United States District Court, D. Nevada
SHAQUILLE E. HAZELWOOD, Petitioner
JERRY HOWELL, et al., Respondents.
R. HICKS UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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
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.
Hazelwood's state habeas appeal, the Nevada Supreme Court
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.
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.
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).
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
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.
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.
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
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
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.
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.
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.
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
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).
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.
Hazelwood's state habeas appeal, the Nevada Supreme Court
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.
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.
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.
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
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 - -
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
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.
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 ...