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Bolin v. Baker

United States District Court, D. Nevada

February 13, 2015

GREGORY D. BOLIN, Petitioner,
RENEE BAKER, et al., Respondents.


MIRANDA M. DU, District Judge.

Before the Court for a decision on the merits is an application for a writ of habeas corpus filed by Gregory Dean Bolin, a Nevada prisoner sentenced to death. (Dkt. no. 138.)


On the morning of July 15, 1995, the body of Brooklyn Ricks was found at a residential construction site in Las Vegas, Nevada.[1] Ricks had been bound and gagged and, based on autopsy findings, had suffered approximately a dozen puncture wounds to the chest and back and multiple blunt force traumas to the head, neck, and extremities. In addition, an analysis of a vaginal swab taken from Ricks detected trace amounts of semen. The previous night, Ricks had worked at a video rental store (B & R Video) located in a strip mall. After closing the store with Ricks at midnight, a co-worker observed Ricks get into her pickup truck and drive past an adjacent Albertson's grocery store. On July 18, 1995, Bolin was arrested and charged with Ricks' murder.

On July 15, 1996, a jury sitting in the state district court for Clark County, Nevada, returned a verdict finding Bolin guilty of first-degree kidnaping, sexual assault, and first-degree murder. At the conclusion of the penalty phase, the jury found three aggravating circumstances and no mitigating circumstances. Bolin was sentenced to death.

On May 19, 1998, Bolin's convictions and death sentence were affirmed on direct appeal. Bolin v. State, 960 P.2d 784 (Nev. 1998). Bolin timely filed a motion for rehearing which was denied by the Nevada Supreme Court on August 27, 1998. His subsequent petition for a writ of certiorari to the U.S. Supreme Court was also denied. Bolin v. Nevada, 525 U.S. 1179 (1999).

Bolin initiated state post-conviction proceedings on April 22, 1999. On July 28, 2005, the state district court entered an Amended Findings of Facts, Conclusions of Law and Order denying Bolin's state district court petition. The Nevada Supreme Court affirmed that denial of relief on June 22, 2007, and issued its remittitur on July 17, 2007. On November 19, 2007, Bolin filed a petition for a writ of certiorari in the U.S. Supreme Court, which was denied on February 25, 2008. Bolin v. Nevada, 552 U.S. 1231 (2008).

On October 15, 2007, Bolin filed, pro se, a petition for writ of habeas corpus under 28 U.S.C §2254 that initiated this federal proceeding. On November 9, 2007, the district court appointed the Federal Public Defender's office (FPD) to represent Bolin during his federal habeas corpus proceedings. On April 30, 2008, Bolin filed an amended petition. The FPD was subsequently relieved as counsel due to an irreconcilable conflict. On February 6, 2009, Saor Stetler was appointed as new counsel.

On July 30, 2009, Bolin filed a second amended petition. In response to the respondents' motion to dismiss based, in part, on lack of exhaustion, Bolin filed a motion for stay and abeyance to allow him to return to state court. This Court denied that motion and, on September 27, 2011, entered an order ruling upon the motion to dismiss. Confirming that numerous claims in the petition had not been exhausted in the state court, the order gave Bolin twenty (20) days to abandon his unexhausted claims and warned him that failure to do so would result in the dismissal of his second amended petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

That order precipitated a conflict between Stetler and Bolin, with Bolin disagreeing with counsel's refusal to abandon the unexhausted claims. That conflict resulted in Stetler being dismissed as Bolin's counsel on June 13, 2012. After appointment of new counsel, David Neidert and Michael Charlton, Bolin filed a notice abandoning unexhausted claims and a third amended petition on November 27, 2012. Those filings were followed by a motion to amend and a proposed fourth amended petition filed on December 15, 2012. This Court granted the motion to amend on January 9, 2013.

On April 4, 2013, the respondents filed their answer to Bolin's remaining habeas claims. Briefing on the merits of those claims concluded on January 15, 2014. In addition, Bolin has filed a motion for an evidentiary hearing with respect to certain claims that, according to him, call for additional factual development.


This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the 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 decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

With respect to an "unreasonable determination of the facts" under § 2254(d)(2), "[t]his is a daunting standard - one that will be satisfied in relatively few cases." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). It is satisfied where a state court fails to make an obvious factual finding, where it makes a factual finding under an incorrect legal standard, where it plainly misapprehends or misstates the record, where it ignores evidence that supports the petitioner's claim, and where the fact-finding process itself is defective. Id. at 1001-02. However, the factual determinations of the state court cannot be overturned unless they are "objectively unreasonable in light of the evidence presented." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Id. The "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, ' and demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "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 emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); 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).

"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. In Pinholster, the Court reasoned that the "backward-looking language" present in § 2254(d)(1) "requires an examination of the state-court decision at the time it was made, " and, therefore, the record under review must be "limited to the record in existence at that same time, i.e., the record before the state court." Id.

For any habeas claim that has not been adjudicated on the merits by the state court, the federal court reviews the claim de novo without the deference usually accorded state courts under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). See also James v. Schriro, 659 F.3d 855, 876 (9th Cir. 2011) (noting that federal court review is de novo where a state court does not reach the merits, but instead denies relief based on a procedural bar later held inadequate to foreclose federal habeas review). In such instances, however, the provisions of 28 U.S.C. § 2254(e) still apply. Pinholster, 131 S.Ct. at 1401 ("Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief."); Pirtle, 313 F.3d at 1167-68 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal review is de novo ).

Lastly, the Court in Lockyer rejected a Ninth Circuit mandate for habeas courts to review habeas claims by conducting a de novo review prior to applying the "contrary to or unreasonable application of" limitations of 28 U.S.C. § 2254(d)(1). Lockyer, 538 U.S. at 71. In doing so, however, the Court did not preclude such an approach. "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id.


A. Claims Five, Six, and Seventeen

Claims Five, Six, and Seventeen are all premised on the state court's admission of prior bad act evidence relating to a kidnaping and sexual assault Bolin committed in Colorado in 1975. In its decision on Bolin's direct appeal, the Nevada Supreme Court recounted the circumstances related to the admission of this evidence:

Because the State sought to introduce evidence of Bolin's prior criminal history at trial in order to demonstrate intent and motive, a Petrocell i hearing[2] was conducted on June 3, 1996. During this hearing, evidence of Bolin's prior criminal history, which consisted of a 1975 Colorado kidnapping and sexual assault for which Bolin had served nearly twenty years in prison, was established through the testimony of the victims of these past crimes.
At Bolin's Petrocelli hearing, Renee Morriss (Morriss) testified that on April 15, 1975, she and her then husband John, were both Army nurses stationed in Aurora, Colorado. After finishing their shift at approximately 11:00 p.m., the couple drove home together and exited their car at the parking spot in front of their apartment. Two young males came out of the bushes, one holding a.22 handgun, and told them to get back into the car. The older looking male, who was approximately nineteen years old and who was later identified as Bolin, ordered John to drive or he would shoot Morriss.
Immediately upon driving off, Bolin demanded money from the couple. While they did not have any cash in their possession, John gave Bolin his wallet and watch, and Morriss handed over her wedding ring. After driving approximately thirty minutes, Bolin forced John to stop the car in a dark and secluded area and then forced him into the trunk of the car at gunpoint.
During the next six hours, Bolin and his accomplice brutally raped Morriss on several occasions at gunpoint. Additionally, at one point in the evening, Bolin forced Morriss to drive to her apartment so that Bolin and his accomplice could rob her and John of their valuables. Morriss and John were eventually able to escape when Bolin forced her to drive to a convenience store and cash a check for one hundred dollars. While Bolin and his accomplice were occupied in the store, Morriss ran back to her vehicle, drove off, and contacted the police.
Bolin was eventually apprehended and pleaded guilty to two counts of first degree kidnapping and two counts of rape. Bolin spent the next thirteen years in a Colorado prison before being paroled in July 1988. In February 1990, Bolin's parole was revoked, and he consequently went back to prison for an additional five years. Bolin was finally released from the Colorado prison system on June 29, 1995, approximately two weeks prior to Ricks' murder.
At the conclusion of the Petrocelli hearing, the district court concluded that evidence of Bolin's prior bad act was relevant to the crime charged, that it had been proven by clear and convincing evidence, and that its probative value was not substantially outweighed by the danger of unfair prejudice. Consequently, the district court concluded that evidence of Bolin's prior bad acts were admissible at trial pursuant to NRS 48.045(2) to demonstrate identity, plan, intent, similar modus operandi, and sexual aberration.
Bolin's trial commenced on June 10, 1996. During trial, the district court admitted evidence of Bolin's 1975 rape and kidnapping convictions over Bolin's objections....

Bolin, 960 P.2d at 791-92 (footnote added).

In Claim Five, Bolin alleges that his conviction and sentence are unconstitutional because the prior bad act evidence was improperly admitted and, absent that evidence, there was insufficient evidence to support his conviction. In Claim Six, he alleges that the Nevada Supreme Court violated his constitutional rights by virtue of its decision upholding the trial court's admission of the prior bad act evidence. Based on the manner in which the Claim Five is presented in his petition, Bolin appears to be asking this Court to find that the state court erred in admitting the prior bad act evidence and to then apply the constitutional sufficiency of evidence test ( Jackson v. Virginia, 443 U.S. 307, 319 (1979)) to the remaining evidence presented at trial. However, inquiry into whether evidence was correctly admitted under state law "is no part of a federal court's habeas review of a state conviction." Estelle v. McGuire, 502 U.S. 62, 67(1991). So, instead, this Court shall turn to the question whether the admission of the evidence violated Bolin's federal constitutional rights. See id. at 68.

Nev. Rev. Stat. § 48.045(2) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In addition, Nevada case law at the time of Bolin's trial contained an exception to § 48.045(2) that allowed for the admission of evidence of prior bad acts showing that a defendant possesses a propensity for sexual aberration. Findley v. State, 577 P.2d 867 (Nev. 1978); McMichael v. State, 577 P.2d 398 (Nev. 1978). As noted, the trial court determined that the evidence of the 1975 Colorado crimes was admissible to show identity, plan, intent, a similar modus operandi, and sexual aberration. (Dkt. no. 149-3 at 57.)[3]

On direct appeal, the Nevada Supreme Court limited its analysis to "the propriety of admitting evidence of Bolin's prior bad acts for the purpose of establishing identity pursuant to NRS 48.045(2)" and "decline[d] to address Bolin's arguments that his prior convictions were improperly admitted on other grounds such as intent, plan, similar modus operandi, or sexual aberration." Bolin, 960 P.2d at 796, n.5. After extensively reviewing Nevada case law on the matter, the Nevada Supreme Court concluded that "there were sufficient similarities between Bolin's 1975 rape and kidnaping convictions and Ricks' murder to warrant admission of Bolin's prior bad acts for the limited purpose of establishing identity." Id. at 795.

In 2002, the Nevada Supreme Court overruled McMichael and Findley with respect to the admissibility of evidence showing that the defendant possesses a propensity for sexual aberration. Braunstein v. State, 40 P.3d 413, 418 (Nev. 2002); see also, Richmond v. State, 59 P.3d 1249, 1256 (Nev. 2002) (disavowing jury instruction on sexual aberration). In his state post-conviction proceeding, Bolin again challenged the trial court's admission of prior bad act evidence. He also argued that the state court's failure to apply Braunstein and Richmond to his case would violate his constitutional rights.

The Nevada Supreme Court decided the claim as follows:

The State argues that this claim is barred by the law of the case doctrine. We disagree. In Bolin's direct appeal, we expressly declined to consider whether evidence of the prior bad act was improperly admitted to show sexual aberration. Thus the claim is not barred by the law of the case. [fn.4: See Pellegrini v. State, 117 Nev. 860, 879, 34 P.3d 519, 532 (2001); Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975).] The claim was not waived because Bolin raised it in his direct appeal, and his petition is not successive, so the procedural bars of NRS 34.810 are not at issue. Bolin argues that our decisions in Braunstein v. State [fn.5: 118 Nev. 68, 40 P.3d 413 (2002).] and Richmond v. State [fn.6: 118 Nev. 924, 59 P.3d 1249 (2002).], which were both decided after his conviction became final, entitle him to relief on this claim.
The State argues that Bolin is not entitled to application of Braunstein and Richmond because his conviction was final when those cases were decided and they do not demand retroactive application on collateral review. [fn.7: See generally Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002).] We need not reach this issue here because even if those cases were applied retroactively to Bolin, they would not entitle him to relief. Braunstein would not have barred admission of the prior bad act evidence; the evidence would still have been admissible to show identity, which we have already ruled was proper. And while Richmond would have rendered the sexual-aberration jury instruction improper, we conclude the error in giving the instruction would have been harmless in light of the weight of the evidence supporting Bolin's conviction. That evidence included Bolin's history of frequenting the victim's place of work and asking the victim and her sisters out on dates; surveillance videotape placing Bolin at the victim's place of work minutes before she arrived and approximately two hours before she departed on the night of her death; a witness who saw Bolin drive away from the crime scene in the victim's truck just before the witness discovered the dying victim; the victim's truck being found five blocks from Bolin's home with a bloody screwdriver inside; and evidence that Bolin was included among the one in every 2, 400-2, 600 African-Americans who could have been the donor of DNA evidence found on the victim's body. Thus, we conclude the district court did not err in denying this claim.

Dkt. no. 170-6 at 14-15.

As a starting point, this Court rejects Bolin's argument that § 2254(d) does not apply here because the Nevada Supreme Court did not address his federal law claim. When a federal claim has been presented to a state court, and the state court has denied relief without comment, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Richter, 131 S.Ct. at 784-85. That same presumption applies when a state court opinion addresses some, but not all, of the petitioner's claims. Johnson v. Williams, 133 S.Ct. 1088, 1095-96 (2013) (citing Richter ). In determining that the trial court did not error as a matter of state evidence law, the Nevada Supreme Court implicitly rejected Bolin's claim that his constitutional rights had been violated by the admission of the prior bad act evidence. Thus, Bolin's constitutional claims were adjudicated on the merits by the Nevada Supreme Court for the purposes of § 2254(d).

As for whether the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, the decision in Alberni v. McDaniel, 458 F.3d 860 (9th Cir. 2006), confirms that that question must be answered in the negative. As explained in Alberni, the Supreme Court has, to this point, reserved its opinion as to "whether a state law would violate the Due Process Clause if it permitted the use of "prior crimes" evidence to show propensity to commit a charged crime.'" Alberni, 458 F.3d at 864 (quoting Estelle, 502 U.S. at 75 n.5). The Alberni court reasoned that, because the Supreme Court has expressly declared the issue an open question, there was no clearly established federal law for the state court to be in conflict with, or unreasonably apply, when it decided against the petitioner on such a claim. Id. at 866. Accordingly, that state court decision must be accorded deference under § 2254(d)(1). Id. at 867. In the absence of a convincing showing that Alberni does not control, this Court must likewise defer to the Nevada Supreme Court's rejection of Bolin's due process claim.

Bolin also argues, however, that the Nevada Supreme Court's decision was based on an unreasonable determination of the facts. He points to two findings the court made in concluding that the 1975 crimes were sufficiently similar to the Ricks crimes to justify admission of the prior offenses for the limited purpose of establishing identity. One is the court's finding that Renee Morriss, like Brooklyn Ricks, had blond hair at the time of the crime. See Bolin, 960 P.2d at 796 ("At the time of her abduction and rape, Morriss was a twenty-year-old slender white female with blond hair who was 5' 5" tall.") The other is the court's implied finding that Bolin took Ricks' personal property. See id. ("In the instant case, Ricks' wedding ring and purse were taken from her person and never recovered.")

Where the allegation is that the state court misapprehended or misstated the record in making its finding, the alleged factual error must "go[] to a material factual issue that is central to petitioner's claim" for there to be an "unreasonable determination of the facts" that justifies relieving a federal court of deference under § 2254(d)(2). Taylor, 366 F.3d at 1001. The Nevada Supreme Court's finding as to the color of Morriss's hair is belied by her testimony at the Petrocelli hearing, during which she stated that her hair was brown at the time of the 1975 sexual assault. (Dkt. no. 149-3 at 9.) Even so, that finding was a relatively insignificant part of the court's analysis in comparing the two crimes. See Bolin, 960 P.2d at 795-96.

Put another way, the court's decision was well-supported by other, more-pertinent facts, such as the age, race, and build of the victims, the manner in which they were abducted, and the fact that the victims' vehicles were used to take them to remote locations where they were sexually assaulted. See id. at 796. Because the state court's finding as to Morriss' hair color was not a material factual issue that is central to Bolin's claim, it cannot be said the court's decision to reject his claim was based on an unreasonable determination of the facts for the purposes of § 2254(d)(2).

As for the Nevada Supreme Court's finding that Ricks' wedding ring and purse were taken from her, evidence presented at trial established that these items were in her possession when she left for work on the night of the murder. (Dkt. no. 152-2 at 57, dkt. no. 152-3 at 66-67.) They were not found with her body the following morning, nor were they ever recovered. (Dkt. no. 155-3 at 7, 66; dkt. no. 158-1 at 43-44.) Under the circumstances, it was not unreasonable for the Nevada Supreme Court to conclude that they had been taken from her by the person who had kidnaped her. See Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000) (holding that, to meet the § 2254(d)(2) standard, a state court's factual findings must be "clearly erroneous, " not just merely debatable).

Based on the foregoing this Court must defer to the Nevada Supreme Court's decision denying Bolin relief on his claims alleging error in relation to the state court's admission of prior bad act evidence. Accordingly, Claims Five and Six are denied.

In Claim Seventeen, Bolin alleges that his conviction and sentence are unconstitutional because the prior bad act jury instruction issued at his trial invited the jury to consider inadmissible character evidence. In addressing Bolin's challenge to the jury instruction on direct appeal, the Nevada Supreme Court concluded, based on McMichael and Findley, that the instruction "accurately instructed the jury on the law of this state." Bolin, 960 P.2d at 801. Bolin argues that Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001), establishes the grounds for relief on this claim.

Garceau, however, is a pre-AEDPA case. Alberni, 458 F.3d at 864. The court in Alberni explained as follows:

We held in Earp [ v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005)] that "the advent of AEDPA forecloses the option of reversing a state court determination because it conflicts with circuit law." [ Earp, 431 F.3d at 1185.] We cannot conclude that the Nevada Supreme Court acted in an objectively unreasonable manner in concluding that the propensity evidence introduced against Mr. Alberni did not violate due process, given that Estelle expressly left this issue an "open question."

Id. at 866. Likewise, this Court cannot conclude that the Nevada Supreme Court acted in an objectively unreasonably manner in concluding that the prior bad act jury instruction did not violate Bolin's right to due process. Thus, Claim Seventeen must be denied.

B. Claim Eight

In Claim Eight, Bolin claims that his conviction and sentence violate his constitutional rights because his counsel were ineffective in failing to adequately challenge the introduction of illegally obtained evidence. After interviewing Bolin on July 15, 1995, Detective Morgan, of the Las Vegas Metropolitan Police Department (LVMPD), sought a search warrant in hopes of finding the "clothing that Bolin was seen wearing on the B & R Video surveillance tape, Ricks' wedding ring and her black backpack, the keys to her gray pickup truck, and Bolin's photograph and fingerprints." Bolin, 960 P.2d at 789. Morgan also "sought permission to administer a serology kit in order to obtain samples of Bolin's blood, saliva, and hair for forensic testing." Id. The search warrant was signed later that day by a district court judge. Id.

The warrant was executed the following day, however, "[w]hen drawing Bolin's blood for laboratory analysis, Det. Tremel mistakenly used a DUI kit instead of the proper serological kit." Id.

Because of the mistake, Sgt. Hefner contacted the district attorney's office to determine the necessary procedural steps in order to seize a second set of serological samples from Bolin. A representative of the district attorney's office informed Sgt. Hefner that the search warrant that was issued on July 15, 1995 was still valid, and thus a second warrant was not needed to obtain a second serology kit from Bolin.

Id. at 791. Based on that information, "Det. Tremel obtained a second serology kit from Bolin on July 18, 1995." Id.

According to Bolin, trial and appellate counsel were ineffective in failing to challenge the sufficiency of the affidavit supporting the July 15 warrant on the ground that it contained material misrepresentations and in failing to argue that the second search conducted pursuant to the same warrant violated the Fourth Amendment. Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must satisfy two prongs to obtain habeas relief- deficient performance by counsel and prejudice. 466 U.S. at 687. With respect to the performance prong, a petitioner must carry the burden of demonstrating that his counsel's performance was so deficient that it fell below an "objective standard of reasonableness." Id. at 688. A reviewing court "must indulge a strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689).

With respect to the prejudice prong, the court "must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent [counsel's] errors." Strickland, 466 U.S. at 696. Put another way, a habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

The Court in Strickland emphasized that the ultimate focus of an ineffective assistance of counsel inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. If the defendant makes an insufficient showing as to either one of the two Strickland components, the reviewing court need not address the other component. Id. at 697.

... In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of ...

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