KENT J. DAWSON, District Judge.
This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Beau Brown, a Nevada prisoner. The respondents have filed an answer, responding to the claims remaining in Brown's first amended petition for writ of habeas corpus, and Brown has filed a reply. The Court will deny Brown's petition.
In its order affirming Brown's judgment of conviction, the Nevada Supreme Court described the background of the case as follows:
Order of Affirmance, Exhibit 62, pp. 1-3 (ECF No. 18-11, pp. 2-4). (The exhibits referred to in this order were filed by Brown, and are located in the record at ECF Nos. 16, 17, 18, 19, 28 and 40.)
The judgment of conviction was entered on July 30, 2002. See Judgment, Exhibit 51 (ECF No. 18). Brown was sentenced to: two consecutive sentences of life in prison without the possibility of parole for the murder with the use of a firearm; two consecutive sentences of 24 to 60 months in prison for the attempted robbery with use of a deadly weapon, to be served concurrently with the life sentences; and a sentence of 24 to 120 months in prison for the burglary, to be served concurrently with the other sentences. See id.
Brown appealed, and the Nevada Supreme Court affirmed the judgment of conviction on January 8, 2004. See Order of Affirmance, Exhibit 62 (ECF No. 18-11).
On January 26, 2005, Brown filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64 (ECF No. 18-13). The state district court held an evidentiary hearing (see Exhibits 69-71 (ECF Nos. 18-18, 18-19, 18-20)), and entertained supplemental briefing (see Exhibits 72-74 (ECF Nos. 18-21, 18-22, 18-23)). The state district court denied the petition, in a written order, on May 6, 2010. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76 (ECF No. 19). Brown appealed, and the Nevada Supreme Court affirmed on May 9, 2011. See Order of Affirmance, Exhibit 85 (ECF No. 19-9).
While the appeal from the denial of his first state habeas corpus petition was still pending, on October 12, 2010, Brown filed a second state petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 80 (ECF No. 19-4). The state district court dismissed that petition on November 19, 2012. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 110 (ECF No. 40-2). Brown appealed, and the Nevada Supreme Court affirmed on September 16, 2014. See Order of Affirmance, Exhibit 120 (ECF No. 40-12).
This Court received Brown's federal habeas petition, initiating this action pro se, on May 17, 2011 (ECF No. 1). The Court granted Brown's motion for appointment of counsel, and appointed counsel to represent him. See Order entered May 20, 2011 (ECF No. 7); Notice of Representation of Petitioner (ECF No. 10). With counsel, Brown filed a first amended petition for writ of habeas corpus (ECF No. 15) on January 23, 2012. Brown's first amended petition asserted the following claims:
The action was stayed from January 25, 2013, to February 3, 2015, pending completion of Brown's second state habeas action. See Order entered January 25, 2013 (ECF No. 35); Order entered February 3, 2015 (ECF No. 41).
After the state-court litigation was completed and the stay of this case lifted, respondents filed a motion to dismiss on March 18, 2015, arguing that certain of Brown's claims are barred by the procedural default doctrine, that certain of his claims are unexhausted, and that certain of his claims are not cognizable in this federal habeas corpus action. See Motion to Dismiss (ECF No. 42). On November 9, 2015, the Court granted the motion to dismiss in part and denied it in part. See Order entered November 9, 2015 (ECF No. 47). The Court ruled that Claims 1I, 1J, 1K, 1L, 2E, 3E, 3F and 4 are procedurally defaulted and dismissed those claims. See id. The Court ruled that Claims 7A and 7B are barred by the rule of Stone v. Powell, 428 U.S. 465 (1976), and dismissed those claims as well. See id. The Court ruled that Claims 3A, 3C, 7C and 7D are unexhausted in state court; regarding those claims, the Court granted Brown an opportunity to either abandon them or move for a second stay of this action to allow him to exhaust them in state court. See id. On December 10, 2015, Brown filed a notice of abandonment of unexhausted Claims 3A, 3C, 7C and 7D (ECF No. 48).
Respondents filed an answer on April 1, 2016, responding to Brown's remaining claims (ECF No. 51). Brown filed a reply on July 29, 2016 (ECF No. 54).
A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. 28 U.S.C. § 2254(d). A state-court ruling is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is "an unreasonable application" of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court precedent was "objectively unreasonable." Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the "unreasonable application" clause of section 2254(d), only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
In Ground 1A, Brown claims that his trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for antagonizing the jury during closing arguments" in the penalty phase of his trial. See First Amended Petition (ECF No. 15), pp. 7-8.
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: the petitioner must demonstrate (1) that the attorney's representation "fell below an objective standard of reasonableness," and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 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. Rather, the errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
Where a state court previously adjudicated the claim of ineffective assistance of counsel, under Strickland, establishing that the decision was unreasonable under AEDPA is especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court instructed:
Richter, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (2010) (acknowledging double deference required with respect to state court adjudications of Strickland claims).
In analyzing a claim of ineffective assistance of counsel, under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.
In Ground 1A Brown asserts that his trial counsel was ineffective for making the following comments to the jury as she began her penalty phase closing argument:
Transcript of Trial, April 16, 2002, Exhibit 45, p. 1413 (ECF No. 17-20, p. 145); see also First Amended Petition, p. 7.
After the closing arguments, the jury began its deliberations at 8:21 p.m. See id. at 1423 (ECF No. 17-20, p. 155). As the jury was proceeding to their deliberations, one juror attempted to get the attention of the prosecutor to speak with him, and other jurors attempted to speak with the bailiff. See id. at 1424-26 (ECF No. 17-20, pp. 156-58). The court canvassed the juror who attempted to get the attention of the prosecutor, and instructed him that the jurors should write down their question for the court. See id. at 1426-28 (ECF No. 17-20, pp. 158-60).
Then, at 9:15 p.m., a little less than an hour into their deliberations, the jury sent a note out to the court; the note stated:
Question A from Jury and Answer, Exhibit 46 (ECF No. 17-21) (spelling corrected); see also Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1429-30 (ECF No. 17-20, pp. 161-62). The note was signed by at least ten of the jurors. See Question A from Jury and Answer, Exhibit 46 (transcript of note listed ten jurors who signed it); Transcript of Trial, April 16, 2002, Exhibit 45, p. 1430 (ECF No. 17-20, p. 162) (trial court named eleven jurors who signed note).
The trial court discussed the note with counsel. See Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1430-33 (ECF No. 17-20, pp. 162-65). The court and counsel formulated and agreed upon the following message from the court, which was transmitted to the jurors:
See Question A from Jury and Answer, Exhibit 46; Transcript of Trial, April 16, 2002, Exhibit 45, p. 1433 (ECF No. 17-20, p. 165).
The jury returned its verdict at 10:35 p.m. Transcript of Trial, April 16, 2002, Exhibit 45, p. 1434 (ECF No. 17-20, p. 166). The jury sentenced Brown to life in prison without the possibility of parole. See Verdict, Exhibit 48 (ECF No. 17-23).
Brown claims that his trial counsel was ineffective for making the comments about the jury's guilt verdict, and for not requesting a mistrial or requesting a continuance to allow the jury to "cool off" before deliberating in the penalty phase. See First Amended Petition, pp. 7-8.
Brown asserted a similar claim in his state habeas corpus action, and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, pp. 4-5 (ECF No. 19-9, pp. 5-6).
The Nevada Supreme Court properly applied the Strickland standard in making this ruling (see id. at 1 (ECF No. 19-9, p. 2)), and the ruling — that Brown did not show prejudice from his counsel's performance in this regard — was not unreasonable. While the jurors were apparently angry about Brown's counsel denigrating their verdict, there is no showing that the jurors disregarded the jury instructions and allowed that emotion to affect their verdict. The jury's note indicated that the jurors took their role seriously. Defense counsel's apology was transmitted to the jury before they rendered their penalty phase verdict. There is no indication that a motion for mistrial or a motion for a continuance would have been granted, especially given the rulings of the trial court and the Nevada Supreme Court regarding this claim. In light of the entire trial record, the senselessness and brutality of the murder, and the other matters considered at Brown's sentencing, it was reasonable for the Nevada Supreme Court to find that Brown was not prejudiced. The Court will deny habeas corpus relief on Ground 1A.
In Ground 1B, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, "for failing to obtain the original surveillance tape and provide it to her expert witness." See First Amended Petition, pp. 8-9.
Brown also claims in Ground 1B, in a wholly conclusory manner, that his "constitutional right to a fair trial was violated when the State introduced unreliable evidence in the form of an altered surveillance tape." Id.; see also Reply (ECF No. 54), p. 13 (restating claim in same conclusory manner). Brown makes no argument specific to this part of Ground 1B, or any other effort to substantiate it.
Brown alleges that his trial counsel hired, as an expert, videographer William Stephens, and provided Stephens with a copy of a surveillance video from the scene of the crimes. See First Amended Petition, p. 8. Brown alleges that the copy of the video that his counsel provided to Stephens was of poor quality. See id. Brown alleges, also, that the copy of the video introduced as evidence by the prosecution at trial had been altered — it was evidently an "enhanced" version — and was not a true and accurate copy of the original surveillance video. See id. at 8-9. Brown alleges that his trial counsel was ineffective for failing to obtain the original surveillance video and provide it to Stephens prior to trial. See id. Brown claims that he was prejudiced because the "altered videotape, which the State suggested clearly showed Brown as the perpetrator at the store, was displayed repeatedly to the jury," and because "his expert was unable to effectively argue that Brown was not the perpetrator, where he did not have accurate evidence on which to base his opinion." Id.
Brown asserted this claim in his state habeas petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 27-28 (ECF No. 18-13, pp. 28-29). The state district court held an evidentiary hearing, at which this claim was addressed. See Transcript of Evidentiary Hearing, November 12, 13, and 16, 2009, Exhibits 69-71 (ECF Nos. 18-18, 18-19, 18-20). The state district court denied the claim in its order filed on May 6, 2010, ruling as follows:
Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, p. 8 (ECF No. 19, p. 9). On the appeal in Brown's state habeas action, the Nevada Supreme Court affirmed the ruling of the state district court, as follows:
Order of Affirmance, Exhibit 85, p. 2 (ECF No. 19-9, p. 3).
At the evidentiary hearing in his state habeas action, Brown presented the testimony of Dr. Charles Shelby Palm. See Transcript of Evidentiary Hearing, November 12, 2009, Exhibit 69, pp. 36-61 (ECF No. 18-18, pp. 37-62). Dr. Palm testified that he could not exclude Brown as the perpetrator of the crime, regardless of whether or not he examined the original video. See id. at 49-52, 57 (ECF No. 18-18, pp. 50-53, 58). There is, therefore, no showing that, had trial counsel provided Brown's expert with the original video earlier, there would have been a reasonable probability of a different outcome at trial. It was not objectively reasonable for the state courts to conclude that Brown was not prejudiced.
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 1B.
In Ground 1C, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, "for failing to object to the defective verdict form." See First Amended Petition, pp. 9-10. Brown claims that his trial counsel should have objected to the verdict form because it did not include the option of convicting him of second-degree murder, and that his counsel should have proffered an alternative verdict form providing that option. See id. In Ground 2A, Brown claims that his appellate counsel was ineffective for failing to assert on his direct appeal that the verdict form was improper in this regard. See id. at 18.
Brown asserted these claims in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 4-8 (ECF No. 18-13, pp. 5-9). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, p. 2 (ECF No. 19, p. 3). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, p. 4 (ECF No. 19-9, p. 5); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).
The Nevada Supreme Court's ruling was based on its construction of state law. That court determined that the verdict form complied with state law, and that, therefore, Brown's trial and appellate counsel were not ineffective for failure to challenge it. The Nevada Supreme Court's construction of Nevada law is authoritative, and is not subject to review in this federal habeas corpus action. See Estelle v. Mcquire, 502 U.S. 62, 67-68 (1991); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). Brown does not cite any federal-law ground on which his counsel could have requested a different verdict form. See First Amended Petition, pp. 9-10; Reply, pp. 15-16. Therefore, because the premise for Brown's claim of ineffective assistance of counsel has been completely undermined by the Nevada Supreme Court's construction of Nevada law, his claims of ineffective assistance of counsel are rendered meritless. Plainly, any objection by trial counsel, or any challenge by appellate counsel, to the verdict form used at Brown's trial, would have failed.
Moreover, it is notable that Brown's theory of defense — that he was not present when the victim was killed; that someone named "Travis" committed the murder — was inconsistent with a second-degree murder verdict. See Testimony of Beau Brown, Transcript of Trial, April 15, 2002, pp. 1169-71 (ECF No. 17-17, pp. 139-41) (Brown's testimony that "Travis" took his car and went to Bain's market, and that he, Brown, was elsewhere when the murder occurred). For this reason as well, any objection by counsel to the verdict form, or any challenge regarding it on direct appeal, would have been fruitless.
The Nevada Supreme Court's ruling on these claims was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Grounds 1C and 2A.
In Ground 1D, Brown claims that his trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to properly object to the attempted robbery instruction." See First Amended Petition, pp. 10-11. In Ground 2B, Brown claims that his appellate counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to properly challenge the attempted robbery instruction on appeal." See id. at 18-19. Brown claims that the attempted robbery instruction lowered the State's burden of proof with respect to the element of an act in furtherance of the robbery, and that it misstated the law with respect to the issue of renunciation of the crime. See id. at 10-11, 18-19.
Brown asserted these claims in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 9-15 (ECF No. 18-13, pp. 10-16). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, pp. 2-3 (ECF No. 19, pp. 3-4). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled on these claims as follows:
Order of Affirmance, Exhibit 85, p. 4 (ECF No. 19-9, p. 5); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).
The jury instruction at issue in these claims was as follows:
Jury Instruction 24, Exhibit 50 (ECF No. 17-25, p. 27).
Here again, the Nevada Supreme Court's ruling on this claim was based on state law; the court determined that the attempted robbery instruction correctly stated Nevada law. That ruling, based on state law, is not subject to review in this federal habeas corpus action. See Estelle, 502 U.S. at 67-68; Bonin, 59 F.3d at 841. The Court finds meritless Brown's conclusory and unsupported contention that the attempted robbery instruction given at his trial somehow reduced the State's burden of proof, in violation of his federal constitutional rights.
Any objection by trial counsel, or any challenge by appellate counsel, to the attempted robbery instruction would have failed. The Nevada Supreme Court's ruling on these claims was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Grounds 1D and 2B.
In Ground 1E, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, "for failing to object to the testimony from the victim's family regarding preferred punishment." See First Amended Petition, p. 11. In Ground 2C, Brown claims that his appellate counsel was ineffective "for failing to challenge on appeal the testimony from the victim's family regarding preferred punishment." See id. at 19-20.
The victim's father and son testified at Brown's penalty hearing, and both urged the jury to impose a sentence of life in prison without the possibility of parole. See Testimony of Karnail Sindh Bains, Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1387-92 (ECF No. 17-20, pp. 119-24); Testimony of Sarvpreet Bains, Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1392-95 (ECF No. 17-20, pp. 124-27). Brown claims that his trial and appellate counsel should have challenged this testimony.
Brown asserted these claims in his state habeas petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 15-18 (ECF No. 18-13, pp. 16-19). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, pp. 4-5 (ECF No. 19, pp.5-6). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, pp. 5-6 (ECF No. 19-9, pp. 6-7); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).
At the evidentiary hearing in Brown's state habeas action, Brown's trial counsel testified that she did not assert this argument because she felt the law was against it. See Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 24-26 (ECF No. 18-19, pp. 25-27) (". . .[T]he law was dead set against me.").
The Nevada Supreme Court's ruling that, under Randell, Nevada law did not prevent the victim impact testimony presented in Brown's case, is not subject to challenge in this federal habeas corpus action. See Estelle, 502 U.S. at 67-68; Bonin, 59 F.3d at 841.
In his reply, Brown argues that the victim impact testimony violated his federal constitutional rights; however, he cites, in that regard, only cases involving defendants sentenced to death: Jones v. United States, 527 U.S. 373 (1999); Payne v. Tennessee, 501 U.S. 808 (1991); Booth v. Maryland, 482 U.S. 496 (1987); and South Carolina v. Gathers, 490 U.S. 805 (1989). In Booth, the Supreme Court held that the introduction of victim impact evidence in the sentencing phase of a capital trial violates the Eighth Amendment. See Booth, 482 U.S. at 503-08. The Supreme Court expressed "no opinion as to the use of these statements in noncapital cases." Id. at 509 n.12. Later, in Payne, another capital case, the Court overruled Booth in part, holding that evidence regarding the personal characteristics of the victim and the impact of the victim's death on his or her family members was not necessarily inadmissible, but the parts of the Booth holding prohibiting the victim in a capital case from recommending a specific sentence or expressing an opinion about the defendant survived. See Payne, 501 U.S. at 829. The Ninth Circuit Court of Appeals has acknowledged this distinction, and has held that the "[u]se of a victim impact statement at sentencing [in noncapital cases] . . . does not violate the Supreme Court's holding in Booth." United States v. Santana, 908 F.2d 506, 507 (9th Cir.1990). Brown has cited no federal authority that extends the holding of Booth or Payne to noncapital cases. The Court is aware of no authority supporting Brown's contention that the testimony of the murder victims' family members violated his federal constitutional rights.
Brown has not shown that there was any law, state or federal, upon which his trial or appellate counsel could have grounded a successful challenge to the victim impact testimony presented in this case. Brown's counsel's decision not to assert such a challenge was not unreasonable, and did not prejudice Brown. The Nevada Supreme Court's ruling on these claims was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Grounds 1E and 2C.
In Ground 1F, Brown claims that his trial counsel was ineffective, in violation of Brown's federal constitutional rights, "for failing to present mitigation evidence at the penalty hearing." See First Amended Petition, p. 12. Brown complains, in this regard, that his trial counsel did not request his expert, Dr. Theodore Young, a neuropsychologist, to assess Brown's future dangerousness. See id. Brown also complains that his trial counsel should have hired "another expert, who could have provided testimony concerning Brown's lack of future dangerousness, his lack of serious mental illness or psychosis, and as to Brown's limited intelligence." See id. Brown claims that, as a result of these failures on the part of his trial counsel, "the jury was not provided any evidence concerning Brown's lack of violent tendencies and his ability to be rehabilitated." See id.
Brown asserted this claim in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 20-22 (ECF No. 18-13, pp. 21-23). The state trial court held an evidentiary hearing, at which Brown's trial counsel testified regarding this issue. See Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 8-9, 37-38, 64-68, 71-72 (ECF No. 18-19, pp. 9-10, 38-39, 65-69, 72-73). The state district court denied the claim. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, pp. 6-7 (ECF No. 19, pp. 7-8). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, p. 5 (ECF No. 19-9, p. 6).
Brown's trial counsel retained Dr. Young in preparation for the guilt phase of his trial, with the intention of having him testify about Brown's alleged amnesia concerning events on the day of the murder. See Transcript of Trial, April 11, 2002, Exhibit 39, p. 847 (ECF No. 17-14, p. 137); Transcript of Trial, April 12, 2002, Exhibit 40, pp. 924-35 (ECF No. 17-15, pp. 78-89). However, Brown's trial counsel did not present Dr. Young's testimony in the guilt phase of the trial because the trial court ruled it irrelevant, and because Brown's position changed, such that his early claims of amnesia were inconsistent with his testimony at trial. See Transcript of Trial, April 12, 2002, Exhibit 40, pp. 930-91 (ECF No. 17-15, pp. 84-85) (trial court's ruling); Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 64-68 (ECF No. 18-19, pp. 65-69) (testimony of trial counsel at evidentiary hearing) (". . . and then in the middle of trial Mr. Brown remembered items that happened at the scene.").
Brown's trial counsel also decided not to present Dr. Young in the penalty phase of the trial. See Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 37-38 (ECF No. 18-19, pp. 38-39). Counsel testified at the evidentiary hearing that she did not present psychological evidence in the penalty phase of the trial because she felt Dr. Young's testimony would have been negative for her client, and she did not have time to retain a new expert. See id. at 65-68, 71-72 (ECF No. 18-19, pp. 66-69, 72-73). Counsel felt that, as a result of Brown's change of position in the middle of trial, regarding his memory of events at the scene of the murder, Dr. Young would have been subject to effective cross-examination if he testified in the penalty phase of the trial. See id. Brown's trial counsel's testimony in this regard included the following:
Id. at 66-68 (ECF No. 18-19, pp. 67-69).
Because Brown's trial counsel was misled regarding Brown's position with respect to his memories of events following the murder, and because Brown's change of position in that regard undermined opinions of Dr. Young, Brown's counsel cannot be faulted for not calling Dr. Young in the penalty phase of the trial, and for not having time to find a new expert to examine Brown and opine on his future dangerousness.
Moreover, there is no showing that Brown was prejudiced by not presenting psychological evidence in the penalty phase of his trial. At the evidentiary hearing in his state habeas action, Brown presented the testimony of psychologist Dr. Jerry Nims. See Transcript of Evidentiary Hearing, November 12, 2009, Exhibit 69, pp. 12-35 (ECF No. 18-18, pp. 13-36). In essence, Dr. Nims testified that he saw little or nothing in Brown's background or psychological makeup to predict that he would commit crimes such as those in this case. See id. at 12-18 (ECF No. 18-18, pp. 13-19). On cross-examination, however, Dr. Nims testified that he found that Brown could lose his temper, and it could "almost be explosive." See id. at 26-27 (ECF No. 18-18, pp. 27-28). Also, Dr. Nims testified on cross-examination that, in his testing, he found a pattern commonly found in individuals who are described as "angry, belligerent, and rebellious," and who "may be impulsive, unreliable, egocentric, and irresponsible," and "often have little regard for social standards." See id. at 27-28 (ECF No. 18-18, pp. 28-29). The Court does not see that testimony such as Dr. Nims' at the sentencing phase of Brown's trial would have done Brown any good. It was not objectively unreasonable for the Nevada Supreme Court to conclude that Brown was not prejudiced by his trial counsel's decision not to present such testimony.
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 1F.
In Ground 1G, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, "for failing to request a complete motive instruction." See First Amended Petition, p. 13. In Ground 2D, Brown claims that his appellate counsel was ineffective on his direct appeal, in violation of his federal constitutional rights, "for failing to challenge the motive instruction or lack thereof." See id. at 20-21.
Brown asserted these claims in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 22-24 (ECF No. 18-13, pp. 23-25). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, p. 7 (ECF No. 19, p. 8). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, p. 3 (ECF No. 19-9, p. 4); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).
Brown asserts that his counsel should have requested a jury instruction such as the following:
See First Amended Petition, p. 13.
Brown does not cite any authority, state or federal, standing for the proposition that it is unreasonable, and, therefore, ineffective assistance of counsel, for counsel to not request a jury instruction regarding motive or lack of motive, or that it is error for the trial court not to give such an instruction.
Brown's trial counsel argued in her closing argument, that Brown had no motive to commit the murder. See Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1335-38 (ECF No. 17-20, pp. 67-70). Nothing prevented Brown's counsel from making such an argument, with or without a motive instruction, and she did forcefully make the argument.
Furthermore, it is plain from the verdict that the jury rejected Brown's contention that he had no motive to kill. The jury found Brown guilty not only of burglary and first degree murder, but also of attempted robbery with use of a deadly weapon. See Verdict, Exhibit 49 (ECF No. 17-24). The jury was instructed as follows regarding the crime of attempted robbery:
Jury Instruction No. 24, Exhibit 50 (ECF No. 17-25, p. 27). In finding Brown guilty of attempted robbery, the jury necessarily found that Brown intended to commit robbery. The jury, therefore, concluded that Brown had a motive, and the motive instruction suggested now by Brown would only have provided more support for the jury's verdict of guilty on the murder charge.
The state courts reasonably ruled that Brown's trial counsel did not perform unreasonably in not requesting a motive instruction, his appellate counsel did not perform unreasonably in not challenging the failure of the trial court to give such an instruction, and, at any rate, Brown was not prejudiced by the lack of such an instruction. The Court will deny habeas corpus relief with respect to Grounds 1G and 2D.
In Ground 1H, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, "for failing to investigate whether Mr. Bimbo's testimony was the product of a conspiracy between himself and the victim's son and for failing to impeach Mr. Bimbo with the information." See First Amended Petition, pp. 13-14.
Brown asserted this claim in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 39-41 (ECF No. 18-13, pp. 40-42). The state district court denied the claim. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, pp. 8-9 (ECF No. 19, pp. 9-10). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled on this claim as follows:
Order of Affirmance, Exhibit 85, pp. 2-3 (ECF No. 19-9, pp. 3-4) (footnote omitted).
During the trial, it was discovered that there had been conversation outside the courtroom between Marco Bimbo, a prosecution witness, and Sarvpreet Bains, the victim's son and also a witness for the prosecution. See Transcript of Trial, April 9, 2002, Exhibit 37, pp. 272-78 (ECF No. 17-12, pp. 17-23). Bimbo and Sarvpreet Bains were questioned outside the presence of the jury, about their contact. See id. Both admitted that they had a brief conversation, and each stated that the conversation did not involve the substance of their testimony and would not alter their testimony. See id. The prosecutor informed the court that the two would testify about different matters, so there was no danger of them contaminating each other's testimony. See id.
As the Nevada Supreme Court noted, Brown's trial counsel cross-examined Bimbo about his conversation with Sarvpreet Bains. See Transcript of Trial, April 9, 2002, Exhibit 37, pp. 314-15 (ECF No. 17-12, pp. 59-60). Furthermore, in her closing argument, Brown's trial counsel argued at some length about the inconsistencies between Bimbo's testimony at trial and what he told the police. See, e.g., Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1318-20 (ECF No. 17-20, pp. 50-52).
In his state habeas action, Brown raised this same claim, that his trial counsel was ineffective on account of her handling of the contact between Bimbo and Sarvpreet Bains, and the matter was explored at the evidentiary hearing in that action. Bonnie Brown, Beau Brown's mother, testified at the evidentiary hearing; she described the conversation between Bimbo and Sarvpreet Bains that she claimed to have heard. See Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 88-125 (ECF No. 18-19, pp. 89-126). Bonnie Brown testified that she heard Bimbo and Sarvpreet Bains discussing how they would testify, and she claimed that she heard Bimbo say, "We'll fuck him up good." See id. at 97-101 (ECF No. 18-19, pp. 98-102). Vickie Bates, the mother of Krista Bates, Beau Brown's girlfriend, also testified at the evidentiary hearing. See Transcript of Evidentiary Hearing, November 16, 2009, Exhibit 71, pp. 4-8 (ECF No. 18-20, pp. 5-9). Vickie Bates described what she claimed to hear of a conversation between Bimbo and Sarvpreet Bains. See id. Brown's trial counsel also testified at the evidentiary hearing; she testified that during the trial she was informed that Bonnie Brown claimed to have heard Bimbo and Sarvpreet Bains discuss how they would testify. See Transcript of Evidentiary Hearing, November 13, 2009, Exhibit 70, pp. 42-43 (ECF No. 18-19, pp. 43-44). Brown's trial counsel testified that she did not believe that Bonnie Brown was credible. See id. at 45 (ECF No. 18-19, p. 46). She testified that she was not informed that Vickie Bates had also heard part of a conversation between Bimbo and Sarvpreet Bains. See id. at 43 (ECF No. 18-19, p. 44).
Brown does not point to any information that would have been discovered by further investigation by his trial counsel, regarding the contact between Bimbo and Sarvpreet Bains, beyond what was presented at the state-court evidentiary hearing.
Brown's trial counsel did not believe Bonnie Brown to be credible and she was not informed of Vickie Bates' alleged observations. Moreover, at the hearing on this matter, out of the presence of the jury, it appeared that the contact between Bimbo and Sarvpreet Bains was innocuous, and would have no arguable effect on the testimony of either. The Nevada Supreme Court's ruling, that Brown's trial counsel did not perform unreasonably in not further pursuing this matter, was not objectively unreasonable.
Nor was the Nevada Supreme Court's ruling that Brown was not prejudiced. Brown's convictions were supported by overwhelming evidence, and the jury plainly disbelieved Brown's testimony. Bimbo's testimony was the subject of strong cross-examination and closing argument by Brown's trial counsel. The Nevada Supreme Court reasonably concluded that further investigation regarding the contact between Bimbo and Sarvpreet Bains would not have led to such cross-examination of those two witnesses as to raise a reasonable probability of a different outcome at trial.
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 1H.
In Ground 1M, Brown claims that his federal constitutional rights were violated as a result of the cumulative effect of trial counsel's errors. See First Amended Petition, p. 17.
Brown presented such a claim on the appeal in his state habeas action, and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 85, p. 7 (ECF No. 19-9, p. 8).
The Nevada Supreme Court reasonably denied this claim. Whether considered separately or cumulatively, the alleged errors of Brown's trial counsel were not such as to prejudice him. There was overwhelming evidence of Brown's guilt, and the jury apparently found incredible Brown's testimony, suggesting that it was someone named "Travis," and not himself, who shot the victim. There is no reasonable probability that, had trial counsel not made the errors alleged by Brown, the outcome of the trial would have been different. The Court will deny habeas corpus relief with respect to Ground 1M.
In Ground 3B, Brown claims that his federal constitutional rights to due process of law and a fair trial were violated on account of the instruction given to the jury regarding the meaning of "reasonable doubt." See First Amended Petition, pp. 22-23. Specifically, Brown claims that the following instruction improperly defined "reasonable doubt," and violated his constitutional rights:
Jury Instruction No. 12, Exhibit 50 (ECF No. 17-25, p. 15).
Brown asserted such a claim on his direct appeal, and the Nevada Supreme Court denied the claim, as meritless, without analysis. See Appellant's Opening Brief, Exhibit 59, p. 38 (ECF No. 18-8, p. 49); Order of Affirmance, Exhibit 62, p. 15 n.29 (ECF No. 18-11, p. 16).
Brown argues that the reasonable doubt instruction impermissibly minimized the prosecution's burden of proof. See Reply (ECF No. 54), p. 34. He contends that there is "a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet" the requirements of due process of law. See id. (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)); see also id. at 32-33 (citing Holland v. United States, 348 U.S. 121, 140 (1954), Sandstrom v. Montana, 442 U.S. 510 (1979), and Estelle v. Mcquire, 502 U.S. 62, 72 (1991)).
Brown does not point to any United States Supreme Court precedent holding that, or reasonably supporting an argument that, the reasonable doubt instruction given at his trial violated his federal constitutional rights.
Furthermore, the Ninth Circuit Court of Appeals has repeatedly upheld this jury instruction in habeas corpus cases in which it has been challenged as violating defendants' federal constitutional protections. See Nevius v. McDaniel, 218 F.3d 940, 944 (9th Cir. 2000) ("The law of this circuit . . . forecloses Nevius's claim that his reasonable doubt instruction was unconstitutional."); Ramirez v. Hatcher, 136 F.3d 1209, 1210-15 (9th Cir.), cert. denied, 525 U.S. 967 (1998); Darnell v. Swinney, 823 F.2d 299, 302 (9th Cir. 1987). Brown acknowledges the Ninth Circuit precedent upholding the reasonable doubt instruction at issue in this claim, and informs the Court that he "raises this issue herein to preserve this issue for future federal review." First Amended Petition, p. 22 n.3; see also Reply, pp. 31-32.
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 3B.
In Ground 3D, Brown asserts that his federal constitutional rights were violated because of the trial court's refusal to give a jury instruction regarding "the weight and reliability of DNA evidence. See First Amended Petition, p. 23. His claim is as follows:
Id. (citations to record omitted).
The jury instruction that Brown proposed was as follows:
Defendant's Proposed Instruction E, Exhibit 43 (ECF No. 17-18, p. 8). The trial court rejected this proposed instruction because it was cumulative, given other instructions on the use and consideration of expert testimony, and because it constituted argument that was improper in a jury instruction. See Transcript of Trial, April 15, 2002, Exhibit 42, p. 1047 (ECF No. 17-17, p. 17).
Brown then asserted this claim on his direct appeal, and the Nevada Supreme Court denied the claim, as meritless, without analysis. See Appellant's Opening Brief, Exhibit 59, pp. 39-40 (ECF No. 18-8, pp. 50-51); Order of Affirmance, Exhibit 62, p. 15 n.29 (ECF No. 18-11, p. 16).
This Court agrees that Brown's claim is without merit. The instructions given by the trial court informed the jury that they were not bound by expert testimony and could attribute to it whatever weight they felt appropriate. See Jury Instruction No. 26, Exhibit 50 (ECF No. 17-25, p. 29). Brown points to no United States Supreme Court precedent requiring more, or, for that matter, supporting his claim in any manner. See First Amended Petition, p. 23 (citing no Supreme Court precedent); Reply, pp. 34-36 (same).
The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 3D.
In Ground 5, Brown claims that his federal constitutional rights were violated as a result of prosecutorial misconduct. See First Amended Petition, pp. 28-29. Specifically, Brown claims that the prosecutor made improper comments in the course of cross-examining witnesses and improper arguments to the jury in his closing arguments. See id.; see also Reply, pp. 36-43.
Brown asserted this claim on his direct appeal, and the Nevada Supreme Court denied the claim, as meritless, without analysis. See Appellant's Opening Brief, Exhibit 59, pp. 35-38 (ECF No. 18-8, pp. 46-49); Order of Affirmance, Exhibit 62, p. 15 n.29 (ECF No. 18-11, p. 16).
A criminal defendant's federal constitutional right to due process of law is violated if a prosecutor's misconduct renders his trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). Claims of prosecutorial misconduct are reviewed "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (internal quotes and citation omitted); see also Greer v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In arguments, prosecutors are allowed reasonably wide latitude, and may argue for reasonable inferences from the evidence. See United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989); United States v. Birges, 723 F.2d 666, 671-72 (9th Cir. 1984). "[Prosecutors] may strike `hard blows,' based upon the testimony and its inferences, although they may not, of course, employ argument which could be fairly characterized as foul or unfair." United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972). "[I]t `is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Darden, 477 U.S. at 181 (citation omitted). The issue is whether the "remarks, in the context of the entire trial, were sufficiently prejudicial to violate [petitioner's] due process rights." Donnelly, 416 U.S. at 639. The habeas petitioner must show that the prosecutorial misconduct resulted in actual prejudice. Darden, 477 U.S. at 181-83. The question, with respect to prejudice, is whether the prosecutorial misconduct had a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Brecht v. Abrahamson, 507 U.S. 619, 630-32 (1993).
Brown complains that, in cross-examining Brown's father and sister, the prosecutor used the word "phantom" in reference to the person Brown identified as "Travis." See First Amended Petition, p. 29; see also Transcript of Trial, April 12, 2002, Exhibit 40, p. 1015 (ECF No. 17-15, p. 169); Transcript of Trial, April 15, 2002, Exhibit 42, p. 1161 (ECF No. 17-17, p. 131). Brown also complains that, in cross-examining him, the prosecutor referred to Brown's version of events as his "story." See First Amended Petition, p. 29; Transcript of Trial, April 15, 2002, Exhibit 42, p. 1186 (ECF No. 17-17, p. 156). The prosecutor's use of the word "story" to refer to Brown's version of events was not improper. And, the prosecutor's use of the word "phantom" to refer to the individual Brown called "Travis," while perhaps argumentative, did not render Brown's trial unfair.
Brown also complains that, in cross-examining him, the prosecutor accused him of faking unresponsiveness at the hospital after his arrest. See First Amended Petition, p. 29; Transcript of Trial, April 15, 2002, Exhibit 42, pp. 1222-23 (ECF No. 17-17, pp. 192-93). It is not improper to cross-examine a witness, using evidence admitted at the trial, in a manner suggesting the witness testified untruthfully. This line of questioning was not improper.
Brown complains, further, that, in cross-examining him, the prosecutor accused him, and members of his family, of lying. See First Amended Petition, p. 29; Transcript of Trial, April 15, 2002, Exhibit 42, pp. 1211, 1218, 1236, 1240 (ECF No. 17-17, pp. 181, 188, 206, 210). Here again, it was not improper for the prosecutor to question the truthfulness of the testimony of Brown and other witnesses, based on evidence at trial.
Brown also claims that the following, which occurred during the prosecutor's cross-examination of him, was improper commentary by the prosecutor on Brown's right to remain silent:
See First Amended Petition, p. 29; Transcript of Trial, April 15, 2002, Exhibit 42, pp. 1248-49 (ECF No. 17-17, pp. 218-19). Brown waived his right to remain silent and testified at trial; the question of the prosecutor that is the subject of this claim was posed during his cross-examination of Brown. Brown volunteered the information that he attempted to speak with the detective again; the prosecutor's follow-up question, while somewhat argumentative, was not improper commentary on Brown's right to remain silent. And, at any rate, it certainly was not such as to render Brown's trial unfair.
Brown complains that the prosecutor asked a detective witness whether he had a chance to have Brown try on a particular shirt. See First Amended Petition, p. 29; Transcript of Trial, April 12, 2002, Exhibit 40, p. 917 (ECF No. 17-15, p. 71). Defense counsel's objection to the question was sustained. See Transcript of Trial, April 12, 2002, Exhibit 40, p. 917 (ECF No. 17-15, p. 71). Here too, this exchange was nowhere near so egregious as to render Brown's trial unfair.
Brown complains that, in the prosecutor's closing argument in the guilt phase of his trial, the prosecutor argued as follows:
See First Amended Petition, p. 29; Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1292-94, (ECF No. 17-20, pp. 24-26). This was proper argument, based on the evidence at trial. The prosecutor's theory was that Brown and his sister did not tell the truth; in this argument, the prosecutor explained his theory in that regard. The prosecutor did so in forceful, direct terms, but his argument was not improper, and did not render Brown's trial unfair.
Brown complains that, in the prosecutor's closing argument in the penalty phase of his trial, the prosecutor made the following argument:
See First Amended Petition, p. 29; Transcript of Trial, April 16, 2002, Exhibit 45, p. 1418 (ECF No. 17-20, p. 150). Here too, the prosecutor forcefully argued that Brown and his sister had lied in the guilt phase of the trial. In that regard, this argument was not improper. To the extent that the prosecutor's argument was arguably improper, in that it may have concerned matters not in evidence, it was not so egregious as to render Brown's trial unfair.
In addition, Brown complains that, in the prosecutor's closing argument in the penalty phase of his trial, the prosecutor made the following argument:
See First Amended Petition, p. 29; Transcript of Trial, April 16, 2002, Exhibit 45, p. 1419 (ECF No. 17-20, p. 151). The trial court sustained defense counsel's objection to this argument, as follows:
See Transcript of Trial, April 16, 2002, Exhibit 45, p. 1421 (ECF No. 17-20, p. 153). This argument was not so improper as to render the penalty phase of Brown's trial unfair, especially given the court's instruction to the jury that the improper portion of it be disregarded.
Finally, Brown complains of the following argument made by the prosecutor in his closing argument in the penalty phase of the trial:
See First Amended Petition, p. 29; Transcript of Trial, April 16, 2002, Exhibit 45, p. 1420 (ECF No. 17-20, p. 152). Defense counsel objected to this argument, but it appears that the trial court did not rule on the objection. See Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1420-21 (ECF No. 17-20, pp. 152-53). The argument can be understood to refer to the fact that Brown is still alive, whereas Kuldip Bains is not; understood in that manner, the argument was not improper. To the extent that the argument may be understood to refer to the State's decision not to seek the death penalty, it was arguably improper — although Brown has not pointed to any United States Supreme Court precedent holding as much. At any rate, in light of the record, the Court cannot say that it was unreasonable for the state courts to determine that this comment did not render Brown's trial unfair.
In short, the comments of the prosecutor that Brown complains of were isolated and, where improper, were relatively benign. The state courts could reasonably have ruled that these comments did not violate Brown's federal constitutional right to due process of law. The Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 5.
In Ground 6, Brown claims his sentence is disproportionate to the crime, in violation of the Eighth Amendment to the United States Constitution. See First Amended Petition, pp. 29-30.
Brown asserted this claim on his direct appeal, and the Nevada Supreme Court ruled on it as follows:
Order of Affirmance, Exhibit 62, pp. 13-14 (ECF No. 18-11, pp. 14-15).
A sentence of life in prison without the possibility of parole for a murder such as the one in this case is not a cruel and unusual punishment. Brown has not cited any United States Supreme Court precedent holding that it is. The Nevada Supreme Court's ruling was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 6.
In Ground 7E, Brown claims that admission into evidence of statements that he made to a police detective after his arrest violated his federal constitutional rights. See First Amended Petition, pp. 34-35. He claims that the detective conducted the interview in violation of the rules established in Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny. See id. He claims that his will was overborne and his statement was not given voluntarily and freely, because he was not informed that the interview pertained to a murder investigation, and he was under the influence of alcohol. See id.
In Miranda, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination [under the Fifth and Fourteenth Amendments to the Constitution]." Miranda, 384 U.S. at 444; see also Dickerson v. United States, 530 U.S. 428, 431 (2000) ("We . . . hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts."). These "procedural safeguards" require that a person in custody "first be informed in clear and unequivocal terms that he has the right to remain silent," "that anything said can and will be used against the individual in court," that he has "a right to consult with a lawyer and to have the lawyer with him during interrogation," and that "if he is indigent a lawyer will be appointed to represent him." Miranda, 384 U.S. at 467-73, 479. After the Miranda warnings are given, the questioning must cease if the suspect asks for a lawyer. Miranda, 384 U.S. at 474; Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Davis v. United States, 512 U.S. 452, 461-62 (1994). However, the request for counsel must be unequivocal. See Davis, 512 U.S. at 452, 459, 461-62 (holding that after knowing, voluntary waiver of Miranda rights, questioning may continue unless suspect clearly requests an attorney).
As for "determining whether a defendant's will was overborne" in a particular case, and whether or not the statement was given voluntarily, the Supreme Court has instructed that courts are to look at the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). There is no "talismanic definition" of voluntariness. Id. at 224. Courts have considered the following factors in determining whether a statement was given voluntarily: the characteristics of the defendant, including his age, education level, intelligence level, state of mind, familiarity with the criminal justice system, and whether the defendant was advised of his constitutional rights; and the details of the interrogation, including the length of the detention, the physical environment, the use of physical punishment, such as deprivation of food and sleep, the repeated and prolonged nature of the questioning, the manner in which the defendant was questioned, and the defendant's physical condition. See id. at 226; see also United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003); Pollard v. Galaza, 290 F.3d 1030, 1033-34 (9th Cir. 2002). Thus, courts look at both the "surrounding circumstances and the combined effect of the entire course of the officer's conduct upon the defendant." Pollard, 290 F.3d at 1033. "The tone of voice used and the promises or representations made by the questioner have also been factors used to decide whether a statement was voluntary." Id. at 1034. No single factor is controlling.
Prior to his trial, Brown sought to suppress the statements he made to Detective Whan. He filed his first such motion to suppress on December 7, 2000. See Motion to Suppress, Exhibit 9 (ECF No. 16-8); Opposition to Motion to Suppress, Exhibit 11 (ECF No. 16-10). The trial court ruled on that motion on May 17, 2001. See Order filed May 17, 2001, Exhibit 13 (ECF No. 16-12). The trial court determined that Brown invoked his right to counsel late in the interview — at page 21 of the transcript — and that the questioning should have ceased at that point. See id. The trial court ruled that statements made by Brown after that invocation of his right to counsel would be excluded from the State's case in chief. See id.
Subsequently, on October 30, 2001, after new counsel was appointed for Brown, he filed a renewed motion to suppress his statements to the police. See Renewed Motion to Suppress Statements of Defendant, Exhibit 15 (ECF No. 16-14); Opposition to Renewed Motion to Suppress Statements of the Defendant, Exhibit 20 (ECF No. 16-19); Reply to State's Opposition to Renewed Motion to Suppress Statements of Defendant, Exhibit 26 (ECF No. 17). The trial court held an evidentiary hearing regarding the renewed motion to suppress. See Transcript of Evidentiary Hearing, Pretrial Motions, March 6, 2002, Exhibit 28 (ECF No. 17-2).
Detective Whan testified at the evidentiary hearing. See id. at 67-83 (ECF No. 17-2, pp. 71-87). Detective Whan testified that he went with Brown to the hospital, but did not interview him until about 6:00 or 7:00 p.m., at the police station, after he was discharged from the hospital. See id. at 69, 75 (ECF No. 17-2, pp. 73, 79). When Detective Whan interviewed Brown, Brown was in custody on charges of obstructing and resisting. See id. at 70 (ECF No. 17-2, p. 74). Brown was nineteen years old at the time of the interview. See id. at 71 (ECF No. 17-2, p. 75). Detective Whan was informed prior to the interview that Brown had some level of alcohol in his blood; although Brown had a blood alcohol level of .17 when he was admitted to the hospital, he did not appear to Detective Whan to be impaired during the interview. See id. at 70-71 (ECF No. 17-2, pp. 74-75). Detective Whan testified that Brown's statements were made after Brown was informed of his Miranda rights, and that his statements appeared voluntary. See id. Detective Whan and the other police officer who was present did not act in an overbearing, threatening, or coercive manner during the interview. See id. at 80-81 (ECF No. 17-2, pp. 84-85). At no point during the interview did Brown complain that he was hungry or tired, or that he needed to use the restroom. See id. at 82 (ECF No. 17-2, p. 86). The transcript of Brown's statement was admitted as an exhibit at the hearing, and the trial court reviewed the contents of the statement in considering the renewed motion to suppress. See id. at 72 (ECF No. 17-2, p. 76); Transcript of Statement, Exhibit 95 (ECF No. 19-19).
Following the evidentiary hearing, the trial court denied the renewed motion to suppress in a written order filed on March 21, 2002. See Order filed March 21, 2002, Exhibit 30 (ECF No. 17-4). The trial court ruled as follows:
(Transcript, at 4).
The Court looked at the issues of voluntariness and waiver of counsel in detail in its Order of May 17, 2001, and reaffirms those findings of fact and law. Specifically, in that Order, the Court looked at Colorado v. Spring, 479 U.S. 564 (1987) in which the United States Supreme Court held that "[A] suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege." The Court also noted in its Order:
Id. at 2-5 (ECF No. 17-4, pp. 3-6).
Brown testified at his trial, and, on cross-examination, he testified as follows about the statement he gave to Whan:
Transcript of Trial, April 15, 2002, Exhibit 42, pp. 1182-85 (ECF No. 17-17, pp. 152-55).
On his direct appeal, Brown asserted his claim that his statement was taken in violation of Miranda, and the Nevada Supreme Court ruled as follows:
Order of Affirmance, Exhibit 62, pp. 11-12 (ECF No. 18-11, pp. 12-13).
It was reasonable for the state courts to conclude, based simply on the transcript of Brown's statement (Exhibit 95 (ECF No. 19-19)), that he did not make an unequivocal request for counsel at the beginning of his statement.
Furthermore, in light of Brown's own testimony at trial, it was reasonable for the state courts to conclude — in fact, it was obvious — that Brown was aware that there had been murder and that Detective Whan was investigating the murder.
Moreover, even if the Court were to give any weight to Brown's argument that he was unaware that Detective Whan was investigating the murder, in Colorado v. Spring, 479 U.S. 564 (1987), the Supreme Court held that an interrogating police officer's silence as to the subject matter of an interrogation does not amount to trickery sufficient to invalidate a defendant's Miranda waiver. Spring, 479 U.S. at 576. The Court explained:
Id. at 576-77 (footnote omitted). Under Spring, Brown's contention that he did not understand that he was under investigation for murder is not determinative.
As for Brown's claim that he was intoxicated when he gave his statement, in light of the evidence regarding the time when the interview occurred, Brown's demeanor during the interview, and Brown's testimony regarding the interview, it was reasonable for the state courts to conclude that Brown's alcohol consumption earlier in the day did not render his statement involuntary.
Finally, turning to the factors identified in Scheckloth, Brown was nineteen years old, he was a high school graduate, and he had independent knowledge of the criminal justice system. There is no showing that he was of low intelligence. He received a full recital of the Miranda warnings. The questioning of Brown was not lengthy, and there is no showing that he was abused, physically or verbally, in any way. He was not deprived of sleep, food, drink, or access to a restroom. And, at trial, Brown testified that he spoke voluntarily with Detective Whan.
The Nevada Supreme Court's ruling, that there was no Miranda violation, and that Brown gave his statement to Detective Whan voluntarily, was reasonable. It was not contrary to, or an unreasonable application of, Supreme Court precedent, and it was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 7E.
In Ground 8, Brown claims that his federal constitutional rights were violated because of the State's failure to disclose evidence favorable to Brown. See First Amended Petition, pp. 36-37. Specifically, Brown claims that the prosecution failed to inform him of the actual chain of custody of evidence retrieved from the hospital, substituted an expert witness shortly before trial, and presented fingerprint evidence that had not been tested prior to trial. See id.
Brown asserted these claims on his direct appeal, and the Nevada Supreme Court denied the claims, as meritless, without analysis. See Order of Affirmance, Exhibit 62, p. 15 n.29 (ECF No. 18-11, p. 16).
The Supreme Court has held that the suppression by the prosecution of evidence favorable to the defendant violates the defendant's federal constitutional right to due process of law, where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995). There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State either willfully or inadvertently; and (3) prejudice must have ensued. Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "Such evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "[T]here is never a real Brady violation unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Id. at 281.
Brown's claims in Ground 8 are meritless. His claims involve evidence that was actually presented by the State at trial; it was not withheld. Brown's complaints largely concern the manner and timing of the State's disclosure of the subject evidence. The question of the manner and timing of discovery in state criminal proceedings is primarily a state-law issue, not cognizable in this federal habeas corpus action. See Estelle, 502 U.S. at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Bonin, 59 F.3d at 841. Brown does not cite any Supreme Court precedent supporting a claim that the sort of disclosures described in Ground 8 amounted to a violation of his constitutional right to due process of law. Moreover, to the extent that Brown's claims can be read to set forth a cognizable Brady claim at all, Brown does not describe any evidence withheld, or any delayed disclosure, that could have had any reasonable probability of effecting the outcome of his trial.
The Nevada Supreme Court's ruling on these claims was not contrary to, or an unreasonable application of, Brady, or any other Supreme Court precedent, and it was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 8.
In Ground 9, Brown claims that the design of the courtroom violated his federal constitutional rights to confront the witnesses against him and to due process of law. See First Amended Petition, pp. 37-38. Brown claims that the manner in which the prosecution presented visual aids and exhibits required his counsel to spend part of the trial sitting away from him, and prevented him from viewing evidence. See id. Brown also claims that the trial court was, at times, unable to see counsel and certain evidence. See id.
Brown asserted these claims on his direct appeal, and the Nevada Supreme Court denied the claims, as meritless, without analysis. See Order of Affirmance, Exhibit 62, p. 15 n.29 (ECF No. 18-11, p. 16).
This claim is without merit. The instances that Brown cites as violating his rights are found in the record at: Transcript of Trial, April 10, 2002, Exhibit 38, pp. 496-97, 579 (ECF No. 17-13, pp. 8-9, 91); Transcript of Trial, April 12, 2002, Exhibit 40, pp. 886, 890, 971 (ECF No. 17-15, pp. 40, 44, 125); Transcript of Trial, April 15, 2002, Exhibit 42, p. 1238 (ECF No. 17-17, p. 208). The inconveniences reflected in those pages of the record were plainly inconsequential. Brown does not point to any Supreme Court precedent remotely supporting his argument that his constitutional rights were violated. The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of any Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 9.
Ground 10 is Brown's cumulative error claim. See First Amended Petition, p. 38. Brown claims that his federal constitutional rights to due process of law a fair trial were violated by the cumulative effect of the errors he alleges elsewhere in his amended petition. See id.
The Court has identified no errors that, whether viewed individually or in combination, could have had a substantial and injurious effect or influence on the jury's verdict. See Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) ("[T]he fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense `far less persuasive,' and thereby had a `substantial and injurious effect or influence' on the jury's verdict." (quoting Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The Court will deny habeas corpus relief with respect to Ground 10.
The standard for issuance of a certificate of appealability calls for a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). 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, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The Court has considered all of Brown's claims with respect to whether they satisfy the standard for issuance of a certificate of appeal, and determine that none of them do. The Court will deny Brown a certificate of appealability.
The Court is informed — see http://167.154.2.76/inmatesearch/form.php — that Brown is currently incarcerated at the Northern Nevada Correctional Center, and that the warden of that prison is Isidro Baca. Therefore, the Court will order, pursuant to Federal Rule of Civil Procedure 25(d), that Isidro Baca be substituted for Dwight Neven, as the respondent warden in this action.
