United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE.
counseled, first-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. 21).
Procedural History and Background
October 30, 2008, a jury found petitioner guilty of count 1:
first-degree kidnapping; counts 2, 3, 4, 6, 7, and 10:
lewdness with a child under age fourteen; count 5: sexual
assault of a minor under age fourteen; and count 9:
administration of a drug to aid commission of a felony; and
not guilty of count 8: attempted lewdness with a child under
age fourteen. Exhs. 66-67.
January 15, 2009, the state district court sentenced
petitioner as follows: count 1: five years to life; counts 2,
3, 4, 6, 7, 10: ten years to life on each count, to run
concurrently with each other and with count 1; count 5:
twenty years to life, consecutive to count 1; and count 9:
sixteen to seventy-two months, to run concurrently with
counts 1-7. Exh. 69 at 12-14. The court filed the judgment of
conviction on January 27, 2009. Exh. 71.
appealed. Exh. 73. The Nevada Supreme Court affirmed his
convictions on February 3, 2010, and remittitur issued on
March 2, 2010. Exhs. 94, 95.
10, 2010, petitioner filed his first proper person state
postconviction petition for writ of habeas corpus. Exh. 103.
On September 16, 2010, the state district court orally denied
the petition, and the court filed findings of fact,
conclusions of law and order denying the petition on November
22, 2010. Exhs. 2, 112. The Nevada Supreme Court affirmed the
denial of the first state postconviction petition on April 6,
2011, and remittitur issued on July 6, 2011. Exhs. 118, 123.
on or about March 23, 2011, petitioner dispatched his first
federal habeas petition. 2:11-cv-0454-JCM-LRL, ECF No. 1-1.
On April 1, 2011, the district court dismissed the petition
without prejudice as wholly unexhausted; petitioner's
appeal of the denial of his first state postconviction
petition was pending at that time. 2:11-cv-0454-JCM-LRL, ECF
No. 7. The court also denied petitioner's motion for stay
and abeyance and denied a certificate of appealability.
Id. at 2-3.
Ninth Circuit granted petitioner a certificate of
appealability on two issues:
[W]hether the district court improperly determined that the
petition was wholly unexhausted, and, if not, (2) whether the
district court has discretion to use the stay and abeyance
procedure outlined in Rhines v. Weber, 544 U.S. 269
(2005), and Pace v. DiGuglielmo, 544 U.S. 408
(2005), to stay and hold in abeyance a habeas petition
containing only unexhausted claims. Case No. 11-16139, ECF
No. 2-1 at 1.
while the appeal of the denial of the first state
postconviction petition was pending, petitioner filed a
second proper person state postconviction petition on April
4, 2011. Exh. 116. The state district court denied the
petition as untimely pursuant to NRS 34.726 and successive
pursuant to NRS 34.810(1)(b)(2). Exh. 127. On April 11, 2012,
the Nevada Supreme Court affirmed the denial of the second
state postconviction petition as untimely and successive and
an abuse of the writ, and concluded that petitioner failed to
demonstrate good cause to excuse the procedural bars. Exh.
134. Remittitur issued on May 8, 2012. Exh. 136.
the Nevada Supreme Court issued the order affirming the
denial of the first state postconviction petition and while
the second state postconviction petition was pending,
petitioner dispatched the instant second federal petition on
May 27, 2011 (ECF No. 7). The Ninth Circuit granted
petitioner's motion to defer briefing on the appeal of
his first federal petition pending resolution of his second
federal petition. Case No. 11-16139, ECF Nos. 8, 9.
filed a counseled amended federal petition on May 30, 2012
(ECF No. 21). The court granted petitioner's motion for
leave to conduct discovery (ECF No. 32, 39). Following
discovery, petitioner filed supplemental exhibits but did not
further amend his petition (ECF Nos. 45, 46). On March 2,
2015, this court granted in part respondents' motion to
dismiss (ECF No. 57). Respondents have now answered the
remaining grounds (ECF No. 62), and High replied (ECF No.
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 citations omitted).
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.
remaining claims in grounds 2, 5 and 6 are claims of
ineffective assistance of trial or appellate counsel.
Ineffective assistance of counsel claims are governed by the
two-part test announced in Strickland v. Washington,
466 U.S. 668 (1984). In Strickland, the Supreme
Court held that a petitioner claiming ineffective assistance
of counsel has the burden of demonstrating that (1) the
attorney made errors so serious that he or she was not
functioning as the “counsel” guaranteed by the
Sixth Amendment, and (2) that the deficient performance
prejudiced the defense. Williams, 529 U.S. at 390-91
(citing Strickland, 466 U.S. at 687). To establish
ineffectiveness, the defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Id. A
reasonable probability is “probability sufficient to
undermine confidence in the outcome.” Id.
Additionally, any review of the attorney's performance
must be “highly deferential” and must adopt
counsel's perspective at the time of the challenged
conduct, in order to avoid the distorting effects of
hindsight. Strickland, 466 U.S. at 689. It is the
petitioner's burden to overcome the presumption that
counsel's actions might be considered sound trial
assistance of counsel under Strickland requires a
showing of deficient performance of counsel resulting in
prejudice, “with performance being measured against an
objective standard of reasonableness, . . . under prevailing
professional norms.” Rompilla v. Beard, 545
U.S. 374, 380 (2005) (internal quotations and citations
omitted). When the ineffective assistance of counsel claim is
based on a challenge to a guilty plea, the
Strickland prejudice prong requires a petitioner to
demonstrate “that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
state court has already rejected an ineffective assistance
claim, a federal habeas court may only grant relief if that
decision was contrary to, or an unreasonable application of,
the Strickland standard. See Yarborough v.
Gentry, 540 U.S. 1, 5 (2003). There is a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Id.
United States Supreme Court has described federal review of a
state supreme court's decision on a claim of ineffective
assistance of counsel as “doubly deferential.”
Cullen, 563 U.S. at 190 (quoting Knowles v.
Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The Supreme
Court emphasized that: “We take a ‘highly
deferential' look at counsel's performance . . .
through the ‘deferential lens of §
2254(d).'” Id. at 1403 (internal citations
omitted). Moreover, federal habeas review of an ineffective
assistance of counsel claim is limited to the record before
the state court that adjudicated the claim on the merits.
Cullen, 563 U.S. at 181-84. The United States
Supreme Court has specifically reaffirmed the extensive
deference owed to a state court's decision regarding
claims of ineffective assistance of counsel:
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by
Strickland and § 2254(d) are both “highly
deferential, ” id. at 689, 104 S.Ct. 2052;
Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles,
556 U.S. at __, 129 S.Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at __, 129 S.Ct. at
1420. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is whether there is any reasonable
argument that counsel satisfied Strickland's
Harrington, 562 U.S. at 105. “A court
considering a claim of ineffective assistance of counsel must
apply a ‘strong presumption' that counsel's
representation was within the ‘wide range' of
reasonable professional assistance.” Id. at
104 (quoting Strickland, 466 U.S. at 689).
“The question is whether an attorney's
representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best
practices or most common custom.” Id.
(internal quotations and citations omitted).
alleges that trial counsel rendered ineffective assistance in
violation of his Sixth and Fourteenth Amendment rights when
counsel failed to present expert testimony regarding the
reliability of the Las Vegas Metropolitan Police
Department's crime laboratory and its test results in
this case. At trial, the state's forensic analyst
testified that shortly before trial some typographical errors
in in her DNA report were brought to her attention, and
therefore she issued a corrected report on the day trial
started, and issued a second corrected report ten days later.
High argues that counsel also failed to effectively object to
the evidence (ECF No. 21, pp. 22-28).
the denial of this claim in his state postconviction
petition, the Nevada Supreme Court stated that
appellant claimed that trial counsel was ineffective for
failing to call an expert witness regarding the DNA evidence.
Appellant failed to demonstrate that trial counsel was
deficient or that he was prejudiced. Trial counsel consulted
with an expert regarding the DNA evidence and decided not to
present his testimony. Tactical decisions of counsel are
virtually unchallengeable absent extraordinary circumstances.
See Ford v. State, 784 P.2d 951, 953 (Nev. 1989).
Therefore, the district court did not err in denying this
Exh. 118, p. 3.
Marschner, forensic scientist with the Las Vegas Metropolitan
Police Department (Metro) Forensic Laboratory, testified at
trial for the State. Exh. 62, pp. 8- 71. Marschner explained
the her testing process and stated that the victim's DNA
was identified in the swabs from High's
nipples. Id. at 25. She also testified
that some typographical errors in her April 2007 report were
brought to her attention in October 2008. Id. at 28.
She stated that she mistakenly wrote JM-4 instead of JM-5 as
the sample designator when the report was discussing a sample
from the victim. Id. at 29-30. In that instance,
Marschner indicated that the victim's DNA was found on
the swabs from High's nipples-but the report listed the
victim's name but with sample JM-4. JM-4 was the sample
designator from one of High's samples. Marschner
explained that DNA from the nipple swabs was female, thereby
eliminating High as a contributor of the DNA found on his
nipples. Id. at 22-24, 52, 61-63. She testified that
she subsequently also discovered that at one point in the
report she referred to the victim's vaginal swab as 6B
instead of 6A. Id. at 31. She testified that
High's DNA was not found on the vaginal swab, and that
neither typographical error had any effect on the conclusions
of the report. She stated that her manager, the director of
the forensic lab, reviewed the report again after the
corrections. The main, relevant conclusions of the report
were that the victim's DNA was found on the swabs from
High's nipples; the victim's DNA was not found in any
other samples from High, and High's DNA was not found in
any samples taken from the victim. No semen and no DNA from
High was detected on any component of the sexual assault kit.
Id. at 90-91.
counsel elicited the following testimony on
cross-examination: the swabs are wooden swabs with cotton on
the end and look essentially identical to each other and
Marschner works with large numbers of swabs in many different
ongoing cases at the same time. Id. at 35, 55-56.
Defense counsel questioned Marschner about another difference
in the final report from the April 2007 report; she explained
that she erred in including two hair samples in a list of
samples tested because she had decided not to attempt to
further test the hair samples. When she reviewed the report
in October 2008, she removed the reference to the two hair
samples. Id. at 39-40.
counsel raised a fourth error contained not in the reports,
but in Marschner's notes, which incorrectly referred to
“JM-1C” as a photograph of the victim's
underpants when “JM-1C” was actually swabs from
the victim's mouth and lips. Id. at 43-45.
Marschner testified these were merely typographical that did
not affect the results of the DNA analysis or any other
scientific conclusions or results. Id. at 32, 45,
47, 48, 61-64. Defense ...