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Alford v. Neven

United States District Court, D. Nevada

June 5, 2017

BRIAN ALFORD, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         Petitioner 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. 29).

         I. Procedural History and Background

         On January 16, 2009, a jury found petitioner guilty of first-degree murder. Exh. 38.[1]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.

         The Nevada Supreme Court affirmed Alford's conviction on July 22, 2010, and remittitur issued on August 16, 2010. Exhs. 54, 56.

         Alford 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.

         Alford 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. 29, 35).

         II. Legal Standard - AEDPA

         28 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; 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.

         The 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 citations omitted).

         A state 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.

         A state 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).

         To the 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 deference:

.... [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.

         Under 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.

         III. Instant Petition

         The court considers the grounds out of numerical order, addressing ground 4 first.

         Ground 4

         Alford 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.

         "The 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).

         The 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.

         The 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.

         On 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.

         Detective 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 413.

         Once 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. Id.

         Thereafter, 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.

         Jenkins 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 Alford did.

         On 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.

         Jenkins 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. at 454.

         Crystal 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.

         On 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.

         Loren 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.

         Brandon 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.

         Neurosurgeon 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.

         Dr. 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. ...


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