United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
Edward McMahon's 28 U.S.C. § 2254 counseled,
second-amended habeas corpus petition is before the court for
disposition on the merits.
7, 2008, a jury found McMahon guilty of three counts of
sexual assault of a minor under age sixteen (counts 1, 3, 5),
three counts of statutory sexual seduction (counts 2, 4, 6),
and one count of open and gross lewdness (count 7). Exhibit
The state district court sentenced McMahon on counts 1, 3,
and 5 to three terms of twenty years to life; on count 7 to
twelve months in the Clark County Detention Center; all
counts to run concurrently. Exh. 33. The state district court
imposed a sentence of lifetime supervision and struck counts
2, 4, and 6. Id. Judgment of conviction was entered
on July 29, 2008. Id.
trial counsel, Paul Wommer, represented him on appeal. Exh.
3. The Nevada Supreme Court affirmed the convictions on
October 16, 2009, and remittitur issued on December 22, 2009.
Exhs. 57, 63.
meantime, McMahon had filed a pro per petition for
writ of mandamus with the Nevada Supreme Court on January 6,
2009. Exh. 47. McMahon argued, among other claims, that the
state district court erred in re-appointing Wommer for the
appeal and that such representation created a conflict of
interest. The Nevada Supreme Court issued an order denying
the petition on January 15, 2009. Exh. 48.
filed a pro per state postconviction petition for
writ of habeas corpus on May 21, 2010. Exh. 83. The state
district court appointed Rochelle T. Nguyen to represent
McMahon, and Nguyen filed a supplemental petition on March
22, 2011. Exhs. 98, 99, 100. After an evidentiary hearing,
the state district court denied the petition on February 14,
2012. Exh. 109. On May 15, 2013, while McMahon's appeal
was pending before the Nevada Supreme Court, Nguyen filed a
motion to remand to state district court. Exh. 122. She cited
to the April 19, 2013 federal conviction of former counsel
Wommer of three counts of structuring financial transactions,
one count of tax evasion and one count of making and
subscribing a false tax return, statement or other document.
Id. She also indicated that at his bench trial
Wommer presented the defense that he had diminished mental
capacity due to a 1991 skiing accident that left him unable
to understand tax laws. Id.
13, 2013, the Nevada Supreme Court affirmed the denial of the
state postconviction petition. Exh. 124. In the order, the
state supreme court addressed the motion to remand and stated
that the state district court had already resolved the state
postconviction petition, and therefore, McMahon must bring a
new petition in district court. Id. at n.1.
filed a second pro per state postconviction petition
on April 24, 2013. Exh. 121. He ultimately filed a
second-amended petition on September 10, 2013. Exh. 138. In
the amended petition he set forth numerous grounds, including
his claim that newly discovered evidence indicated that
Wommer lacked the mental capacity to effectively represent
McMahon at trial and on appeal. Exh. 138 (ECF No. 23, pp.
9-34, 64-77). The Nevada Supreme Court affirmed the denial of
the second state postconviction petition on September 16,
2014. Exh. 186. Remittitur issued on October 15, 2014. Exh.
dispatched his federal habeas petition for filing about
January 10, 2014 (ECF No. 6). This court appointed counsel,
and counsel ultimately filed a second-amended petition on
August 4, 2014 (ECF No. 31).
September 28, 2015, this court granted respondents'
motion to dismiss in part, concluding that grounds 3 and 5(B)
were unexhausted (ECF No. 51, pp. 4, 6). McMahon thereafter
filed a declaration of abandonment of those grounds (ECF No.
53). Respondents filed their answer to the second-amended
petition (ECF No. 58), and McMahon replied (ECF No. 63).
AEDPA Standard of Review
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.
contends that the improper joinder of charges violated his
Fifth, Sixth and Fourteenth Amendment rights to due process
and a fair trial (ECF No. 31, pp. 14-15). McMahon was charged
in an information with three counts of sexual assault of a
minor under sixteen years of age and three counts of
statutory sexual seduction with respect to victim E.H. In the
same information, he was charged with one count of open or
gross lewdness with respect to victim S.K. Id.
may grant habeas relief on a joinder challenge only “if
the joinder resulted in an unfair trial. There is no
prejudicial constitutional violation unless
‘simultaneous trial of more than one offense ...
actually render[ed] petitioner's state trial
fundamentally unfair and hence, violative of due
process.'” Davis v. Woodford, 384 F.3d
628, 638 (9th Cir. 2004) (quoting Sandoval v.
Calderon, 241 F.3d 765, 771-72 (9th Cir.2001). As to
prejudice, the court must ask “‘if the
impermissible joinder had a substantial and injurious effect
or influence in determining the jury's
verdict.'” Davis, 384 F.3d at 638 (quoting
Sandoval, 241 F.3d at 772); see also Bean v.
Calderon, 163 F.3d 1073, 1086 (9th Cir.1998). The Ninth
Circuit explained that it considers in particular the
cross-admissibility of evidence and the danger of
“spillover” from one charge to another,
especially where one charge or set of charges is weaker than
another. Davis, 384 F.3d at 638; see also, e.g.,
Sandoval, 241 F.3d at 772; Bean, 163 F.3d at
testified at trial as follows. Exh. 21, pp. 38-56. When she
was fourteen, she met McMahon and R., his four-year-old
daughter, at a park in Las Vegas. McMahon asked her whether
she babysat and also asked her if she was a virgin.
Id. at 39-40. She thought the question was
disturbing but was not really paying attention because she
was “absentminded.” Id. at e.g., 52. She
agreed to babysit for him and went back to his apartment.
McMahon took E.H. into the bathroom, blocked her way out,
locked the door, made her perform oral sex on him, and then
he performed oral sex on her. Id. at 39-40.
testified that her mother was pleased she had a job, so E.H.
babysat for R. most weekends for three or four months. She
testified to specific incidents when McMahon had sexual
intercourse with her and stated that he had sexual
intercourse with her between 10 and 20 times, he performed
oral sex on her between 10 and 20 times, and her mouth was on
McMahon's penis once or twice. Id. at 43, 50-52.
The incidents occurred over about a four-month-period
beginning in July 2004. Id. at 38, 45. She stated
that about one year later, McMahon dropped a birthday card
off for her with $20 in it. At that point, E.H. and her
mother contacted police again; police told E.H. to set up a
meeting with McMahon. She called McMahon and asked him to
meet her at 7-Eleven. Police arrested McMahon when he arrived
at 7-Eleven. Id. at 48-50.
counsel elicited testimony on cross-examination that when
E.H. described the first incident to her mother and to police
the first time she was interviewed she did not say that
McMahon performed oral sex on her. Id. at 52-53.
also testified at trial. Exh. 22, pp. 4-11. She stated that
she usually babysat for McMahon's daughter R. at R.'s
mother's apartment. The only time she babysat for R. at
McMahon's apartment was during the summer of 2004; she
was fourteen. She was tired, and McMahon told her to go into
his bedroom and go to sleep. She fell asleep on McMahon's
bed; when she woke up McMahon had his hand down her pants,
underneath all of her clothing, and was rubbing her vagina.
She stated that she had been sleeping soundly, and she was
unsure how long this went on: “It felt like quite a
while; I would say like 20 minutes, but it possibly could
have gone on for two. But in my mind it felt like
longer.” Id. at 6; see also id. at
9-10. S.K. picked up the phone to call her mother, she hung
up when McMahon told her not to call. He gave her $20.
Id. at 5-6.
the convictions, the Nevada Supreme Court reasoned:
McMahon argues that the counts were improperly joined because
the offenses relating to E.H. and S.K. were not part of a
common scheme or plan. We disagree. NRS 173.115; Griego
v. State, 893 P.2d 995, 998-999 (Nev. 1995), abrogated
on other grounds by Koerschner v. State, 13 P.3d 451
(Nev. 2000), modified on other grounds by State v. Dist.
Ct. (Romano), 97 P.3d 594, 600 (Nev. 2004), overruled by
Abbott v. State, 138 P.3d 462 (Nev. 2006).
Pursuant to NRS 173.115, two or more offenses may be charged
in the same information if the offenses are based on the same
act or transaction or are part of a common scheme or plan. In
Griego, this court found a common scheme or plan
where the victims were all the same gender, were friends with
Griego's children, and the assaults took place in the
same place around the same time. Id. Here, both of
the victims were 14 years of age, McMahon invited both
victims to his residence to babysit his daughter and sexually
assaulted or committed lewd acts with the victims, and the
offenses occurred similarly close in time. Further, both
victims testified that McMahon offered them $20 following
sexual acts. Therefore, we conclude that the district court
did not abuse its discretion in this regard because the
offenses were part of a common scheme or plan.
Exh. 57, pp. 6-7.
argues in his reply that the Supreme Court of Nevada made an
unreasonable determination of fact, thus requiring this court
to review the federal constitutional claim de novo
(ECF No. 63, p. 14). Indeed, “where the state courts
plainly misapprehend or misstate the record in making their
findings, and the misapprehension goes to a material factual
issue that is central to petitioner's claim, that
misapprehension can fatally undermine the fact-finding
process, rendering the resulting factual finding
unreasonable.” Taylor, 366 F.3d at 1001;
see also Milke v. Ryan, 711 F.3d 998, 1008 (9th Cir.
2013). McMahon argues that a discrepancy regarding the import
and timing of $20 payments to the alleged victims was an
unreasonable determination of fact triggering de novo review.
The Supreme Court of Nevada, while finding McMahon's
molestation of both victims were part of a common scheme or
plan, found that “McMahon offered [both
fourteen-year-old victims] $20 following sexual acts.”
Exh. 57, p. 6. McMahon counters that, while that is factually
accurate, it is misleading because one victim received the
$20 immediately following the sexual acts and the other
received it almost a year later. See exh. 21, p.
205; exh. 22, p. 12. However, the Supreme Court of
Nevada's factually correct statement did not
“plainly misapprehend or misstate the record.”
Taylor, 366 F.3d at 1001. McMahon did pay both
victims $20. But even if this was a plain misstatement, it
did not “go to a material factual issue, ”
id., as the Supreme Court of Nevada rejected
McMahon's federal constitutional claim because he failed
to demonstrate prejudice, not because his molestation of both
victims was part of a common scheme or plan-that was the
state-law issue. See exh. 57, pp. 6-7, 7 n.2.
this claim is not subject to de novo review; AEDPA
deference applies to the Nevada Supreme Court's
determination. McMahon has not shown that the Nevada Supreme
Court's decision was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the U.S. Supreme Court, 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); see Runningeagle v. Ryan, 686 F.3d
758, 776-77 (9th Cir. 2012) (no U.S. Supreme Court precedent
exists for improper joinder or severance). Federal habeas
relief, therefore, is denied as to ground 1.
asserts that insufficient evidence supported the convictions,
in violation of his Fifth and Fourteenth Amendment due
process rights (ECF No. 31, pp. 15-17).
Constitution prohibits the criminal conviction of any person
except upon proof of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 309 (1979)
(citing In re Winship, 397 U.S. 358 (1970)). On
federal habeas corpus review of a judgment of conviction
pursuant to 28 U.S.C. § 2254, the petitioner “is
entitled to habeas corpus relief if it is found that upon the
record evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a reasonable
doubt.” Id. at 324. “[T]he standard must
be applied with explicit reference to the substantive
elements of the criminal offense as defined by state
law.” Id. at 324 n.16. On habeas review, this
court must assume that the trier of fact resolved any
evidentiary conflicts in favor of the prosecution and must
defer to such resolution. Id. at 326. Generally, the
credibility of witnesses is beyond the scope of a review of
the sufficiency of the evidence. Schlup v. Delo, 513
U.S. 298, 330 (1995).
testimony of the two victims is described above with respect
to ground 1. McMahon's former girlfriend, the mother of
their daughter, R., testified that in the winter of 2005,
when R. was five, she was putting her daughter to bed when R.
started explaining to her mother what she had seen McMahon
and E.H. doing. Exh. 23, pp. 10-11. R. put one of her dolls
on top of the other and was moving them around. R. also told
her mother that she had seen McMahon kissing E.H. on the
mouth, and McMahon told her he did it because E.H. was like
R.'s sister. Id. A police officer testified that
R. told him in March 2005 that E.H. was McMahon's
girlfriend and that she had seen E.H. laying on top of
McMahon on the bed and had seen them “French”
kissing and having sex. Exh. 23, pp. 18-19.
age eight at trial. She testified that she did not remember
any of the incidents between E.H. and McMahon that she had
recounted to her mother and police. She testified that E.H.
spent the night at McMahon's apartment and that the three
of them slept in the same bed together. Id. at 9-12.
was also introduced that E.H.'s DNA was found on a
comforter from McMahon's bed. Exh. 23, p. 24. A nurse
practitioner who has testified in a number of court cases as
a child sexual abuse expert testified that she examined E.H.,
and E.H. had injuries consistent with a child who has been
sexually assaulted. Exh. 22, pp. 20-25.
acknowledged at trial that within four days of his October 3,
2004 interview with police about the E.H. incidents, he
dropped out of his final semester of school, rented a moving
van, returned his rented computer, moved to Texas, and
changed his phone number. He testified that he left Las Vegas
abruptly to help his mother, who had suffered a fall,
relocate to assisted living in Florida. Exh. 24, pp. 8-12,
the insufficiency of the evidence claim on direct appeal, the
Nevada Supreme Court explained its conclusion that ...