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Matthews v. Neven

United States District Court, D. Nevada

March 31, 2017

JEMAR D. MATTHEWS, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

         Introduction

         This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Jemar D. Matthews, a Nevada prisoner. The court concludes that Matthews' trial was rendered unfair by improper comments made by the prosecutor in her rebuttal closing arguments, and that the prosecutorial misconduct was not harmless. The court grants Matthews a writ of habeas corpus.

         Background

         Matthews was convicted on July 17, 2007, following a jury trial in Nevada's Eighth Judicial District Court, in Clark County, of conspiracy to commit murder, murder with use of a deadly weapon, three counts of attempted murder with use of a deadly weapon, possession of a sawed off rifle, conspiracy to commit robbery, two counts of robbery with use of a deadly weapon, and two counts of assault with a deadly weapon. See Judgment of Conviction, Exhibit H (ECF No. 20-3)

         (The exhibits referred to in this order were filed by respondents, and are found in the record at ECF Nos. 17, 18, 19 and 20.). He was sentenced to the following prison terms, to be served concurrently:

Count 1

conspiracy to commit murder

26 to 120 months

Count 2

murder with use of a deadly weapon

two consecutive sentences of 20 years to life

Count 3

attempted murder with use of a deadly weapon

two consecutive sentences of 48 to 240 months

Count 4

attempted murder with use of a deadly weapon

two consecutive sentences of 48 to 240 months

Count 5

attempted murder with use of a deadly weapon

two consecutive sentences of 48 to 240 months

Count 6

possession of a sawed off rifle

12 to 48 months

Count 7

conspiracy to commit robbery

12 to 72 months

Count 8

robbery with use of a deadly weapon

two consecutive sentences of 40 to 180 months

Count 9

robbery with use of a deadly weapon

two consecutive sentences of 40 to 180 months

Count 10

assault with a deadly weapon

16 to 72 months

Count 11

assault with a deadly weapon

16 to 72 months

See id.

         In its order affirming the judgment of conviction, the Nevada Supreme Court described the factual background of the case as follows:

In this case, appellant Jemar Matthews and three other young men walked up to a group of people standing outside a friend's house and opened fire, killing one victim with a shot to the head and injuring another. In attempting to flee the area, the shooters robbed a vehicle at gunpoint and a police chase ensued, resulting in Matthews' capture.

         Order of Affirmance, Exhibit J, p. 1 (ECF No. 20-5, p. 2). The Nevada Supreme Court affirmed the judgment of conviction on June 30, 2009. See id. The court then denied Matthews' petition for rehearing and his petition for en banc reconsideration. See Order Denying Rehearing, Exhibit L (ECF No. 20-7); Order Denying En Banc Reconsideration, Exhibit N (ECF No. 20-9).

         On December 14, 2010, Matthews filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit O (ECF No. 20-10); Amended Supplemental Points and Authorities in Support of Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit P (ECF No. 20-11). The state district court held an evidentiary hearing (see Recorder's Transcript of Proceedings, Exhibit Q (ECF No. 20-12)) and then denied the petition in a written order filed on November 13, 2012. See Findings of Fact, Conclusions of Law and Order, Exhibit R (ECF No. 20-13). Matthews appealed and the Nevada Supreme Court affirmed on January 16, 2014. See Order of Affirmance, Exhibit T (ECF No. 20-15).

         This court received Matthews' federal habeas petition, initiating this action, pro se, on March 28, 2014 (ECF No. 6). The court granted Matthews' motion for appointment of counsel, and appointed counsel to represent him. See Order entered August 29, 2014 (ECF No. 5); Order entered September 10, 2014 (ECF No. 9). With counsel, Matthews filed a first amended habeas petition (ECF No. 14) on January 9, 2015. Matthews' first amended petition asserts the following claims:

1. “Mr. Matthews' rights to [a] fair and impartial trial, due process, and equal protection of the law under the Fifth, Sixth and Fourteenth Amendments to the Constitution were violated in his state court prosecution because there was not sufficient evidence on which to convict him.” First Amended Petition (ECF No. 14), p. 7.
2. “Mr. Matthews' rights to a fair trial, due process and equal protection of the law were abrogated in violation of [the] Fifth, Sixth and Fourteenth Amendment guarantees by the pervasive prosecutorial misconduct evidenced during trial and at rebuttal closing.” Id. at 21. Claim 2 includes four subclaims:
(a) the prosecutor committed misconduct by urging the jurors to stare at Matthews and scrutinize his attire;
(b) the prosecutor committed misconduct by questioning Matthews' opposition to a key piece of evidence, gunshot residue found on a red glove;
(c) the prosecutor committed misconduct by “painting Mr. Matthews in the light of Mr. Joshlin's actions by referring to ‘they' and ‘them'” during trial and closing arguments; and
(d) the prosecutor committed misconduct by having a witness read from a SCOPE printout containing Matthews' criminal history to establish his height, and commenting that the printout contained arrest information.
3. “Mr. Matthews' constitutional rights under the Sixth, Fifth and Fourteenth Amendment guarantees to a fair trial, due process and equal protection under the law were violated when an unqualified expert was allowed to testify regarding gun residue on a red glove which was unconnected to any crime and which further was unconnected to Mr. Matthews as well as being unacceptable as unproven and was hypothetical not actual evidence.” Id. at 31 (as in original).
4. “Mr. Matthews' Fifth, Sixth and Fourteenth Amendment rights to due process and equal protection were violated when the trial court allowed the prosecutor and his witness to vouch that they, in fact, had the ‘right guy.'” Id. at 37.
5. “The district court erred when it stated it had no discretion to allow additional peremptory challenges, and violated Mr. Matthews' Fifth, Sixth and Fourteenth Amendment rights to due process and a fair trial.” Id. at 40.
6. “Mr. Matthews' conviction and sentence are unconstitutional, in violation of his Sixth Amendment right to effective assistance of counsel, and his Fourth and Fifth and Fourteenth Amendment right to due process, fair trial and equal protection.” Id. at 42. Specifically, trial counsel was ineffective for not moving to sever the charges against him from the charges against his codefendant. Id. at 42-48.

         On July 13, 2015, respondents filed a motion to dismiss, arguing that Claims 2c, 3, 4 and 5 are unexhausted in state court, and that Claims 1, 3, 4 and 5 fail to state claims cognizable in this federal habeas corpus action. See Motion to Dismiss (ECF No. 16), pp. 8-12. The court resolved the motion to dismiss on November 13, 2015, ruling that Claims 2c, 3 and 5 are unexhausted, and declining to reach, on the motion to dismiss, the question of the cognizability of Claims 1, 3, 4 and 5. See Order entered November 13, 2015 (ECF No. 24). With respect to Claims 2c, 3 and 5, the court granted Matthews an opportunity to make an election, to either abandon those claims, or, alternatively, file a motion for stay, requesting a stay of this action to allow him to return to state court to exhaust them. See id. at 9-10. Matthews elected to abandon the unexhausted claims. See Notice of Abandonment (ECF No. 25); Declaration of Jemar Matthews (ECF No. 26).

         Respondents filed an answer on April 13, 2016, responding to Matthews' remaining claims (ECF No. 32). Matthews filed a reply on June 16, 2016 (ECF No. 33).

         Discussion

         28 U.S.C. § 2254(d)

         A federal court may not grant an application for a writ of habeas corpus on behalf of a person in state custody on any claim that was adjudicated on the merits in state court unless the state court decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or (2) 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 ruling is “contrary to” clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an unreasonable application” of clearly established federal law, under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an “unreasonable application, ” the petitioner must show that the state court's application of Supreme Court precedent was “objectively unreasonable.” Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the “unreasonable application” clause of section 2254(d), only if the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         Claim 1

         In Claim 1, Matthews claims that his federal constitutional rights were violated because there was insufficient evidence to convict him. See First Amended Petition (ECF No. 14), pp. 7-20.

         Matthews asserted this claim on his direct appeal. See Appellant's Opening Brief, Exhibit I, pp. 7-16 (ECF No. 20-4, pp. 13-22). The Nevada Supreme Court denied the claim on its merits without discussion. See Order of Affirmance, Exhibit J, p. 5, footnote 3 (ECF No. 20-5, p. 6); see also Harrington, 562 U.S. at 99 (when state court summarily denies a claim without discussion, federal habeas court presumes that the claim was adjudicated on its merits); Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013) (Harrington presumption applies when state court's decision denying relief discusses some claims, but is silent with respect to other claims). When the state court has denied a federal constitutional claim on the merits without explanation, the federal habeas court “must determine what arguments or theories supported or ... 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 [the United States Supreme Court].” Harrington, 562 U.S. at 102.

         This court finds reasonable the Nevada Supreme Court's ruling that there was sufficient evidence to support Matthews' conviction; fairminded jurists could find that ruling to be consistent with Supreme Court precedent.

         A federal habeas petitioner who alleges that the evidence at trial was insufficient to support his conviction states a constitutional claim that, if proven, entitles him to federal habeas relief. See Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). The Supreme Court has emphasized, however, that “Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 132 S.Ct. 2060');">132 S.Ct. 2060, 2062 (2012) (per curiam).

         A court reviewing a state court conviction does not simply determine whether the evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1993); see also Coleman, 132 S.Ct. at 2065. Rather, the question is “whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319) (emphasis in original). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt is habeas relief warranted. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. In applying this standard, a jury's credibility determinations are entitled to near-total deference. See Schlup v. Delo, 513 U.S. 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004).

         28 U.S.C. § 2254(d) imposes a second layer of deference: the state court's decision denying a sufficiency of the evidence claim may not be overturned on federal habeas unless the decision was “objectively unreasonable.” See Williams, 529 U.S. at 409-10; Parker v. Matthews, 132 S.Ct. 2148');">132 S.Ct. 2148, 2152 (2012) (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam)).

         The crimes for which Matthews was convicted involved: a shooting in which nearly forty shots were fired at four people, leaving one dead and another injured; an armed robbery of an automobile a few minutes later and about a block away; a car chase, during which the driver leaned out of the stolen car brandishing a sawed-off rifle; and then a foot chase, about an hour to an hour and a half after which Matthews was found by a police officer with a police dog, in the yard of a house about a block from where the foot chase ended. The circumstantial evidence -- most importantly, the proximity in time and distance of the auto theft to the shooting; the timing and location of the apprehension of Matthews with respect to the car and foot chases; the sawed-off rifle, of the same caliber that killed the murder victim, found near where the car chase ended and the foot chases began; and a red glove, with gunshot residue on it, found about a block from where Matthews was apprehended -- pointed, albeit somewhat obliquely, to Matthews as one of the perpetrators of the murder, robbery and other crimes.

         Moreover, Brian Walter and Bradley Cupp, the two police officers who pursued suspects from the scene of the auto theft, identified Matthews at trial as the driver of the stolen car. See Testimony of Brian Walter, Transcript of Trial, May 8, 2007, Exhibit B, pp. 242-47 (ECF No. 17-3, pp. 43-48); Testimony of Bradley Cupp, Transcript of Trial, May 9, 2007, Exhibit C, pp. 55-56 (ECF No. 18-1, pp. 56-57). Also, Walter identified Matthews as the suspect he chased on foot, stating that he got “a good look at his face, ” and that he recognized him, as “he appeared to be somebody that [he] had made contact with before.” See Testimony of Brian Walter, Transcript of Trial, May 8, 2007, Exhibit B, p. 246 (ECF No. 17-3, p. 47). Walter also testified that, after Matthews was arrested, he viewed Matthews and identified him as the person he had chased. See id. at 260-63 (ECF No. 17-3, pp. 61-64). Defense counsel extensively -- and, in this court's view, effectively -- cross-examined Walter and Cupp (see discussion of Claims 2a and 2b, below), and Matthews argues that their identifications of him were not credible; however, the credibility of Walter and Cupp was for the jury to determine, and the jury apparently found their testimony believable. That determination by the jury is beyond the scope of review of this federal habeas court. See Schlup, 513 U.S. at 330; Bruce, 376 F.3d at 957-58 (“Except in the most exceptional of circumstances, Jackson does not permit [the Court] to revisit ... credibility determinations.”).

         Also, the court notes that there were obvious weaknesses in the State's case against Matthews. There was no evidence directly connecting Matthews to either the shooting or the auto theft; this distinguishes the case against Matthews from the case against his codefendant, Pierre Joshlin, who was chased on foot from where the car chase ended to where he was found hiding in a garbage dumpster with a handgun that was linked to the scene of the shooting. Furthermore, there was a lapse of an hour to an hour and a half from when Walter terminated his foot chase to when Matthews was found, about a block away, hiding in a back yard. And, perhaps most notably, none of the testifying victims identified Matthews as one of the assailants, and none gave descriptions of assailants closely matching Matthews. See discussion of Claims 2a and 2b, below.

         However, despite the weaknesses in the State's case against Matthews, and while there was no direct evidence placing Matthews at the scene of either the shooting or the auto theft, viewing the evidence in the light most favorable to the State, the Nevada Supreme Court did not rule in an objectively unreasonable manner in concluding that the jury could reasonably have found, from the circumstantial evidence and from the testimony of Walter and Cupp, that Matthews conspired to commit, and participated in the commission of, the charged crimes. The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Jackson, or any other Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The court will deny Matthews habeas corpus relief with respect to Claim 1.

         Claims 2a and 2b

         In Claim 2a, Matthews claims that his federal constitutional rights were violated on account of prosecutorial misconduct, because the prosecutor urged the jurors to stare at Matthews and Joshlin, his codefendant, and scrutinize their attire, and asked, rhetorically: “How innocent do they look?” See First Amended Petition, pp. 21-22. In Claim 2b, Matthews claims that his federal constitutional rights were violated on account of prosecutorial misconduct, because the prosecutor argued that Matthews' and his codefendant's challenge of the evidence of gunshot residue on a red glove found about a block from where Matthews was apprehended suggested that they were guilty --the prosecutor argued, “If we have the wrong guys and it's not them, why do they care so much about gunshot residue being found on the gloves?” See id. at 22.

         Matthews asserted these claims on his direct appeal. See Appellant's Opening Brief, Exhibit I, pp. 20-24 (ECF No. 20-4, pp. 26-30). The Nevada Supreme Court denied the claims, as follows:

         Comment directing the jurors to scrutinize Matthews' attire

At trial, a group of youths dressed in oversized white T-shirts and baggy shorts attended the proceedings and were involved in a disturbance in the halls outside the courtroom. Then, during closing argument, in an attempt to associate Matthews with the troublemaking youths, the prosecutor directed the jurors to stare at Matthews and his co-defendants, and take note of their attire.
Asking the jury to infer a defendant's guilt based solely on his or her appearance and demeanor at trial is improper. Cf. Nau v. Sellman, 104 Nev. 248, 251, 757 P.2d 358, 360 (1988) (stating that an expert witness' comment that the defendant “acted like a guilty guy” during the preliminary hearing was improper); see, e.g., United States v. Schuler, 813 F.2d 978, 981-82 (9th Cir. 1987) (concluding that a prosecutorial comment on a defendant's nontestifying behavior impinges on this constitutional right to a fair trial and his right not to testify); United States v. Wright, 489 F.2d 1181, 1185-86 (D.C. Cir. 1973) (stating that the prosecutor improperly directed the jury, in its deliberations, to consider the defendant's demeanor during trial). Here, since the prosecutor clearly urged the jury to take note of Matthews' attire and thus infer his guilt by equating him with the troublemaking youths, we conclude that he comment was improper.
Comment regarding Matthews' strenuous opposition to a key piece of evidence
Throughout trial, Matthews strenuously opposed evidence of gunshot residue that was found on a red glove that was linked to him and the commission of the crimes. Focusing on Matthews' opposition to that evidence during its closing argument, the prosecutor commented to the jurors that, “[i]f we have the wrong guys and it's not them, why do they care so much about the gunshot residue being found on the gloves?”
A defendant has the right to challenge the evidence against him, see Hernandez v. State, [124 Nev. 978');">124 Nev. 978, 990-91], 194 P.3d 1235, 1243 (2008), and this court has repeatedly stated that it is improper for a prosecutor to disparage legitimate defense tactics. See, e.g., Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004).
Here, the prosecutor's statement directed the jury to infer Matthews' guilt as a result of his strenuous opposition to the red glove and the gunshot residue discovered thereon. Since the prosecutor's statement disparaged Matthews' defense and denigrated his right to challenge a key piece of evidence against him, we conclude that the comment was improper.
The misconduct was harmless
Although the two comments mentioned above were improper, since there was significant evidence indicating that Matthews participated in the shooting, robbery, and police chase (a pursuing officer identified Matthews as the driver in possession of the rifle, the bullet that killed the victim came from the same type of rifle in Matthews' possession, the red glove found near where the police apprehended Matthews tested positive for gunshot residue, and Matthews closely matched the description of the shooting and robbery suspects), we conclude that the prosecutor's misconduct was harmless. See Smith v. State, 120 Nev. 944, 947-48, 102 P.3d 569, 572 (2004). Therefore, reversal on these grounds is unwarranted.

Order of Affirmance, Exhibit J, pp. 2-4 (ECF No. 20-5, pp. 3-5) (footnote omitted).

         Prosecutorial misconduct warrants federal habeas relief if the prosecutor's actions “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotation marks omitted). A defendant's constitutional right to due process of law is violated if the prosecutor's misconduct renders a trial “fundamentally unfair.” Id. at 181-83; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor”). Claims of prosecutorial misconduct are reviewed “on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation and internal quotation marks omitted); see also Greer v. Miller, 483 U.S. 756, 765 (1987); Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). If there is constitutional error, a harmless error analysis is applied; the error warrants relief if it “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (citation and internal quotation marks omitted); Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012).

         The comments of the prosecutor in her rebuttal closing arguments regarding the appearance of the defendants, and the resulting objections of defense counsel, which ...


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