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Hazelwood v. Howell

United States District Court, D. Nevada

October 23, 2019

SHAQUILLE E. HAZELWOOD, Petitioner
v.
JERRY HOWELL, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Shaquille Hazelwood, a Nevada prisoner. This case is before the Court for adjudication of the merits of Hazelwood's remaining claims. The Court will deny Hazelwood's habeas petition, will deny him a certificate of appealability, and will direct the Clerk of the Court to enter judgment accordingly.

         II. BACKGROUND

         At approximately 6:00 a.m. on April 22, 2007, the victim, Cheryl Black, drove to an alleyway in Las Vegas, Nevada, which was known for being a drug and crime area, to purchase some drugs. ECF No. 20-5 at 69-70, 76-77; ECF No. 21-2 at 107. While still in the driver's seat of her vehicle, the victim purchased drugs from Hazelwood through the passenger-side window. ECF No. 20-5 at 86-87. Following the transaction and deciding that she wished to make another purchase, the victim retrieved her money and started counting it. Id. at 87. Hazelwood, upon noticing the large sum of money, ran from the passenger side of the vehicle to the driver's side of the vehicle, pulled out a gun, and pointed the gun at the victim through the open window. Id. at 87-88. Hazelwood demanded that the victim give him her money, and when she refused and attempted to drive away, Hazelwood shot the victim in her head. Id. at 88-89.

         Following a jury trial in Nevada's Eighth Judicial District Court, Hazelwood was convicted of first-degree murder with the use of a deadly weapon and attempted robbery with the use of a deadly weapon. ECF No. 21-7 at 2. Hazelwood was sentenced to 20 years to life for the first-degree murder conviction plus an equal and consecutive term of 20 years to life for the deadly weapon enhancement and 24 to 60 months for the attempted robbery conviction plus an equal and consecutive term of 24 to 60 months for the deadly weapon enhancement. Id. at 3. The Nevada Supreme Court affirmed Hazelwood's convictions. ECF No. 22-4.

         Hazelwood filed a state petition for a writ of habeas corpus. ECF No. 22-7. Hazelwood later filed a counseled, supplemental petition. ECF No. 22-13. The state district court denied Hazelwood's petition, and the Nevada Supreme Court affirmed. ECF No. 22-22; ECF No. 22-28.

         Hazelwood dispatched his federal habeas petition on or about December 16, 2013. ECF No. 12. Hazelwood's counseled, first-amended petition was filed on November 13, 2014. ECF No. 18. Hazelwood's first-amended petition alleges the following violations of his federal constitutional rights:

1. His trial counsel was ineffective:
A1. His trial counsel failed to properly advise him of the consequences of withdrawing his guilty plea.
A2. His trial counsel failed to move for the appointment of a guardian ad litem.
B. His trial counsel failed to move to suppress a witness's identification of him.
C. His trial counsel disclosed his juvenile criminal record and detention.
D. His trial counsel failed to request an instruction on the lesser-included offense of voluntary manslaughter.
2. The state district court erred in permitting him to withdraw his voluntary guilty plea.
3. The state district court allowed the introduction of improper victim-impact evidence.
4. The state district court allowed the introduction of evidence that witnesses felt threatened or afraid, despite the lack of evidence that Hazelwood threatened or caused them to be threatened.
5. There were cumulative errors.

Id. The Respondents filed a motion to dismiss Hazelwood's first-amended petition. ECF No. 26. Hazelwood opposed the motion, and the Respondents filed a reply. ECF Nos. 31, 34. This Court granted the Respondents' motion in part. ECF No. 38. Specifically, this Court dismissed Ground 1(A)(1) with prejudice as procedurally defaulted. Id. at 7. The Respondents filed an answer to the remaining grounds in Hazelwood's first-amended petition on August 22, 2017. ECF No. 51. Hazelwood filed a reply on March 7, 2018. ECF No. 59.

         III. 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)).

         IV. DISCUSSION

         A. Ground 1(A)(2)[1]

         In Ground 1(A)(2), because he was only sixteen years old, Hazelwood argues that his federal constitutional rights were violated when his trial counsel failed to move for the appointment of a guardian ad litem when Hazelwood sought the withdrawal of his guilty plea. ECF No. 18 at 12. Hazelwood explains that he was prejudiced by this deficiency because if his trial counsel had moved for this appointment, that motion would have been granted, and he would have not withdrawn his guilty plea and received a stricter sentence. Id. at 13-14. Hazelwood elaborates that aside from his trial counsel, he had no responsible adult providing guidance in his life, he suffered abuse at home, he had documented mental health issues, and he was immature and unable to process and make complex legal decisions. Id. at 12-13. Hazelwood contends that while there is no statute in Nevada specifically providing for the appointment of a guardian ad litem in a criminal case, there is also no statute in Nevada specifically precluding the appointment of a guardian ad litem in a criminal case. ECF No. 59 at 11.

         In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

Hazelwood argues that trial counsel was ineffective for failing to request that a guardian ad litem be appointed when he moved to withdraw his guilty plea because of his age. Hazelwood fails to demonstrate that an objectively reasonable attorney in trial counsel's place would have requested such an appointment as Hazelwood alleges no standard of statutory requirement that a criminal defendant be appointed a guardian ad litem because of age, immaturity, social background, or decision-making skills. Insomuch as Hazelwood argues that he needed a guardian ad litem to make his legal decisions for him, “[t]he decision of how to plead in a criminal case is a fundamental one reserved ultimately to the defendant alone.” Parker v. State, 100 Nev. 264, 265, 679 P.2d 1271, 1272 (1984); see also Robinson v. State, 110 Nev. 1137, 1138, 881 P.2d 667, 668 (1994) (once a child is certified as an adult, he “is no longer a child in the eyes of the criminal law”). Further, Hazelwood fails to demonstrate a reasonable probability that the outcome would have been different as the district court appointed special counsel for the limited purpose of reviewing the motion and advising Hazelwood on his plea withdrawal, and, after conferring with special counsel and being thoroughly canvassed by the district court on his decision, Hazelwood chose to withdraw his guilty plea and proceed to trial.

ECF No. 22-28 at 3-4.

         Hazelwood was charged with murder with the use of a deadly weapon and robbery with the use of a deadly weapon. ECF No. 19-4. Hazelwood, who was sixteen years old, pleaded not guilty at his initial arraignment on August 22, 2007. ECF No. 19-5. During a calendar call hearing on October 24, 2007, Hazelwood's trial counsel informed the state district court that the State had made a reasonable offer to Hazelwood. ECF No. 19-6 at 3. The state district court continued the previously-set trial date to allow Hazelwood's trial counsel time to explain the offer to Hazelwood. Id. at 4. On December 13, 2007, Hazelwood sought a hearing for the purpose of changing his plea. ECF No. 19-7. The change of plea hearing was held on December 19, 2007. ECF No. 19-9. Hazelwood's trial counsel informed the state district court that the case had been negotiated, but Hazelwood had since decided to proceed to trial. Id.

         At the calendar call hearing on March 5, 2008, Hazelwood's trial counsel informed the state district court that the case had been negotiated. ECF No. 19-12. An amended information was filed during the hearing charging Hazelwood with voluntary manslaughter with the use of a deadly weapon and robbery with the use of a deadly weapon. ECF No. 19-11. The state district court canvassed Hazelwood and accepted his guilty plea. ECF No. 19-12 at 4-8; see also ECF No. 19-10 (executed guilty plea agreement).

         At his sentencing hearing on July 2, 2008, Hazelwood's trial counsel informed the state district court that Hazelwood wished to withdraw his plea because the guilty plea agreement indicated that he was eligible for probation on both charges when that was not true. ECF No. 37-1 at 4-5; see also ECF No. 21-6 (statement by Hazelwood's trial counsel during his later sentencing on June 24, 2009, that “it appears to counsel that part of what caused this young man, this minor child, to back out of negotiations was somehow or another to punish his mother”). The state district court indicated that there was “an incorrect statement at line 21 and 23 on page 2 of the guilty plea agreement.” ECF No. 37-1 at 6. The state district court then appointed attorney James Ruggeroli “for the special and limited purpose of consulting with [Hazelwood] and reviewing the file” to “mak[e] a determination if [he], in [his] best legal judgment, believes there is a basis for [Hazelwood] to file a motion to withdraw his plea.” Id. at 10. The state district court explained to Hazelwood that it was appointing Mr. Ruggeroli “[b]ecause there might be a conflict between the special public defender's office and [Hazelwood] in evaluating whether they did the best job for you in explaining the guilty plea agreement.” Id. at 11.

         Mr. Ruggeroli filed a motion to withdraw Hazelwood's guilty plea on September 26, 2008. ECF No. 19-19. A hearing was held on the motion on October 1, 2008. ECF No. 19-20. At the hearing, the State indicated that it was “not opposing the motion” and was “look[ing] forward to taking this case to trial” because “[i]n hindsight . . . it was a mistake to offer him a deal anyway.” Id. at 4. The state district court granted the motion, reinstated the original information, and clarified with Hazelwood whether he “still want[ed] to go forward and withdraw [his] guilty plea” since he was “facing life without the possibility of parole if [he was] found guilty.” Id. at 5. Hazelwood confirmed that he wanted to withdraw his guilty plea. Id. The state district court reappointed the special public defender's office and discharged Mr. Ruggeroli. Id. at 6.

         In Strickland v. Washington, the Supreme Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel requiring the petitioner to 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.” 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a “strong presumption that counsel's conduct falls 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.

         Where a state district 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 United States 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 reasonably argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as ‘doubly deferential.'”).

         In analyzing a claim of ineffective assistance of counsel under Strickland, a court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the court need not consider the other. See Strickland, 466 U.S. at 697.

         Hazelwood asserts that his trial counsel was ineffective under Strickland because she did not move for the appointment of a guardian ad litem. Nevada law provides generally that “[a]ny court of competent jurisdiction may appoint . . . [g]uardians ad litem.” Nev. Rev. Stat. § 159A.0487(4). However, while Nevada law allows for the appointment of a guardian ad litem in a civil context, there is no statutory provision governing the appointment of a guardian ad litem in the criminal context. Cf. Nev. R. Civ. P. 17(c)(2) (“The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incapacitated person who is not represented in an action.”); Nev. Rev. Stat. § 65.010 (indicating that a guardian ad litem is appointed for an infant or insane or incapacitated person). Therefore, while it would not have been amiss to move for the appointment of a guardian ad litem, there was no obligation or provision that demanded that Hazelwood's trial counsel do so in this criminal context.

         This Court acknowledges that Hazelwood had a troubled background and social history, see ECF No. 19-17 (Hazelwood's trial counsel's sentencing memorandum highlighting Hazelwood's worrisome upbringing), and that “children are constitutionally different from adults for purposes of sentencing, ” Miller v. Alabama, 567 U.S. 460, 471 (2012) (explaining that “children have a lack of maturity and an underdeveloped sense of responsibility, . . . children are more vulnerable . . . to negative influences and outside pressures, . . . [and children] have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings”) (internal quotation marks and citations omitted), as was pointed out by Hazelwood. Nonetheless, this does not change the fact that there was no requirement for Hazelwood's trial counsel to move for the appointment of a guardian ad litem. Accordingly, it cannot be determined that Hazelwood's trial counsel's actions “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

         Moreover, it is worth noting that the state district court appointed Mr. Ruggeroli “for the special and limited purpose of consulting with [Hazelwood] and reviewing the file” to “mak[e] a determination if [he], in [his] best legal judgment, believe[d] there [was] a basis for [Hazelwood] to file a motion to withdraw his plea.” ECF No. 37-1 at 10. While he was not appointed as a guardian ad litem, Mr. Ruggeroli's role in consulting with Hazelwood for the precise purpose of determining whether Hazelwood should continue to move to withdraw his plea was similar to the role that a guardian ad litem would have played. However, Hazelwood, with the assistance of Mr. Ruggeroli, still decided to move to withdraw his plea. See ECF No. 19-19; ECF No. 19-20 at 5. Therefore, it is mere speculation that Hazelwood would have decided to preserve his guilty plea even if a guardian ad litem had been appointed. See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not established by mere speculation.”).

         Thus, the Nevada Supreme Court's ruling that “Hazelwood fails to demonstrate that an objectively reasonable attorney in trial counsel's place would have requested such an appointment, ” ECF No. 22-28 at 3, was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Hazelwood habeas corpus relief with respect to Ground 1(A)(2).

         B. Ground 1(B)

         In Ground 1(B), Hazelwood argues that his federal constitutional rights were violated when his trial counsel failed to move to suppress a witness's identification of him. ECF No. 18 at 14. Hazelwood explains that Claire Daniels identified him through an unreliable, single photographic lineup; that Daniels was a long-term drug addict; and that Daniels was inconsistent in her testimony regarding how long she knew him. Id. at 14-15. The Respondents argue that Daniels' identification of Hazelwood was not impermissibly suggestive because she knew Hazelwood before the shooting. ECF No. 51 at 10.

         In Hazelwood's state habeas appeal, the Nevada Supreme Court held:

Hazelwood claims that trial counsel was ineffective for failing to file a motion to suppress the eyewitness identification by Claire Daniels because it was unnecessarily suggestive, she abused drugs, and her testimony as to how long she knew Hazelwood before the incident was impeached. A review of the record reveals that Daniels told the officer that she knew the shooter and identified him by name prior to being shown any photograph. After being shown a photograph of Hazelwood taken from when he was younger, Daniels immediately identified him as the shooter but said that he looked younger in the picture. Given the strong identification by Daniels, counsel's conduct did not fall below an objective standard of reasonableness. Furthermore, Hazelwood failed to demonstrate that a motion to suppress the eyewitness identification had a reasonable likelihood of success. Doyle v. State, 116 Nev. 148, 154, 995 P.2d 465, 469 (2000) (holding that, where a claim of ineffective assistance is based on counsel's failure to file a motion to suppress, prejudice must be demonstrated by “showing that the claim was meritorious and that there was a reasonable likelihood that the exclusion of the evidence would have changed the result of a trial” (internal quotation marks omitted)). As for the claims that Daniels abused drugs and that her testimony regarding the length of time she had known Hazelwood was impeached, these claims went to the weight and credibility of Daniels' testimony and were “within the exclusive province of the jury.” White v. State, 95 Nev. 881, 885, 603 P.2d 1063, 1065 (1979). Accordingly, trial counsel was not deficient, and the district court did not err in denying this claim.

ECF No. 22-28 at 4-5.

         Daniels testified that she lived in a home near the alleyway where the shooting took place. ECF No. 20-5 at 3, 6. On April 22, 2007, Daniels was walking through the alley “to see a church member, ” when she saw the victim, who looked familiar. Id. at 7, 15. Daniels explained that Hazelwood was at the victim's car, and “[a]s [she] approached the car, . . . [Hazelwood] looked at [her], and [she] looked at him.” Id. at 64-65. Daniels was speaking to the victim through the driver-side window and asked if she could have “a hit” of the drugs that the victim had just purchased from Hazelwood. Id. at 17, 20-21. Hazelwood saw the victim's money through the passenger-side window, ran around the front of the vehicle, pulled a gun out from his waist, and pointed the gun at the victim. Id. at 22-23. Daniels heard Hazelwood tell the victim to give him the money and heard the victim's passenger, Aaron Noble, tell the victim to leave. Id. at 25-26. Daniels then saw Hazelwood shoot the victim in her head. Id. at 26.

         Daniels testified that she knew “Hazelwood from hanging around in the alley.” Id. at 12. During direct examination, she explained that she knew Hazelwood for “five, five to ten years or more.” Id. at 13. However, during cross examination, Daniels clarified that she met Hazelwood when he was “teenage age, ” which calculated to only knowing him for much less time. Id. at 57-58.

         Daniels explained that Detective Clint Ryan came to talk to her “a week and [a] half to two weeks after” the shooting. Id. at 30-31. The State asked Daniels about that interview:

Q. Okay. And when you did talk to Detective Ryan, whenever that was, were you able to tell him who was the person that had shot Cheryl Black in that alley?
A. Yes. After he showed me pictures, I pointed out who it was.
Q. Well - -
A. And he asked me - -
Q. But hold on a second now. Didn't you tell him who it was before he showed you the pictures? Did you know the - - you knew - - did you know the person's name that had - -
A. Yes.
Q. Okay. And did you tell Detective Ryan that?
A. Yes. Yes. Yes.
Q. And that was before he showed you the pictures, wasn't it?
A. And he showed me the pictures to make sure, yes.
Q. Okay. And then when you saw the picture, what happened?
A. I looked at it and I said, that look [sic] like him but then he looked a little younger.
Q. Right.
A. And he said, but it - - he is younger in that picture. Who at - -
Q. Do you - -
A. I recognized it, although he was a few years older than that. . . .
Q. Okay. And you gave a description of Shaquille, of the shooter and of ...

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