's reference to Copeland's in its opening statement." Id. at 8. He faults his trial counsel, further, because he "did not . . . attempt to interview the alleged victim," "cross-examine the alleged victim as tot he store he supposedly visited," "attempt to impeach the police officers acquisition of the receipt," "or impeach the officers as to why no photographs documented the existence of the grip tape." Id.
The Nevada Supreme Court ruled on this claim, as follows:
Order of Affirmance, Exhibit 113, p. 3.
This court agrees that Shelton fails to show prejudice with respect to these claims of ineffective assistance of his trial counsel. The question whether OC went to Boulevard Mall or to Copeland's Sports to buy skateboard tape was of no importance at Shelton's trial (see discussion of evidence at trial, above, at pp. 2-9). There was evidence indicating that the Copeland's Sports store, while not part of Boulevard Mall, was adjacent to the mall and shared a parking lot with it. See Testimony of Detective Raymond Spencer, Exhibit 56B, p. 92; see also Transcript of Trial, April 13, 2007, Exhibit 57A, p. 14 (stipulation that Copeland's Sports was not located within the Boulevard Mall). OC told Detective Blasko that he went to Boulevard Mall to buy the skateboard tape, but he testified at trial, more specifically, that he bought the skateboard tape at Copeland's Sports, and the prosecution produced a receipt corroborating that testimony. See Testimony of Detective Janice Blasko, Exhibit 56A, pp. 32-40, 49; Testimony of OC, Exhibit 55B, p. 94, and Exhibit 55C, p. 112. Shelton's trial counsel made a motion in limine, attempting to exclude from evidence the Copeland's Sports receipt and the testimony of Detective Blasko regarding it, and that motion was denied. See Exhibit 56A, pp. 4-16. The distinction, however, simply did not matter. Fourteen-year-old OC plainly considered the Copeland's Sports store to be associated with the mall, and considered himself to have gone to the mall to buy the skateboard tape. Shelton has not shown that OC had any reason to testify untruthfully about where he went to buy the skateboard tape, or, for that matter, where he had been at any time before Shelton drove up and confronted him at the bus stop. In this court's view, any possible impeachment of OC, or any other witness, that Shelton's trial counsel may have achieved had he better handled this issue would have had no impact on the outcome of the trial.
The state courts' denial of the claim asserted by Shelton as Ground 2 of his federal habeas petition was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). The court will deny Shelton habeas corpus relief with respect to this claim.
In Ground 3 of his amended habeas petition, Shelton claims that his federal constitutional rights were denied because he received ineffective assistance of appellate counsel. See Amended Petition, pp. 9-11. There, Shelton claims:
Id. at 9.
The Nevada Supreme Court ruled on this claim, as follows:
Order of Affirmance, Exhibit 113, p. 6.
Here again, this court finds that the question whether OC went to Boulevard Mall or to Copeland's Sports to buy skateboard tape was of no moment at Shelton's trial. See discussion of evidence at trial, above, pp. 2-9; see also discussion of Ground 2, above, pp. 21-22. The Nevada Supreme Court — the court that would have addressed Shelton's arguments on direct appeal had they been made as Shelton claims they should have been — held that Shelton failed to show a reasonable probability of success on appeal had appellate counsel made the argument now made by Shelton. This court finds the ruling of the Nevada Supreme Court to be objectively reasonable.
The state courts' denial of the claim asserted by Shelton as Ground 3 of his federal habeas petition was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). The court will deny Shelton habeas corpus relief with respect to this claim.
In Ground 4 of his amended habeas petition, Shelton claims that his federal constitutional rights were denied because he received ineffective assistance of trial and appellate counsel. See Amended Petition, pp. 11-15. In Ground 4, Shelton claims that his counsel was ineffective for failure "to properly object to inadmissible bad act evidence," failure "to object to improper prosecutorial misconduct," and failure "to request jury instructions on Mr. Shelton's theory of defense." Id. at 11-13.
Shelton's claim that his trial and appellate counsel were ineffective for failing to properly object to bad act evidence concerns the false California driver's license found in his possession when he was arrested and admitted into evidence at trial. See Amended Petition, p. 12; see also Testimony of Robert Montanez, Exhibit 55D, pp. 185-86. The false driver's license had Shelton's picture on it, but had on it the name "Johnny Wade." Id. Shelton claims that his trial counsel was ineffective for not requesting a limiting instruction regarding the false driver's license. Amended Petition, pp. 11-12; Reply, pp. 18-19. Shelton claims that his appellate counsel "failed to properly object" to the evidence concerning the false driver's license. See id.
The Nevada Supreme Court ruled on these claims as follows:
Order of Affirmance, Exhibit 113, pp. 3, 7.
Before trial, Shelton's trial counsel made a motion in limine to exclude evidence of the false driver's license, and that motion was initially granted. See Exhibit 42 (motion in limine); Exhibit 46, pp. 14-15 (ruling on motion). However, on the first day of trial, the prosecution asked the court to revisit the issue, arguing that because the false driver's license bore the name "Johnny Wade," and because OC testified that Shelton identified himself as "Johnny," the false driver's license was relevant to the identity of OC's attacker, and corroborated his testimony. See Transcript of Trial, April 10, 2007, Exhibit 52A, pp. 9-10. The prosecution argued that the false driver's license was also relevant with respect to identity because the height and weight stated on it, which roughly matched Shelton's height and weight, corroborated OC's testimony regarding his attacker. See id. Shelton's counsel argued that the false driver's license should be excluded from evidence. See id. at 10-17. The false driver's license was admitted into evidence, over the objections of Shelton's counsel, during the testimony of Corona, California, Police Officer Robert Montanez. See Exhibit 55D, pp. 185-86.
Shelton does not provide the court with the text of the jury instruction that he believes his trial counsel should have requested. See Amended Petition, pp. 11-12; Reply, pp. 18-19.
At any rate, as the Nevada Supreme Court ruled, even if some jury instruction had been requested, and given, limiting the jury's consideration of the evidence of the false driver's license to the issue of the identity of the individual who assaulted OC, this court sees no reasonable probability that the result of Shelton's trial would have been different. The prior bad act — Shelton's possession of a false driver's license — paled in comparison to the crimes Shelton was accused of committing in this case, and there was overwhelming evidence, beyond the false driver's license, that Shelton committed those crimes. See discussion of evidence at trial, above, at pp. 2-9.
On Shelton's direct appeal, Shelton's counsel raised the issue of the evidence of the false driver's license, arguing that its admission was error. Appellant's Opening Brief, Exhibit 74, pp. 11-14; Appellant's Reply Brief, Exhibit 79, pp. 4-6. The Nevada Supreme Court rejected that argument, ruling as follows:
Order of Affirmance, Exhibit 82, pp. 2-3. Shelton's claim that his appellate counsel "failed to properly object" to the evidence concerning the false driver's license is unexplained and unsupported, and is belied by the record. Shelton does not show that his appellate counsel could have done anything else regarding the issue of the evidence of the false driver's license to change the outcome of the appeal.
The state courts' denial of the claims asserted by Shelton in Ground 4, regarding counsel's handling of the issue of the evidence of the false driver's license, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). The court will deny Shelton habeas corpus relief with respect to those claims.
See Amended Petition, pp. 12-13. Shelton also claims that his appellate counsel was ineffective for failing to make, on appeal, an argument regarding a comment made by the trial judge in overruling an objection to certain testimony of OC's mother. See id. at 13.
The first allegation of prosecutorial misconduct concerns the following comment by the prosecutor in her opening statement:
Transcript of Trial, April 11, 2007, Exhibit 55A, p. 49. The Nevada Supreme Court ruled, as follows, on Shelton's claim that his trial counsel was ineffective for failing to object:
Order of Affirmance, Exhibit 113, p. 4. And, regarding Shelton's appellate counsel, the Nevada Supreme Court ruled that these "were proper statements of the facts in this case and appellant failed to demonstrate there was a reasonable probability of success on appeal had appellate counsel raised these claims because there was overwhelming evidence of guilt." Id. at 7.
The second instance of alleged prosecutorial misconduct concerns the following comment of the prosecutor in her opening statement:
Transcript of Trial, April 11, 2007, Exhibit 55A, p. 55. The trial transcript indicates that when the prosecutor made this comment an unidentified speaker exclaimed: "Oh my God." Id. The Nevada Supreme Court ruled, as follows, on Shelton's claim that his trial counsel was ineffective for failing to object:
Order of Affirmance, Exhibit 113, pp. 4-5. Regarding Shelton's appellate counsel, the Nevada Supreme Court ruled that these "were proper statements of the facts in this case and appellant failed to demonstrate there was a reasonable probability of success on appeal had appellate counsel raised these claims because there was overwhelming evidence of guilt." Id. at 7.
This court finds that, with respect to both of these comments of the prosecutor in her opening statement, the Nevada Supreme Court's rulings were reasonable. The facts stated by the prosecutor — — that Shelton used a badge to prey upon OC, and that Shelton forced OC to swallow his ejaculate — were subsequently proven at trial beyond any dispute. To the extent that the comments included argument that might have been inflammatory, or otherwise inappropriate in an opening statement, there is no reasonable probability that an objection by Shelton's trial counsel, or argument on appeal by Shelton's appellate counsel, could have changed the outcome. Shelton was not prejudiced.
Shelton also claims that his trial and appellate counsel were ineffective in that they did not object to "other instances where either the State or one of its witnesses improperly vouched for a witness or for a piece of evidence." Amended Petition, p. 13. This claim is completely meritless, because Shelton does not specify where in the record, or how, the prosecutor, or any prosecution witness, "improperly vouched for a witness or for a piece of evidence." See Amended Petition, pp. 12-13; Reply, pp. 19-21.
Next, Shelton claims that his appellate counsel was ineffective for not making an argument regarding comments made by the trial judge, before the jury, when overruling defense counsel's objection to certain testimony of OC's mother. Amended Petition, p. 13. The exchange that is the subject of this claim was the following:
Transcript of Trial, April 11, 2007, Exhibit 55C, pp. 125-26. With regard to Shelton's claim that his appellate counsel was ineffective for failure to raise this as an issue on his direct appeal, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 113, p. 8. This court finds the Nevada Supreme Court's ruling with respect to this claim to be objectively reasonable. Shelton does not point to any Nevada precedent supporting an argument on appeal regarding the trial judge's comment. And also, importantly, the Nevada Supreme Court, which ruled that Shelton failed to demonstrate a reasonable probability of success on appeal had appellate counsel raised the issue, is the court that would have ruled on the issue on his direct appeal had it been raised.
The state courts' denial of the claims asserted by Shelton in Ground 4, regarding his counsel's handling of the alleged prosecutorial misconduct, and the alleged improper comments of the trial judge, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). The court will deny Shelton habeas corpus relief with respect to those claims.
Next, in Ground 4, Shelton claims that his trial counsel was ineffective for failing to request "a jury instruction on the lesser included crime of statutory seduction," and "an instruction on the issue of consent." See Amended Petition, pp. 13-15. Shelton argues:
Id. at 13-14.
The Nevada Supreme Court rejected this claim, ruling as follows:
Order of Affirmance, Exhibit 113, p. 5.
The ruling of the Nevada Supreme Court was objectively reasonable. There was no evidence presented at trial to support a theory that the sexual contact between Shelton and OC was consensual. See discussion of evidence at trial, above, at pp. 2-9. Shelton asserts that OC's testimony was inconsistent with respect to his account of the events, but in making this argument Shelton does not specify any inconsistency at all in OC's testimony, much less any inconsistency that would justify the giving of jury instructions regarding statutory seduction or consent. See Amended Petition, pp. 13-14; Reply, p. 21. If Shelton refers to OC's testimony regarding whether he went to Boulevard Mall or Copeland's Sports to buy skateboard tape, this court finds that alleged inconsistency to be of no significance, as is discussed above (pp. 21-24). In short, there was no evidentiary support whatsoever for jury instructions on statutory seduction or consent, Shelton's trial counsel did not act unreasonably in failing to request such instructions, and Shelton was not prejudiced by the lack of such instructions.
The state courts' denial of the claim asserted by Shelton in Ground 4 was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and the state courts' ruling was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).
Shelton does not show habeas relief to be warranted. The court has considered all his claims of ineffective assistance of counsel, both individually and cumulatively, and determines that there is no reasonable probability that the outcome of his trial or appeal would have been different had counsel performed as he argues counsel should have. The state courts' denial of Shelton's claims was objectively reasonable. This court will deny the amended petition for writ of habeas corpus.
The standard for issuance of a certificate of appealability requires for a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court 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). The Supreme Court further illuminated the standard in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
Miller-El, 123 S.Ct. at 1040 (quoting Slack, 529 U.S. at 484).
The court has considered Shelton's claims, with respect to whether they satisfy the standard for issuance of a certificate of appeal, and the court determines that none of them do. The court will deny Shelton a certificate of appealability.
