United States District Court, D. Nevada
P. GORDON United States District Judge
the court are the amended petition for writ of habeas corpus
(ECF No. 18), respondents' answer (ECF No. 59), and
petitioner's reply (ECF No. 62). The court finds that
relief is not warranted and denies the amended petition.
has limited the circumstances in which a federal court can
grant relief to a petitioner who is in custody pursuant to a
judgment of conviction of a state court.
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;
(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). “By its terms § 2254(d)
bars relitigation of any claim ‘adjudicated on the
merits' in state court, subject only to the exceptions in
§§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011).
Federal habeas relief may not be granted for claims subject
to § 2254(d) unless it is shown that the earlier state
court's decision “was contrary to” federal
law then clearly established in the holdings of this Court,
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362,
412 (2000); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it
“was based on an unreasonable determination of the
facts” in light of the record before the state court,
Richter, 562 U.S. at 100. “For purposes of
§ 2254(d)(1), ‘an unreasonable application of
federal law is different from an incorrect application of
federal law.'” Id. (citation omitted).
“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.”
Id. (citation omitted).
[E]valuating whether a rule application was unreasonable
requires considering the rule's specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have
supported, the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.
Richter, 562 U.S. at 102.
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Id. at 103.
the people involved in this case were minors, and they are
identified only by their initials. Petitioner was convicted
of multiple counts of sexual assault with a minor under
fourteen years of age and multiple counts of lewdness with a
child under the age of fourteen. The victim was D.H., a girl.
D.H. knew C.C. and B.C., brother and sister, respectively.
C.C. and B.C. had a half-brother named Cortez Bowen. C.C.
testified at trial about uncharged sexual abuse by
petitioner. B.C. had accused Cortez Bowen of sexually abusing
her. One possible defense theory was that D.H. had made up
her story based upon what Cortez Bowen had done to B.C.
court has dismissed ground 1 because it was procedurally
defaulted. ECF No. 56. Reasonable jurists would not find the
court's determination to be debatable or wrong, and the
court will not issue a certificate of appealability for
2 contains three claims of prosecutorial misconduct because
the prosecution argued facts not in evidence, vouched for the
credibility of witnesses, and shifted the burden of proof.
[I]t ‘is not enough that the prosecutors' remarks
were undesirable or even universally condemned.' . . .
The relevant question is whether the prosecutors'
comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.' .
. . Moreover, the appropriate standard of review for such a
claim on writ of habeas corpus is “the narrow one of
due process, and not the broad exercise of supervisory
Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting, inter alia, Donnelly v.
DeChristoforo, 416 U.S. 637, 642, 643 (1974)). The
Supreme Court has not specifically held that the prosecutor
may not vouch, may not assume facts not in evidence, may not
shift the burden of proof. The standards of Darden
and Donnelly are broad, allowing wide latitude in
ground 2(A), petitioner argues that in the closing argument
the prosecutor assumed facts not in evidence. The Nevada
Supreme Court held:
Fourth, Rencher argues that the prosecutor improperly gave
his opinion in an attempt to inflame the jury when he stated
that Rencher was “raping” the victim. We conclude
that the prosecutor's comments did not state the
prosecutor's opinion. The prosecutor merely argued that
the evidence showed that Rencher repeatedly sexually
assaulted the victim. See Collins v. State, 87 Nev.
436, 439, 488 P.2d 544, 545 (1971) (noting that a prosecutor
may make statements phrased as his opinion when those are
conclusions from the evidence introduced at trial).
Therefore, the prosecutor's argument did not constitute
Fifth, Rencher argues that the prosecutor improperly gave his
opinion in an attempt to inflame the jury when he argued that
the victim did not have any physical signs of abuse because
Rencher avoided significant injuries to conceal and
effectuate his repeated abuse of the victim. We conclude that
the prosecutor's comments did not impermissibly give his
opinion in an attempt to inflame the jury. The statement was
a proper comment on the evidence and response to the defense
argument highlighting the lack of findings during the
victim's physical exam. Therefore, the prosecutor's
comment did not constitute plain error.
Ex. 74, at 8-9 (ECF No. 23-13, at 9-10). Defense counsel had
argued to the jury that D.H., the victim, should not be
believed because she showed no injuries and an intact hymen,
and that Nurse Flynn, who testified about the examination of
D.H., should not be believed because she had testified that a
hymen can heal. Ex. 59, at 89, 95 (ECF No. 22-13, at 91, 97).
In rebuttal, the prosecutor noted that petitioner could have
not penetrated D.H. fully to keep her from bleeding so that
he could rape her repeatedly. Ex. 59, at 100-01 (ECF No.
22-13, at 103). The relationship between petitioner and
D.H.'s mother was on-and-off, and the prosecutor noted
that D.H. might have been scared that they would resume the
relationship and that petitioner would start raping D.H.
again. Ex. 59, at 104 (ECF No. 22-13). The Nevada Supreme
Court reasonably could have concluded that the
prosecutor's comments were a response to the defense
argument and were inferences from the evidence presented, and
did not make the trial fundamentally unfair to
ground 2(B), petitioner argues that the prosecutor vouched
for D.H. and C.C., who had testified about uncharged sexual