United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
Brian Alford's counseled, second-amended petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
before the court for final disposition on the merits (ECF No.
Procedural History and Background
January 16, 2009, a jury found petitioner guilty of
first-degree murder. Exh. 38.Alford entered into a stipulation
with the State to waive the jury for the sentencing phase.
Exh. 40. On March 6, 2009, the state district court sentenced
Alford to life with the possibility of parole after 20 years,
with a consecutive term of 43 to 192 months for the deadly
weapon enhancement, and judgment of conviction was entered.
Exhs. 41, 42.
Nevada Supreme Court affirmed Alford's conviction on July
22, 2010, and remittitur issued on August 16, 2010. Exhs. 54,
filed a state postconviction petition for writ of habeas
corpus, and the state district court appointed counsel. Exhs.
58, 59, 60. The state district court granted the State's
motion to dismiss the petition on the basis that all claims
either were or could have been raised on direct appeal or
failed to plead sufficient claims for ineffective assistance
of counsel. Exh. 64. The Nevada Supreme Court affirmed the
dismissal of the petition on December 17, 2013, and
remittitur issued on January 13, 2014. Exhs. 73, 74.
dispatched his federal habeas petition for mailing on
February 27, 2014 (ECF No. 4). This court granted
petitioner's motion for appointment of counsel; Alford
filed a counseled, first-amended petition on June 2, 2014
(ECF No. 13). In response to respondents' motion to
dismiss (ECF No. 16), Alford filed a motion for leave to file
a second-amended petition (ECF No. 21). Respondents indicated
that they did not oppose the filing of a second-amended
petition (ECF No. 27). This court granted leave to file the
second-amended petition (ECF No. 27). Alford filed the
second-amended petition, and respondents answered (ECF Nos.
Legal Standard - AEDPA
U.S.C. § 2254(d), a provision of the Antiterrorism and
Effective Death Penalty Act (AEDPA), provides the legal
standards for this court's consideration of the petition
in this case:
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.
AEDPA "modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas 'retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law." Bell v. Cone, 535 U.S.
685, 693-694 (2002). This Court's ability to grant a writ
is limited to cases where "there is no possibility
fair-minded jurists could disagree that the state court's
decision conflicts with [Supreme Court] precedents."
Harrington v. Richter, 562 U.S. 86, 102 (2011). 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, 563 U.S. 170, 181 (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
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 Court's] precedent."
Lockyer, 538 U.S. at 73 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing
Bell, 535 U.S. at 694.
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 74 (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).
extent that the state court's factual findings are
challenged, the "unreasonable determination of
fact" clause of § 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett, 393 F.3d
943, 972 (9th Cir.2004). This clause requires that the
federal courts "must be particularly deferential"
to state court factual determinations. Id. The
governing standard is not satisfied by a showing merely that
the state court finding was "clearly erroneous."
393 F.3d at 973. Rather, AEDPA requires substantially more
.... [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district court
decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004);
see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
court considers the grounds out of numerical order,
addressing ground 4 first.
argues that insufficient evidence was presented by which a
jury could have convicted him of first-degree murder (ECF No.
29, pp. 17-19). He contends that the prosecution failed to
present sufficient evidence of willfulness, deliberation, and
premeditation. With respect to the State's felony-murder
theory, Alford asserts that the prosecution failed to present
sufficient evidence of burglary or robbery. He also claims
that the trial court's error in failing to clear up the
jury's confusion with respect to the elements of burglary
contributed to the erroneous verdict. Id.
Constitution prohibits the criminal conviction of any person
except upon proof of guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 309 (1979)
(citing In re Winship, 397 U.S. 358 (1970)). On
federal habeas corpus review of a judgment of conviction
pursuant to 28 U.S.C. § 2254, the petitioner "is
entitled to habeas corpus relief if it is found that upon the
record evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a reasonable
doubt." Id. at 324. "[T]he standard must
be applied with explicit reference to the substantive
elements of the criminal offense as defined by state
law." Id. at 324 n.16. On habeas review, this
court must assume that the trier of fact resolved any
evidentiary conflicts in favor of the prosecution and must
defer to such resolution. Id. at 326. Generally, the
credibility of witnesses is beyond the scope of a review of
the sufficiency of the evidence. Schlup v. Delo, 513
U.S. 298, 330 (1995).
trial witnesses testified similarly as to the events leading
up to the shooting. Melissa (Missy) Simcoe, Loren Dudley,
Shanika Thompson and Brandon Alford were out drinking, taking
ecstasy and going to various clubs and bars on the night in
question. See, e.g., exh. 32, pp. 791-832, 837-868.
Thompson became very intoxicated and "out of it, "
and they took her to Simcoe's house. Thompson's
boyfriend Jasper Jackson arrived, was angry about
Thompson's condition, took her with him and left.
Thereafter, Jackson started calling Simcoe on her cell phone,
angry and threatening her. Jackson had taken Thompson to the
home of Thompson's brother, Jerome Castro. Simcoe's
children had also been left at Castro's earlier while the
group went out that night. Brandon called his twin brother
Brian to meet up with him. Due to Jackson's threatening
calls the brothers stopped at their house and each got a gun,
then ultimately the brothers and Simcoe drove to Castro's
home. Dudley was already there; Jackson was not there.
Id., see also exh. 32, pp. 714-777, 780-83.
defendant Brian Alford testified as follows: when he went
over to Castro's house, he thought that Jackson would be
there; he did not know that Castro and Dudley would be there.
Exh. 32, pp. 791-832, 837-868. Brian testified that Castro
was upset about his sister's condition, blamed Brandon,
and twice approached Brandon aggressively. Brian intervened
and said that if they were going to fight, they should all go
outside. Id. at 816. The Alford brothers went
outside, and the door was shut behind them. They heard
yelling and references to someone wielding a knife inside.
The door opened, Castro and Simcoe and her children were in
the doorway. Brian grabbed Simcoe and pulled her out of the
house; he also pulled her older son out. As he bent to pick
up her infant in a car seat, someone said to Brian
"don't let me catch you downtown." Id.
at 822. In response, Brian spit on Castro. Castro rushed at
Brian, swinging. They fought, and Brian pushed Castro back
into the house. Brandon and Dudley also began fighting each
other inside the house. Castro went down, Brian realized his
gun had fallen out of his clothing, and he saw Castro reach
for it. Brian kicked the gun away from Castro. Brian picked
up the gun and began striking Castro on the sides of the head
with it. The gun went off accidently, surprising Brian. He
thought he might have shot himself in the leg, then thought
he might have shot Brandon in the back. He checked and saw
that he hadn't shot Brandon; then he patted down Castro
and Dudley for weapons. He did not see blood on Castro and
did not think he'd shot Castro. He and Brandon backed out
of the house. Brian drove home, and when he walked into the
house he saw a "big hole" in his leg and thought he
had shot himself. Id. at 831.
cross examination Brian stated that after Castro was down
Brian continued striking him, hard, on both sides of the
head, and he believed that he had broken Castro's jaw
and/or given him a concussion. Brian testified that he could
not recall if Castro was in a defensive posture. He stated
that when neither Castro nor Dudley was moving, even though
they no longer posed a threat, he patted them both down for
weapons and kicked Castro again in the ribs before leaving
with his brother. Id. at 861. On redirect Brian
testified that when he left he saw no blood, he thought
Castro was alive and did not think Castro had been shot.
Id. at 867.
David Philip Jenkins testified for the State that police
obtained search warrants for the Alford brothers' home,
they were arrested there after the incident, and the guns
were found. Exh. 30, pp. 401-430, 436-437-457. Jenkins stated
that when Brian was arrested, he mentioned having shot
someone and referred to it as an accident. Id. at
Brian had been arrested, he asked to speak to his girlfriend,
Tarina Weatherhead. At the police station, Jenkins allowed
Weatherhead and Brian Alford to speak in an interview room
and videotaped the conversation. The videotape was admitted
at trial, and Jenkins also testified about Alford and
Weatherhead's exchange. Exh. 30, pp. 417-422. Weatherhead
suggested to Alford that what had happened must have been an
accident or self defense. Alford replied that it is not self
defense when you're beating a man with a gun or beating
someone. Alford said a second time that it was not self
defense. Alford told Weatherhead that Castro was arguing with
the Alford brothers inside the house. They were all going to
take their disagreement outside. When the Alford brothers
stepped outside, Castro locked the door behind them. Alford
heard a commotion inside, he yelled for Simcoe to come out
with her children. The front door eventually opened, an
infant car seat was passed outside to Alford, then Castro
spit in Alford's face. Alford swung at Castro, then
pushed him through the door into the house. They were trading
blows, the gun Alford had fell out of his clothing on to the
floor, Castro reached for the gun, but Alford picked up the
gun. Alford then was striking Castro about the head and face
with sweeping motions to the left and right; Castro was on
his back with his hands raised in a defensive posture. As
Alford was beating Castro, the gun discharged. Alford told
Weatherhead that he thought he might have broken Castro's
jaw or given him a concussion at the worst. He said it was
not self defense and he would have to pay for what he had
done, he said he thought it might be manslaughter, then a
second time, a short time later, he said "I hope it
would be manslaughter." Jenkins let the pair talk in the
interview room for about thirty-five to forty minutes.
Weatherhead was removed from the interview room, and Jenkins
and another detective sat down to interview Alford. Jenkins
stated that they read Alford his Miranda rights at
that time. Alford told the detectives that when Simcoe was
handing her infant in the car seat out the door to Alford,
Alford saw Castro and spat in Castro's face. Id.
at 429. In response, Castro began swinging at Alford. Alford
pushed Castro inside and against a wall; Alford described the
altercation as a "hockey fight." He said the gun
fell to the ground, Castro reached for it, Alford grabbed the
gun by its grip and began beating Castro about the face and
head area. Castro fell down to the ground on his back with
his hands up in a defensive posture. The gun discharged,
which caught Alford very much by surprise. He initially
thought the shot had come from Brandon and Dudley. He stated
that Castro and Dudley were then unconscious or
semi-conscious and he decided at that point that he would
search them to see if they had anything worth taking. He said
he searched them but didn't find anything.
testified that he went to check the recording device and
realized that only part of his interview with Alford had been
recorded. He began recording again, and tried to get Alford
to adopt or summarize what he had already told them, which
cross examination, Jenkins testified that Alford did not talk
about searching either of the men in the recorded portion of
the interview. Id. at 442. He confirmed that Alford
did not say anything about searching anyone to Weatherhead
and that the only time Alford referenced it was the portion
of the interview that was not recorded due to malfunction. He
also agreed that about $350 was recovered from Castro's
pocket. Id. at 445.
testified that that he recorded Weatherhead and Alford's
conversation pursuant to policy and procedure that the
unsupervised activities of an inmate in custody are to be
monitored. He also acknowledged that there was potentially
investigative value to listening to the conversation.
Id. at 449. Jenkins said that he did not tell
Weatherhead or Alford that their conversation would be
secret, "in fact, just the opposite." Id.
at 449-450. On re-direct, Jenkins testified that he took
notes contemporaneously with the entire interview (including
the portion that was not recorded) and that he had made note
that Alford said he searched Castro and Dudley. Id.
Hall, Castro's roommate, testified as follows: she was
home sleeping that night because she had to work the next
day, and the commotion when the Alfords arrived woke her.
Exh. 29, pp. 144-230. She testified that as Missy Simcoe was
leaving the residence with her kids, Brian, standing on the
porch, said to Castro "we'll find you on the
streets, " then spit in Castro's face. Id.
at 172. She stated that Alford threw the first punch and
pushed back through the doorway into the home. Brian pulled
out a gun and raised it up over Castro's head. It looked
to her like Brian had his finger on the trigger. She never
saw any struggle between the two for the gun; she never saw
the gun on the floor and never saw either man bend over to
the floor. Once she saw the gun, she grabbed the two children
who were present and went with another woman into a back
bedroom. She started to dial 911 when she heard one gunshot.
Shanika Thompson was in the room where the men had been
fighting and started screaming and somebody swore at her and
told her to shut up "or we're going to shoot you
next." Id. at 178. While Hall was on the phone
with the 911 operator, she went back out to the living room
where she saw Castro lying face down, saw blood and observed
that Castro was breathing very hard, as if he were snoring.
cross examination, Hall testified that the wound on
Castro's head looked as if the bullet had "skimmed
off." Id. at 196. When pressed by defense
counsel, she reiterated that it was Brian Alford who spit in
Castro's face, Castro continued to try to shut the door,
and then Brian threw the first punch. Id. at
214-215. She stated that she did not see Brian draw the gun,
she just saw the gun in his hand. On redirect Hall testified
that she was certain the gun was never on the floor.
Id. at 226-227.
Dudley, who was at Castro's home with him when the Alford
brothers arrived, testified as follows. Exh. 30, pp. 243-321.
He testified as Hall did that after Missy and her children
went out the door, Castro was closing the door, and then
Brian appeared in the doorway, spit in Castro's face, and
threw the first punch. Id. at 262-263. Dudley began
fighting with Brandon Alford. At some point he heard someone
say "you're not so tough now, " then he heard a
gunshot and saw a muzzle flash. Id. at 264. Then
Brandon was hitting Dudley on the side of the head with
something, which turned out to be a pistol. Dudley was losing
consciousness; he could see the Alford brothers go through
Castro's pockets, then they came over and went through
Dudley's pockets. Dudley could not recall whether they
patted the outside of his clothing or reached into his
pockets. On cross examination, defense counsel showed Dudley
a transcript from a hearing about two months after the
incident in which Dudley testified that it was Castro who
threw the first punch.
Alford testified to the following: he and Brian were out on
the porch waiting for Simcoe, the door opened up, Simcoe came
out, Castro came out, and threw the first punch at Brian.
Exh. 32, pp. 714-777, 780-83. Brandon started fighting with
Loren Dudley. A gun went off; Brandon did not know who was
shooting or what was going on, and he kept fighting Dudley.
He turned around and saw Brian hit Castro with the gun.
Brandon picked up his own gun and struck Dudley with it. He
testified that neither he nor Brian went through either of
the other two men's pockets. He stated that he saw Brian
pat down both men to see if they had any weapons.
Id. at 748.
Dr. Michael H. Song testified that he performed emergency
surgery on Castro when he was brought to the hospital. Exh.
31, pp. 531-542. Song testified that Castro had a bullet that
went underneath his scalp and did not penetrate his skull,
but because of the trauma from the bullet hitting the skull,
Castro suffered a severe closed head injury. Though in
Song's opinion it was unlikely to be successful, he
operated to try to relieve brain swelling. He completed the
operation, left the operating room, and was immediately
called back because Castro's heart had stopped. Song
stated that the cause of death was massive brain swelling
from the gunshot wound. Id.
Ellen Clark, a forensic pathologist and Chief Medical
Examiner for Washoe County, testified. Exh. 31, pp. 614-639.
She stated that she performed the autopsy on Castro, and in
her opinion the cause of death was gunshot wounds to the head
and arm and the manner of death was homicide. ...