Rencher v. Williams

          ORDER

          ANDREW P. GORDON United States District Judge

         Before 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.

         Congress 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; 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). “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, § 2254(d)(2).

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.

         Many of 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.

         The 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 ground 1.

         Ground 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 power.”

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 state-court decisions.

         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 plain error.

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 petitioner.^[1]

         In ground 2(B), petitioner argues that the prosecutor vouched for D.H. and C.C., who had testified about uncharged sexual ...