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Brown v. Attorney General for State

United States District Court, D. Nevada

March 26, 2018




         This matter comes before the Court on consideration of the merits of the remaining claims in petitioner's original petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 5 & ECF No. 19 at 8). Respondents have answered (ECF No. 85), and petitioner has replied (ECF No. 93).

         Factual and Procedural Background

         Petitioner herein challenges his conviction pursuant to a jury trial of second degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. (See ECF No. 5).

         On the evening of January 18, 1996, petitioner and his friend, Daniel Hill, met with Randy Beach and Jason Banks at Stewart Park. (Ex. 57 (Tr. 60-61); Ex. 58 (Tr. 18)).[1] Hill and Beach were meeting to argue over a debt Beach owed Hill. (Ex. 57 (Tr. 72-73); Ex. 58 (Tr. 25-26)). Beach and Banks, who were friends, arrived together in Beach's car. (Ex. 57 (Tr. 60-61)). Petitioner, who did not know Beach or Banks, arrived with Hill in Hill's car. (Ex. 57 (Tr. 72); Ex. 58 (Tr. 27)). Both parked their cars on the west side of the park, which had a brick wall running north to south along its western edge. (Ex. 57 (Tr. 62-63, 66, & 89-90)).

         The four met on the basketball court - on the other side of the wall -- where Beach and Hill proceeded to have a verbal altercation for about ten to twenty minutes. (Ex. 57 (Tr. 68); Ex 58 (Tr. 161)). During this time, petitioner walked around them, occasionally speaking up to take Hill's side. (Ex. 57 (Tr. 69); Ex. 58 (Tr. 67, 162-63, 189)). When the argument ended, Beach and Banks were to the north and Hill was to the south; Hill turned to begin walking south while Banks and Beach turned to begin walking north/northwest. (Ex. 57 (Tr. 67, 92); Ex. 58 (Tr. 48-47, 52, 54, 79, 86, 164, 166, 174-75)). As they were walking away, Hill and petitioner claimed they heard Banks or Beach say “Let's do it.” (Ex. 58 (Tr. 52). Beach denied saying this. (Ex. 57 (Tr. 101-02)). Petitioner, who was either south of Banks and Beach or somewhere to their north, pulled out a gun from his back waistband and fired shots at Banks and Beach. (Ex. 57 (Tr. 91-92); Ex. 58 (Tr. 174-75, 191, 196-97)). Banks was hit in the front, right part of his chest. (Ex. 61 (Tr. 170)). Beach was shot in his back. (Ex. 57 (Tr. 70, 95)). Beach saw Banks fall and then began to run. (Ex. 57 (Tr. 70); Ex. 58 (Tr. 192)).

         Petitioner chased after Beach, firing several more shots. (Ex. 57 (Tr. 70); Ex. 58 (Tr. 164-65)). He caught up with Beach on the porch of a nearby house. (Ex. 57 (Tr. 70)). He told Beach to give him his car keys, which Beach did, and then began pulling Beach toward the cars. (Ex. 57 (Tr. 70-71); Ex. 58 (Tr. 105-06)). At the same time, Hill was helping Banks into his car. (Ex. 57 (Tr. 75)). Beach got into Hill's car and Hill drove Banks and Beach to the hospital, where Banks died. (Ex. 57 (Tr. 75-77); Ex. 58 (Tr. 91)).

         In the meantime, petitioner got into Beach's car and began to idle down the street. (Ex. 58 (Tr. 92); (Ex. 62 (Tr. 56-57)). Shortly after the shooting, police located petitioner near the park, still in Beach's car, and arrested him. (Id. at 202-07).

         On January 22, 1996, petitioner was charged by way of criminal complaint with one count of first degree murder with use of a deadly weapon, one count of attempted murder with use of a deadly weapon, and one count of grand larceny. (Ex. 2). Trial on the charges commenced on September 16, 1996. (Ex. 57).

         At trial, petitioner argued that he acted in self-defense, an argument based in part on a claim that the victims had come after him, and in part on a claim that petitioner was suffering from a diabetes-related insulin reaction that confused him or caused him to misread the situation. Although petitioner did not testify, his interview with police following his arrest was shown.[2] (See Ex. 62 (Tr. 8)). During the interview, petitioner stated that he was an insulin dependent diabetic and that although he felt a little shaky he could continue with the interview. (ECF No. 43-4 (Ex. 98C at 9-10)). He also stated, at least twice, that he hadn't felt good most of the day and couldn't remember a lot of what happened. (Id. at 10-11). Asked if he ever had blackouts, petitioner said he frequently did. (Id. at 10). Asked if he had been frightened, petitioner said he had been. (Id. at 12) Petitioner then remembered being in the park and that one of the guys really wanted to fight. (Id.) He remembered this person calling him and Hill a “b***h” and a “punk.” (Id.) He recalled that one of the guys said something like, “F*** it; let's do it, ” which made him feel “disturbed.” (Id.) Petitioner then remembered shooting the gun but claimed he had been trying to shoot past the victims and that he had not shot anyone. (Id.) When asked if the shooting might have been in self-defense -- if he might have been afraid of the victims -- petitioner stated he felt that one of the victims was coming at him so he shot him. (Id. at 13). Petitioner stated that he had gone to the park with Hill as back-up and he took his gun because he felt he might need it. (Id.) He said one of the victims was hostile and wanted to fight. (Id.) He said that when one of the victims said “let's do it, ” he turned around and saw that person walking toward him, looking “real crazy, ” so he pulled out his gun and fired. (Id.) When asked if it bothered him that he was called a “b***h” and a “punk, ” petitioner admitted it made him angry but he denied that that was the reason he shot the victims. (Id.) At one point, petitioner told the police that both subjects were coming in his direction and he shot in self-defense; he said he felt he didn't have a choice. (Id. at 14).

         Petitioner also called an expert witness, Dr. Bittker. Dr. Bittker testified that petitioner suffered from “the most fragile, the most brittle, the most severe” type of diabetes. (Ex. 64 (Tr. 11)). He explained that if a person in petitioner's situation has too much insulin and not enough food in his system, he can have an insulin reaction, symptoms of which can include shakiness, feelings of weakness, fatigue, irritability, difficulties with coordination, and difficulties with visual motor coordination and making visual judgments; he further said that “sometimes people even distort what they see as a consequence of this kind of state, and when one is in this state we get to a point where the brain suffers from what we call a delirium.” (Id. at 12-13). Dr. Bittker opined that, based on how much insulin and food petitioner reported having that day, along with petitioner's behavior during his interview with police, petitioner was likely suffering from an insulin reaction the evening of January 18, 1996. (Id. at 12-14). The prosecutor engaged in a lengthy cross-examination of Dr. Bittker during which he challenged the doctor's conclusions. (See Ex. 64 (Tr. 17-96 & 114-21)).

         Following a six-day trial, petitioner was convicted of second degree murder with a deadly weapon and attempted murder with a deadly weapon and acquitted of grand larceny. (Ex. 68). On December 2, 1996, petitioner was sentenced to a prison term of ten years to life on the second degree murder charge with a consecutive like term for the use of deadly weapon, and a prison term of four to twenty years on the attempted murder charge with a consecutive like term for the use of a deadly weapon. (Exs. 75 & 76). Petitioner appealed, and the Nevada Supreme Court affirmed. (Exs. 77, 81 & 84).

         On June 30, 2000, petitioner filed a state petition for writ of habeas corpus. (Ex. 96). After an evidentiary hearing (Ex. 115), the state district court denied the petition. (Ex. 117). On appeal, the Nevada Supreme Court affirmed. (See Exs. 119, 136 & 159).

         Thereafter, petitioner filed his federal petition for writ of habeas corpus in this court. (ECF No. 5; see also ECF No. 19 at 9-15 (Ground IA)). Following various proceedings, the surviving claims of the original petition come before the Court for consideration on the merits.


          28 U.S.C. § 2254(d) provides the legal standards for this court's consideration of the merits 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; or
(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 fairminded 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).

         A state 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.” Andrade, 538 U.S. 63 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

         A state 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.” Andrade, 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).

         To the 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.” Id. 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. Cullen, 563 U.S. at 181.

         As the Nevada Supreme Court reached the merits of petitioner's claims, its decisions are entitled to deference under AEDPA and may not be disturbed unless they were ones “with which no fairminded jurist could agree.” Davis v. Ayala, __ U.S. __, 135 S.Ct. 2187, 2208 (2015).


         The petitioner's remaining claims are as follows:

Ground 3: The prosecutor committed misconduct in closing arguments by misstating facts that had been presented to the jury;
Ground 4: The trial court violated petitioner's rights when it refused to allow evidence of specific acts regarding the character of the victims pursuant to Nev. Rev. Stat. § 48.055(2);
Ground 5: The trial court violated petitioner's rights by refusing to give the defense's proffered self-defense jury instructions;
Ground 6: The trial court violated petitioner's rights by refusing to give a jury instruction regarding the burden of proof on the prosecution;
Ground 17: Trial counsel rendered ineffective assistance of counsel by failing to move to dismiss the charge of larceny after the Justice Court abused its discretion by binding over the larceny charge based on a “substantial mistake of fact”; and
Ground 1A: The trial court erred in denying petitioner's habeas claim that he was improperly denied a jury instruction critical to his theory of the case.

         I. Ground 3

          In Ground 3, petitioner asserts that during closing arguments, the prosecutor made several misstatements of fact and disparaged petitioner's witnesses, thereby violating his due process rights. Specifically, petitioner asserts that the prosecutor: (1) repeatedly stated the victims were shot in the back; (2) misstated the testimony of eyewitnesses Michelle Marlette and Robin Skipworth; (3) misrepresented forensic evidence; (4) misstated who evinced certain testimony from Marlette; (5) stated that gunpowder residue was taken from the back of the victims' hands when no such evidence was in the record; and (6) made inappropriate disparaging remarks about petitioner's medical expert, Dr. Bittker, in an effort to discredit him. (ECF No. 5 at 9-18).[3]

         A defendant's constitutional right to due process of law is violated if the prosecutor's misconduct renders a trial “fundamentally unfair”; thus, a prosecutor's improper comments amount to a constitutional violation if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181-83 (1986). However, even if there was a constitutional violation, a petitioner is entitled to relief only if he was actually prejudiced by the comments. Id. (citing Ayala, 135 S.Ct. t 2197, and Brecht v. Abrahamson, 507 U.S. 619, 627, 637 (1993)). Comments cause actual prejudice if they had a “substantial and injurious effect or influence on the jury' verdict.” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012). “Under this test, relief is proper only if the federal court has ‘grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury's verdict.'” Ayala, 135 S.Ct. at 2197-98.

         Claims of prosecutorial misconduct are reviewed “on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation and internal quotation marks omitted).

         In addressing this claim, the Nevada Supreme held:

We have previously held that “‘[a] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or misconduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.'” Greene v. State, 113 Nev. 157, 169, 931 P.2d 54, 62 (1997) (quoting United States v. Young, 470 U.S. 1, 11 (1985)) (citations omitted).
After careful review of the record, we conclude that the prosecutor's statements during closing argument do not rise to the level of reversible misconduct. Hence, we conclude that the fairness of the trial was not affected.

(Ex. 84 at 3).[4]

         As a preliminary matter, the Court does not agree with petitioner that the Nevada Supreme Court found that there was a constitutional violation and thus the only question in this case is prejudice. A prosecutor's comments violate the Constitution if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Nevada Supreme Court found “the fairness of the trial was not affected, ” which amounts to a finding that there was no constitutional violation.[5] Accordingly, the Court considers whether the Nevada Supreme Court's conclusion that no constitutional violation occurred was objectively unreasonable.

         A. Victims' Backs Were Turned

         Petitioner argues that the prosecutor repeatedly asserted during closing arguments that Banks and Beach were shot in their backs, which was inconsistent with the testimony and forensic evidence that established Banks had been shot in the ...

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