United States District Court, D. Nevada
D. MCKIBBEN United States District Judge
represented habeas matter under 28 U.S.C. § 2254 comes
before the Court for a decision on the merits.
Lee Vincent challenges his 2009 Nevada state conviction,
pursuant to a jury verdict, of first-degree murder with the
use of a deadly weapon. He is serving two consecutive life
sentences with the possibility of parole on each sentence
after a minimum of twenty years has been served on that
sentence. Petitioner challenged the conviction on both direct
appeal and state post-conviction review.
Standard of Review
the state courts have adjudicated a claim on the merits, the
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a "highly deferential" standard for evaluating the
state court ruling that is "difficult to meet" and
"which demands that state-court decisions be given the
benefit of the doubt." Cullen v. Pinholster,
563 U.S. 170 (2011). Under this highly deferential standard
of review, a federal court may not grant habeas relief merely
because it might conclude that the state court decision was
incorrect. 563 U.S. at 202. Instead, under 28 U.S.C. §
2254(d), the court may grant relief only if the state court
decision: (1) was either contrary to or involved an
unreasonable application of clearly established federal law
as determined by the United States Supreme Court; or (2) was
based on an unreasonable determination of the facts in light
of the evidence presented at the state court proceeding. 563
U.S. at 181-88.
court decision is "contrary to" law clearly
established by the Supreme Court only if it applies a rule
that contradicts the governing law set forth in Supreme Court
case law or if the decision confronts a set of facts that are
materially indistinguishable from a Supreme Court decision
and nevertheless arrives at a different result. E.g.,
Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 15-16 (2003). A state
court decision is not contrary to established federal law
merely because it does not cite the Supreme Court's
opinions. Id. Indeed, the Supreme Court has held
that a state court need not even be aware of its precedents,
so long as neither the reasoning nor the result of its
decision contradicts them. Id. Moreover, "[a]
federal court may not overrule a state court for simply
holding a view different from its own, when the precedent
from [the Supreme] Court is, at best, ambiguous." 540
U.S. at 16. For, at bottom, a decision that does not conflict
with the reasoning or holdings of Supreme Court precedent is
not contrary to clearly established federal law.
court decision constitutes an "unreasonable
application" of clearly established federal law only if
it is demonstrated that the state court's application of
Supreme Court precedent to the facts of the case was not only
incorrect but "objectively unreasonable." E.g.,
Mitchell, 540 U.S. at 18; Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004).
extent that the state court's factual findings are
challenged, the "unreasonable determination of
fact" clause of Section 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
petitioner bears the burden of proving by a preponderance of
the evidence that he is entitled to habeas relief.
Pinholster, 563 U.S. at 569.
1: Denial of a Fully Impartial Jury
Ground 1, petitioner alleges that he was denied rights to an
impartial jury, a fair trial, and due process in violation of
the Fifth, Sixth and Fourteenth Amendments due to, inter
alia, juror bias after a juror at his trial developed a
romantic attraction for his codefendant, who was pursuing a
defense strategy adverse to petitioner's defense.
three hours after the verdict in the joint trial, juror
Marnie Ramirez tried to visit Vincent's codefendant Ricky
Vazquez at the Clark County Detention Center.
evening she penned and sent the following letter to Vazquez,
using the alias Jasmin Rosales:
So how are you? How's your case going? I don't know
much about what happened and well I wouldn't be able to
help you anyway but I just want to show my support and
sympathy. So my name is Jasmin so nice to meet you, I saw the
profile on MySpace. And well if there's anything you
think I can help you with, let me know. I went down to the
Detention Center today to visit you but was told that I had
to go back next Wednesday, so I will be there to see you and
so we can met [sic] each other. Hopefully you want to keep
the letters going and you can keep updating me on . . . how
your whole situation is going. How do you feel? I want to
help at least just by being friends, or just being here for
you. And I think it sucks that I don't get to see you
well I get to see you through a camera. What the hell is
that? That just makes me hella angry! I wanted to be able to
touch you and hug you. I guess not going to happen. Well
Ricky write back please and once you see who I am you'll
probably want to keep in touch. Wish you the best of luck!
ECF No. 14-18 (Exhibit 43), at 33. See also ECF No. 14-23
(Exhibit 48), at 8 (re: timing).
that same day, Vincent and Vazquez had just been tried
together on charges of conspiracy to commit murder and murder
with the use of a deadly weapon.
State sought to establish at the trial that Vincent and
Vazquez killed Richard “Fly” Morris in the course
of a robbery or attempted robbery.
Estrada testified that she and Morris were at a mutual
friend's house on the day of the homicide when he asked
her to arrange a purchase of $50.00 of methamphetamine. She
called Vincent to set up the deal. Vincent and Vazquez
arrived in a two-door car. The four thereafter left together
in the vehicle, with Vincent driving, Vazquez in the front
passenger seat, Estrada sitting behind Vincent, and Morris
sitting behind Vazquez.
unbeknownst to anyone else in the car, Morris was carrying a
.40 caliber Glock semiautomatic handgun in a waist
to Estrada's trial testimony, as she was about to get
into the car on the driver's side, Vincent asked her
“Do you want to rob this guy?” She responded
to Estrada's testimony, after a short drive, Vincent
stopped the car; Vincent and Vazquez turned around with
semiautomatic handguns drawn; and Vincent told Morris to give
him Morris' money. Morris reached for his waist, but he
pulled out the Glock .40 rather than money. Vincent and
Vazquez then both opened fire on Morris.
and Vazquez thereafter dumped Morris' body in the street
before driving off, without taking his wallet with $110.00
inside, $50.00 in loose currency in his pocket, or his watch.
Morris' Glock fell to the street during the process, and
Vazquez put it back in the car.
to Estrada's testimony, after they dropped Vazquez off,
she accompanied Vincent to his mother's house. At the
house, Vincent pulled the magazine out of his handgun and
said, with a bragging manner, that he had only two bullets
had gunshot wounds from six bullets that struck him in the
head, neck, torso, and hand. The wounds from four of the six
gunshots independently would have been fatal. Two .32 caliber
full metal jacketed bullets and one .380 caliber hollow point
metal jacketed bullet were recovered from his
.380 caliber bullet recovered from Morris' body was fired
from the Kel-Tec P-3AT .380 ACP semiautomatic handgun that
Vazquez had in his possession at the time of his arrest. This
hollow point round produced one of the independently fatal
wounds to Morris' torso, passing through multiple
.32 caliber bullets recovered from Morris' body, one of
which produced a mortal wound to his head, and another
recovered at the scene all were fired from the same weapon.
An additional .32 caliber round later recovered from
Vazquez' hand also was fired from that same weapon.
Moreover, two .32 caliber ejected casings recovered from the
car that Vincent had borrowed from his mother and the garage
where it was kept were fired from the same weapon as one
another. A recorded telephone call reflected that when
Vincent's mother later told him that the police were
asking questions, he told her that he had destroyed the
to the opinions of the State's forensic examiners, all of
the multiple bullet defects in the car were caused by bullets
fired from front to back in the car rather than vice versa.
No expended bullets, of any caliber, were recovered from the
with blood matching Morris' DNA also was recovered from
Vincent's mother's garage where the car was
State further introduced testimony from two young women that
the State maintained each separately had left town with the
respective defendants subsequent to the homicide, in
to her trial testimony, Pamela Herman was a close friend of
Vincent at the time; but she denied that they were boyfriend
and girlfriend. Her independent recollection of the events at
the time and of the truthfulness or untruthfulness of her
prior statements to the police was spotty, due to her
extensive methamphetamine use during that time period. In a
September 2006 statement, she told the police that Vincent
had been crying after the shooting and that he told her that
he acted in self-defense after Morris pulled a gun. In a
November 2006 interview, based upon an investigator's
notes and later report, she instead told the police that
Vincent had two guns after the shooting, that Vincent told
her that “they” were going to rob Morris, that he
had his gun pointed at Morris and was taking his watch when
Morris drew his gun, that they left town to avoid the police,
and that she had not been truthful in her September
statement. At trial, she testified that they left town
instead to spend some time together. As for her prior two
statements she testified: “Neither of them were going
to be very accurate because I was high on every one of them,
extremely high.” She further testified that she was
afraid of being charged as an accessory after the fact at the
time of the November statement.
to her trial testimony, Kelly Logan was Vazquez'
girlfriend at the time; and they went to Barstow, California
afterwards to seek treatment for a gunshot wound to his hand,
with Vazquez using an assumed name. She otherwise had no
independent recollection of the particulars that the State
sought to elicit from her consistent with her prior grand
jury testimony or even as to giving the testimony itself,
once again due to heavy drug use at the time, including while
testifying. In her grand jury testimony, she had testified
that she had seen Vazquez with a black .380 or .38 gun, that
he had said that he had been there to rob the victim of the
shooting, and that a .40 caliber Glock was taken from the
the trial, Vazquez' counsel focused on evidence and
inferences reflecting an absence of proof that Vazquez had
any prior knowledge of or involvement in any alleged robbery.
This defense strategy tended to establish culpability, or at
the very least a higher degree of culpability, instead on
Vazquez' opening statement, counsel maintained that
“the evidence is going to show that . . . Farin Estrada
set this entire thing up with Mr. Lee [Vincent], not my
client, ” that other involved individuals did not even
know Vazquez, that he was simply a passenger in the vehicle,
and that he was just sitting there “when all hell broke
loose” when Morris pulled a gun in response to Vincent
and Estrada's robbery. (ECF No. 14-6, at 22-24.)
in cross-examining Farin Estrada, Vazquez' counsel
elicited testimony multiple times as to her prior consistent
deposition testimony emphasizing that she talked with and
agreed with Vincent and only Vincent regarding robbing
closing argument, Vazquez' counsel argued, inter
alia, that: (1) even if the State's principal
witness Farin Estrada was to be believed, the State had shown
evidence only of a plan to rob Morris between Vincent and
Estrada; (2) depending on which of the witnesses'
statements the jury went by, either Morris or Vincent pulled
a gun first; (3) then, “only when it became the OK
Corral” and he “saw all hell's breaking
loose, ” Vazquez, who had been along only as a
passenger, pulled out his gun and start firing either in the
heat of passion or in self-defense; and (4) only one bullet
from Vazquez' weapon was found in Morris' body, but
he was hit by six bullets. Counsel maintained that there was
more than a reasonable doubt as to what actually happened in
the car, given the multiple inconsistent statements by
multiple witnesses who then all were heavy drug addicts and
thus were prone to say anything at any particular time to
stay out of custody and keep using drugs.
jury returned verdicts acquitting both defendants of
conspiracy to commit murder, finding only Vincent guilty of
first-degree murder with the use of a deadly weapon, and
finding Vazquez guilty instead only of second-degree murder
with the use of a deadly weapon.
three hours after these verdicts, juror Marnie Ramirez
attempted to visit Vazquez in custody; and that same evening,
she wrote him under an alias expressing her desire to,
inter alia, help him with “anything you think
I can help you with.”
on November 3, 2008, Vincent filed a motion for a new trial
renewing his pretrial and trial arguments on his motion to
sever the trials against the two defendants. The motion was
not based upon any issues with regard to juror Ramirez, and
it does not reflect any knowledge by Vincent's counsel of
any situation regarding the juror.
November 5, 2008, Vazquez filed a motion for a new trial
based on, inter alia, counsel having “learned
that a juror visited Vazquez at the conclusion of his trial,
and indicated that she had performed independent research
about Vazquez during his trial.” Vazquez sought an
evidentiary hearing to have the juror examined under oath as
to any research conducted and any disclosures made to other
defendant's motion affirmatively reflected notice to or
service upon counsel for the other defendant as opposed to
only on the district attorney.
State's November 13, 2008, opposition to Vazquez'
motion advised the court of the specifics of Ramirez'
post-verdict correspondence and contact with Vazquez. The
State attached copies of the October 24, 2008, correspondence
quoted in full at the outset of this discussion, along with
letters dated October 30, November 5, and November 7, 2008.
The correspondence collectively reflected that Ramirez began
visiting Vazquez in custody at the next available visitation
date following the verdict, professed her romantic attraction
to him, indicated her wish to be at his sentencing, and
repeated her desire to help and support him in any way that
she could. While opposing a new trial on the showing then
made by Vazquez, the State concurred as to the need for a
limited evidentiary hearing to inquire of Ramirez/Rosales as
to her conduct during and after the trial.
State's opposition affirmatively reflected fax service
only on counsel for Vazquez.
on-the-record proceeding of a preliminary nature was held on
November 18, 2008. The State noted a press report quoting the
juror as saying that she had been a holdout for voluntary
manslaughter, which the State suggested then led to a
compromise verdict. The matter was set down for an
and his counsel were not present for the November 18, 2008,
proceeding; and there is no affirmative indication in the
record that Vincent's counsel had been notified prior to
the proceeding. The first affirmative record indication that
Vincent's counsel had been made aware of and/or was
present at proceedings on the juror-misconduct issue
consisted of a later impromptu November 25, 2008, proceeding
with regard to Vazquez obtaining videos of Ramirez'
visitations of Vazquez in custody.
matter came on for an evidentiary hearing on December 1,
2008. Marnie Ramirez testified, inter alia, that:
(1) she had not looked at Vazquez' MySpace page until
after the verdict on October 24, 2008; (2) she wrote the
first letter that night; (3) she visited Vazquez three times
following the verdict; (4) she had not talked with him on the
telephone; and (5) she did not write, visit, talk on the
telephone with, or otherwise communicate with Vazquez,
directly or indirectly through a third party, at any time
prior to the verdict.
counsel submitted the matter without argument. No party
argued juror bias at the hearing. The State argued that
Vazquez had failed to show that extrinsic evidence had
intruded on the deliberative process and that Vazquez thus
had not met his burden.
state district court concurred with the State's argument:
THE COURT: Yeah, I mean, I agree with the State. The critical
inquiry is whether or not there was any misconduct prior to
the verdict or whether or not a juror received any
information outside the evidence that was presented during
The juror indicates that she did not look at the MySpace page
until after the verdict had been rendered in this case. She
further indicated that she did not write to the defendant or
contact him at the detention center until after the verdict.
Once the verdict is rendered, the juror is free to do as she
wishes. And so since she did not commit any misconduct or do
anything prior to the verdict, I don't see a ground for a
new trial on that basis.
ECF No. 14-23, at 14.
briefly discussing the other ground of Vazquez' motion,
as to which the court had ruled previously, the court asked
Vincent's counsel whether he had anything else on the
preceding proceedings before addressing Vincent's motion
for new trial.
responded in the following exchange:
MR. HARTSELL: The only thing is, Your Honor, I've never
received copies of the letters from the juror. I don't
have any of that information. So I'd reserve - MR.
STANTON [for the State]: I'll e-mail them to him today.
THE COURT: All right.
MR. HARTSELL: So my investigator can look into that.
THE COURT: All right.
MR. HARTSELL: And that's why I did not raise any issues
during that part. No, Your Honor, I'll submit my motion
for a new trial.
ECF No. 14-23, at 15.
thereafter sought no relief from the state district court at
any time prior to the direct appeal based upon Ramirez'
post-verdict communications with Vazquez.
prior to the direct appeal, the state district court never
was presented with any request whatsoever by Vincent for
relief in any respect concerning juror Marnie Ramirez. Nor
was the court presented with any testimony or argument - by
any party - seeking to call Ramirez' impartiality into
question during the jury's deliberations prior to the
verdict, assuming that such testimony even could have been
pursued under applicable evidentiary rules. The only
issue argued to the district court - by Vazquez and not
Vincent - concerned alleged improper research and/or contact
prior to the verdict, and that argument was not borne out
factually by the evidence.
sentencing, the State argued for a 10 to life rather than 10
to 25 year sentence for Vazquez. In that argument, the
. . . . To begin with, he is the beneficiary of what -
obviously, this Court now has heard through an evidentiary
hearing and from the verdict and the facts of this case,
conduct by a juror, which is, frankly, outrageous, and the
fact - and for the record, that same juror is in the
courtroom today. I find her presence here, while not
unlawful, offensive to the State and certainly offensive to
the victim's family. And I certainly want the record to
be clear for purposes of appellate review of her presence
He has received the benefit of what clearly was a violation
of a - or a juror's oath. And that is all the benefit
that he should receive because in the eyes of not only the
law, but in the facts introduced at this trial, they are both
liable for first degree murder.
ECF No. 14-25 (Exhibit 50), at 8-9.
counsel echoed this theme, in reverse, in urging that
fairness dictated instead that Vincent should get a similar
alleged break via the court's sentence:
. . . . And then I would ask the Court to address the
fairness. The State says codefendants, same crime. Well, I
think the Court should treat this as the same crime, and
because of the way the trial played out and the potential
problem with the juror, one defendant is getting the benefit
and he's going to get the chance of parole.
And then this whole juror issue. I've never seen that
before, and as the State said, the codefendant got the
benefit of that. Lee [Vincent] didn't get the benefit of
So we had inconsistent verdicts with what the Court heard
happen, two separate caliber bullets in the victim. So if the
Court sees the same culpability, then the only way to make
this fair is to render the sentencing as close as possible,
and that would be to give Lee a chance at parole.
ECF No. 14-25, at 11-12.
sentencing Vazquez, the state district court opened with
THE COURT: All right. At least to some extent, Mr. Vazquez
had the benefit of a bizarre infatuation by one of the
jurors. To the extent of that -
I'm glad you think it's funny, Mr. Vazquez.
To the extent that impacted the verdict, we don't know.
But in my view, Mr. Vazquez is a 100 percent as culpable as
Mr. Vincent in this matter, and he should, in my view, be
sentenced as a first degree murderer. I don't have the
power to do that, so I am going to impose the maximum penalty
allowed by law as to second degree murder.
ECF No. 14-25, at 21.
comments by counsel and the court notwithstanding, no relief
was sought by Vincent thereafter in the state district court
with regard to juror Marnie Ramirez. No argument was made in
the district court that the impressions of counsel - and even
of the state district court - as to what they believed may
have transpired during jury deliberations provided a legally
valid basis for setting aside Vincent's verdict,
conviction and sentence with no showing of actual improper
conduct or extraneous contact during deliberations.
direct appeal, Vincent argued - for the first time - that his
motion for a new trial “should have also been granted
based on the unusual (emphasis
added) circumstance regarding” juror Marnie Ramirez.
Vincent maintained that “it was clear that an issue of
bias existed on the part of the juror and would explain, in
part, the differing verdicts, and was another reason the
trial should have been severed.” Petitioner
presented this argument despite not having sought relief on
his motion on that basis in the district court.
February 3, 2010, order, the Supreme Court of Nevada rejected
the claim presented to that court on the direct appeal on the
. . . [A]ppellant argues that the district court erred by
denying his motion for new trial based on the same grounds
identified above [regarding his pretrial motion to sever] and
due to a juror's contact with his codefendant after
trial. As explained above, appellant fails to show that
joinder was improper. As to juror misconduct, the district
court denied appellant's motion because the juror's
contact with appellant's codefendant occurred after the
jury rendered its verdict. Accordingly, we conclude that the
district court did not abuse its discretion in this regard.
See Domingues v. State, 112 Nev. 683, 695, 917 P.2d