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Grow v. Dzurenda

United States District Court, D. Nevada

October 23, 2019

JOSHUA RYAN GROW, Petitioner,
v.
JAMES DZURENDA, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In this habeas corpus action, brought by Joshua Ryan Grow, an individual incarcerated at the Northern Nevada Correctional Center, the remaining claims in Grow's petition are before the Court for adjudication on their merits. The Court will deny Grow's petition and deny him a certificate of appealability.

         II. BACKGROUND

         On March 1, 2013, Grow was charged by complaint, in a Carson City justice court, with one count of trafficking in a Schedule I controlled substance, 28 grams or more. (See ECF No. 14-2 (Criminal Complaint, Exh. 2).) The justice court held a preliminary hearing on April 8, 2013, and, at the conclusion of the preliminary hearing, bound Grow over to the district court. (See ECF No. 14-3 (Transcript of Preliminary Hearing, Exh. 3).) In the First Judicial District Court (Carson City), on April 10, 2013, Grow was charged, by information, with trafficking in a Schedule I controlled substance, 28 grams or more. (See ECF No. 14-6 (Criminal Information, Exh. 6).)

         In its order on Grow's direct appeal, the Nevada Court of Appeals described the facts of the case, as revealed by the evidence at trial, as follows:

In 2013, officers of the Nevada Department of Public Safety Investigations Division Tri-Net Narcotics Task Force arrested Billy Southern for selling illegal drugs. While speaking with Southern, the officers gave him the opportunity to cooperate as a confidential informant (also known as a “cooperating individual”) in exchange for a reduced sentencing recommendation on his charges. Prior to selecting Southern as a confidential informant, Tri-Net conducted a “reliability check” to verify that he would be a reliable source. In the presence of the officers, Southern arranged, via a controlled buy, to purchase one ounce of methamphetamine from appellant Joshua Ryan Grow. On the same day, Grow, along with his friend, Sonja Cortinas, arrived at Southern's residence, where they were immediately arrested by the officers. The officers searched Grow and found 5.6 grams of methamphetamine on his person. The officers found a container, which was disguised as a car speaker and filled with approximately one ounce of methamphetamine, underneath a coffee table in the living room. Grow, Southern, and Cortinas all denied ownership of the container. Upon further investigation, the officers concluded that Grow owned the container and charged him accordingly.

(ECF No. 15-27 at 2-3 (Order of Affirmance, Exh. 63 at 1-2).)

         Grow's trial was held on December 17 and 18, 2013. (See ECF Nos. 14-28, 14-31 (Transcript of Jury Trial, December 17-18, 2014, Exhs. 28, 31).) The jury found Grow guilty of the charge in the information. (See ECF No. 15 (Verdict, Exh. 36).) Grow was sentenced, on May 19, 2014, to eight to twenty years in prison; a judgment of conviction was filed on May 21, 2014, and an amended judgment was filed on June 5, 2014. (See ECF No. 15-9 (Judgment of Conviction, Exh. 45); ECF No. 15-11 (Amended Judgment of Conviction, Exh. 47).)

         Grow appealed. (See ECF No. 15-19 (Fast Track Statement, Exh. 55).) The Nevada Court of Appeals affirmed the amended judgment of conviction on May 28, 2015. (See ECF No. 15-27 (Order of Affirmance, Exh. 63).) Grow petitioned the Court of Appeals for rehearing. (See ECF No. 15-28 (Petition for Rehearing, Exh. 64).) On June 29, 2015, the Court of Appeals denied rehearing, but ordered its order of affirmance amended to delete a footnote regarding Grow's sentence. (See ECF No. 15-29 (Order Denying Rehearing and Amending Order, Exh. 65).)

         On October 1, 2015, Grow filed, in the state district court, a pro se post-conviction petition for writ of habeas corpus. (See ECF No. 16-2 (Petition for Writ of Habeas Corpus Post-Conviction, Exh. 73).) Counsel was appointed for Grow, and, with counsel, Grow filed a supplemental petition. (See ECF No. 16-7 (Supplemental Post-Conviction Petition for a Writ of Habeas Corpus, Exh. 78).) The state district court held an evidentiary hearing, then denied Grow's petition on September 6, 2016. (See ECF No. 16-16 (Order Denying Petition for Post-Conviction Writ of Habeas Corpus, Exh. 87).) Grow appealed. (See ECF No. 16-29 (Appellant's Opening Brief, Exh. 100).) The Nevada Court of Appeals affirmed the denial of Grow's petition on August 16, 2017. (See ECF No. 16-35 (Order of Affirmance, Exh. 106).)

         This Court received a pro se petition for writ of habeas corpus from Grow, initiating this action, on October 23, 2017 (ECF No. 7). The Court reads Grow's petition to assert the following claims:

1A. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to request a jury instruction consistent with Champion v. State, 87 Nev. 542 (1971).
1B. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to request a “mere presence” jury instruction.
1C. Grow's federal constitutional rights were violated as a result of ineffective assistance of his appellate counsel, on account of his appellate counsel's failure to claim, on his direct appeal, that his federal constitutional right to due process of law was violated by the lack of a jury instruction consistent with Champion v. State, 87 Nev. 542 (1971).
1D. Grow's federal constitutional rights were violated as a result of ineffective assistance of his appellate counsel, on account of his appellate counsel's failure to claim, on his direct appeal, that his federal constitutional right to due process of law was violated by the lack of a “mere presence” jury instruction.
2A. Grow's federal constitutional rights were violated because there was insufficient evidence presented at trial to support his conviction.
2B. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to move for a directed verdict or for a judgment of acquittal.
3A. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to move to exclude evidence regarding a piece of material found in his vehicle.
3B. Grow's federal constitutional rights were violated as a result of the admission of evidence at trial regarding a piece of material found in his vehicle.
4A. Grow's federal constitutional rights were violated as a result of evidence of prior bad acts.
4B. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to adequately object to introduction of evidence of prior bad acts.
5A. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to move to exclude evidence regarding a photograph found on his mobile telephone.
5B. Grow's federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to move to exclude evidence regarding a container containing methamphetamine.
6. Grow's federal constitutional rights were violated as a result of the cumulative effect of the alleged errors.

(See ECF No. 7 (Petition for Writ of Habeas Corpus).)

         On February 2, 2018, Respondents filed a motion to dismiss (ECF No. 13), arguing that none of Grow's claims were exhausted in state court, and that certain of his claims are not cognizable in this federal habeas corpus action. The Court ruled on the motion to dismiss on August 6, 2018 (ECF No. 21), granting it in part and denying it in part. The Court dismissed Grounds 1C, 1D, 3B and 4A of Grow's petition, and denied the motion in all other respects.

         Respondents then filed an answer on November 5, 2018 (ECF No. 24), responding to Grow's remaining claims. Grow filed a reply on March 11, 2019 (ECF No. 33).

         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.

28 U.S.C. § 2254(d).

         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] and nevertheless arrives at a result different from [the Supreme Court's] precedent.” 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.” Lockyer, 538 U.S. 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).

         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) (quoting 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 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. Analysis of Petitioner's Claims

         1. Ground 1A

         In Ground 1A of his habeas petition, Grow claims that his federal constitutional rights were violated as a result of ineffective assistance of his trial counsel, on account of his trial counsel's failure to request a jury instruction consistent with Champion v. State, 490 P.2d 1056 (Nev. 1971). (See ECF No. 7 at 25-30 (Petition for Writ of Habeas Corpus).) Champion is a 1971 Nevada Supreme Court opinion, in which that court held that, under certain circumstances, a criminal defendant is entitled to a jury instruction concerning an addict-informer's testimony.

         Grow did not assert this claim of ineffective assistance of his trial counsel on either his direct appeal or the appeal in his state habeas action. (See ECF No. 15-19 (Fast Track Statement, Exh. 55); ECF No. 16-29 (Appellant's Opening Brief, Exh. 100).) However, in the August 6, 2018 order, the Court determined that any attempt to assert this claim in state court now, by means of a second state habeas petition, would be procedurally barred, under NRS §§ 34.726 and 34.810, as an untimely and successive petition. (See ECF No. 21 at 4-6 (Order entered August 6, 2018).) The Court ruled that the claim is therefore subject to dismissal as procedurally defaulted unless Grow can show cause and prejudice relative to the procedural default, and the Court pointed out that Grow might be able to show cause and prejudice on account of ineffective assistance of counsel in his state habeas action under Martinez v. Ryan, 566 U.S. 1 (2012). The Court determined that application of Martinez would raise the question of the merits of the claim, such that the matter of the procedural default would be better addressed after the briefing of the merits of the claim by the parties.

         In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that a state prisoner who fails to comply with the state's procedural requirements in presenting his claims is barred by the adequate and independent state ground doctrine from obtaining a writ of habeas corpus in federal court. Coleman, 501 U.S.at 731-32 (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the state's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). Where such a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Id. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

         In Martinez v. Ryan, 566 U.S. 1, the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause to overcome the procedural default of a claim of ineffective assistance of trial counsel. The Coleman Court had held that the absence or ineffective assistance of state post-conviction counsel generally could not establish cause to excuse a procedural default because there is no constitutional right to counsel in state post-conviction proceedings. See Coleman, 501 U.S. at 752-54. In Martinez, however, the Supreme Court established an equitable exception to that rule, holding that the absence or ineffective assistance of counsel at an initial-review collateral proceeding may establish cause to excuse a petitioner's procedural default of substantial claims of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9. The Court described “initial-review collateral proceedings” as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 8. Accordingly, under the equitable rule of Martinez, a habeas petitioner may establish cause for the procedural default of an ineffective assistance of trial counsel claim “where the state ... required the petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 . . . (1984),' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14); see also Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016) (discussing Martinez standards).

         In Strickland, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the 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, 466 U.S. at 688, 694. 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. The petitioner's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for the habeas petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

         Grow contends that his trial counsel was ineffective for failing to request a jury instruction, consistent with Champion, admonishing the jury to exercise caution in weighing the testimony of addict-informers. Grow alleges that the state presented two addict witnesses - Southern and Cortinas - who had much to gain by acting as informants and incriminating Grow.

         On Grow's direct appeal, in ruling on a different but related claim, that is, the substantive claim underlying the ineffective assistance of counsel claim considered here, the Nevada Court of Appeals held that the trial court's failure to give the Champion instruction was not plain error, and the court explained its ruling as follows:

Grow asserts the district court erred by failing to give two jury instructions. Upon request, a defendant in a criminal case is entitled to a jury instruction on his theory of the case, as long as some evidence, no matter how weak or incredible, exists to support it. Williams v. State, 99 Nev. 530, 531, 665 P.2d 260 (1983). However, the failure to request a jury instruction precludes appellate review unless the alleged error is patently prejudicial and requires the court to act sua sponte to protect a defendant's right to a fair trial. Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 (1996). Where trial counsel fails to preserve an issue, this court reviews for plain error, meaning we inquire (1) whether there was error; (2) whether the error was plain or clear; and (3) whether the error affected the defendant's substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).
Here, Grow did not ask the trial court to give the two instructions he now asserts should have been given, but asserts the court should nonetheless have given those instructions sua sponte. Thus, we review the district court's alleged ...

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