JAMES C. MAHAN, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. This matter comes before the court on the merits of the remaining grounds of the amended petition.
On May 21, 2008, the state filed an amended criminal complaint which charged petitioner with the following five counts: first degree kidnapping resulting in substantial bodily harm, attempted murder, battery constituting domestic violence with substantial bodily harm, assault with a deadly weapon, and robbery with the use of a deadly weapon. (Exhibit 1).
The state filed an information on May 22, 2008. (Exhibit 3). At his arraignment on May 29, 2008, petitioner pled not guilty and invoked the 60-day rule. (Exhibit 4). The court set calendar call for August 27, 2008, and trial for September 2, 2008. (Id.).
On June 18, 2008, petitioner filed a motion to dismiss appointed counsel Geller and appoint new counsel because petitioner claimed that Geller failed to communicate with him or visit him at the Clark County Detention Center (CCDC), and failed to investigate any defense in mitigation of his sentence. (Exhibit 5). On June 30, 2008, the court denied petitioner's motion. (Exhibit 6).
On July 18, 2008, petitioner filed a pretrial petition for a writ of habeas corpus in the state district court, arguing that the kidnapping charge should be dismissed because the victim's confinement was incidental to the battery resulting in substantial bodily harm. (Exhibit 7). The state filed a return to the petition. (Exhibit 9). On August 20, 2008, the state district court denied the petition. (Exhibit 10).
On October 23, 2008, petitioner filed another motion to dismiss counsel Geller and appoint new counsel, which was identical to the June 18, 2008 motion. (Exhibit 11). On November 5, 2008, the court denied the motion. Petitioner then requested to represent himself. The court set a Faretta hearing for November 12, 2008. (Exhibit 12). On November 12, 2008, the court granted petitioner's motion to represent himself and appointed the public defender as stand-by counsel. (Exhibit 13).
On November 17, 2008, petitioner filed a motion for discovery and all favorable evidence. (Exhibit 14). On November 21, 2008, petitioner filed a motion for a continuance of the September 2, 2008 trial date to February 2009. (Exhibits 15). At the calendar call on November 26, 2008, the court granted petitioner's motion for discovery and for a continuance, and also granted the state's motion to amend the information. (Exhibit 16). Trial was re-scheduled for February 23, 2009. (Id.). The amended information was filed on November 26, 2008. (Exhibit 17).
On December 8, 2008, petitioner filed another motion to dismiss support-counsel and to appoint alternate counsel. (Exhibit 18). Petitioner alleged that Geller failed to visit him at CCDC, failed to provide complete discovery including a transcript of a 911 call from May 1, 2008, failed to maintain attorney/client confidentiality during phone conversations, and failed to direct necessary investigatory personnel to visit him. (Id.). At a hearing on the motion, on January 14, 2009, prosecutor Smith informed the court that he had personally turned over to petitioner all the discovery he had requested, except for the 911 transcript, which he gave to petitioner in open court. (Exhibit 19). Stand-by counsel Geller informed the court that investigator Everett had visited petitioner; he also informed the court that he had a copy of the entire file. (Id.). The court granted the motion and appointed counsel Frank Kocka as counsel (not stand-by counsel). (Id.). The court continued the February 23, 2009 trial and set a status check hearing. (Id.). At status check hearings on January 21 and 26, 2009, the court set trial for April 20, 2009. (Exhibits 20 & 21).
On March 12, 2009, petitioner filed a motion to dismiss his counsel and appoint alternate counsel. (Exhibit 22). At a hearing on March 30, 2009, petitioner withdrew the motion. Attorney Kocka advised the court that he had reviewed all discovery with petitioner. (Exhibit 23).
At the calendar call on April 15, 2009, counsel Kocka requested compliance with a subpoena to obtain records which may have shown that petitioner had an alibi. (Exhibit 24). Counsel Kocka also requested a continuance. (Id.). The court ordered the records to be produced and granted counsel's motion for a continuance. (Id.). Trial was re-set for June 22, 2009. (Id.).
On April 16, 2009, the state filed a motion to conduct a video-taped deposition of Dr. Richard Schwartz, who had treated the victim and who would be out of the country at the time of trial. (Exhibit 25). Petitioner's counsel had no opposition to the motion, and the court granted the motion. (Exhibit 26). The parties later agreed to call off Dr. Schwartz's deposition, as a different doctor would testify at trial. (Exhibit 27).
On June 22, 2009, the jury trial began; four days later the jury found petitioner guilty of firstdegree kidnapping, battery constituting domestic violence with substantial bodily harm, robbery, and misdemeanor assault. (Exhibits 28, 29, 30, 31, 32 & 33).
At the sentencing hearing on August 10, 2009, the court sentenced petitioner to 5 years to life on the first-degree kidnapping, a consecutive 12-36 months on the battery constituting domestic violence with substantial bodily harm, 26-120 months on the robbery, to run concurrently with the kidnapping sentence, and time served on the assault, with 462 days credit for time served. (Exhibit 34). On August 14, 2009, the judgment of conviction was filed. (Exhibit 35).
Petitioner filed a notice of appeal on August 18, 2009. (Exhibit 36). Appellant's opening brief, filed by counsel Gamage, was filed on March 29, 2010. (Exhibit 37). On April 8, 2010, the state filed its answering brief. (Exhibit 38). On July 15, 2010, the Nevada Supreme Court filed its order affirming the convictions. (Exhibit 39). Remittitur issued on August 10, 2010. (Exhibit 40).
On October 5, 2010, petitioner filed a motion for the production of documents, papers, pleadings, and tangible property of defendant. (Exhibit 41). On October 20, 2010, the court granted petitioner's motion. (Exhibit 42). The court also granted petitioner's motion to withdraw counsel Gamage. (Id.).
On December 1, 2010, petitioner filed a motion for discovery which alleged that he didn't receive discovery. (Exhibit 43). The state filed an opposition. (Exhibit 44). On December 15, 2010, the court granted the motion in part and directed prior counsel Kocka to provide petitioner with the items not previously provided. (Exhibit 45).
On December 27, 2010, petitioner filed another motion for discovery which described additional documents that he had not received. (Exhibit 46). On January 12, 2011, the court granted the motion in part and directed prior counsel Gamage to provide the documents to petitioner. (Exhibit 47).
On April 11, 2011, petitioner filed a post-conviction habeas petition and an accompanying memorandum in the state district court. (Exhibits 48 & 49). On August 12, 2011, the state filed an opposition to the post-conviction habeas petition. (Exhibit 50). The state district court held a hearing on the petition on October 24, 2011, at which the court denied the petition. (Exhibit 51). On December 22, 2011, the state district court filed findings of fact, conclusions of law, and order denying the petition, except as to ground 10, concerning a clerical error in the judgment of conviction. (Exhibit 53). The state district court filed an amended judgment of conviction which corrected the "first degree kidnapping resulting in substantial bodily harm" language in the original judgment of conviction to state "first degree kidnapping." (Exhibit 54; Exhibit 34). Petitioner appealed the denial of the post-conviction habeas petition. (Exhibit 52).
On February 21, 2012, while the appeal from the denial of the post-conviction habeas petition was pending, petitioner filed a motion for transcripts at state expense in state district court. (Exhibit 55). On March 7, 2012, the state district court heard the matter and denied the motion. (Exhibit 58). The court's written order denying the motion was filed on March 28, 2012. (Exhibit 59). Petitioner appealed. (Exhibit 60). By order filed May 17, 2012, the Nevada Supreme Court dismissed the appeal for lack of jurisdiction. (Exhibit 61).
On July 25, 2012, petitioner filed a motion for an enlargement of time to file a petition for rehearing of his post-conviction habeas petition. (Exhibit 63). The state district court denied the motion at a hearing on August 6, 2012. (Exhibit 65). The state district court filed a written order denying the motion on August 20, 2012. (Exhibit 66).
On October 8, 2012, the Nevada Supreme Court issued its order affirming the district court's denial of the post-conviction habeas petition. (Exhibit 67). Remittitur issued on November 2, 2012. (Exhibit 68).
On August 8, 2012, petitioner dispatched his original federal habeas petition to this court. (ECF No. 1-1). By order filed January 31, 2013, the court ordered the original petition to be filed by the clerk and directed a response to the petition. (ECF No. 6). The petition was filed on that date. (ECF No. 7). Respondents filed a motion to dismiss on March 18, 2013. (ECF No. 9). On April 15, 2013, petitioner filed a motion to amend the petition, along with a proposed amended petition. (ECF Nos. 18 & 18-1). Respondents did not oppose the motion. (ECF No. 20). On April 30, 2013, the court granted petitioner's motion to file an amended petition and denied respondents' motion to dismiss without prejudice. (ECF No. 21). The amended federal petition was filed at ECF No. 22. Petitioner's amended federal petition contains ten grounds which are identical to the ten grounds petitioner raised in his post-conviction habeas petition and memorandum filed in state district court. (Compare ECF No. 22 to Exhibit 49).
Respondents filed a motion to dismiss the amended federal petition. (ECF No. 23). By order filed March 14, 2014, the court granted respondents' motion in part. (ECF No. 34). Specifically, the court ruled as follows: (1) the entirety of ground 1 was dismissed as procedurally barred; (2) the portion of ground 3 which claims that "the court misled the jury by saying all three knives came from the same place" was dismissed as procedurally barred, but the remaining claims of ineffective assistance of counsel were not procedurally barred; (3) the due process, equal protection, confrontation clause, and fair trial claims within ground 4 were dismissed as procedurally defaulted, however, the claims of ineffective assistance of counsel were not procedurally barred; (4) the fair trial and due process claims within ground 7 were dismissed as procedurally barred, however, the claims of ineffective assistance of counsel were not procedurally barred; (5) ground 8 was dismissed for failure to state a cognizable claim for federal habeas corpus relief; and (6) ground 10 was dismissed as moot. (ECF No. 34). The court ruled that this action shall proceed on the following grounds of the amended petition: (1) ground 2, in its entirety; (2) the ineffective assistance of counsel claims raised in ground 3; (3) the ineffective assistance of counsel claims raised in ground 4; (4) ground 5, in its entirety; (5) ground 6, in its entirety; (6) the ineffective assistance of counsel claims raised in ground 7; and (7) ground 9, in its entirety. (Id.). Respondents were ordered to file an answer addressing the merits of the surviving grounds of the amended petition. (Id.). Respondents filed an answer on April 14, 2014. (ECF No. 36). Petitioner filed a reply on June 24, 2014. (ECF No. 43).
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). 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, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). The formidable standard set forth in section 2254(d) reflects the view that habeas corpus is "`a guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
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 v. Andrade, 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 merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409). In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), cert. denied, 534 U.S. 944 (2001).
In a federal habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the burden set in § 2254(d) and (e) on the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 185 (2011).
Ineffective assistance of counsel claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming ineffective assistance of counsel has the burden of demonstrating that (1) counsel's performance was unreasonably deficient, and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 362, 390-391 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. To establish prejudice, the defendant 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. A reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. Additionally, any review of the attorney's performance must be "highly deferential" and must adopt counsel's perspective at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner's burden to overcome the presumption that counsel's actions might be considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient performance of counsel resulting in prejudice, "with performance being measured against an `objective standard of reasonableness,'. . . `under prevailing professional norms.'" Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quotations omitted). If the state court has already rejected an ineffective assistance claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable application of the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state supreme court's decision on a claim of ineffective assistance of counsel as "doubly deferential." Cullen v. Pinholster, 563 U.S. 86, 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 112-113, 129 S.Ct. 1411, 1413 (2009)). In Cullen v. Pinholster, the Supreme Court emphasized that: "We take a `highly deferential' look at counsel's performance . . . . through the `deferential lens of § 2254(d).'" Id. (internal citations omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. at 185. The United States Supreme Court has specifically reaffirmed the extensive deference owed to a state court's decision regarding claims of ineffective assistance of counsel:
Harrington v. Richter, 562 U.S. 86, 105 (2011). "A court considering a claim of ineffective assistance of counsel must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Id. at 104 (quoting Strickland, 466 U.S. at 689). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. (internal quotations and citations omitted).
The Strickland standard also applies to claims of ineffective appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel has no constitutional duty to raise every nonfrivolous issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). To state a claim of ineffective assistance of appellate counsel, a petitioner must demonstrate: (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that the resulting prejudice was such that the omitted issue would have a reasonable probability of success on appeal. Id. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52. Petitioner must show that his counsel unreasonably failed to discover and file nonfrivolous issues. Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000). It is inappropriate to focus on what could have been done rather than focusing on the reasonableness of what counsel did. Williams v. Woodford, 384 F.3d 567. 616 (9th Cir. 2004) (citation omitted).
Petitioner alleges that counsel was ineffective for failing to challenge the kidnapping charges at trial and failing to file a motion to dismiss. (ECF No. 22, at pp. 15-16). The Nevada Supreme Court considered and rejected this claim, as follows:
(Exhibit 67, at p. 2).
Petitioner further alleges that counsel was ineffective because he did not fully investigate or cross-examine the victim about her allegations that she was held to the floor by fear of being stabbed and failed to fully investigate and cross-examine her about the inconsistencies between her testimony at trial and her testimony at the preliminary hearing, her statements to police, and medical reports. (ECF No. 22, at pp. 16-17). The Nevada Supreme Court rejected petitioner's claims, as follows:
(Exhibit 67, at p. 3). The state court's factual findings, as found within the Nevada Supreme Court's decisions discussed above, are presumed correct. 28 U.S.C. § 2254(e)(1). As to each ineffective assistance of counsel claim within ground 2, petitioner has failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court denies habeas relief as to ground 2 in its entirety.
Petitioner alleges that counsel was ineffective because he failed to prepare a defense for trial. Petitioner alleges that his counsel: (a) never came to talk with him about a defense until three days before trial; (b) did not call an expert witness (a doctor) who could have testified that when someone gets hit in the face sometimes it takes hours or even a day for swelling to occur; (c) failed to crossexamine doctors and police officers to establish that the victim injured herself; (d) failed to crossexamine the police officers about how they could have gone upstairs to the condo when the victim never went back upstairs into the condo, medical personnel and the ambulance never came, and the victim arrived in the hospital in a private vehicle; (e) failed to argue that the victim did not go to the hospital until 24 hours after the incident which indicates that her injuries were not life-threatening; (f) failed to object to the doctor's claims on direct appeal; (g) failed to interview witnesses; (h) failed to adequately review and investigate the case; and (i) failed to object to the admission of the knives. (ECF No. 22, at pp. 19-21). The Nevada Supreme Court rejected these claims, as follows:
(Exhibit 67, at pp. 3-5). The state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). As to each ineffective assistance of counsel claim within ground 3, petitioner has failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court denies habeas relief as to ground 3 of the amended petition.
Petitioner alleges that: (a) trial counsel failed to object to the doctor's claims; (b) appellate counsel failed to appeal the doctor's claims in that an expert witness could have enlightened the jury that the medical term "bilateral brain bleed" is a broken nose; (c) trial counsel was ineffective because he allowed highly prejudicial photographs of the victim to remain on the screen for 20 minutes or longer and appellate counsel was ineffective for not raising the issue on direct appeal; and (d) trial counsel did not effectively cross-examine the victim to show that she was lying about the ATM card and appellate counsel was ineffective for not raising the issue on direct appeal. (ECF No. 22, at pp. 23-25). The Nevada Supreme Court considered and rejected petitioner's claims:
(Exhibit 67, at p. 5).
(Exhibit 67, at p. 9). The state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). As to each ineffective assistance of counsel claim within ground 4, petitioner has failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court denies habeas relief as to ground 4 of the amended petition.
Petitioner claims violation of due process, equal protection, freedom of the press, and the effective assistance of counsel because trial counsel failed to record critical proceedings and appellate counsel failed to challenge the trial court's giving the victim a tissue to wipe her eyes in front of the jury. (ECF No. 22, at p. 27). The Nevada Supreme Court rejected the claims regarding the trial court's failure to record jury proceedings on direct appeal, as follows:
(Exhibit 39, at p. 2). The Nevada Supreme Court also rejected petitioner's ineffective assistance of counsel claims on appeal from the denial of his state court habeas petition:
(Exhibit 67, at p. 7).
As to petitioner's claim that appellate counsel failed to challenge the trial court's giving the victim a tissue to wipe her eyes in front of the jury, the Nevada Supreme Court ruled as follows:
(Exhibit 67, at p. 11). Even if the trial court committed an error of constitutional magnitude, such error is subject to this court's application of the Brecht harmless error rule, and petitioner is not entitled to federal habeas relief unless he demonstrates that the error "had a substantial and injurious effect or influence in determining the jury's verdict" under the independent harmless error standard of Brecht v. Abramson, 507 U.S. 619, 623 (1993). Even assuming that the trial court erred, petitioner is not entitled to federal habeas relief because he has failed to demonstrate that the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623. As such, the error was harmless. Id. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's ruling was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This court denies federal habeas relief on ground 5 in its entirety.
There is considerable overlap in the claims petitioner makes in grounds 6 and 7 of the amended petition. (ECF No. 22, at pp. 29-37). Therefore, the court considers grounds 6 and 7 together.
In ground 6, petitioner claims that his trial counsel was ineffective because he: (a) failed to file kidnapping motions and failed to use Wright v. State, 581 P.2d 442, 443 (Nev. 1978) as a defense; (b) failed to cross-examine witnesses; (c) showed no concern for petitioner because he was black; and (d) failed to challenge the reasonable doubt instruction. Petitioner also claims that appellate counsel: (a) failed to raise the issue of judicial coercion on appeal; (b) failed to challenge the jury instruction on implied malice and violated NRS 47.2340; (c) failed to challenge the stipulated fact of Richard Scwartz, M.D. to be part of the jury instruction; and (d) did not challenge the constitutionality of jury instructions 11, 12, 13, 14, 15, 16, 17 and 18 and the jury instructions on implied malice, premeditation, and deliberation. (ECF No. 22, at pp. 29-30).
In ground 7, petitioner alleges that trial counsel was ineffective because he: (a) failed to object to the premeditation and deliberation instruction; (b) failed to object to the admission of the autopsy photographs and trace metal evidence and failed to present expert testimony opposing and rebutting that evidence; (c) failed to interview and call to testify an essential alibi witness; (d) failed to object to the prosecution's improper vouching and commentary during closing argument; (e) failed to meaningfully investigate that petitioner was innocent of kidnapping; (f) different counsel represented him at different hearings and were uninformed and unprepared to effectively represent him; (g) failed to adequately cross-examine the victim; (h) failed to conduct a thorough pretrial investigation; (i) failed to pursue and investigate his theory of the defense; (j) failed to crossexamine witnesses about what petitioner said had happened; (k) failed to adequately prepare for direct examination and cross-examination of witnesses; (l) failed to investigate and request or obtain copies of the police department's lost notes and search reports; (m) failed to investigate by not filing a request to obtain or review the autopsy and x-rays which contradict what the state alleged petitioner did to the victim; (n) failed to obtain and review items removed from petitioner's residence which could have shown that the victim had to get up to get her purse; (o) failed to object to the statement that all three knives came from petitioner's residence when one knife came from the victim's purse while she was at the hospital; and (p) failed to adequately present a defense theory based on lesser included offenses such as false imprisonment or coercion. Petitioner also argued that: (a) the jury instructions on proximate cause and contributory negligence were invalid; (b) allowing Dr. Schwartz's statement regarding a bilateral brain bleed as part of an instruction was erroneous, as was the sympathy instruction. Petitioner again alleged that the instruction on malice was improper, violating NRS 47.230 and his due process rights. (ECF No. 22, at pp. 32-35).
As discussed earlier in this order, the Nevada Supreme Court found that counsel challenged the kidnapping charges, filed a motion to dismiss and a pretrial writ of habeas corpus, and challenged the kidnapping count on direct appeal. (Supra, Part III, B; Exhibit 67, at p. 2). Petitioner fails to show which witnesses counsel failed to cross-examine and how this failure prejudiced him. In the discussion of ground 4, this court described how the Nevada Supreme Court rejected petitioner's claim that counsel was ineffective for not challenging the Dr. Schwartz stipulation because petitioner failed to demonstrate that further testimony defining a bilateral brain bleed would have had a reasonable probability of altering the outcome at trial. (Supra, Part III, D; Exhibit 67, at p. 5). The Nevada Supreme Court rejected petitioner's remaining arguments in Grounds 6 and 7, as follows:
(Exhibit 67, at pp. 5-8; pp. 10-11).
Regarding the reasonable doubt claim, trial counsel was not ineffective because the Ninth Circuit Court of Appeals upheld Nevada's reasonable doubt instruction in Ramirez v. Hatcher, 136 F.3d 1209, 1210-11 (9th Cir. 1998). Regarding the other claims in grounds 6 and 7, petitioner has provided no argument which his counsel should have made regarding the instructions, has failed to identify which fo the prosecutor's statements that counsel should have objected to, failed to identify the lost police notes or provide an explanation for how counsel could have viewed, advanced claims regarding a murder case that had nothing to with this case, failed to identify the critical evidence he claims was lost at the hospital, and has provided no facts or cogent argument to support his other claims.
The state court's factual findings, as found within the Nevada Supreme Court's rulings discussed above, are presumed correct. 28 U.S.C. § 2254(e)(1). This court has reviewed each of petitioner's claims within grounds 6 and 7. Petitioner has failed to demonstrate that his trial or appellate counsel's performance was deficient or that he was prejudiced under Strickland. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's ruling was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The court denies habeas relief as to all claims within grounds 6 and 7.
Petitioner alleges that counsel was ineffective because he failed to object, pursuant to Flores v. State, 114 Nev. 910, 965 P.2d 901 (1998), to the procedure that the trial court used to allow the jurors to ask questions. This claim was addressed in ground 5 of the amended petition. As discussed earlier in this order, the Nevada Supreme Court rejected petitioner's ineffective assistance of counsel claims regarding the Flores argument. (Supra, Part III, E; Exhibit 67, at p. 7).
Petitioner also alleged that appellate counsel failed to timely seek a rehearing which stopped his chances of proving his innocence. (ECF No. 22, at pp. 37, 39). The Nevada Supreme Court rejected petitioner's claim as follows:
(Exhibit 67, at p. 11). The state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to demonstrate that his counsel's performance was deficient and has failed to show prejudice. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's rulings were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court denies habeas relief as to ground 9 in its entirety.
District courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id. In this case, no reasonable jurist would find this court's denial of the petition debatable or wrong. The court therefore denies petitioner a certificate of appealability.
