Smith v. Baker

          ORDER

          GLORIA M. NAVARRO CHIEF UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 by a Nevada state inmate comes before the Court for a final decision on the merits.

         Background

         Petitioner Kamario Smith challenges his 2012 Nevada state conviction, pursuant to a jury verdict, of conspiracy to commit robbery, robbery with the use of a deadly weapon, and possession of a firearm by an ex-felon. He challenged the conviction in the state courts on direct appeal and post-conviction review.

         On federal habeas review, petitioner challenges, inter alia, the sufficiency of the evidence supporting his conviction. The evidence presented at trial included, inter alia, the following.^[1]

         Melissa Applewhite testified as follows at trial. At around 7:00 p.m. on April 17, 2011, Applewhite was at Bells Market on West Owens Avenue in Las Vegas. While there, she saw an individual exiting a white Cadillac with a brown or red top; and she identified the individual that she saw at Bells Market as the defendant, Kamario Smith. She did not know Smith, but she had seen him “a couple” of times in the area and had rebuffed his advances seeking her phone number. She also had seen him another time when he was at the house of a boyfriend of hers. (ECF No. 10-13, at 10-14, 38-39 & 83-84; Exhibit 13, at 9-12, 37-38, & 82-83.)^[2]

         Applewhite called Smith over and asked him whether he knew anyone that could sell her some Roxicets, a prescription medication.^[3] He said that he knew someone who could help her get the Roxicets, and he ultimately gave her a phone number on a piece of paper. (ECF No. 10-13, at 14-18, 64-65 & 135-37; Exhibit 13, at 13-17, 63-64 & 134-36.)

         When she called the number, a male told her that he could not come to where she was and that she instead would have to drive to an XO Liquor store on East Charleston at Highway 95. (ECF No. 10-13, at 21-23; Exhibit 13, at 9-12.)

         During the drive over, she also received a call from a different number in which the caller told her to follow through with the meeting at the XO Liquor store. (ECF No. 10-13, at 28; Exhibit 13, at 27.)

         Once at the XO Liquor store, Applewhite wanted to do the transaction at that location, which was monitored by a security camera. However, when she called the number again, the male told her to instead drive back into the Santa Fe Apartment complex that was behind the liquor store. She put her purse in the trunk. She then drove back into the complex, where a black male directed her to park near a brick wall. (ECF No. 10-13, at 23-26, 28-29, 42-43, 68-70, 72-76 & 80-81; Exhibit 13, at 22-25, 27-28, 41-42, 67-69, 71-75 & 79-80.)

         As she parked, the man got in the car and sat in the passenger seat. Applewhite had approximately $200.00 in her hand and another $200.00 in her bra. The man asked her how many Roxicets she wanted to buy, and she told him. She gave him the $200.00 in her hand. (ECF No. 10-13, at 26-27, 29-30 & 130-31; Exhibit 13, at 25-26, 28-29 & 129-30.)

         At this point, Smith came up to the driver's side of her car, put a black semiautomatic pistol to Applewhite's neck through the half open driver's side window, and told her to give him everything. She said that she had given the money to the other man. Smith saw the money in her bra through her see-through blouse, however, and made her give him that money as well. He then pulled her blouse lower to make sure that she had no other money in her bra. The other man, meanwhile, was rummaging through the interior of her car while Smith held the gun to her neck, apparently looking for additional items to steal. (ECF No. 10-13, at 30-33; Exhibit 13, at 29-32.)

         Smith pulled the slide back on the pistol, telling Applewhite not to play with him. He said “give me your money, bitch . . . Imma shoot this bitch . . . Imma shoot this bitch.” It reached a point where the other man asked Smith “are you really going to do this” and pulled up his t-shirt to cover his face from the aftereffects of the anticipated gunshot. (ECF No. 10-13, at 32-33; Exhibit 13, at 31-32.)

         Applewhite told Smith that she had given them everything. Smith asked about her purse, and she said that did not have one. Smith continued saying that Applewhite was playing with him. Her cell phone started to ring, and Smith made her give him her phone. (ECF No. 10-13, at 33-34 & 131-34; Exhibit 13, at 32-33 & 130-33.)

         Smith then made Applewhite give him her car keys. As Smith fumbled with the key fob in an effort to open the trunk, he hit the wrong button and activated the car alarm. Smith dropped the keys, and both Smith and the other man ran off in the same direction. (ECF No. 10-13, at 34-35; Exhibit 13, at 33-34.)

         Applewhite collected herself and then recovered her keys from off the ground. She drove back around to the liquor store and retrieved her purse from the trunk. She then went across the side street to a gas station and called 911. (ECF No. 10-13, at 35-38, 43, 65-66, 70-72 & 76-80; Exhibit 13, at 34-37, 42, 64-65, 69-71 & 75-79.)

         Applewhite thereafter related to both the 911 dispatch officer and the responding officers what had happened. However, she did not tell the police that she had been there to buy Roxicets. Applewhite instead said that she had been on her way to see a friend living in the Santa Fe apartments when she was robbed in the parking area. She also stated that she had seen Smith's Cadillac at the robbery scene, which she had not. Applewhite further referred at one point in her statement to the handgun being a revolver. However, she also stated that the handgun had a slide, which a revolver does not have; and she said the handgun was like the officer's handgun, which was a semiautomatic pistol rather than a revolver. (ECF No. 10-13, at 43-45, 80-91 & 120-29; Exhibit 13, at 42-44, 79-90 & 119-28. ECF No. 11-2, at 45-76 & 80-85; Exhibit 15, at 44-75 & 79-84.)

         Three days later, after a detective challenged her account of the incident, Applewhite admitted that she had not been entirely truthful with police; and she told the investigating detectives that she had been at the scene to buy Roxicets. (ECF No. 10-13, at 52-53 & 126-29; Exhibit 13, at 51-52 & 125-28. ECF No. 11-2, at 101-05 & 120-24; Exhibit 15, at 100-04 & 119-23. ECF No. 11-4, at 98-100 & 124-45; Exhibit 17, at 97-99 & 123-44.)

         At that same time, Applewhite positively identified Smith as the robber with the gun from a six-person photographic lineup. She stated at the time that she was “a thousand percent sure” as to her identification of Smith. She also referenced the tattoos on Smith's arms during her initial 911 call. She later was not able to identify any additional person from a second photographic lineup as Smith's accomplice. (ECF No. 10-13, at 39-40, 53-57 & 60-62; Exhibit 13, at 38-39, 52-56 & 59-61. ECF No. 11-2, at 105-10 & 146-51; Exhibit 15, at 104-09 & 145-50. ECF No. 11-4, at 97; Exhibit 17, at 96.)

         The surveillance video from the Bells Market showed Smith driving up in the white Cadillac with the red top and exiting the vehicle, Smith being motioned over by Applewhite and talking to her, and Applewhite later going to Smith's car at the point that she said that he handed her the paper with the number on it. (ECF No. 10-13, at 18-21; Exhibit 13, at 17-20. ECF No. 11-2, at 86-87 & 90-92; Exhibit 15, at 85-86 & 89-91.)

         Smith drove a white Cadillac with a brown or red top, which was owned by his mother. (ECF No. 11-2, at 85-89 & 92-93; Exhibit 15, at 84-88 & 91-92. ECF No. 11-4, at 23-28, 33-38, 40-65 & 114; Exhibit 17, at 22-27, 32-37, 39-64 & 113.)

         The surveillance video from the XO Liquor store initially showed Applewhite driving up to the store the first time, speaking on her cell phone, putting an item in her trunk, and then driving toward the Santa Fe Apartments. The video further showed Applewhite returning to the store parking lot in her vehicle about six minutes later, retrieving something from the trunk, and then driving over to the Chevron gas station, briefly going inside the Chevron, and then making a call from the pay phone outside the Chevron. (ECF No. 11-2, at 89-90 & 93-101; Exhibit 15, at 88-89 & 92-100.)

         Telephone call records showed Applewhite's calls to the number that Smith gave her and also intervening calls to Applewhite's phone from the number for a Blackberry cell phone that was in Smith's hand when he later was stopped by police in the Cadillac. Forensic examination of the Blackberry also reflected calls from the Blackberry to Applewhite's phone and further to the number that Smith gave her for the drug buy. (ECF No. 10-13, at 46-52; Exhibit 13, at 45-51. ECF No. 11-2, at 13-16; Exhibit 15, at 12-15. ECF No. 11-4, at 49, 77-92 &100-03; Exhibit 17, at 48, 76-91 & 99-102.)

         Applewhite's cell phone was recovered during the execution of a search warrant at the residence of a girlfriend of Smith's with whom he occasionally stayed. Applewhite identified the phone as her phone. Examination by a technician with the carrier confirmed that the phone was Applewhite's phone, both by her photographs and other identifying content on the phone as well as by its serial and cellular numbers. (ECF No. 10-13, at 57-60; Exhibit 13, at 56-59. ECF No. 11-2, at 22-33, 128-30, 135-42 & 156-60; Exhibit 15, at 21-32, 127-29, 134-41 & 155-59. ECF No. 11-4, at 74-75, 110-11 & 119-21; Exhibit 17, at 73-74, 109-10 & 118-20.)

         A fingerprint and a palm print matching Smith were recovered from the exterior of Applewhite's car. She testified that he had not touched her car when they were at the Bells Market. She told the police during the investigation that she had observed him touching her vehicle during the robbery. (ECF No. 10-13, at 40-41, 45 & 63; Exhibit 13, at 39-40, 44 & 62. ECF No. 11-4, at 146-88; Exhibit 17, at 145-87.)

         When Smith was taken into custody, he stated to the police after having been advised of his rights that he had been at the Bells Market on April 17, 2011, and that he had given Applewhite a number on a piece of paper when she asked about buying some Roxicets. He denied having any contact with her, or making any calls to her, after that point. He later continued to deny that he had called Applewhite or that he even had her number when the police told him that forensic evidence showed that calls had been placed to her number from his Blackberry. (ECF No. 11-4, at 107-18; Exhibit 17, at 106-17.)

         No firearm was found by the police in any search. (E.g., ECF No. 11-2, at 160-61; Exhibit 15, at 159-60.)

         Standard of Review

         The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings 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, 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 A: Victim's Testimony and Sufficiency of the Evidence

         In Ground A, petitioner alleges that he was denied a right to a fair trial in violation of the Sixth Amendment because the trial court allegedly abused its discretion in allowing Melissa Applewhite's testimony because her testimony was more prejudicial than probative. Petitioner asserts that Applewhite's testimony was not believable because: (1) she admitted that she lied initially to the 911 dispatcher and investigating officers; (2) she had a substance abuse problem; (3) she was seeking to purchase illegal drugs; and (4) her testimony was riddled with logical inconsistencies, such as alleged testimony that she went from the XO Liquor store to the Chevron to call 911 because they had a phone booth, but, once there, she went inside to ask to use their phone. Smith further urges that Applewhite should not have been allowed to testify about the use of a handgun in the robbery because no gun was recovered. Smith contends that Applewhite's testimony therefore was inadmissible under N.R.S. 48.035(1) because the probative value of her testimony was substantially outweighed by a danger of unfair prejudice. Finally, Smith maintains that there was insufficient evidence to support the conviction because Applewhite's allegedly problematic testimony was the only evidence supporting the charges and she could not identify the alleged co-conspirator. (ECF No. 1, at 5-6.)

         The Supreme Court of Nevada rejected the corresponding claims presented to that court on the following grounds:

. . . Smith contends that insufficient evidence supports his convictions because the victim's testimony was incredible due to false statements she made to the police, inconsistencies in her description of the firearm and other statements to the police, and the fact that a gun was never located. The evidence shows that the victim drove to a market in Las Vegas and spoke to Smith about purchasing Roxicet (prescription pain pills). Smith gave the victim a slip of paper with a telephone number on it. When the victim called the number, a man told her to drive to a liquor store. When she arrived, an unknown man directed her where to park-behind the liquor store in a dark alley. The man got in the passenger side of the victim's car and asked her how many pills she wanted to purchase. About that time, Smith approached the driver's side window and put a gun to the victim's neck, demanded money, and threatened to shoot her. Meanwhile, the other man rifled through the glove compartment and console of the victim's car. The victim handed over $400 to Smith. When the victim's cell phone rang, Smith demanded her phone and car keys. While attempting to open the car's trunk, Smith accidentally activated the alarm. Smith and the other man fled. The victim left the area and drove to a nearby gas station to call the police. During the investigation, the police retrieved the victim's cell phone from Smith's residence and discovered his fingerprints on the victim's car. Viewing the evidence in the light most favorable to the State, we conclude it is sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also NRS 193.165; NRS 199.480; NRS 200.380; NRS 202.360. As to the false statements and inconsistencies in the victim's statements to the police, those matters were explored during her testimony and therefore were before the jury for its consideration. See Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996) (providing that “where there is conflicting testimony presented at trial, it is within the province of the jury to determine the weight and credibility of the testimony”); McNair, 108 Nev. at 56, 825 P.2d at 573 (“[I]t is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses.”). Further, the jury was also aware that no gun was recovered during the investigation.[FN1]

[FN1] Smith argues that the district court abused its discretion by allowing the victim to testify because her testimony was incredible and therefore more prejudicial than probative and no weapon was found. Because he did not object to this testimony, his claim is reviewed for plain error affecting his substantial rights. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Credibility matters associated with the victim's testimony and the prosecution's inability to produce the weapon allegedly used in the robbery go to the weight of the evidence not admissibility. McNair, 108 Nev. at 56, 825 P.2d at 573. We conclude that Smith has failed to demonstrate plain error.

(ECF No. 12-19, at 2-4; Exhibit 38, at 1-3.)

         At the very outset, Ground A as alleged in federal court in large part presents a state law claim of evidentiary error that clearly is not cognizable on federal habeas review. Smith argues at length that Applewhite's testimony should have been excluded under state statutory and case law. Such a claim of error under Nevada state law simply is not cognizable in a federal habeas proceeding. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The state supreme court's holding under Nevada state law is the final word on that matter.

         To the further extent that Smith alleges that the admission of Applewhite's testimony violated his Sixth Amendment right to a fair trial, the state supreme court's implicit rejection of the federal constitutional claim was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court. There are no Supreme Court precedents holding that a victim's testimony must be excluded because she initially lied to the police about a drug buy that turned into a robbery, she was addicted to painkillers, there were alleged inconsistencies in her testimony, the gun to which she testified was not found, and/or she failed to identify an accomplice. In short, there is no federal constitutional requirement that a complaining witness must be beyond all possible reproach with no alleged inconsistencies in her testimony and/or that an armed robber can be convicted based on the complaining witness' testimony only if the gun is found and his accomplice is identified. The state supreme court's rejection of this patently meritless claim was neither contrary to nor an unreasonable application of clearly established federal law, and the claim further would not provide a basis for relief even on a de novo review.

         To the further extent that Smith alleges that the evidence was insufficient to sustain the conviction, the state supreme court's explicit rejection of this claim was neither contrary to nor an unreasonable application of clearly established federal law.

         On a challenge to the sufficiency of the evidence, the habeas petitioner faces a “considerable hurdle.” Davis v. Woodford, 333 F.3d 982, 992 (9^th Cir. 2003). Under the standard announced in Jackson v. Virginia, 443 U.S. 307 (1979), the jury's verdict must stand if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. E.g., Davis, 333 F.3d at 992. Accordingly, the reviewing court, when faced with a record of historical facts that supports conflicting inferences, must presume that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution, even if the resolution by the state court trier of fact of specific conflicts does not affirmatively appear in the record. Id. The Jackson standard is applied with reference to the substantive elements of the criminal offense as defined by state law. E.g., Davis, 333 F.3d at 992. When the deferential standards of AEDPA and Jackson are applied together, the question for decision on federal habeas review thus becomes one of whether the state supreme court's decision unreasonably applied the Jackson standard to the evidence at trial. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9^th Cir. 2005).

         Given the evidence summarized herein, ^[4] the Supreme Court of Nevada clearly reasonably applied the Jackson standard to the evidence at trial. Smith's underlying assumption that he could not be convicted of the offenses unless a gun was found and his accomplice was identified is not supported by any apposite Supreme Court precedent. The evidence presented at trial, including Applewhite's testimony, allowed a permissible inference by the jury that Smith conspired with the unidentified accomplice to rob Applewhite rather than sell her painkillers and that Smith used a gun pressed to Applewhite's neck during the ensuing robbery. A conspirator is not absolved ...