United States District Court, D. Nevada
ORDER DENYING PETITION FOR HABEAS CORPUS
JENNIFER A. DORSEY, U.S. DISTRICT JUDGE
Counseled
habeas petitioner Phillip Smith brings this action under 28
U.S.C. § 2254 to challenge his 2011Nevada state
convictions after a jury trial for 17 counts that include
attempted murder, burglary, robbery, first-degree kidnapping,
and grand larceny-all stemming from a pair of residential
armed robberies.[1] Having carefully reviewed Smith's
petition on its merits, I deny relief.
Background
and Procedural History
On
March 2, 2011, a jury in Nevada's Eighth Judicial
District Court convicted Smith of a laundry list of charges
stemming from a pair of residential armed
robberies.[2] The trial judge sentenced Smith to 19
years to life in prison.[3] Smith appealed his convictions, and the
Nevada Supreme Court affirmed.[4] I appointed counsel to represent
Smith in this federal habeas proceeding, and counsel filed a
second-amended petition on December 9, 2014.[5] Respondents have
answered the remaining 4 grounds.[6]
Legal
Standard for Federal Habeas Relief
The
Antiterrorism and Effective Death Penalty Act (AEDPA)
provides the legal standards for this court's
consideration of the petition in this case. If a state court
has adjudicated a habeas corpus claim on its merits, a
federal district court may only grant habeas relief on that
claim if the state court's adjudication “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 “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.”[7] A state court acts contrary to clearly
established federal law if it applies a rule contradicting
the relevant holdings or reaches a different conclusion on
materially indistinguishable facts.[8] And a state court
unreasonably applies clearly established federal law if it
engages in an objectively unreasonable application of the
correct governing legal rule to the facts at
hand.[9] Section 2254 does not, however,
“require state courts to extend” Supreme
Court precedent “to a new context where it should
apply” or “license federal courts to treat the
failure to do so as error.”[10] The “objectively
unreasonable” standard is difficult to
satisfy;[11] “even ‘clear error' will
not suffice.”[12]
Habeas
relief may only be granted if “there is no possibility
[that] fairminded jurists could disagree that the state
court's decision conflicts with [the Supreme Court's]
precedents.”[13]As “a condition for obtaining
habeas relief, ” a petitioner must show that the
state-court decision “was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility of fairminded
disagreement.”[14] “[S]o long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision, ” habeas relief under Section
2254(d) is precluded.[15] AEDPA “thus imposes a
‘highly deferential standard for evaluating state-court
ruling,' . . . and ‘demands that state-court
decisions be given the benefit of the
doubt.'”[16]
If a
federal district court finds that the state court committed
an error under § 2254, the district court must then
review the claim de novo.[17] The petitioner bears the
burden of proving by a preponderance of the evidence that he
is entitled to habeas relief, [18] but state-court factual
findings are presumed correct unless rebutted by clear and
convincing evidence.[19]
Analysis
of Smith's Petition
Smith's
second amended petition contains six grounds, but two were
dismissed-one because it was not cognizable in federal
habeas, and one as unexhausted.[20] The four grounds that
remain are: ground 1: Smith's due
process rights under the Fifth, Sixth, and Fourteenth
Amendments were violated because the evidence was
insufficient to sustain his kidnapping conviction as the
restraint of the victim was merely incidental to the robbery;
ground 4: Smith's due process rights
under the Fifth and Fourteenth Amendments and fair-trial
rights were violated when a video of his arrest was admitted
at trial; ground 5: Smith's Fifth,
Sixth, and Fourteenth Amendment rights were violated when the
trial court denied his pretrial motion to sever, preventing
him from cross-examining his co-defendant, who voluntarily
spoke with the police after the incidents; and ground
6: the cumulative effect of the errors in
Smith's trial dictate relief. I consider each ground in
turn.
A.
Ground 1 -insufficiency of the kidnapping evidence
In
ground 1, Smith contends that his Fifth, Sixth, and
Fourteenth Amendment due process rights were violated because
the evidence presented at trial was insufficient to sustain
his conviction for kidnapping of a victim aged 60 years or
older because, under state law, any restraint of the victim
was merely incidental to the robbery.[21] “The
Constitution prohibits the criminal conviction of any person
except upon proof of guilt beyond a reasonable
doubt.”[22] On federal habeas corpus review of a
judgment of conviction under 28 U.S.C. § 2254, the
petitioner “is entitled to habeas corpus relief if it
is found that upon the record evidence adduced at the trial
no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.”[23] “[T]he standard
must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state
law.”[24] This court must assume that the trier of
fact resolved any evidentiary conflicts in favor of the
prosecution and must defer to such resolution.[25] Generally,
the credibility of witnesses is beyond the scope of a review
of the sufficiency of the evidence.[26]
Nevada
Revised Statute 200.310 provides that first-degree kidnapping
can include confinement for the purpose of robbery. The
Nevada Supreme Court clarified the circumstances that
generally expose a defendant to dual convictions for robbery
and kidnapping in Mendoza v. State, [27] explaining
that dual convictions are appropriate if the restraint
substantially increases the victim's risk of harm or
substantially exceeds the restraint necessary to complete the
associated crime:
movement or restraint incidental to an underlying offense
where restraint or movement is inherent, as a general matter,
will not expose the defendant to dual criminal liability
under either the first-or second-degree kidnapping statutes.
However, where the movement or restraint serves to
substantially increase the risk of harm to the victim over
and above that necessarily present in an associated offense,
i.e., robbery, extortion, battery resulting in substantial
bodily harm or sexual assault, or where the seizure,
restraint or movement of the victim substantially exceeds
that required to complete the associated crime charged, dual
convictions under the kidnapping and robbery statutes are
proper.[28]
At the
trial of Smith and his co-defendant, victim Lyle Weston
testified that he was 64 years old at the time of the
incident.[29] He identified Smith as one of the two
men who robbed him at gunpoint in his apartment. He recounted
that when he answered a knock at his door, Smith asked him
where building 14 was, and when Weston turned back to face
Smith after pointing in the direction of building 14, he was
“looking down the barrel of a gun [that Smith was
pointing] right in [his] face.”[30] Smith told
Weston to back up into the apartment with his hands up, which
Weston did. The two men made Weston sit in a chair in the
living room, took his wallet and cell phone and covered his
head with a t-shirt and a blanket so that he could not see.
They asked him where any other phones were in the apartment,
and Weston told them that there was a phone in each of the 2
bedrooms. Smith and his co-defendant tied Weston's hands
and feet with appliance cords, with a cord between the 2 so
that Weston could not really raise his hands. The intruders
ransacked the apartment and removed items for about 1
½ hours. They left Weston bound in those restraints
and with his head covered when they finally
exited.[31]
On
direct appeal, the Nevada Supreme Court concluded that these
circumstances created a risk of danger that substantially
exceeded those present in a typical robbery:
Smith challenges his dual convictions for kidnapping and
robbery at the Capistrano Pines Apartments and argues that
his kidnapping conviction should be reversed because it was
incidental to the robbery. Dual convictions for robbery and
kidnapping arising from the same course of conduct will not
be sustained unless the restraint or movement of the victim
“stand[s] alone with independent significance from the
act of robbery itself, create[s] a risk of danger to the
victim substantially exceeding that necessarily present in
the crime of robbery, or involve[s] movement, seizure or
restraint substantially in excess of that necessary to its
completion.” Mendoza v. State, 122 Nev. 267,
275, 130 P.3d 176, 181 (2006). Here, after the robbery, the
64-year-old victim was left in his apartment with his head
covered, his hands and feet tightly bound, and all of the
phones disabled. We conclude that a rational juror could have
inferred from these circumstances that the victim's
physical restraints created a risk of danger substantially
exceeding that necessarily present in the crime of robbery.
Accordingly, Smith is not entitled to relief on this
claim.[32]
Under
the highly deferential AEDPA standard of review of the
state-court rulings, I conclude that Smith has not
demonstrated that the Nevada Supreme Court's adjudication
of this claim 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. Nor can I conclude that its decision was based on an
unreasonable determination of the facts in light of the
evidence presented in the state-court
proceeding.[33] I therefore deny federal habeas relief
on ground 1.
B.
Ground 4-arrest video violated due-process and fair-trial
rights
Smith
argues that his Fifth and Fourteenth Amendment due process
and fair trial rights were violated when a video of his
arrest was admitted at trial.[34] A video of the GPS and other
surveillance conducted of the co-defendants the day of the
robberies was admitted at trial.[35] A police officer who was
present and followed Smith's vehicle during the incidents
in question testified, describing the video as it was played.
The video depicted GPS surveillance of Smith's vehicle as
it traveled to and stopped at the two apartment complexes,
led police on a high-speed chase, and ultimately crashed into
a bus. As the officer described the video as it played, he
said it showed officers removing Smith from the driver's
side of his crashed vehicle and taking him into custody.
Smith
testified at trial and denied committing the
robberies.[36] He stated that he was at the first
apartment complex to meet an individual who sold him some
items, including two laptops, a TV, and an iPod. Later, he
went home and drove around town on his motorcycle for a
while. Then he drove his car to the second apartment complex
to pick up his co-defendant. He testified that he never
entered either apartment or committed the robberies, and when
he noticed that unmarked police vehicles were following him,
he tried to evade them because he did not know who was
following him. He continued to flee when he knew it was the
police pursuing him because, by that time, he was scared and
not thinking clearly.[37]
The
Nevada Supreme Court rejected this arrest-video claim on
direct appeal, finding no plain error because Smith put his
identity at issue and the video helped establish him as the
perpetrator, plus, the jury instructions mitigated the
prejudice:
Smith contends that the admission of video footage showing
Smith being taken into custody and placed in the back of a
patrol car after he crashed into a bus following a high speed
chase was inadmissible because its probative value was
substantially outweighed by the danger of unfair prejudice,
NRS 48.035, and its admission resulted in actual prejudice at
trial. Smith failed to object to the admission of the video
footage, and we review for plain error. NRS 178.602;
Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400,
402 (1992). The decision to exclude relevant evidence under
NRS 48.035 is left within the district court's sound
discretion. Thomas v. State, 122 Nev. 1361, 1370,
148 P.3d 727, 734 (2006). The State contends that the video
footage helped to establish Smith's identity as the
driver. We agree. Moreover, Smith also agreed when he argued
that identity was at issue in his case. Accordingly, we
cannot conclude that the district court plain erred by
admitting the video. Green, 119 Nev. at 545, 80 P.3d
at 95.
...Smith contends that the video showing him in custody in
the back of a patrol car violated the constitutional
presumption of innocence guaranteed by the United States and
Nevada constitutions. See Haywood v. State, 107 Nev.
285, 287, 809 P.2d 1272, 1273 (1991). We disagree. A
defendant is only presumed innocent until the contrary is
proved. NRS 175.191. Before any evidence was presented, the
district court explained to the jury that Smith was presumed
innocent of all charges and that the State had the burden of
proving each essential element of the crimes beyond a
reasonable doubt. See Leonard v. State, 117 Nev. 53,
66, 17 P.3d 397, 405 (2001) (explaining that a jury is
presumed to follow instructions). This admonishment included
Smith's charge for failing to stop on the signal of a
police officer. See NRS 484B.550.
The State was required to prove beyond a reasonable doubt
that (1) Smith drove a vehicle, (2) was signaled by a police
officer in a readily identifiable police department vehicle
to stop, (3) Smith failed to stop or otherwise attempted to
elude the officer, and (4) Smith operated the vehicle in a
manner which is likely to endanger other persons or was the
proximate cause of damage to the property. Id. The
video footage challenged by Smith depicts several readily
identifiable patrol cars with flashing red lights giving
chase, a silver Honda that had just collided into the luggage
compartment of a bus in the middle of an intersection, and
Smith being taken out of the driver's seat of that
vehicle and placed into a patrol car by police officers.
Although we admit that this highly inculpatory video likely
led to Smith's conviction for failing to stop on the
signal of a police officer, we cannot say that Smith's
conviction was the result of his fleeting appearance in the
back of the patrol car. See Gates v. Zant, 863 F.2d
1492, 1501 (11th Cir. 1989) (“[A] defendant is not
necessarily prejudiced by a brief of incidental viewing by
the jury of the defendant in handcuffs.”); see also
Deck v. Missouri, 544 U.S. 622, 626 (2005) (prohibiting
the “routine use of visible shackles during the guilt
phase” (emphasis added)). Nor can we say that a jury
might mistakenly use his appearance as evidence of his guilt
on the other numerous charges against him or that a jury
would assume that Smith remained in custody throughout his
trial based on his arrest following the accident. See
Haywood, 107 Nev. at 287-88, 809 P.2d at 1273. Moreover,
even if Smith's brief appearance in the back of the
patrol car was error, we are confident that it did not
contribute to the verdict. See Deck, 544 U.S. at 635
(explaining that this kind of error is not structural).
Accordingly, Smith is not entitled to relief on this
claim.[38]
As the
state supreme court pointed out, this was a highly
inculpatory video as to the many charges. Smith has not
persuaded this court that a brief shot of police taking him
into custody at the end of the video rose to a violation of
his due-process and fair-trial rights. He has not
demonstrated that the Nevada Supreme Court's adjudication
of this claim 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. Nor has he shown that its decision was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court
proceeding.[39] Ground 4 is thus denied.
C.
Ground 5-denial of severance request violated Fifth, Sixth,
and Fourteenth Amendment rights
In
ground 5, Smith asserts that the trial court violated his
Fifth, Sixth, and Fourteenth Amendment rights when it denied
his pre-trial motion to sever. The joint trial, he contends,
prevented him from cross-examining his ...