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Brown v. McDaniel

United States District Court, D. Nevada

March 30, 2018

CHRISTOPHER BROWN, Petitioner,
v.
E. K. McDANIEL, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This 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 the petition.

         I. PROCEDURAL HISTORY

         After a 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.)[1] 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.)

         Petitioner 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.)

         After 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.)

         II. STANDARD OF REVIEW

         This 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; 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.

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).

         A 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.

         The 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).

         III. DISCUSSION

         A. Ground 1

         Ground 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 following instruction:
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 state.”

(ECF No. 14-11 at 2-4.)

         The 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.

         B. Ground 2

         Ground 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.

         1. Legal Standard

         “[T]he 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.

         A court 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).

         Petitioner 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.

         In 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.[2] 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 S.Ct. 2052.)

In re Hardy, 163 P.3d 853, 891-92 (Cal. 2007).

         Hardy 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.

         The 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.

         On the 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 above, states:

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 ...

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