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Williams v. Gentry

United States District Court, D. Nevada

November 20, 2017

JAMAAR JEROME WILLIAMS, Petitioner,
v.
JO GENTRY, [1] et al., Respondents.

          ORDER

         On October 19, 2016, the United States Court of Appeals for the Ninth Circuit entered a judgment vacating this court's order dismissing petitioner's ineffective assistance of counsel claims under Grounds Two and Three(a-c) and remanding the case so that this court can reconsider the procedural default of those claims in light of Martinez v. Ryan, 566 U.S. 1 (2012). ECF No. 100. Specifically, the court of appeals directed this court to “evaluate whether further factual development is needed and determine whether [the underlying ineffective assistance of counsel] claims are substantial under the appropriate standard.” Id. at 4. In furtherance of the Ninth Circuit's mandate (ECF No. 101), this court allowed petitioner Williams to submit points and authorities and to proffer any evidence in support his claims under Martinez. ECF No. 103. For the reasons that follow, this court concludes that none of the ineffective assistance of counsel claims are “substantial” for the purposes of Martinez.

         As an initial matter, a Supreme Court decision issued subsequent to the Ninth Circuit's remand in this case holds that Martinez is confined to defaulted claims of ineffective assistance of trial counsel and does not extend to defaulted claims of ineffective assistance of appellate counsel. See Davila v. David, 137 S.Ct. 2058, 2070 (2017). Because Grounds Three(a), (b), and (c) are all ineffective assistance of appellate counsel claims, petitioner cannot utilize Martinez to excuse the default of those claims. Thus, this court need not determine whether those claims are “substantial” for the purposes of Martinez. See Insurance Group Committee v. Denver & R. G. W. R. Co., 329 U.S. 607, 612 (1947) (“When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court.” (Emphasis added.)).

         As to whether his ineffective assistance of trial counsel claims are “substantial, ” Williams must demonstrate that they have “some merit.” See Martinez, 566 U.S. at 14 (citing to Miller-El v. Cockrell, 537 U.S. 322 (2003), which describes the standards for certificates of appealability to issue). The standard for issuing a certificate of appealability involves a threshold inquiry into whether the petitioner has shown “‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (quoting Miller-El, 537 U.S. at 326) (internal quotation marks and alterations omitted)). “Stated otherwise, a claim is ‘insubstantial' if ‘it does not have any merit or . . . is wholly without factual support.'” Id. (quoting Martinez, 566 U.S. at 15-16).

         Ineffective assistance of counsel (IAC) claims are analyzed under the two-prong test propounded in Strickland v. Washington, 466 U.S. 668 (1984). That is, a petitioner claiming ineffective assistance of counsel must demonstrate (1) that the defense 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.

         Ground Two(a)

         In Ground Two(a), Williams claims that his trial counsel provided ineffective assistance by not moving to sever the charges in his case. The charges arose out of events that occurred in a Las Vegas mobile home park over a two-day period. On November 7, 2000, an assailant shot and killed Reggie Ezell and shot at, but missed, Darin Archie. On November 8, 2000, an assailant shot James Polito and Ricky Policastro, both of whom survived. In relation to those events, Williams was convicted of one count of murder with the use of a deadly weapon, three counts of attempted murder with the use of a deadly weapon, and one count of conspiracy to commit murder. According to Williams, reasonably competent counsel would have moved to the sever the charges arising from the November 8 incident and that severance of the charges would have resulted in a more favorable outcome.

         Under Nevada law, multiple offenses “may be charged in the same indictment or information in a separate count for each offense if the offenses charged . . . are “[b]ased on the same act or transaction; or [b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Nev. Rev. Stat. § 173.115. Charges are “connected together if evidence of either charge would be admissible for a relevant, nonpropensity purpose in a separate trial for the other charge.” Rimer v. State, 351 P.3d 697, 703 (Nev. 2015). “Even if charges could otherwise be properly joined, severance may still be mandated where joinder would result in unfair prejudice to the defendant.” Weber v. State, 119 P.3d 107, 121 (Nev. 2005). However, “[t]o establish that joinder was [unfairly] prejudicial ‘requires more than a mere showing that severance might have made acquittal more likely.'” Id. (citations omitted).

         Here, there is ample evidence that all the charges were based on acts or transactions connected together or constituting parts of a common scheme or plan. According to his own testimony at trial, Williams had a verbal altercation with Archie on the afternoon November 7, 2000, the cause of which was Williams attempting to confront Polito while Polito was working on the door to Archie's mobile home. Additional evidence established the following. Upon leaving that afternoon, Williams stated that he would be coming back. Later that evening, Williams knocked on the door of Polito's mobile home then walked in the direction of Archie's mobile home, with the shooting at Archie's home occurring shortly thereafter. Witnesses, including Archie, identified Williams as the shooter. The following night, Jules, an acquaintance of Williams's, went to Polito and Policastro's mobile home and questioned them about who talked to police about the prior night's shooting. While in the home, Jules communicated with someone via mobile phone, indicating how many people were currently present. Just as Jules exited the trailer, Williams entered the trailer and shot Polito and Policastro.

         Even if the foregoing is not sufficient to establish that all the charges constituted part of a common scheme or plan, the charges were “connected together” because evidence of any of the charges would have been admissible for a relevant, non-propensity purpose in a separate trial for any of the other charges. Moreover, Williams fails to demonstrate that he was unfairly prejudiced by the joinder. Accordingly, he has not shown that a motion to sever would have had any chance for success. Thus, his IAC claim premised on his trial counsel failing to file such a motion is not “substantial” for the purposes of Martinez.

         Ground Two(b)

         In Ground Two(b), Williams claims that his trial counsel provided ineffective assistance by not moving to suppress Williams's statement to the police or to argue to the jury that it was involuntary. Though he did not include such allegations in his habeas petition, Williams argues in his Martinez brief on remand that the circumstances surrounding his arrest support a finding that his confession was coerced. However, the only evidence he proffers to substantiate this claim is a declaration from a woman named Dorothy Howell, who states that she was present when Williams was arrested. ECF No. 106-3. Williams also alleges that he believed he was going to get some benefit from telling the police what they wanted to hear and that he was represented by counsel at the time of the confession, but the police failed to contact his attorney.

         Howell's declaration provides little support for Williams's IAC claim. The circumstances surrounding his capture are not necessarily pertinent to whether his subsequent confession was the product of undue coercion. See Greenawalt v. Ricketts, 943 F.2d 1020, 1027 (9th Cir. 1991). Moreover, the declaration provides details as to how Howell and her daughter were treated by the police, but does not describe how Williams was treated.

         Similarly, Williams's belief that he would benefit from confessing to the police adds nothing to his claim of coercion given the absence of any evidence that police made any false promises or offered any improper inducements. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause.”). Also, Williams has not established that the attorney referred to in Ground Two(b), Steve Altig, represented Williams in relation to the matter at hand. Accordingly, the police ...


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