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Vincent v. McDaniel

United States District Court, D. Nevada

September 18, 2017

LEE ALVIN VINCENT, Petitioner,
v.
E.K. McDANIEL, et al., Respondents.

          ORDER

          HOWARD D. MCKIBBEN United States District Judge

         This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits.

         Background

         Petitioner 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.

         Governing Standard of Review

         When 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.

         A state 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.

         A state 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).

         To the 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 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. Pinholster, 563 U.S. at 569.

         Discussion

         Ground 1: Denial of a Fully Impartial Jury

         In 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.

         Approximately 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.[1]

         That evening she penned and sent the following letter to Vazquez, using the alias Jasmin Rosales:

10/24/08
Hi Ricky!
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!
Love, Jasmin

ECF No. 14-18 (Exhibit 43), at 33. See also ECF No. 14-23 (Exhibit 48), at 8 (re: timing).

         Ending 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.

         The State sought to establish at the trial that Vincent and Vazquez killed Richard “Fly” Morris in the course of a robbery or attempted robbery.

         Farin 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.[2]

         Apparently unbeknownst to anyone else in the car, Morris was carrying a .40 caliber Glock semiautomatic handgun in a waist holster.[3]

         According 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 “okay.”[4]

         According 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.[5]

         Vincent 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.[6]

         According 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 left.[7]

         Morris 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 body.[8]

         The .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 critical organs.[9]

         The two .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 gun.[10]

         According 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 vehicle.[11]

         A towel with blood matching Morris' DNA also was recovered from Vincent's mother's garage where the car was found.[12]

         The 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 different directions.

         According 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.[13]

         According 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 victim.[14]

         During 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 Vincent.

         In 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.)

         Thereafter, 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 Morris.[15]

         In 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.[16]

         The 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.[17]

         Approximately 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.”[18]

         Thereafter, 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.[19]

         On 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 jurors.[20]

         Neither defendant's motion affirmatively reflected notice to or service upon counsel for the other defendant as opposed to only on the district attorney.

         The 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.[21]

         The State's opposition affirmatively reflected fax service only on counsel for Vazquez.[22]

         An 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 evidentiary hearing.[23]

         Vincent 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.[24]

         The 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.[25]

         Vazquez' 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.[26]

         The 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 trial.
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.

         After 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.[27]

         Counsel 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.[28]

         Vincent 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.

         Accordingly, 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.[29] 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.

         At sentencing, the State argued for a 10 to life rather than 10 to 25 year sentence for Vazquez. In that argument, the prosecutor stated:

. . . . 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 here today.
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.

         Vincent's 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 that.
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.[30]

         In sentencing Vazquez, the state district court opened with these remarks:

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.

         These 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.

         On 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.”[31] Petitioner presented this argument despite not having sought relief on his motion on that basis in the district court.

         In a February 3, 2010, order, the Supreme Court of Nevada rejected the claim presented to that court on the direct appeal on the following basis:

. . . [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 ...

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