United States District Court, D. Nevada
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 (9th
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
(9th 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 ...