MIRANDA M. DU, District Judge.
This action is a petition for writ of habeas corpus by Donald Glenn Estes, a Nevada prisoner. The action is before the Court with respect to the merits of the claims in Estes' habeas petition. The Court will deny the petition.
In its opinion on Estes' direct appeal, the Nevada Supreme Court summarized the relevant background of Estes' case as follows:
Estes v. State, 122 Nev. 1123, 1129-30, 146 P.3d 1114, 1118-19 (2006); (Exh. 47 (ECF No. 18-5) (Except where otherwise indicated, the Exhibits referred to in this order were filed by Estes, and are found in the record at ECF Nos. 14-19.).)
On appeal, in pertinent part relative to his petition in this case, Estes raised issues regarding the admission of testimony of the three Lake's Crossing employees, and regarding the trial court's refusal to instruct the jury regarding involuntary intoxication. (See Appellant's Opening Brief, Exh. 41 (ECF No. 17-9).) The Nevada Supreme Court rejected Estes' claims with respect to those issues. See Estes v. State, 122 Nev. 1123, 146 P.3d 1114 (2006); (Exh. 47 (ECF No. 18-5).) Ruling on other issues, the Nevada Supreme Court reversed Estes' convictions on one count of battery with intent to commit a crime and two counts of lewdness with a child under the age of fourteen years, and remanded to the state district court, for, among other things, further consideration of the two counts of preventing or dissuading a person from testifying or producing evidence. (See id.) The Nevada Supreme Court denied Estes' petition for rehearing on March 1, 2007. (See Order Denying Rehearing, Exh. 52 (ECF No. 18-10).) The United States Supreme Court denied Estes' petition for a writ of certiorari on October 1, 2007. (See Notice of Denial of Petition for Writ of Certiorari, Exh. 56 (ECF No. 18-14).)
On remand, in the state district court, the court dismissed the two counts of preventing or dissuading a person from testifying or producing evidence, and Estes' sentences on those convictions were vacated. (See Second Amended Judgment of Conviction, Exh. 53 (ECF No. 18-11).)
On November 28, 2007, Estes filed a petition for writ of habeas corpus in the state district court. (See Petition for Writ of Habeas Corpus, Exh. 57 (ECF No. 18-15).) Counsel was appointed for Estes, and, with counsel, Estes filed supplemental briefing in support of his habeas petition. (See Order of Appointment, Exh. 61 (ECF No. 19); Supplemental Brief in Support of Petition for Writ of Habeas Corpus, Exh. 63 (ECF No. 19-2); Second Supplemental Brief in Support of Petition for Writ of Habeas Corpus, Exh. 64 (ECF No. 19-3).) The state district court held an evidentiary hearing on April 7, 2011. (See Transcript of Evidentiary Hearing, Exh. 68 (ECF No. 19-8).) On June 14, 2011, the state district court denied Estes's petition in a written order. (See Findings of Fact, Conclusions of Law and Order, Exh. 71 (ECF No. 19-11).) Estes appealed, and the Nevada Supreme Court affirmed on December 12, 2012. (See Order of Affirmance, Exh. 76 (ECF No. 19-16).)
Estes initiated this federal habeas corpus action on February 14, 2013, by filing a pro se habeas corpus petition (ECF No. 4). Counsel was appointed to represent Estes. (See Order entered April 11, 2013 (ECF No. 3); Notice of Appearance of Counsel (ECF No. 8).) With counsel, Estes filed an amended petition for writ of habeas corpus — the operative petition in the case — on November 12, 2013 (ECF No. 20).)
Respondents filed a motion to dismiss on January 15, 2014 (ECF No. 25), contending that certain of Estes' claims are unexhausted in state court. The Court denied the motion to dismiss. (See Order entered July 22, 2014 (ECF No. 28).) Respondents then filed an answer (ECF No. 29), and Estes filed a reply (ECF No. 34).
On May 30, 2017, the Court ordered respondents to expand the record, pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts, by filing, as an Exhibit, a copy of the transcript of Estes' statement to the police, which was admitted into evidence at trial. (See Order entered May 30, 2017 (ECF No. 35).) Respondents complied with that order, by filing the transcript as an Exhibit on June 19, 2017 (ECF No. 36). Estes responded to that filing (ECF No. 37), stating that he has no objection to the Court's consideration of the Exhibit, but stating that his birthdate and Social Security number should be redacted from the Exhibit. On June 21, 2017, the Court ordered the June 19, 2017, filing sealed, and ordered respondents to file a redacted version of the Exhibit. (See Order entered June 21, 2017 (ECF No. 38).) On June 22, 2017, respondents filed the Exhibit with Estes' birthdate and Social Security number redacted out (ECF No. 39).
The Court observes that Robert LeGrand, the named respondent warden, is no longer the warden of Lovelock Correctional Center, the prison where Estes is incarcerated. Renee Baker is now the warden. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), the Court will direct the Clerk of the Court to substitute Renee Baker for Robert LeGrand as the respondent warden on the docket for this case.
28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under the Antiterrorism and Effective Death Penalty Act (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 instructed that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing standard as "a difficult to meet" and "highly deferential standard for evaluating state-court rulings, which demands that statecourt decisions be given the benefit of the doubt" (internal quotation marks and citations omitted)).
In Ground 1 of his amended habeas petition, Estes claims that his federal constitutional rights were violated because, following his commitment to Lake's Crossing, a state mental health facility, and after he was found competent to proceed to trial, the prosecution was allowed, in its rebuttal case at trial, to use information gathered during Estes' commitment to refute his claim that he was legally insane when he committed the crimes in this case. (See First Amended Petition (ECF No. 21) at 17-19.) Estes' claim concerns the testimony of Elizabeth Neighbors, Ph.D. (Transcript of Trial, March 12, 2004, Exh. 33 at 6-78 (ECF No. 17, pp. 3-21)), Adrianne J. Coronella (Id. at 78-103 (ECF No. 17 at 21-27)), and Howard Hale Henson, M.D. (Id. at 103-45 (ECF No. 17 at 27-38)).
Estes asserted this claim on his direct appeal. (See Appellant's Opening Brief, Exh. 41 at 15-23 (ECF No. 17-9 at 25-33). In its ruling on this claim, the Nevada Supreme Court reviewed the applicable Nevada and federal case law, and, relying primarily on Buchanan v. Kentucky, 483 U.S. 402 (1987), rejected Estes' claim that his constitutional rights were violated. See Estes, 122 Nev. at 1131-36, 146 P.3d at 1119-23. The Nevada Supreme Court ruled that "when the defendant places his sanity or mental capacity at issue, a defendant's right to protection under the Fifth and Fourteenth Amendments from the disclosure of confidential communications made during a court-ordered psychiatric evaluation relates only to the incriminating communications themselves." Estes, 122 Nev. at 1133, 146 P.3d at 1121. The Nevada Supreme Court went on: "[I]f the defendant seeks to introduce the evaluation or portions of it in support of a defense implicating his or her mental state, the prosecution may also rely upon the evaluation for the limited purpose of rebuttal." Estes, 122 Nev. at 1133-34, 146 P.3d at 1121. Turning to the specific testimony at issue, the Nevada Supreme Court ruled, as follows, regarding Coronella's testimony:
Estes, 122 Nev. at 1134-35, 146 P.3d at 1122 (footnotes omitted). With regard to the testimony of Neighbors and Henson, the Nevada Supreme Court ruled as follows:
Estes, 122 Nev. at 1135, 146 P.3d at 1122-23 (footnotes omitted). In a footnote, the Nevada Supreme Court added:
Estes, 122 Nev. at 1136 n. 37, 146 P.3d at 1123 n. 37.
At the conclusion of its opinion, the Nevada Supreme Court summarized its ruling on this issue as follows:
Estes, 122 Nev. at 1145-46, 146 P.3d at 1129.
In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Estelle, 451 U.S. at 468. Subsequently, however, in Buchanan v. Kentucky, 483 U.S. 402 (1987), the Supreme Court limited the rule of Estelle, holding that evidence obtained in the course of a pre-trial psychiatric evaluation may be introduced at trial to rebut the defendant's assertion of an insanity defense, so long as the evidence does not include incriminating information regarding the facts of the crime. See Buchanan, 483 U.S. at 424; see also Kansas v. Cheever, 134 S.Ct. 596 (2013) (reaffirming rule announced in Buchanan); Pawlyk v. Wood, 248 F.3d 815, 827-28 (9th Cir. 2001) ("Estelle and Buchanan established, and placed counsel on notice, that when a defendant places his mental status at issue and presents favorable evidence from a psychiatric evaluation, he waives confidentiality as to evaluations unfavorable to his defense."), cert. denied, 534 U.S. 1085 (2002).
In this case, Estes put his mental state at issue by means of his own testimony, and he testified about his stays at Lake's Crossing in an apparent attempt to substantiate his defense based on his mental state at the time of the crimes. See Testimony of Donald Glenn Estes, Trial Transcript, March 11, 2004, Exh. 31, pp. 81-83 (ECF No. 16-2, p. 22)); see also Reply (ECF No. 34), pp. 24-25 (acknowledging that Estes testified about his stay at Lake's Crossing in attempt to support involuntary intoxication defense). In response, in its rebuttal case, the prosecution called Neighbors, Coronella and Henson to testify about Estes' mental state, as observed by them at Lake's Crossing. The testimony of Neighbors, Coronella and Henson did not involve the facts regarding Estes' underlying crimes; rather, their testimony involved Estes' interest in asserting a defense based on his mental state, and their observations and opinions regarding his mental state. While Estes did not introduce any expert testimony or other evidence beyond his own testimony to support his defense, his testimony raised the subject of his stays at Lake's Crossing and the question of his mental state at the time of the crimes. Under these circumstances, this Court does not find unreasonable the state supreme court's reading of Estelle and Buchanan to allow the State to respond by calling Lake's Crossing staff to testify as they did without violating Estes' constitutional rights.
Estes has failed to meet his burden of showing 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. Therefore, the Court denies relief on Ground 1.
In Ground 2, Estes claims that his constitutional rights were violated because the trial court declined to give a jury instruction regarding involuntary intoxication. (See First Amended Petition at 20-21.)
Estes asserted this claim on his direct appeal. (See Appellant's Opening Brief, Exh. 41 at 25-27 (ECF No. 17-9 at 35-37).) The Nevada Supreme Court ruled as follows:
Estes, 122 Nev. at 1138, 146 P.3d at 1124 (footnotes omitted).
Estes cites Mathews v. United States, 485 U.S. 58 (1988), for the proposition that he had a federal constitutional right, clearly established in Supreme Court precedent, to a jury instruction regarding his affirmative defense. In Mathews, the Supreme Court stated that "[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews, 485 U.S. at 63, citing Stevenson v. United States, 162 U.S. 313 (1896). However, Mathews went to the Supreme Court through a direct appeal from a judgment of conviction in a federal district court. In Mathews, the Supreme Court was acting solely within its supervisory role over criminal procedure in federal courts. See id. The Mathews Court did not apply any federal constitutional law. Estes does not cite to any Supreme Court precedent clearly establishing that a criminal defendant has a federal constitutional right to a jury instruction regarding his affirmative defense.
Moreover, even if the principle that Estes draws from Mathews were a basis, within the meaning of the AEDPA, for his federal habeas claim, Estes' claim would still fail. The Court does not find unreasonable the Nevada Supreme Court's ruling that Estes' selfserving lay opinion was insufficient for a reasonable jury to find that he was affected by involuntary lithium intoxication at the time of his crimes.
The Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. The Court denies relief on Ground 2.
In Ground 3A, Estes claims that his constitutional rights were violated as a result of ineffective assistance of his trial counsel, because his trial counsel "failed to obtain an expert and otherwise investigate and support Estes' defense theory and testimony that he suffered from mental illness. . . ." (First Amended Petition at 21; see also id. at 21-22.)
Estes asserted this claim in his state habeas action. (See Second Supplemental Brief in Support of Petition for Writ of Habeas Corpus, Exh. 64 at 3-7 (ECF No. 19-3 at 4-8).) After holding an evidentiary hearing focused primarily on this claim (see Transcript of Evidentiary Hearing, Exh. 68 (ECF No. 19-8)), the state district court denied the claim. (See Findings of Fact, Conclusions of Law and Order, Exh. 71 (ECF No. 19-11).) In its written order, the state district court ruled:
(Findings of Fact, Conclusions of Law and Order, Exh. 71 at 4-5 (ECF No. 19-11 at 5-6) (paragraph numbering omitted).)
On appeal, the Nevada Supreme Court affirmed, ruling as follows:
(Order of Affirmance, Exh. 76 at 2 (ECF No. 19-16 at 3) (footnote omitted).)
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the defense attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. 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 689. The petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693.
Where a state court has adjudicated a claim of ineffective assistance of counsel under Strickland, establishing that the decision was unreasonable under the AEDPA is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court instructed:
Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010) (acknowledging double deference required for state court adjudications of Strickland claims).
The state supreme court's resolution of this claim was reasonable. There was overwhelming evidence of Estes guilt, there was overwhelming evidence that Estes was not legally insane when he committed the crimes, and there is no showing by Estes that any expert testimony could have supported his insanity defense.
It is beyond any reasonable debate that Estes committed the crimes; there was overwhelming evidence: B.C.'s testimony (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 28-61 (ECF No. 16 at 8-17)); evidence that, after Estes returned B.C. to his parents, B.C. knew details regarding the remote location where Estes took him against his will (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 52-53 (ECF No. 16 at 14-15); Testimony of Timothy Moniot, Trial Transcript, March 10, 2004, Exh. 29 at 198-202 (ECF No. 16 at 51-52); Testimony of Joel Kisner, Trial Transcript, March 11, 2004, Exh. 31 at. 24-25 (ECF No. 16-2 at 7-8)); evidence that, after Estes returned B.C. to his parents, B.C. knew the color of Estes' underwear (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 57-58 (ECF No. 16, at 16); Testimony of George Libbey, Trial Transcript, March 10, 2004, Exh. 29 at 80-81 (ECF No. 16 at 21-22)); evidence that, after Estes returned B.C. to his parents, B.C. knew that Estes had an uncircumcised penis (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 58-59 (ECF No. 16 at 16); Testimony of Timothy Moniot, Trial Transcript, March 10, 2004, Exh. 29 at 196-98 (ECF No. 16 at 50-51)); physical signs of sexual abuse observed on B.C.'s body by a doctor (Testimony of Dr. Theresa Vergara, Trial Transcript, March 10, 2004, Exh. 29 at 90-95 (ECF No. 16 at 24-25)); evidence that DNA from Estes' sperm was found on B.C.'s sweatshirt (Testimony of Thomas Wahl, Trial Transcript, March 10, 2004, Exh. 29 at 119-21 (ECF No. 16 at 31-32)); evidence that DNA from Estes' sperm, along with DNA that could have come from B.C.'s saliva, were found on a mouthwash bottle that Estes' forced B.C. to drink from after the sexual assault (Testimony of Thomas Wahl, Trial Transcript, March 10, 2004, Exh. 29 at 110-15 (ECF No. 16 at 29-30)); evidence that DNA from Estes' sperm, along with DNA that could have come from B.C.'s saliva, were found on Estes' underwear (Testimony of Thomas Wahl, Trial Transcript, March 10, 2004, Exh. 29 at 115-17 (ECF No. 16 at 30-31)); evidence that DNA from Estes' sperm, along with DNA that could have come from B.C.'s saliva, were found on Estes' penis (Testimony of Thomas Wahl, Trial Transcript, March 10, 2004, Exh. 29 at 117-19 (ECF No. 16 at 31)); evidence that the zipper on Estes' pants was undone when he got out of his vehicle at the motel when he returned B.C. to his parents (Testimony of Robert Ross Williams, Trial Transcript, March 10, 2004, Exh. 29 at 140-41 (ECF No. 16 at 36-37)); Estes' own testimony, in which he did not deny that B.C. was telling the truth (Testimony of Donald Glenn Estes, Trial Transcript, March 11, 2004, Exh. 31 at 78-93, 102-103 (ECF No. 16-2 at 21-25, 27)).
Furthermore, there was overwhelming evidence indicating that Estes was not legally insane — that he knew the nature, wrongfulness, and illegality of his actions (see Jury Instruction Regarding Legal Insanity, Instruction 17, Exh. 32 (ECF No. 16-3 at 22)): evidence that Estes took B.C. to a remote and secluded location to sexually assault him (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 36-44 (ECF No. 16 at 10-12)); B.C.'s testimony that Estes threatened to harm or kill him, as well as his mother and father, if he told anyone what Estes did to him (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 39, 42-44, 48, 59 (ECF No. 16 at 11-13, 16)); B.C.'s testimony that Estes told him that if he said what Estes told him to say about what had happened, Estes would give him money (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 44 (ECF No. 16 at 12)); B.C.'s testimony that Estes lied to him about where Estes was taking him (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 35-37 (ECF No. 16 at 10-11)); B.C.'s testimony that, at the second location where Estes sexually assaulted him, when a car would drive by, Estes would make him "get up so that they wouldn't think of anything" (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 45 (ECF No. 16 at. 13)); B.C.'s testimony that when Estes forced B.C. to perform fellatio, Estes forced B.C. to swallow his semen (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 43-44, 46 (ECF No. 16 at 12-13)); evidence that, after Estes forced B.C. to perform fellatio, Estes forced B.C. to use mouthwash (Testimony of B.C., Trial Transcript, March 10, 2004, Exh. 29 at 46-48 (ECF No. 16 at 13)); evidence that when Estes returned to the motel with B.C., Estes appearance was not unusual (except for his unzipped pants) and his speech was coherent (Testimony of Robert Ross Williams, Trial Transcript, March 10, 2004, Exh. 29 at 140-41, 144 (ECF No. 16 at 36-37); Testimony of Joel Kisner, Trial Transcript, March 11, 2004, Exh. 31, at 13-14 (ECF No. 16-2 at 5)); Estes' statement to the police, in which he denied having sexual contact with B.C. (Transcript of Statement, Respondents' Exh. 2 (ECF No. 39); see also Trial Transcript, March 11, 2004, Exh. 31 at 30 (ECF No. 16-2 at 9) (audio recording of Estes' statement to the police played for the jury at trial)).
The record shows that Estes' trial counsel had no strong ground on which to defend him. Estes' trial counsel was aware that the evidence of Estes' guilt was overwhelming. (See Testimony of Christy Craig, Transcript of Evidentiary Hearing, Exh. 68 at 18-19 (ECF No. 19-8 at 19-20).) And, she knew, given the evidence regarding Estes' behavior during and after the crimes, and his statement to the police, that an insanity defense would be unsupportable. (See id. at 15-18, 31 (ECF No. 19-8 at 16-19, 32).) She had no reason to believe that she could find an expert to opine that Estes experienced a psychotic episode and was legally insane when he committed the crimes. (See id. at 30 (ECF No. 19-8 at 31.) In fact, she was concerned that, with respect to his mental health, Estes might have been malingering. (See id. at 11, 22, 26-27 (ECF No. 19-8 at 12, 23, 27-28).) Furthermore, Estes' trial counsel did in fact attempt to find an expert to substantiate Estes' belief that when he committed the crimes he was under the influence of lithium poisoning, but she could not find any expert who would support that theory. (See id. at 25 (ECF No. 19-8 at 26).) Estes' trial counsel testified that she believes that the result of Estes' trial would not have been different had she attempted further to find an expert to substantiate an insanity defense. (See id. at 31-32 (ECF No. 19-8 at 32-33).)
Moreover, and perhaps most importantly to the resolution of this claim, Estes has never presented any expert opinion that he was legally insane when he committed the crimes. Dr. Slagle, the expert that Estes presented at the state-court evidentiary hearing, did not express such an opinion. (See Testimony of Dr. Dodge Slagle, Transcript of Evidentiary Hearing, Exh. 68 at 35-52 (ECF No. 19-8 at 36-53).) Dr. Slagle testified that he believed that Estes was in a manic state when he committed the crimes in this case, but he could not say that Estes met the standard for legal insanity. (See id. at 43-44, 50 (ECF No. 19-8 at 44-45, 51).) Notably, Dr. Slagle concluded his testimony as follows:
(Testimony of Dr. Dodge Slagle, Transcript of Evidentiary Hearing, Exh. 68 at 49, 51-52 (ECF No. 19-8, pp. 50, 52-53).)
Nor did Dr. Schmidt, an expert retained by Estes, who died before the evidentiary hearing, express an opinion supporting an insanity defense. (See Neuropsychological Assessment Report of David L. Schmidt, Ph.D., Exh. 64A (ECF No. 19-4).)
In light of the evidence at trial, and the record of the state-court evidentiary hearing, in this Court's view, the Nevada Supreme Court reasonably rejected Estes' claim that his trial counsel was ineffective for failing to further investigate Estes' mental illness and to further attempt to obtain an expert to support an insanity defense based upon his mental illness. It is plain from the evidence that any further pursuit of such a defense would have been fruitless and would have had no impact on the outcome of Estes' trial.
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Strickland or any other United States Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court denies relief on Ground 3A.
In Ground 3B, Estes claims that his constitutional rights were violated, as a result of ineffective assistance of his appellate counsel, because, on his direct appeal to the Nevada Supreme Court, his counsel did not argue that his rights under the Confrontation Clause of the Sixth Amendment were violated at trial as a result of admission of hearsay into evidence. (See First Amended Petition at 21-23.) Specifically, Estes challenges the trial court's admission of testimony of Officer Robert Williams, Dr. Theresa Vergara, and Tamara Norris. (See id. at 22.)
Estes originally included testimony of Officer Julie Hager within the scope of this claim (see id.), but abandoned that part of the claim in his reply. (See Reply (ECF No. 34) at 37 ("As such, Estes does not have a viable IAC direct appeal argument as to Officer Julie Hager and should not have included that subpart in his federal petition.").)
In his state habeas action, Estes claimed that his appellate counsel was ineffective for failing to raise an issue regarding hearsay testimony of Williams, Vergara and Norris. (See Supplemental Brief in Support of Petition for Writ of Habeas Corpus, Exh. 63 at 14-16 (ECF No. 19-2 at 15-17).) The state district court denied the claim (see Findings of Fact, Conclusions of Law and Order, Exh. 71 at 5 (ECF No. 19-11 at 6)), and, on appeal, the Nevada Supreme Court affirmed, ruling as follows:
(Order of Affirmance, Exh. 76 at 5 (ECF No. 19-16 at 6).)
This claim is meritless. To the extent that Estes claims that his appellate counsel should have argued that the admission of the testimony of Williams, Vergara and Norris violated his rights under the Confrontation Clause, such an argument would plainly have failed because B.C. and Hager, the individuals who made the out-of-court statements at issue, testified at trial. See Davis v. Washington, 547 U.S. 813, 823-24 (2006); Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination."); see also Crawford, 541 U.S. at 59 n.9 ("Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements."). And, to the extent that Estes claims that his appellate counsel should have argued that testimony of Williams, Vergara and Norris was inadmissible hearsay under state law, the Nevada Supreme Court's rejection of that claim, on state-law grounds, is authoritative and binding in this federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.").
The Nevada Supreme Court's denial of this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. The Court denies relief on Ground 3B.
The standard for issuance of a certificate of appealability is governed by 28 U.S.C. § 2253(c). The Supreme Court has interpreted section 2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). Applying this standard, the Court finds that a certificate of appealability is warranted with regard to Ground 1 of Estes' amended petition.
It is therefore ordered that, pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of the Court is directed to substitute Renee Baker for Robert LeGrand, on the docket for this case, as the respondent warden of the Lovelock Correctional Center.
It is further ordered that the First Amended Petition for Writ of Habeas Corpus (ECF No. 21) is denied.
It is further ordered that the petitioner is granted a certificate of appealability with regard to Ground 1 of his first amended petition for writ of habeas corpus. Petitioner is denied a certificate of appealability in all other respects.
It is further ordered that the Clerk of the Court is to enter judgment accordingly.
