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Browning v. Baker

United States District Court, D. Nevada

August 1, 2014

PAUL L. BROWNING, Petitioner,
v.
RENEE BAKER, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

Introduction

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Paul L. Browning, a Nevada prisoner sentenced to death. The case is before the court for resolution of the merits of the claims remaining in Browning's fifth amended petition for a writ of habeas corpus. The court will deny Browning's petition. The court will grant Browning a certificate of appealability with respect to certain of his claims.

Background Facts and Procedural History

In its June 10, 2004, decision on the appeal in Browning's state habeas corpus action, the Nevada Supreme Court described, as follows, the factual background of the case, as revealed by the evidence at trial:

On November 8, 1985, Hugo Elsen was stabbed to death during a robbery of his jewelry store in Las Vegas. His wife, Josy Elsen, was in the back of the store when he was attacked. Hearing noises, she went into the showroom and saw a black man wearing a blue cap squatting over her husband holding a knife. She fled out the back door to the neighboring store and asked the employees there to call the police. She and a neighboring employee, Debra Coe, then returned to the jewelry store where Coe placed a pillow under Elsen's head and covered him with a blanket. Two to four minutes later help arrived. Elsen soon died, after giving a very brief description of the perpetrator as a black man wearing a blue cap with loose curled wet hair. Debra Coe also described a man she had seen leaving the vicinity: he was wearing a blue cap, blue jacket, Levi's, and tennis shoes; was about 27 years old and about six-feet tall; and had hair a little longer than the cap he was wearing and a mustache. Another witness, Charles Woods, identified a person he saw leaving the vicinity as a black man wearing a dark or blue cap and dark trousers, about six-feet tall, and weighing about 180 pounds.
Shortly after the crimes, Randy Wolfe approached police and told them that a man was in Wolfe's nearby hotel room with a large amount of jewelry. The police went to the room and found Browning with the jewelry. Browning was arrested and taken to Coe and Woods for a showup identification. They identified Browning as the man they saw leaving the vicinity of the crimes.
At trial, Vanessa Wolfe, Randy Wolfe's wife, testified for the State to the following. She returned to her hotel room on the day of the crimes and found Browning taking off his clothes. He had a coat, which was either on the floor or on the bed. On the bed was a lot of jewelry with tags, which she helped cut off. Browning asked Vanessa to help him get rid of some of the jewelry and said he thought he had just killed somebody. She helped Browning by throwing the tags and his hat in a nearby dumpster. Browning gave her a knife to dispose of. Instead, she put the knife in a pizza box in a closet under the stairs. The officers assigned to Browning's case testified that they retrieved all of this evidence from the places that Vanessa described. Randy Wolfe also testified that when he went into his hotel room, Browning was sitting on the bed and said that he just robbed a jewelry store and thought that he had killed a man. Investigators found Browning's fingerprints in the jewelry store.
Browning was convicted, pursuant to a jury trial, of first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, burglary, and escape. At the penalty hearing, the State presented detailed evidence of his prior felonies for robbery with the use of a knife. Browning's mother testified as a mitigating witness. She stated that Browning attended private school as a child, was a very good student and president of the student council, and was very athletically inclined, winning medals in cross-country. She had marital problems, and she and Browning moved to Washington, D.C., where he worked as a doorman for the United States Congress and took paralegal classes at the Library of Congress. After Browning left high school, she had not had much contact with him, but she knew that he was very remorseful for the crimes. Browning spoke in allocution and stated that his involvement with drugs was the reason he was implicated in the crimes. He apologized for the pain that the Elsen and Browning families had suffered. He stated that he did not want to die and that he was innocent.
The jury found five aggravating circumstances: the murder was committed while Browning was engaged in a burglary; the murder was committed while he was engaged in a robbery; he was previously convicted of a felony involving the use or threat of violence; the murder was committed while he was under a sentence of imprisonment; and the murder involved depravity of mind. The jury did not find any mitigating circumstances and returned a sentence of death.

Browning v. State, 120 Nev. 347, 352-53, 91 P.3d 39, 43-44 (2004).

Browning appealed, and, on June 24, 1988, the Nevada Supreme Court affirmed. Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988) (a copy of the opinion is in the record at Exhibit 91 (ECF No. 59-65, pp. 2-8)).[1], [2]

On May 17, 1989, Browning filed, in the state district court, a petition for post-conviction relief. Exhibit 105 (ECF Nos. 59-68, 59-69, 59-70). The state district court held an evidentiary hearing. Exhibits 161, 179-83 (ECF Nos. 59-102, 59-103, XX-XXX-XX-XXX). Browning's petition was denied. Exhibits 208, 230 (ECF Nos. 59-167, pp. 18-19, and 59-171).

Browning appealed, and, on June 10, 2004, the Nevada Supreme Court affirmed in part, vacated in part, and remanded the case to the state district court for further proceedings. Browning v. State, 120 Nev. 347, 91 P.3d 39 (2004) (copy in record at Exhibit 264 (ECF No. 59-184, pp. 18-51)). The court ruled that Browning's appellate counsel had been ineffective for failing to challenge the "depravity of mind" aggravating circumstance, and, therefore, vacated Browning's death sentence and remanded the case for a new penalty hearing. Id.

On the remand from the Nevada Supreme Court, Browning's new penalty hearing was conducted, before a jury, from April 10 through 14, 2006. Exhibits 335-45 (ECF Nos. 59-195-59-201). The jury returned a verdict imposing the sentence of death, and a judgment imposing the death sentence was entered on August 22, 2006. Exhibit 343 (ECF No. 59-201, p. 34) (verdict); Exhibit 360 (ECF No. 59-205, pp. 45-47) (judgment).

Browning appealed, and on July 24, 2008, the Nevada Supreme Court affirmed. Browning v. State, 124 Nev. 517, 188 P.3d 60 (2008) (copy in record at Exhibit 384 (ECF No. 119-3, pp. 4-37)).

On February 10, 2005, Browning initiated this federal habeas corpus action. The court appointed the Federal Public Defender (FPD) to represent Browning, and counsel appeared on his behalf on August 18, 2005 (ECF Nos. 7, 10, 11). As Browning's resentencing was then pending, on February 9, 2007, the court entered an order directing that this action would proceed with regard to guilt phase issues only (ECF No. 25). Browning amended his habeas petition on August 26, 2008 (ECF No. 48), and again on November 5, 2008 (ECF No. 54). On July 7, 2009, after Browning's re-imposed death sentence was affirmed on appeal, the court granted Browning leave to file a third amended petition, containing all known claims for relief, including any related to the newly-imposed death sentence (ECF No. 78). Browning filed his third amended petition on October 19, 2009 (ECF No. 83).

On February 10, 2010, the FPD filed a motion to withdraw from representation of Browning (ECF No. 90). That motion was granted, and the FPD withdrew on March 22, 2010 (ECF No. 96). On April 7, 2011, the court appointed new counsel for Browning (ECF Nos. 102, 103, 104). On October 14, 2011, Browning filed a fourth amended petition (ECF No. 111), and on November 28, 2011, Browning filed a fifth amended petition (ECF No. 115).

On March 7, 2012, respondents filed an answer to the fifth amended petition (ECF No. 122). On August 24, 2012, Browning filed a reply (ECF No. 131). On November 26, 2012, respondents filed a response to the reply (ECF No. 150).

When Browning filed his reply, on August 24, 2012, he also filed four motions: a motion for summary judgment (ECF No. 132), a motion to expand the record (ECF No. 133), a motion for leave to conduct discovery (ECF No. 134), and a motion for evidentiary hearing (ECF No. 135). The court denied each of those motions on January 24, 2013 (ECF No. 159). On December 31, 2012, in the course of the briefing of those motions, Browning filed another motion, a motion to strike, or, alternatively, for evidentiary hearing (ECF No. 156). The court also denied that motion on January 24, 2013 (ECF No. 159). In the January 24, 2013, order, the court stated: "The court will, however, consider Browning's motion to strike or supplement evidentiary hearing request, as well as respondents' response to that motion, in its consideration of the merits of Browning's claims." Order entered January 24, 2013, p. 11.

On January 30, 2013, Browning filed a motion requesting oral argument on the claims in his fifth amended petition (ECF No. 160). On April 5, 2013, the court entered an order (ECF No 162) denying the motion for oral argument. The court stated, regarding oral argument: "If, after the matter of Browning's unexhausted claims is resolved (see discussion below), and upon closer consideration of the briefing, the court determines that oral argument will be helpful, the court will notify the parties of such and will schedule oral argument." Order entered April 5, 2013 (ECF No. 162), p. 5.

In the April 5, 2013, order, the court also ruled on the question of the exhaustion of state remedies with respect to the claims in the fifth amended petition, as that issue was raised by respondents in their answer. See id. at 6. The court found that several claims in Browning's fifth amended petition are unexhausted in state court, and, with respect to those, the court directed Browning to make an election: Browning was to either file a notice of abandonment of the unexhausted claims, indicating his election to abandon the unexhausted claims and proceed with the litigation of his remaining exhausted claims, or, alternatively, file a motion for stay, requesting a stay of these proceedings to allow him to return to state court to exhaust the unexhausted claims. See id. at 31-33. The court ordered that, if petitioner did not, within the time allowed, file a notice of abandonment of all his unexhausted claims, or a motion for a stay to allow exhaustion of his unexhausted claims in state court, Browning's entire fifth amended habeas petition would be dismissed pursuant to Rose v. Lundy, 455 U.S. 509 (1982). See id.

On May 3, 2013, Browning filed a motion for reconsideration of the court's April 5, 2013, order (ECF No. 163). On September 3, 2013, the court granted that motion in part, and denied it in part, finding one further claim in the fifth amended petition to be exhausted. See Order entered September 3, 2013 (ECF No. 172).

On July 19, 2013, Browning filed a "Motion to Correct Citations to Docket Number 131 (Petitioner's Reply to Respondent's Answer)" (ECF No. 168). On August 2, 2013, respondents filed a Notice of Nonopposition (ECF No. 170) regarding that motion. The court granted that motion, in the September 3, 2013, order, ordering that Browning's corrections to the reply described in the motion shall be considered made. See Order entered September 3, 2013 (ECF No. 172), p. 9.

Also on July 19, 2013, Browning filed a "Motion to Supplement Citations to Docket Number 131 (Petitioner's Reply to Respondent's Answer)" (ECF No. 169). On August 2, 2013, respondents filed a Notice of Nonopposition (ECF No. 171) regarding that motion. In the September 3, 2013, order, the court granted that motion as well, ordering that the supplemental citations described in the motion shall be considered included in the reply. See Order entered September 3, 2013 (ECF No. 172), p. 9.

On October 11, 2013, Browning filed a document entitled "Petitioner's Objection to Stay and Abeyance and Alternative Notice of Abandonment of Claims Deemed Unexhausted, per Court Orders (dkt. 162, 172), Reserving Objections" (ECF No. 173) (hereafter "Notice of Abandonment of Claims"). In that document, Browning declines to make a motion for a stay of this action to allow him to further exhaust claims in state court. See Notice of Abandonment of Claims, pp. 2-4 (stating, in the heading of part A of that document, that Browning "does not request, and objects to, a stay and abeyance"). Browning goes on to state:

Should the Court overrule his objection and adhere to its previous rulings regarding exhaustion, Petitioner, through counsel of record, hereby gives notice that he abandons the claims this Court has found to be unexhausted, to the extent and only to the extent that such abandonment is necessary to permit the Court to consider and rule on his remaining constitutional claims under Rose v. Lundy, 455 U.S. 509 (1982). In doing this, Petitioner does not intend to waive any of his objections to or arguments against the Court's rulings regarding exhaustion, and he specifically and respectfully reserves the right to appeal from the Court's determination that his state remedies on those claims have not been exhausted, on the grounds set forth above and all of the grounds previously submitted.

Id. at 4. The court notes Browning's objections, and accepts his abandonment of his unexhausted claims.

Thus, remaining for resolution on their merits are: the claims in Claim 1 of Browning's fifth amended petition, at paragraphs 5.1-5.6, 5.7-5.7.3, 5.8-5.8.2, 5.9-5.9.7, 5.10-5.10.4, 5.11-5.11.3 (in part), 5.12-5.12.4 (in part), 5.13-5.13.4, 5.14-5.14.5 (in part), 5.15, 5.16-5.16.4 (in part), and 5.19; Claim 2; Claim 3; the claims in Claim 4 at paragraphs 5.43-5.43.3, 5.44-5.44.2 (in part), 5.45, 5.46-5.49 (in part), 5.50-5.51 (in part), and 5.56; the claims in Claim 5 at paragraphs 5.59, 5.60, 5.61, 5.62, 5.63, 5.64, and 5.65; the claims in Claim 6 at paragraphs 5.68-5.68.2, 5.69-5.69.2, 5.70-5.70.2, 5.71, 5.72-5.72.3, 5.73-5.73.7, 5.74, 5.75, 5.76-5.76.6, 5.77-5.77.3, 5.79, 5.80 (in part), 5.81, and 5.83; Claim 7; Claim 10; and Claim 11. See Order entered April 5, 2013 (ECF No. 162); Order entered September 3, 2013 (ECF No. 172); Notice of Abandonment of Claims filed October 11, 2013 (ECF No. 173).[3]

Standard of Review of the Merits of Browning's Remaining Claims

Because this action was initiated after April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

28 U.S.C. § 2254(d) sets forth the primary standard of review under AEDPA:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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 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 Cour's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

The Supreme Court has further instructed that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has also emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer, 538 U.S. at 75; see also Cullen v. Pinholster, 131 S.Ct.1388, 1398 (2011) (describing the AEDPA standard as "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt") (internal quotation marks and citations omitted).

The state court's "last reasoned decision" is the ruling subject to section 2254(d) review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). If the last reasoned state-court decision adopts or substantially incorporates the reasoning from a previous state-court decision, a federal habeas court may consider both decisions to ascertain the state court's reasoning. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc).

If the state supreme court denies a claim but provides no explanation at all for its ruling, the federal court still affords the ruling the deference mandated by section 2254(d); in such a case, the petitioner is entitled to federal habeas corpus relief only if "there was no reasonable basis for the state court to deny relief." Harrington, 131 S.Ct. at 784.

The analysis under section 2254(d) looks to the law that was clearly established by United States Supreme Court precedent at the time of the state court's decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

The AEDPA standard does not apply where the state supreme court rejected a federal claim on procedural grounds and did not reach its merits. Harrington, 131 S.Ct. at 784-85. In that case, the federal habeas court reviews the claim de novo, rather than under AEDPA's deferential standard. Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir.2005) (applying de novo standard of review to a claim in a habeas petition that was not adjudicated on the merits by the state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.2004) (same).

Analysis

Trial Counsel's Alleged Inadequate Investigation, Generally

In Claim 1 of his fifth amended petition, at paragraphs 5.1 to 5.6, Browning makes allegations concerning what he considers to have been his trial counsel's generally inadequate pretrial investigation. Fifth Amended Petition (ECF No. 115), pp. 7-9. Those allegations, standing alone, do not state a viable claim for habeas corpus relief.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: a petitioner claiming ineffective assistance of counsel must demonstrate (1) that his attorney's representation "fell below an objective standard of reasonableness, " and (2) that the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688; see also id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Without tethering general claims regarding the alleged minimal investigation done by trial counsel to particular effects of the insufficient investigation, Browning cannot establish ineffective assistance of counsel, in violation of his constitutional rights, under Strickland. Therefore, the allegations in paragraphs 5.1 to 5.6 of Browning's fifth amended petition do not, in themselves, set forth a viable habeas claim. Those allegations can only be read as introduction to, and in conjunction with, Browning's specific claims regarding the investigation done by his trial counsel, which are discussed below.

The Bloody Shoe Prints

Browning asserts claims concerning bloody shoe prints found at the scene of the murder.

In Claim 1, at paragraphs 5.7 to 5.7.3, Browning claims that, had his trial counsel conducted a sufficient investigation, he would have learned, and the jury would have heard:

(a) that Officer Branon was the first officer to arrive at the scene, and when he arrived the bloody shoe prints were already there; (b) that the paramedics arrived after Officer Branon so they could not have left the prints; (c) that Officer Branon told Mr. Horn that he saw the bloody shoeprints there before anyone arrived - including Mr. Horn and the paramedics; and (d) that the bloody prints were too big to have been left by either Ms. Coe or Mrs. Elsen, who had been in the jewelry store before Officer Branon's arrival.

Fifth Amended Petition, p. 10, ¶ 5.7.2.

Browning raised this claim on the appeal in his state habeas action. See Appellant's Opening Brief, Exhibit 232, p. 43 (ECF No. 59-174, p. 29). The Nevada Supreme Court considered Browning's claim of ineffective assistance of counsel, regarding his counsel's investigation of the bloody shoe prints, and ruled as follows:

Browning also contends that his trial counsel was ineffective in failing to learn that bloody shoeprints near Elsen were already present when Officer Branon arrived at the crime scene. Because the prints did not match Browning's shoes and could not have been left by paramedics, who arrived after Officer Branon, Browning argues that this information indicated that another person committed the murder. We conclude that this information was not material and that trial counsel acted reasonably. Counsel explained at the evidentiary hearing that once he determined that the shoeprints did not match Browning's shoes, he chose not to investigate the prints further. He feared that investigation might establish that the prints had been left by police or paramedics, rather than some unidentified person. As long as the source of the prints was unknown, counsel could argue to the jury that the actual murderer had left them. Although it is now evident that the prints were present before police and paramedics arrived, counsel's basic reasoning remains sound because the bloody shoeprints were likely left by Mrs. Elsen and/or Coe, who were with Elsen before the first officer arrived. Counsel made a reasonable, tactical decision to leave the source of the prints uncertain.

Browning v. State, 120 Nev. 347, 356, 91 P.3d 39, 46 (2004). This court recognizes that there is evidence suggesting that the bloody shoe prints likely were not left by Mrs. Elsen or Mrs. Coe, but finds, nonetheless, that the Nevada Supreme Court's conclusion, regarding trial counsel's strategic decision to leave the source of the prints uncertain, was reasonable. Strickland requires courts to indulge a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance, as it is all too easy to conclude in hindsight that a particular act or omission was unreasonable. See Strickland, 466 U.S. at 689. The Nevada Supreme Court's ruling on this claim was a reasonable application of Strickland, and it was not based on an unreasonable determination of the facts in light of the evidence presented.

In Claim 4, at paragraphs 5.43 to 5.43.3, Browning claims, under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), that the prosecution withheld exculpatory information, and presented testimony that was misleading or false, when it presented the trial testimony of David Horn, a Las Vegas Metropolitan Police Department (LVMPD) identification specialist, whose testimony suggested, in essence, that the bloody shoe prints were likely left by paramedics or off duty detectives. See Fifth Amended Petition, pp. 39-40, ¶ 5.43-5.43.3. Browning contends that "[t]he prosecutor and Officer Horn knew or reasonably should have known that bloody prints could not have been left by the paramedics or anyone working the crime scene since Officer Branon was the first officer to arrive at the scene and he noticed the bloody prints before any back-up arrived." Id. at 40, ¶ 5.43.1.

Browning raised these claims on the appeal in his state habeas action. See Appellant's Opening Brief, Exhibit 232, p. 30 (ECF No. 59-174, p. 16. The Nevada Supreme Court ruled as follows:

... Browning contends that the State withheld the fact... that bloody shoeprints near the victim were already present when the first police officer arrived at the crime scene. We have already concluded that this information was not material in rejecting Browning's contention that his trial counsel was ineffective. We further conclude that under Brady the State did not withhold this information because it was reasonably available to the defense, as Browning acknowledges by claiming that his counsel should have interviewed the officer and discovered it. [Footnote: See Steese v. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998).]

Browning, 120 Nev. at 370, 91 P.3d at 55. The court finds this ruling by the Nevada Supreme Court to be reasonable. Browning has not shown that any evidence regarding Officer Branon's observations at the scene of the murder was withheld from the defense. The testimony of Officer Branon on which Browning relies in his attempt to show a Brady violation - that he was the first at the scene, and when he arrived the bloody shoe prints were already there - was not given until the evidentiary hearing in 1999, fourteen years after trial. See Testimony of Gregory Branon at Evidentiary Hearing, Exhibit 182, pp. 153-82 (ECF No. 59-145, p. 36 - ECF No. 59-146, p. 24). And, despite the importance of such information to the investigation of Hugo Elsen's murder, that information does not appear in Officer Branon's three-page police report. See Officer Branon's November 8, 1985, Police Report, Exhibit 202 in support of Browning's First Amended Petition (ECF No. 37-18, pp. 91-93). Moreover, there is no credible evidence that Officer Branon told anyone this information before the 1999 evidentiary hearing.

Browning claims that there is evidence that Officer Branon told Officer Horn, at the scene of the murder, that when he arrived the bloody footprints were already there; in making that argument, Browning relies on the following testimony of Officer Branon at the 1999 evidentiary hearing held in Browning's state habeas action:

Q. Did you tell anyone about the bloody footprints upon entering the store?
A. I would have mentioned it to Criminalistic's Specialist Horn when he got there.

Testimony of Gregory Branon at Evidentiary Hearing, Exhibit 182, p. 171. This court does not find that testimony to be credible. Officer Branon did not testify that he actually told Officer Horn; he testified - some 15 years after the event - that he "would have."

Furthermore, Officer Horn testified at trial as follows:

Q. Now, you mentioned the bloodstain.... Can you tell whether or not you discovered a footprint in that particular bloodstain?
* * *
A. There was a tennis shoe design in the bloodstain and it led away from the bloodstained area towards the east, front door
* * *
Q.... [A]re you familiar in this case with a man by the name of Paul Lewis Browning?
A. Yes, I am.
Q. Did you see him later that evening?
A. Yes, I did.
Q. And what was the purpose of your seeing Mr. Browning?
A. The purpose was to check the footwear that he was wearing to see if it might match what I found in the store.
Q. Did it match?
A. No, it did not.
* * *
Q. (By Mr. Seaton [prosecutor]) What investigation did you do?
A. None.
Q. Were you given any information that caused you not to do any investigation?
A. Yes, I was.
* * *
Q. (By Mr. Seaton) How do you determine whether or not you should do further investigation in something like this footprint?
* * *
A. If it was - if I deemed it critical or someone from the detective side of the police department thought it critical, the personnel that had responded to the crime scene at 521 Las Vegas Boulevard South would have been contacted either through the Mercy Ambulance attendant or if it was the fire department that responded we could have obtained those names of the people that had gone to that address, contacted them, even brought them back to the scene if needed to compare to or see what kind of footwear that they were wearing at the time they initially arrived to the address at the Hugo Elsen Jewelry Store.
Q. Have you been to many scenes where paramedics have been?
A. Numerous.
Q. Do they wear tennis shoes?
A. They sometimes do. More often than not they do because a lot of times they work with their feet a lot and anything that's more comfortable for them that's generally what they will wear.
Q. Do detectives come to the scene who were off duty?
A. The only off-duty people that would come to such a crime scene would be your homicide detail. Everyone else from general detail, patrol, the crime lab people would be on duty.
Q. People like Detective Leonard?
A. Right.
Q. The man in charge of this case if he were off duty?
A. He would show up, yes.
Q. Do they come in tennis shoes ever?
A. At times I have seen them wear tennis shoes.
Q. And did [you] ever think that it was critical to go look at all of the shoes of all of the people who had been in that building on that particular night?
A. No, I did not.

Trial Testimony of David Randall Horn, Exhibit 46, pp. 209-13 (ECF No. 59-29, pp. 14-18). It appears from Officer Horn's testimony that his decision not to further investigate the shoe prints was based on what he was told by other officers at the scene. In light of the trial testimony of Officer Horn, the court finds incredible Officer Branon's testimony, some 15 years after the event, that he "would have" told Officer Horn that the bloody shoe prints were present when he first arrived at the scene before anyone else.

Moreover, it is not clear from the evidence that Officer Branon was in fact, by himself, the first officer to arrive at the murder scene. Browning's claims regarding the bloody shoe prints are premised on his assertion that "... Officer Branon was the first officer to arrive at the scene and he noticed the bloody prints before any back-up arrived." Fifth Amended Petition, p. 40. At trial, however, Officer Branon testified as follows:

Q. Officer Branon, you were one of the first two officers to arrive at the scene. Isn't that true?
A. Yes, sir.
Q. And you were there with Officer Robertson?
A. Yes, sir.

Trial Testimony of Gregory Branon, Exhibit 49, p. 537 (ECF No. 59-41, p. 19). And, in his police report, written on the day of the murder, Officer Branon wrote:

Upon my arrival at Hugo's Jewelers, a short time thereafter, I made my way to the front of the jewelry store, at which time I was able to look within and observe an elderly white female adult, later identified as Josey Elsen, the wife of the owner, Hugo Elsen, walking back and forth within the business.
It was at approximately this time that Officer R. Roberston and Officer D. Radcliffe responded to my location to assist me. It was at this time that I gently knocked upon the glass door at the front of the business, which is located on the eastside of the building, which attracted the attention of Mrs. Elsen, who responded to the door, opened it and explained her husband had been stabbed.
At this time both I and Officer Robertson entered the store, making a quick check on the interior, then contacting the victim, one Hugo Elsen, who was lying in a conscious state on the floor on his back at the northeast corner of the store.

Exhibit 202 in support of Browning's First Amended Petition, p. 1 (ECF No. 37-18, p. 91).

At trial, the prosecution presented the testimony of David Radcliffe, one of the other LVMPD patrol officers who responded to the scene of the murder. See Trial Testimony of David Radcliffe, Exhibit 48, pp. 340-63 (ECF No. 59-35, pp. 4-27). Officer ...


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