United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
habeas corpus action, brought by petitioner Christopher
Brown, is before the Court for resolution with respect to the
merits of petitioner's claims raised in the first amended
petition for writ of habeas corpus (ECF No. 12). Respondents
have answered (ECF No. 51) and petitioner has replied (ECF
No. 57). The Court also granted petitioner leave to file
supplemental authorities. (ECF No. 63.) The Court finds that
petitioner is not entitled to relief, and the Court denies
jury trial in the Second Judicial District Court of the State
of Nevada, petitioner was convicted of first-degree murder
with the use of a deadly weapon. (Exh. 24, ECF No.
14-4.) Petitioner appealed, and the Nevada
Supreme Court affirmed. (ECF No. 14-11.) Before the direct
appeal concluded, petitioner filed in the state district
court a post-conviction petition for a writ of habeas corpus.
(ECF No. 14-8.) The state district court appointed counsel,
who filed a supplemental petition. (ECF No. 14-13.) The state
district court denied the petition. (ECF No. 14-17.)
Petitioner appealed, and the Nevada Supreme Court affirmed.
(ECF No. 14-22.)
then commenced this action. This Court appointed counsel, who
filed the first amended petition. (ECF No. 12.) Respondents
filed a motion to dismiss. (ECF No. 21.) The Court dismissed
grounds 3(A) and 5 because they were procedurally defaulted.
(ECF No. 28.) The Court found that petitioner had not
exhausted his state-court remedies for grounds 2(A), 2(B),
2(D), 2(G), 3(B), 3(C), 3(D) and 3(E). (Id.) The
Court stayed the action while petitioner pursued more
post-conviction remedies in the state courts. (Id.)
the second round of post-conviction proceedings concluded,
the Court reopened this action. (ECF No. 33.) Respondents
filed another motion to dismiss. (ECF No. 36.) The Court
dismissed grounds 2(A), 2(B), 2(D), 2(G), 3(C) and 3(E)
because they were procedurally defaulted. (ECF No. 8.) The
Court found that grounds 3(B) and 3(D) were procedurally
defaulted, but petitioner's arguments for cause to excuse
those procedural defaults were the claims of ineffective
assistance of counsel in grounds 2(E) and 2(C), respectively.
(Id.) The Court deferred ruling upon grounds 3(B)
and 3(D) until it could address the merits of the claims of
ineffective assistance of counsel. (Id.)
STANDARD OF REVIEW
action is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the
standard of review under AEDPA:
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;
(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.
28 U.S.C. § 2254(d). “By its terms § 2254(d)
bars relitigation of any claim ‘adjudicated on the
merits' in state court, subject only to the exceptions in
§§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011).
decision of a state court is "contrary to" clearly
established federal law if the state court arrives at a
conclusion opposite that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An "unreasonable
application" occurs when "a state-court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case." Id. at 409.
"[A] federal habeas court may not "issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly." Id. at 411.
Supreme Court has explained that "[a] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system." Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court
rulings, ' and 'demands that state-court decisions be
given the benefit of the doubt.'" Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A
state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded
jurists could disagree' on the correctness of the state
court's decision." Harrington, 562 U.S. at
101 (citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). 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).
1 is a claim that the voluntary-intoxication jury instruction
shifted the burden of proof. On this issue, the Nevada
Supreme Court ruled:
First, Brown contends that the jury instruction on voluntary
intoxication improperly shifted the burden of proving
intoxication, and therefore the lack of a specific intent to
commit the crime, onto the defense. Brown objected to the
The burden of proof is upon the defendant to show by a
preponderance of the evidence that he was intoxicated to such
an extent that he did not premeditate or deliberate.
Defense counsel argued that the instruction “dilutes
the State's burden of proving each and every element of
the crime beyond a reasonable doubt.” Brown, however,
did not offer an alternative instruction. We agree with Brown
and conclude that the instruction given by the district court
was erroneous. Nevertheless, we further conclude that the
error was harmless beyond a reasonable doubt.
First, Brown did not present a defense based upon a lack of
specific intent due to his voluntary intoxication. Brown
presented evidence and corroborating testimony that he
ingested drugs and alcohol on the day of the shooting;
however, he did not argue that his ingesting rendered him
unable to form the intent to kill. During opening arguments,
defense counsel conceded that Brown shot the victim several
times resulting in his death. But the theory of the defense,
instead, was that “Brown was provoked. There was a
sudden heat of passion.” As further evidence of the
defense theory, Brown did not offer the district court an
alternative instruction on voluntary intoxication, or object
to the instructions on manslaughter and self-defense, both of
which were more consistent with his defense at trial.
Therefore, we conclude that the erroneous instruction on
voluntary intoxication did not affect Brown's substantial
rights in any practical way.
Second, Brown failed to demonstrate that he was entitled to a
voluntary intoxication instruction. Under NRS 193.220, the
jury is permitted to consider evidence of voluntary
intoxication to negate specific intent. To obtain an
instruction under NRS 193.220, Brown's burden of
production was to show not only that he ingested drugs and
alcohol, but also the intoxicating effect of the substances
ingested and its resultant effect on the required mental
state for first-degree murder. The level of intoxication must
be so extreme as to preclude the formation of the intent
required for the charged offense. Similar to the defense in
Garner v. State, [116 Nev. 770');">116 Nev. 770, 6 P.3d 1013 (Nev.
2000), ] Brown “did not present evidence on the effect
that his consumption of drugs [and alcohol] had on his mental
(ECF No. 14-11 at 2-4.)
Nevada Supreme Court was correct that petitioner did not
present a defense of voluntary intoxication. Given that
petitioner presented no defense of voluntary intoxication,
the voluntary-intoxication instruction could not have
“‘had substantial and injurious effect or
influence in determining the jury's verdict.'”
Brecht v. Abrahamson, 507 U.S. 619, 631, 638 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946). The error was harmless, and the Court will deny
habeas relief on Ground 1.
2 contains claims of ineffective assistance of trial counsel
and appellate counsel. The same person, Edward Horn,
represented petitioner at trial and on direct appeal.
right to counsel is the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759,
771 & n.14 (1970). 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
v. Washington, 466 U.S. 668, 688, 694 (1984).
“[T]here is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one.”
Id. at 697.
considering a claim of ineffective assistance of counsel must
apply a “strong presumption” that counsel's
representation was within the “wide range” of
reasonable professional assistance. Id. at 689.
Moreover, where a state court previously adjudicated the
claim of ineffective assistance of counsel, under
Strickland, establishing that the decision was
unreasonable is especially difficult. See
Harrington, 562 U.S. at 104-05. In Harrington,
the Supreme Court instructed:
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by
Strickland and § 2254(d) are both highly
deferential, [Strickland, 466 U.S. at 689];
Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, [Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)]. The
Strickland standard is a general one, so the range
of reasonable applications is substantial. 556 U.S., at 123,
129 S.Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under
Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.
Harrington, 562 U.S. at 105; see also Cheney v.
Washington, 614 F.3d 987, 994-95 (2010) (acknowledging
double deference required with respect to state court
adjudications of Strickland claims).
argues that the standard of appellate review that the Nevada
Supreme Court used is contrary to Strickland. In
disposing of petitioner's ineffective-assistance claims,
the Nevada Supreme Court wrote, for example, “Brown has
not demonstrated that the district court's findings are
not supported by substantial evidence or is not clearly
wrong.” (ECF No. 14-22 at 5.) Petitioner argues that
these were applications of a substantial evidence standard
that is contrary to Strickland.
supplemental authorities, petitioner relies on Hardy v.
Chappell, 849 F.3d 803 (9th Cir. 2017), to augment his
argument. In that case, Hardy, along with two others named
Reilly and Morgan, was convicted of two counts of
first-degree murder and one count of conspiracy to commit
murder to collect life-insurance proceeds from the deaths of
Morgan's wife and child in California. The jury sentenced
Hardy to death. After the conclusion of his direct review,
which included an unsuccessful certiorari petition in the
Supreme Court of the United States, Hardy filed a petition
for a writ of habeas corpus in the California Supreme Court,
alleging that his counsel, named Demby, provided ineffective
assistance in the penalty phase of his trial. The California
Supreme Court appointed a referee to make findings. The
referee held an evidentiary hearing. Among the findings were
revelations about an important prosecution witness, Calvin
Boyd. Boyd had testified at trial that he declined to enter
into the conspiracy to commit murder. The referee found that
Boyd likely was involved in the conspiracy and might even
have been one of the murderers. The referee also found that
Hardy might not have been present at the murders. Based on
those findings, Hardy filed another habeas corpus petition in
the California Supreme Court, this time alleging actual
innocence and ineffective assistance of counsel in both the
guilt phase and the penalty phase. The California Supreme
Court decided that another referral for an evidentiary
hearing was unnecessary. The California Supreme Court also
consolidated the two petitions into one proceeding. On the
death-penalty issue, the California Supreme Court granted
relief because counsel performed deficiently and petitioner
suffered prejudice. On the issue of petitioner's guilt,
the California Supreme Court held:
After weighing this evidence and considering what
petitioner's trial would have looked like had he been
represented by competent counsel . . ., we conclude that
although there is a reasonable probability the jury would not
have convicted petitioner on the prosecution's proffered
theory that he was the actual killer, ample evidence remains
that petitioner was guilty of the murders on the alternative
theories that he conspired with, and aided and abetted,
Reilly, Morgan and others to commit the murders. As,
according to their joint plan, Reilly, Boyd or possibly some
third party killed the victims in furtherance of their
conspiracy to fraudulently obtain insurance proceeds,
petitioner, as a coconspirator and aider and abettor, is as
guilty of the murders as if he stabbed the victims himself.
Because petitioner would have been convicted of two first
degree murders on these two theories of derivative liability
irrespective of Demby's unreasonable failure to
investigate and present evidence of the Boyd connection,
petitioner fails to demonstrate he would have achieved a more
favorable outcome at the guilt phase had Demby competently
investigated the Boyd connection. Accordingly, we conclude
petitioner fails to demonstrate prejudice at the guilt phase
flowing from Demby's deficient representation.
(Strickland, supra, 466 U.S. at pp. 687-688, 104
In re Hardy, 163 P.3d 853, 891-92 (Cal. 2007).
then filed a federal habeas corpus petition. The district
court denied the petition. On appeal, the Ninth Circuit Court
of Appeals held that when the California Supreme Court denied
Hardy's petition, it used a substantial evidence standard
that is contrary to Strickland. Hardy, 849 F.3d at
819-20. After de novo review, the Ninth Circuit
directed the district court to grant the petition. In the
alternative, the Ninth Circuit held that the California
Supreme Court applied Strickland unreasonably.
procedural posture of In re Hardy differs from the
procedural posture of petitioner's case in one important
respect. A person seeking post-conviction relief in the
California courts usually files an original petition for a
writ of habeas corpus in the relevant superior court, then in
the relevant court of appeal, and then in the California
Supreme Court. Although each level of review is styled as a
separate habeas corpus petition, in effect appellate review
is given in the court of appeal and in the California Supreme
Court. See Carey v. Saffold, 536 U.S. 214, 221-22
(2002). Hardy did not use that typical path of
post-conviction review in California. He filed his state
habeas corpus petitions directly and only in the California
Supreme Court. The California Supreme Court's order did
not effectively affirm a denial of a habeas corpus petition
by the superior court. The California Supreme Court's
order was the denial of Hardy's habeas corpus petition.
other hand, petitioner here followed the usual path of
post-conviction review in Nevada. He filed his petition in
the state district court and then appealed the denial to the
Nevada Supreme Court. The Nevada Supreme Court's decision
was a decision on appellate review. That makes a significant
difference for the phrase “substantial evidence.”
At the start of its opinion, the Nevada Supreme Court wrote:
Brown contends that the district court erred by denying his
claims of ineffective assistance of counsel. To state a claim
of ineffective assistance of counsel sufficient to invalidate
a judgment of conviction, a petitioner must demonstrate that
counsel's performance was deficient, and that the
petitioner was prejudiced by counsel's performance.
Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102,
1107 (1996) (citing Strickland v. Washington, 466
U.S. 668, 687 (1987)). To demonstrate prejudice arising from
deficient performance of trial counsel, the petitioner
“must show a reasonable probability that, but for
counsel's errors, the result of the trial would have been
different.” Id. at 988, 923 P.2d at 1107
(citing Strickland, 466 U.S. at 694). To demonstrate
prejudice arising from deficient performance of appellate
counsel, the petitioner “must show that the omitted
issue would have a reasonable probability of success on
appeal.” Id. at 998, 923 P.2d at 1114. A
petitioner must demonstrate the factual allegation underlying
his ineffective assistance of counsel claim by a
preponderance of the evidence. Means v. State, 120
Nev. 1001, 1012, 103 P.3d 25, 33 (2004). The district
court's factual findings regarding ineffective assistance
of counsel are entitled to deference when reviewed on
appeal. Riley v. State, 110 Nev. 638, 647, 878
P.2d 272, 278 (1994).
(ECF No. 14-22 at 2-3 (emphasis added).) Riley v.
State, which the Nevada Supreme Court cites in the quote
Although it is true that “[t]he question of whether a
defendant has received ineffective assistance of counsel at
trial in violation of the Sixth Amendment is a mixed question
of law and fact and . . . thus subject to independent review,
” State v. Love, 109 Nev. 1136, 1138, 865 P.2d
322, 323 (1993), it is also true that purely factual findings
of an inferior tribunal regarding a claim of ineffective
assistance are entitled to ...