United States District Court, D. Nevada
ROGER L. HUNT, District Judge.
This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's motion (#48) to alter or amend judgment under Rule 59(e). The motion was filed within the time period provided for under Rule 59.
Petitioner Ronald Kwame Gaines challenged his 2006 Nevada state conviction, pursuant to a jury verdict, of attempted robbery and his adjudication as a habitual criminal, in connection with a December 23, 2005, attempted robbery. He challenged the state court judgment of conviction on direct appeal and in a state post-conviction petition. In its final decision, the Court denied the claims remaining in Grounds 11, 16, 17 and 24 on the merits and Ground 18 on the basis of procedural default.
In Ground 11, petitioner alleged that he was denied effective assistance of appellate counsel when counsel failed to raise a claim of alleged prosecutorial misconduct on direct appeal. Petitioner alleged that the prosecutor engaged in misconduct during oral argument when he referred to Gaines needing his "next fix, " suggesting that he was a drug addict with allegedly no supporting evidence in the record. Petitioner alleged that trial counsel objected to the argument at his urging but that counsel thereafter either failed or refused to pursue the issue on direct appeal.
The state supreme court held that the state district court did not err in rejecting petitioner's claims of ineffective assistance of appellate counsel on the premise that the claims did not have a reasonable probability of success on appeal.
This Court held, following an extensive review of the relevant procedural history and trial evidence, that the state supreme court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established federal law. #46, at 4-11.
The Court noted, inter alia, that the state supreme court's necessary conclusion that there was not a reasonable probability of reversal under Nevada state law was the end of the matter with respect to that subsidiary issue. The Supreme Court of Nevada is the final arbiter of Nevada state law.
The Court held that the state supreme court's determination that there was not a reasonable probability of reversal also was not an objectively unreasonable application of the broad generalized principle of federal due process:
In this case, the state supreme court's conclusion that a constitutional claim of prosecutorial misconduct would not have had a reasonable probability of success on appeal did not constitute an objectively unreasonable application of the broad principle of due process on the underlying substantive claim. The testimony at trial in fact did not distinguish between whether Gaines appeared intoxicated from drugs or instead from alcohol. The inference that the prosecutor sought to draw from the evidence - that he was intoxicated on drugs in an area with high drug use where he had been hustling for money during the course of the day - was neither compelled by nor refuted by the evidence. Moreover, defense counsel was able to turn the State's argument back against the State by maintaining that the allegedly unsupported reference to drug use reflected that the State was having to desperately clutch at straws due to having a weak case. Both defense counsel's objection and his closing argument apparently had some impact, as the State thereafter backtracked and conceded that there was no direct evidence of drug intoxication per se. In light of this give-and-take over the course of the entirety of the closing arguments and the actual strength of the evidence against petitioner, a conclusion that there was not a reasonable probability of success on the underlying constitutional claim on a direct appeal was not an unreasonable application of clearly established federal law.
#46, at 11.
In the present motion, petitioner urges, first, that the state district judge failed to rule clearly on trial counsel's objection to the prosecutor's argument and that this Court did not mention this "misfact." He contends that appellate counsel was ineffective for failing to raise the purported issue that the misconduct was never cured by the trial judge and that the judge failed to give the jury an immediate curative admonishment. He relies upon ...