United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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.
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,
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
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.)
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).)
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).)
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.
Standard of Review
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
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.
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
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