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Kelsey v. Baker

United States District Court, D. Nevada

August 22, 2019

ZACHARY KELSEY, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case is a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Zachary Kelsey, an individual incarcerated in Nevada. The Court will deny Kelsey's habeas petition, will deny him a certificate of appealability, and will direct the Clerk of the Court to enter judgment accordingly.

         II. BACKGROUND

         Kelsey's conviction is the result of events that occurred in Washoe County on February 5, 2012. In its order affirming Kelsey's conviction, the Nevada Supreme Court described the crime, as revealed by the evidence at Kelsey's trial, as follows:

40 to 60 young people gathered at the Stead race track for a bonfire party. Tyler DePriest brought Jared Hyde to the party in his Dodge Durango. Towards midnight, a fight broke out between two girls. Taylor Pardick tried to break-up the fight but he was confronted by Jake Graves after he warned one of the girls that he was not afraid to hit her. Pardick did not want to fight with Graves, but several people egged the fight on.
Robert Schnueringer and Andrue Jefferson were among those encouraging the fight. They identified themselves as belonging to a group called “Twisted Minds” or “TM, ” and they both shouted “TM” and urged Pardick to “rep for TM” by fighting Graves. When Pardick refused to fight, Jefferson reached around Graves and struck Pardick several times to get the fight started. Eric Boatman tried to intercede on Pardick's behalf, but ultimately Graves struck both of them and knocked them to the ground.
After these fights, Hyde headed towards the Durango. He walked alone and said out loud, “This is bullshit. You just knocked out my best friend.” Zachary Kelsey, whose friends included Graves and Schnueringer, overheard Hyde and confronted him. Although Hyde's hands were held high, like he did not want to fight, Kelsey struck him twice in the head. Kelsey then grabbed Hyde as he fell and kneed him in the head twice. Zach Clough and Michael Opperman seized and restrained Kelsey, but Kelsey continued to yell at Hyde. Evidence was also presented that Kelsey later boasted that the last person he hit had died and that he used brass knuckles on Hyde.
When Hyde picked himself up, he had blood running from his mouth, his shirt was torn, and he looked distraught. He said to DePriest, “Let's go, let's get out of here. I just got rocked, ” and he continued to move towards the Durango. While Kelsey continued to yell at him, Hyde approached the passenger side of the Durango where he was confronted by Schnueringer and Jefferson. They asked him if he was “still talking smack” and he replied, “No, I'm not, I'm not.” Hyde was scared, about to cry, and did not want to be there. He did not have his arms up and he was not defending himself when Schnueringer punched him in the head.
Schnueringer delivered a forceful, knockout punch that caused Hyde's knees to buckle and his body to fall to the ground. Jefferson got in front of Hyde's face, exclaimed, “You got knocked the fuck out, ” and then delivered a similar punch to Hyde's head. Schnueringer and Jefferson kicked Hyde as he lay on the ground, and Jefferson celebrated by jumping around and saying, “I slept him, I slept him.” When Clifton Fuller checked his friend for a pulse, he felt something at first and then it went away.
Hyde was not breathing when he arrived at the hospital and efforts to resuscitate him failed. The medical examiner, Dr. Ellen Clark, conducted a forensic autopsy of the body. She determined that the manner of death was homicide and the cause of death was subarachnoid hemorrhage due to blunt force trauma. She found five separate areas of bleeding beneath the scalp surface and testified that these injuries were the result of blunt force trauma and they were consistent with being punched or kicked in the head numerous times. She also testified that the first blow to Hyde's head could have been the fatal blow, she could not identify one fatal impact site, and, in her opinion, the multiple injuries to different parts of Hyde's brain were cumulative. Dr. Clark had consulted with Dr. Bennet Omalu during the autopsy. Dr. Omalu is an expert on brain trauma and he testified that each and every one of the blows delivered to Hyde's head contributed to his death due to the phenomenon of repetitive traumatic brain injury.

(Order of Affirmance, Ex. 79 (ECF No. 19-8) at 1-3.)

         On December 12, 2012, following a jury trial in Nevada's Second Judicial District Court, in Washoe County, Kelsey was found guilty of murder in the second degree. (See Verdict, Ex. 47 (ECF No. 18-11).) Kelsey was sentenced to a minimum of 10 years to a maximum of 25 years in prison. (See Judgment, Ex. 53 (ECF No. 18-17).) Kelsey appealed, and the Nevada Supreme Court affirmed the judgment on February 27, 2014. (See Order of Affirmance, Ex. 79 (ECF No. 19-8).) The Nevada Supreme Court denied Kelsey a rehearing on April 25, 2014. (See Order Denying Rehearing, Ex. 81 (ECF No. 19-10).) The Nevada Supreme Court denied Kelsey en banc reconsideration on July 31, 2014. (See Order Denying En Banc Reconsideration, Ex. 85 (ECF No. 19-14).)

         On September 15, 2014, Kelsey filed a petition for a writ of habeas corpus in the state district court. (See Petition for Writ of Habeas Corpus, Ex. 87 (ECF No. 19-16).) The court appointed counsel for Kelsey, and his petition was supplemented. (See Recommendation and Order for Appointment of Counsel, Ex. 91 (ECF No. 19-20); Supplemental Petition for Writ of Habeas Corpus Post-Conviction, Ex. 92 (ECF No. 19-21).) The court held an evidentiary hearing. (See Transcript of Proceedings, Ex. 115 (ECF No. 20-9).) The court granted one ground of Kelsey's petition: trial counsel was ineffective for waiving closing argument. (See Order, Ex. 120 (ECF No. 20-15).) The State of Nevada appealed, and the Nevada Court of Appeals reversed the granting of Kelsey's petition regarding trial counsel's waiver of closing argument, affirmed the denial of the remaining grounds of Kelsey's petition and remanded the matter back to the state district court on February 27, 2017. (See Order Affirming in Part, Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17).) The Nevada Supreme Court denied Kelsey's petition for review. (See Order Denying Petition for Review, Ex. 167 (ECF No. 21-26).)

         Kelsey then initiated this federal habeas corpus action, pro se, on April 24, 2018. (See Petition for Writ of Habeas Corpus (ECF No. 6).) Kelsey's petition asserts that his federal constitutional rights were violated due to the following alleged violations:

1. Trial counsel failed to give a closing argument.
2. Trial counsel failed to consult with or retain an expert regarding the probable cause of the victim's death.
3. Trial counsel failed to interview and present the testimonies of three witnesses.
4. Trial counsel failed to object and move for a mistrial when counsel for a co-defendant injected racist philosophies and vouched for the credibility of a witness.
5. Trial counsel failed to move to sever the trial. ///

(See Petition for Writ of Habeas Corpus (ECF No. 6).) Respondents filed an answer to Kelsey's petition on September 4, 2018. (ECF No. 16.) Kelsey did not file a reply.

         III. DISCUSSION

         A. Standard of Review

         28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“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.

         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.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (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.” Id. at 75 (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 409-10) (internal citation omitted).

         The Supreme Court has instructed that “[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 v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the 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)).

         B. Ineffective ...


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