United States District Court, D. Nevada
M. NAVARRO, UNITED STATES DISTRICT JUDGE
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).
and Procedural Background
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).
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)). 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)).
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)).
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)).
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).
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).
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. (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).
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)).
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).
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).
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.
U.S.C. § 2254(d) provides the legal standards for this
court's consideration of the merits of the petition in
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.
“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).
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)).
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).
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.
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.
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).
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
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.
Ground 5: The trial court violated petitioner's rights by
refusing to give the defense's proffered self-defense
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
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.
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
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
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
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
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).
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. Accordingly, the Court considers whether
the Nevada Supreme Court's conclusion that no
constitutional violation occurred was objectively
Victims' Backs Were Turned
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 ...