Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Baca

United States District Court, D. Nevada

August 29, 2017

BEAU BROWN, Petitioner,
v.
ISIDRO BACA, ET AL., Respondents.

          ORDER

         Introduction

         This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Beau Brown, a Nevada prisoner. The respondents have filed an answer, responding to the claims remaining in Brown's first amended petition for writ of habeas corpus, and Brown has filed a reply. The Court will deny Brown's petition.

         Background

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

On June 24, 2000, police responded to a call of a robbery in progress at Bains Mini Market in Reno, Nevada. According to witnesses, Brown, together with two customers of the mini-mart, was performing CPR on Kuldip Bains, the owner of the market. Bains had been shot in the face. Brown was observed repeatedly stating, “You can't die, he can't die.” When police arrived they asked Brown for identification. Brown, accompanied by an officer, went to his car to retrieve identification.
Officer Rulla noticed a handgun in the back seat of Brown's car. He picked up the gun and questioned Brown as to its owner. A struggle ensued, and Rulla tossed the gun back into the car. Brown broke free, and Rulla shouted, “Gun!” Officers tackled Brown to the ground. Brown's head hit the pavement, causing seizures and a momentary loss of consciousness. Emergency medical personnel took Brown to Washoe Medical Center for his injuries. Video surveillance from Bains Market captured most of this incident.
At the hospital, several officers had custody and control of the clothes emergency personnel cut from Brown's body. At trial, the State conceded several officers, some of whom did not sign the evidence logs as required, had handled the clothes. Upon release from the hospital, police took Brown to the Reno Police Department on charges of obstruction and resisting a police officer.
Police advised Brown of his Miranda rights. Brown, dressed only in a hospital gown, agreed to discuss his day, although he allegedly suffered amnesia from the altercation with police. Brown's blood alcohol level was .17, a fact known to the interviewing detective.
According to Brown, he went to Bains Market and purchased various items, including vodka. After making the purchases, Brown drove his car to pick up a friend named Travis. The car contained, among other things, a ten-millimeter Colt handgun and a .22 caliber handgun. Both handguns belonged to Brown's father.
Brown stated that he and Travis attempted to buy marijuana from a Carlos Hernandez. They drank vodka while waiting for Hernandez at a location near Bains Market. Brown testified that Hernandez mistrusted Travis, so Travis drove away in Brown's car. Fifteen minutes later, Travis allegedly returned and told Brown he shot Bains, the owner of Bains Market. Brown then drove to the market to assist Bains.
Detective Wes Myers obtained a telephonic warrant to search Brown's car and home. Police towed the car from the convenience store to the Washoe County Crime Lab. The search revealed a pair of Adidas jogging pants with a stripe on the side, white T-shirt, black shirt, dark colored backpack, Colt ten-millimeter handgun with a fully loaded magazine, gun holster, dark blue baseball cap, wallet, and two bottles of vodka.
The car remained in impound for several months. Prior to the release of the car, officers, in the presence of all counsel, searched the car again. This time, police recovered a box cutter, prescription drug bottles, a Guns & Ammo magazine, and film canisters with an aroma of marijuana. Brown filed a pre-trial motion to suppress the evidence obtained in the second search for lack of a warrant.
The district court denied Brown's motion, finding the search was done with consent of Brown, however, the district court ruled that some of the evidence was more prejudicial than probative. The district court excluded the box cutter in light of the events of September 11. Subsequent to the suppression ruling, police found a ski mask with eyeholes cut in it near the crime scene. The mask contained the DNA of Brown and an unidentified individual. Based upon the possibility that the box cutter could have been used to cut the eyeholes in the mask, the district court revised its earlier ruling and indicated the box cutter could be admitted.
After a seven-day trial, a jury convicted Brown of murder in the first degree with the use of a firearm, attempted robbery with a deadly weapon, and burglary with a deadly weapon.

         Order of Affirmance, Exhibit 62, pp. 1-3 (ECF No. 18-11, pp. 2-4). (The exhibits referred to in this order were filed by Brown, and are located in the record at ECF Nos. 16, 17, 18, 19, 28 and 40.)

         The judgment of conviction was entered on July 30, 2002. See Judgment, Exhibit 51 (ECF No. 18). Brown was sentenced to: two consecutive sentences of life in prison without the possibility of parole for the murder with the use of a firearm; two consecutive sentences of 24 to 60 months in prison for the attempted robbery with use of a deadly weapon, to be served concurrently with the life sentences; and a sentence of 24 to 120 months in prison for the burglary, to be served concurrently with the other sentences. See id.

         Brown appealed, and the Nevada Supreme Court affirmed the judgment of conviction on January 8, 2004. See Order of Affirmance, Exhibit 62 (ECF No. 18-11).

         On January 26, 2005, Brown filed a post-conviction petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64 (ECF No. 18-13). The state district court held an evidentiary hearing (see Exhibits 69-71 (ECF Nos. 18-18, 18-19, 18-20)), and entertained supplemental briefing (see Exhibits 72-74 (ECF Nos. 18-21, 18-22, 18-23)). The state district court denied the petition, in a written order, on May 6, 2010. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76 (ECF No. 19). Brown appealed, and the Nevada Supreme Court affirmed on May 9, 2011. See Order of Affirmance, Exhibit 85 (ECF No. 19-9).

         While the appeal from the denial of his first state habeas corpus petition was still pending, on October 12, 2010, Brown filed a second state petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 80 (ECF No. 19-4). The state district court dismissed that petition on November 19, 2012. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 110 (ECF No. 40-2). Brown appealed, and the Nevada Supreme Court affirmed on September 16, 2014. See Order of Affirmance, Exhibit 120 (ECF No. 40-12).

         This Court received Brown's federal habeas petition, initiating this action pro se, on May 17, 2011 (ECF No. 1). The Court granted Brown's motion for appointment of counsel, and appointed counsel to represent him. See Order entered May 20, 2011 (ECF No. 7); Notice of Representation of Petitioner (ECF No. 10). With counsel, Brown filed a first amended petition for writ of habeas corpus (ECF No. 15) on January 23, 2012. Brown's first amended petition asserted the following claims:

1A. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for antagonizing the jury during closing arguments” in the penalty phase of the trial. First Amended Petition (ECF No. 15), p. 7.
1B. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to obtain the original surveillance tape and provide it to her expert witness.” Id. at 8.
1C. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to object to the defective verdict form.” Id. at 9.
1D. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to properly object to the attempted robbery instructions.” Id. at 10.
1E. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to object to the testimony from the victim's family regarding preferred punishment.” Id. at 11.
1F. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to present mitigation evidence at the penalty hearing.” Id. at 12.
1G. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to request a complete motive instruction.” Id. at 13.
1H. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to investigate whether Mr. Bimbo's testimony was the product of a conspiracy between himself and the victim's son and for failing to impeach Mr. Bimbo with the information.” Id. at 13.
1I. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to challenge the flight instruction.” Id. at 14.
1J. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “in the presentation of her objection to the testimony of Officer Knight.” Id. at 15.
1K. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to object to Sarvpreet Bains' penalty phase testimony.” Id. at 16.
1L. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, “in her presentation of the motion to suppress Brown's statements.” Id. at 17.
1M. Trial counsel was ineffective, in violation of Brown's federal constitutional rights, as a result of the cumulative effect of counsel's errors. Id. at 17.
2A. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to challenge the defective verdict form on appeal.” Id. at 18.
2B. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to properly challenge the attempted robbery instruction on appeal.” Id. at 18.
2C. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to challenge on appeal the testimony from the victim's family regarding preferred punishment.” Id. at 19.
2D. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to challenge the motive instruction or lack thereof.” Id. at 20.
2E. Appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to challenge the flight instruction.” Id. at 21.
3A. Brown's federal constitutional rights were violated because the trial court “erred in refusing Brown's proffered instructions on his theory of defense.” Id. at 22.
3B. The trial court gave a jury instruction on reasonable doubt that violated Brown's federal constitutional right to due process of law. Id. at 22.
3C. The trial court gave a jury instruction on attempted robbery that violated Brown's federal constitutional right to due process of law. Id. at 23.
3D. Brown's federal constitutional rights were violated because the trial court “erred in refusing to give an instruction on the limitations of DNA evidence.” Id. at 24.
3E. Brown's federal constitutional rights were violated because the trial court “erred in giving the flight instruction.” Id. at 24.
3F. Brown's federal constitutional rights were violated because the trial court “erred in permitting Officer Knight to testify.” Id. at 25.
4. Brown's federal constitutional rights were violated because “the State knowingly introduced evidence against Brown in the form of an altered surveillance tape, and where trial counsel was not advised of the alterations made to the tape.” Id. at 26.
5. Brown's federal constitutional rights were violated because of prosecutorial misconduct. Id. at 28.
6. Brown's sentence is disproportionate to the crime, in violation of the Eighth Amendment to the United States Constitution. Id. at 29.
7A. “The search warrant issued on June 24, 2000 failed to comply with Brown's Fourth and Fourteenth Amendment rights to be free from unlawful searches and seizures.” Id. at 31.
7B. “The August 8, 2000 search of Brown's car was unlawful and the evidence should have been suppressed.” Id. at 32.
7C. Brown's federal constitutional rights were violated as a result of “[t]he trial court's ruling to admit evidence of Brown's possession of a box cutter and a photograph in which he is holding a gun.” Id. at 32.
7D. Brown's federal constitutional rights were violated because “[a]ny evidence obained at the Washoe County Medical Center should have been suppressed.” Id. at 34.
7E. “Brown's statements were obtained in violation of his right to remain silent and his right to an attorney, and they should have been suppressed.” Id. at 34.
8. Brown's federal constitutional rights were violated because of the State's failure to disclose evidence favorable to Brown. Id. at 36.
9. The design of the courtroom violated Brown's federal constitutional rights to confront the witnesses against him and to due process of law. Id. at 37.
10. Brown's federal constitutional rights were violated because of cumulative error. Id. at 38.

         The action was stayed from January 25, 2013, to February 3, 2015, pending completion of Brown's second state habeas action. See Order entered January 25, 2013 (ECF No. 35); Order entered February 3, 2015 (ECF No. 41).

         After the state-court litigation was completed and the stay of this case lifted, respondents filed a motion to dismiss on March 18, 2015, arguing that certain of Brown's claims are barred by the procedural default doctrine, that certain of his claims are unexhausted, and that certain of his claims are not cognizable in this federal habeas corpus action. See Motion to Dismiss (ECF No. 42). On November 9, 2015, the Court granted the motion to dismiss in part and denied it in part. See Order entered November 9, 2015 (ECF No. 47). The Court ruled that Claims 1I, 1J, 1K, 1L, 2E, 3E, 3F and 4 are procedurally defaulted and dismissed those claims. See id. The Court ruled that Claims 7A and 7B are barred by the rule of Stone v. Powell, 428 U.S. 465 (1976), and dismissed those claims as well. See Id. The Court ruled that Claims 3A, 3C, 7C and 7D are unexhausted in state court; regarding those claims, the Court granted Brown an opportunity to either abandon them or move for a second stay of this action to allow him to exhaust them in state court. See id. On December 10, 2015, Brown filed a notice of abandonment of unexhausted Claims 3A, 3C, 7C and 7D (ECF No. 48).

         Respondents filed an answer on April 1, 2016, responding to Brown's remaining claims (ECF No. 51). Brown filed a reply on July 29, 2016 (ECF No. 54).

         Discussion

         28 U.S.C. § 2254(d)

         A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or 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, ” however, a 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).

         Ground 1A

         In Ground 1A, Brown claims that his trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for antagonizing the jury during closing arguments” in the penalty phase of his trial. See First Amended Petition (ECF No. 15), pp. 7-8.

         In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded a two prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the attorney's representation “fell below an objective standard of reasonableness, ” and (2) that the attorney's deficient performance prejudiced the defendant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. 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 689. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

         Where a state court previously adjudicated the claim of ineffective assistance of counsel, under Strickland, establishing that the decision was unreasonable under AEDPA is especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court instructed:

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, [Strickland, 466 U.S. at 689]; 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 v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 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 not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Richter, 562 U.S. at 105; see also Cheney v. Washington , 614 F.3d 987, 994-95 (2010) (acknowledging double deference required with respect to state court adjudications of Strickland claims).

         In analyzing a claim of ineffective assistance of counsel, under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.

         In Ground 1A Brown asserts that his trial counsel was ineffective for making the following comments to the jury as she began her penalty phase closing argument:

Ladies and gentlemen of the jury, Your Honor, counsel. Hopefully tonight you will take your time in making this decision. Hopefully your decision of getting a verdict back by five today wasn't so you thought you could get home on time. It's now five after eight.
The defendant hopes you will consider this seriously, look hard at the case. Look hard at his life. Look hard at both parties' loss. And after you do that, you will give him the chance to get out of prison.

         Transcript of Trial, April 16, 2002, Exhibit 45, p. 1413 (ECF No. 17-20, p. 145); see also First Amended Petition, p. 7.

         After the closing arguments, the jury began its deliberations at 8:21 p.m. See id. at 1423 (ECF No. 17-20, p. 155). As the jury was proceeding to their deliberations, one juror attempted to get the attention of the prosecutor to speak with him, and other jurors attempted to speak with the bailiff. See id. at 1424-26 (ECF No. 17-20, pp. 156-58). The court canvassed the juror who attempted to get the attention of the prosecutor, and instructed him that the jurors should write down their question for the court. See id. at 1426-28 (ECF No. 17-20, pp. 158-60).

Then, at 9:15 p.m., a little less than an hour into their deliberations, the jury sent a note out to the court; the note stated:
Your Honor, We the jury take offense to the comment made by the defense counsel, the unprofessional accusations, plural, impugning the integrity of this jury reaching its verdict. It was a unanimous decision. The overall and insurmountable evidence and the decision in our verdict required 100% participation of all jurors. The decision was not made lightly or in haste.

         Question A from Jury and Answer, Exhibit 46 (ECF No. 17-21) (spelling corrected); see also Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1429-30 (ECF No. 17-20, pp. 161-62). The note was signed by at least ten of the jurors. See Question A from Jury and Answer, Exhibit 46 (transcript of note listed ten jurors who signed it); Transcript of Trial, April 16, 2002, Exhibit 45, p. 1430 (ECF No. 17-20, p. 162) (trial court named eleven jurors who signed note).

         The trial court discussed the note with counsel. See Transcript of Trial, April 16, 2002, Exhibit 45, pp. 1430-33 (ECF No. 17-20, pp. 162-65). The court and counsel formulated and agreed upon the following message from the court, which was transmitted to the jurors:

I have shown your note to the attorneys. Ms. Butko [defense counsel] apologizes to you. She did not mean any offense. Thank you for continuing to keep me informed of any of your concerns.

See Question A from Jury and Answer, Exhibit 46; Transcript of Trial, April 16, 2002, Exhibit 45, p. 1433 (ECF No. 17-20, p. 165).

         The jury returned its verdict at 10:35 p.m. Transcript of Trial, April 16, 2002, Exhibit 45, p. 1434 (ECF No. 17-20, p. 166). The jury sentenced Brown to life in prison without the possibility of parole. See Verdict, Exhibit 48 (ECF No. 17-23).

         Brown claims that his trial counsel was ineffective for making the comments about the jury's guilt verdict, and for not requesting a mistrial or requesting a continuance to allow the jury to “cool off” before deliberating in the penalty phase. See First Amended Petition, pp. 7-8.

         Brown asserted a similar claim in his state habeas corpus action, and the Nevada Supreme Court ruled as follows:

... [A]ppellant argues that counsel was ineffective for antagonizing the jury during the penalty hearing's closing arguments. Appellant fails to demonstrate prejudice. While ten of twelve jurors signed a note expressing their displeasure with counsel, the jury had been instructed that their decision was not to “be influenced by sympathy, passion, [or] prejudice, ” and we must presume that a jury follows their instructions. Hymon v. State, 121 Nev. 200, 211, 111 P.3d 1092, 1100 (2005). The note did not indicate that the jury considered any improper information, and appellant has presented no evidence to counter the presumption that they followed instructions. Further, the jury found beyond a reasonable doubt that appellant had committed a senseless, violent crime, and this court held on direct appeal that the sentence was not disproportionate to the crime. Brown v. State, Docket No. 40062 (Order of Affirmance, January 8, 2004). Appellant has thus not demonstrated a reasonable probability of a different outcome absent counsel's statements. Therefore, the district court did not err in denying this claim.

         Order of Affirmance, Exhibit 85, pp. 4-5 (ECF No. 19-9, pp. 5-6).

         The Nevada Supreme Court properly applied the Strickland standard in making this ruling (see id. at 1 (ECF No. 19-9, p. 2)), and the ruling -- that Brown did not show prejudice from his counsel's performance in this regard -- was not unreasonable. While the jurors were apparently angry about Brown's counsel denigrating their verdict, there is no showing that the jurors disregarded the jury instructions and allowed that emotion to affect their verdict. The jury's note indicated that the jurors took their role seriously. Defense counsel's apology was transmitted to the jury before they rendered their penalty phase verdict. There is no indication that a motion for mistrial or a motion for a continuance would have been granted, especially given the rulings of the trial court and the Nevada Supreme Court regarding this claim. In light of the entire trial record, the senselessness and brutality of the murder, and the other matters considered at Brown's sentencing, it was reasonable for the Nevada Supreme Court to find that Brown was not prejudiced. The Court will deny habeas corpus relief on Ground 1A.

         Ground 1B

         In Ground 1B, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, “for failing to obtain the original surveillance tape and provide it to her expert witness.” See First Amended Petition, pp. 8-9.

         Brown also claims in Ground 1B, in a wholly conclusory manner, that his “constitutional right to a fair trial was violated when the State introduced unreliable evidence in the form of an altered surveillance tape.” Id.; see also Reply (ECF No. 54), p. 13 (restating claim in same conclusory manner). Brown makes no argument specific to this part of Ground 1B, or any other effort to substantiate it.

         Brown alleges that his trial counsel hired, as an expert, videographer William Stephens, and provided Stephens with a copy of a surveillance video from the scene of the crimes. See First Amended Petition, p. 8. Brown alleges that the copy of the video that his counsel provided to Stephens was of poor quality. See id. Brown alleges, also, that the copy of the video introduced as evidence by the prosecution at trial had been altered -- it was evidently an “enhanced” version -- and was not a true and accurate copy of the original surveillance video. See id. at 8-9. Brown alleges that his trial counsel was ineffective for failing to obtain the original surveillance video and provide it to Stephens prior to trial. See Id. Brown claims that he was prejudiced because the “altered videotape, which the State suggested clearly showed Brown as the perpetrator at the store, was displayed repeatedly to the jury, ” and because “his expert was unable to effectively argue that Brown was not the perpetrator, where he did not have accurate evidence on which to base his opinion.” Id.

         Brown asserted this claim in his state habeas petition. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 27-28 (ECF No. 18-13, pp. 28-29). The state district court held an evidentiary hearing, at which this claim was addressed. See Transcript of Evidentiary Hearing, November 12, 13, and 16, 2009, Exhibits 69-71 (ECF Nos. 18-18, 18-19, 18-20). The state district court denied the claim in its order filed on May 6, 2010, ruling as follows:

... [P]etitioner asserts his counsel was ineffective for failing to obtain the original surveillance videotape of the market, which the State used at trial to show petitioner going into and leaving the market. At trial, petitioner's expert testified that the videotape showed differences between what the perpetrator and petitioner were wearing. But the prosecutor impeached the expert during cross-examination by effectively showing that the expert had not accurately viewed the videotape. According to petitioner, had his counsel obtained the original videotape, petitioner's expert would not have been impeached because his conclusions were based on the poor quality of a copy of the tape.
The court denies the claim. Petitioner's new expert, Dr. Palm, testified at the habeas hearing that he could not discern any physical differences between the perpetrator of the murder and petitioner to such a degree that would have made a material difference in the case. Counsel was not deficient and petitioner did not suffer any prejudice.

         Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, p. 8 (ECF No. 19, p. 9). On the appeal in Brown's state habeas action, the Nevada Supreme Court affirmed the ruling of the state district court, as follows:

... [A]ppellant argues that counsel was ineffective for failing to provide appellant's expert with the original surveillance videotape. Appellant fails to demonstrate deficiency or prejudice. He fails to demonstrate that counsel should have known her copy of the video was not a true, accurate copy, and no evidence was presented that the videographer had requested the original videotape. Moreover, at the evidentiary hearing on the petition, appellant's new expert testified that, based on the original video, he could not exclude appellant as being the perpetrator such that there was no reasonable probability of a different outcome at trial had the original video been provided. Therefore, the district court did not err in denying this claim.

Order of Affirmance, Exhibit 85, p. 2 (ECF No. 19-9, p. 3).

         At the evidentiary hearing in his state habeas action, Brown presented the testimony of Dr. Charles Shelby Palm. See Transcript of Evidentiary Hearing, November 12, 2009, Exhibit 69, pp. 36-61 (ECF No. 18-18, pp. 37-62). Dr. Palm testified that he could not exclude Brown as the perpetrator of the crime, regardless of whether or not he examined the original video. See id. at 49-52, 57 (ECF No. 18-18, pp. 50-53, 58). There is, therefore, no showing that, had trial counsel provided Brown's expert with the original video earlier, there would have been a reasonable probability of a different outcome at trial. It was not objectively reasonable for the state courts to conclude that Brown was not prejudiced.

         The Nevada Supreme Court's ruling on this claim was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Ground 1B.

         Grounds 1C and 2A

         In Ground 1C, Brown claims that his trial counsel was ineffective, in violation of his federal constitutional rights, “for failing to object to the defective verdict form.” See First Amended Petition, pp. 9-10. Brown claims that his trial counsel should have objected to the verdict form because it did not include the option of convicting him of second-degree murder, and that his counsel should have proffered an alternative verdict form providing that option. See id. In Ground 2A, Brown claims that his appellate counsel was ineffective for failing to assert on his direct appeal that the verdict form was improper in this regard. See id. at 18.

         Brown asserted these claims in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 4-8 (ECF No. 18-13, pp. 5-9). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, p. 2 (ECF No. 19, p. 3). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled as follows:

... [A]ppellant argues that counsel was ineffective for failing to object to the verdict form on the grounds that it did not allow the jury to find appellant guilty of second-degree murder, in violation of NRS 200.030(3). Appellant fails to demonstrate deficiency or prejudice. NRS 200.030(3) requires only that the verdict form itself designate the degree of murder. The verdict form returned by appellant's jury specified that he was guilty of first-degree murder and thus satisfied the requirements of the statute. Further, appellant points to no evidence that would support a second-degree murder conviction, cf. Rosas v. State, 122 Nev. 1258, 1267-68, 147 P.3d 1101, 1108 (2006), and he cites no authority that supports his contention that a jury must be given the opportunity to find a defendant guilty of a lesser-included offense where, as here, the evidence points only to the greater offense, see [Maresca v. State, 103 Nev. 669, 672-73, 748 P.2d 3, 6 (1997)]. Therefore, the district court did not err in denying this claim.

Order of Affirmance, Exhibit 85, p. 4 (ECF No. 19-9, p. 5); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).

         The Nevada Supreme Court's ruling was based on its construction of state law. That court determined that the verdict form complied with state law, and that, therefore, Brown's trial and appellate counsel were not ineffective for failure to challenge it. The Nevada Supreme Court's construction of Nevada law is authoritative, and is not subject to review in this federal habeas corpus action. See Estelle v. Mcquire, 502 U.S. 62, 67-68 (1991); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). Brown does not cite any federal-law ground on which his counsel could have requested a different verdict form. See First Amended Petition, pp. 9-10; Reply, pp. 15-16. Therefore, because the premise for Brown's claim of ineffective assistance of counsel has been completely undermined by the Nevada Supreme Court's construction of Nevada law, his claims of ineffective assistance of counsel are rendered meritless. Plainly, any objection by trial counsel, or any challenge by appellate counsel, to the verdict form used at Brown's trial, would have failed.

         Moreover, it is notable that Brown's theory of defense -- that he was not present when the victim was killed; that someone named “Travis” committed the murder -- was inconsistent with a second-degree murder verdict. See Testimony of Beau Brown, Transcript of Trial, April 15, 2002, pp. 1169-71 (ECF No. 17-17, pp. 139-41) (Brown's testimony that “Travis” took his car and went to Bain's market, and that he, Brown, was elsewhere when the murder occurred). For this reason as well, any objection by counsel to the verdict form, or any challenge regarding it on direct appeal, would have been fruitless.

         The Nevada Supreme Court's ruling on these claims was not contrary to, or an unreasonable application of, Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence. The Court will deny habeas corpus relief with respect to Grounds 1C and 2A.

         Grounds 1D and 2B

         In Ground 1D, Brown claims that his trial counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to properly object to the attempted robbery instruction.” See First Amended Petition, pp. 10-11. In Ground 2B, Brown claims that his appellate counsel was ineffective, in violation of Brown's federal constitutional rights, “for failing to properly challenge the attempted robbery instruction on appeal.” See id. at 18-19. Brown claims that the attempted robbery instruction lowered the State's burden of proof with respect to the element of an act in furtherance of the robbery, and that it misstated the law with respect to the issue of renunciation of the crime. See id. at 10-11, 18-19.

         Brown asserted these claims in his state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 64, pp. 9-15 (ECF No. 18-13, pp. 10-16). The state district court denied these claims. See Findings of Fact, Conclusions of Law and Judgment, Exhibit 76, pp. 2-3 (ECF No. 19, pp. 3-4). On the appeal in Brown's state habeas action, the Nevada Supreme Court ruled on these claims as follows:

... [A]ppellant argues that counsel was ineffective for failing to oppose the attempted-robbery jury instruction on the grounds that it lowered the State's burden of proof and that it misstated Nevada law on renunciation. Appellant fails to demonstrate deficiency or prejudice. The challenged jury instruction is an accurate statement of Nevada law, see, e.g., Mathis v. State, 82 Nev. 402, 405-06, 419 P.2d 775, 777 (1966), and did not alter the State's burden to prove appellant guilty beyond a reasonable doubt. Therefore, the district court did not err in denying this claim.

Order of Affirmance, Exhibit 85, p. 4 (ECF No. 19-9, p. 5); see also id. at 6-7 (ECF No. 19-9, pp. 7-8) (regarding the claim of ineffective assistance of appellate counsel).

         The jury instruction at issue in these claims was as follows:

The crime of attempted robbery is committed by a person when he or she forms the intent to commit a robbery then performs an overt act or acts in furtherance of the commission of the robbery. Once a person forms the intent and commits the act in furtherance of the robbery, he is then guilty of an attempted robbery, whether he abandoned that attempt because of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.