-WGC Nolan v. Palmer et al, No. 3:2009cv00188 - Document 124 (D. Nev. 2012)

Court Description: ORDER DENYING 104 Motion for Recusal of District Judge, 105 Motion for District Judge to Reconsider Order, 106 Motion, 109 Motion, 114 Motion, 117 Motion, 118 Motion, and 119 Motion; and DENYING as moot 123 Motion for Status Check. Grounds 84, 85, 87, and 89 are DISMISSED. The amended peition 14 is DENIED IN ITS ENTIRETY. Clerk shall enter judgment accordingly. Petitioner is GRANTED CERTIFICATE OF APPEALABILITY as to certain issues (please see order for specific details). Case terminated. Signed by Chief Judge Robert C. Jones on 9/28/12. (Copies have been distributed pursuant to the NEF - JC)

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-WGC Nolan v. Palmer et al Doc. 124 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 RICKY NOLAN, Petitioner, 9 10 vs. 11 JACK PALMER, et al., 12 Respondents. ) ) ) ) ) ) ) ) ) / 3:09-cv-00188-RCJ-WGC ORDER 13 14 This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a 15 state prisoner, is proceeding pro se. The case proceeds on the amended petition filed on July 15, 2009. 16 (ECF No. 14.) Respondents have filed an answer to the petition (ECF No. 64), and petitioner has filed 17 a reply (ECF No. 83.) The case is before the court for resolution on the merits. 18 I. Preliminary Matters 19 Before turning to the merits of the petition, the court addresses several pending motions. 20 Petitioner moves for the court to recuse from this case because it is discriminating against him 21 on the basis of his race and education level and because it has threatened him. (ECF No. 104.) 22 Under 28 U.S.C. § 455, a judge has an affirmative duty to recuse himself “in any proceeding in 23 which his impartiality might reasonably be questioned.” Liteky v. United States, 510 U.S. 540, 555 24 (1994) (citation omitted). The substantive standard for recusal under 28 U.S.C. § 455 is “whether a 25 reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might 26 reasonably be questioned.” United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997); United Dockets.Justia.com 1 States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). The Ninth Circuit reviews the court’s denial of a 2 section 455 motion for recusal for abuse of discretion. United States v. Chischilly, 30 F.3d 1144, 3 1149-1150 (9th Cir.1994). 4 The alleged bias must stem from an “extrajudicial source.” Liteky v. United States, 510 U.S. at 5 554-56; United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997). The Ninth Circuit has held 6 that rulings by a court during the course of a case cannot be extra-judicial conduct. See Hasbrouck v. 7 Texaco, Inc., 830 F. 2d 1513, 1523-24 (9th Cir. 1987); Nilsson, Robbins, Dalgarn, Berliner, Carson & 8 Wurst v. Louisiana Hydrolec, 854 F. 2d 1538, 1548 (9th Cir. 1988). However, in Liteky, the Supreme 9 Court recognized that, “[t]he fact that an opinion held by a judge derives from a source outside judicial 10 proceedings is not a necessary condition for ‘bias or prejudice’ recusal, since predispositions developed 11 during the course of a trial will sometimes (albeit rarely) suffice. Liteky, 510 U.S. 540, 554. However, 12 judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky, 510 13 U.S. at 555; Ortiz v. Stewart, 149 F.3d 923, 940 (9th Cir. 1998); United States v. Bauer, 84 F.3d 1549, 14 1560 (9th Cir.1996). Judicial bias or prejudice formed during current or prior proceedings is sufficient 15 for recusal only when the judge’s actions “display a deep-seated favoritism or antagonism that would 16 make fair judgment impossible.” Liteky, 510 U.S. at 555; Chischilly, 30 F.3d at 1149. Thus, judicial 17 rulings may support a motion for recusal only “in the rarest of circumstances.” Liteky, 510 U.S. at 555; 18 Chischilly, 30 F.3d at 1149. 19 In this case, petitioner moves for recusal based on alleged racial discrimination, education 20 discrimination, and threats. Petitioner argues that racial discrimination has been demonstrated by this 21 court’s denial of petitioner’s repeated motions for appointment of counsel. As the court has explained 22 to petitioner previously, by relying on this court’s previous orders as the basis for his motion for recusal, 23 petitioner does not allege any “extrajudicial source” for the court’s alleged bias. Nor does petitioner 24 demonstrate such a deep-seated antagonism on the part of the court as to make fair judgment impossible. 25 As this court has repeatedly explained to petitioner, his filings in this case demonstrate that he is capable 26 of adequately representing himself. The court thus finds petitioner’s motion for recusal to be groundless 2 1 and denies the motion. 2 Petitioner moves for reconsideration of the court’s order filed August 26, 2011. (ECF No. 105.) 3 Where a ruling has resulted in final judgment or order, a motion for reconsideration may be construed 4 either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or as 5 a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J Multnomah 6 County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994). Under Fed. 7 R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the following reasons: 8 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. 9 10 11 12 13 Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick 14 Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a 15 party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior 16 decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), 17 aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal 18 Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be filed no later 19 than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e) “should 20 not be granted, absent highly unusual circumstances, unless the district court is presented with newly 21 discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” 22 Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (quoting McDowell v. Calderon, 197 F.3d 1253, 23 1255 (9th Cir. 1999)). 24 Here, petitioner has failed to make an adequate showing under either Rule 60(b) or 59(e) that this 25 court’s August 26, 2011 order, should be reversed. Petitioner states that he is presenting “newly 26 discovered evidence.” However, the document attached by petitioner to his motion, labeled “Ground 3 1 2Y,” is simply a claim previously dismissed by the court. (See ECF No. 53 at 16 (dismissing ground 2 54)). Thus, the court denies petitioner’s motion for reconsideration. 3 Several of petitioner’s motions (ECF Nos. 106, 109, 114, 117, 118) seek to revive previously 4 dismissed grounds or submit evidence in support of those previously dismissed grounds. These motions 5 are wholly frivolous construed either as motions for reconsideration or as motions to amend the petition. 6 Accordingly, the court denies the motions. 7 Petitioner moves for respondents’ counsel to be disqualified from this case because he has made 8 false statements. (ECF No. 119.) Petitioner argues that counsel falsely stated that the affidavit of 9 Michael Snyder was admitted at trial. Counsel made no such statement. Counsel argued that the Snyder 10 affidavit was not newly-discovered evidence because the information in the affidavit was discoverable 11 before petitioner’s criminal trial. (ECF No. 115.) Counsel did not argue that the affidavit was admitted 12 at trial. Thus, petitioner fails to provide any basis justifying the disqualification of respondents’ counsel. 13 The motion is denied. 14 Last, petitioner moves for a status check. (ECF No. 123.) The court denies the motion as moot 15 because the instant order addresses all outstanding issues in this case and addresses the merits of the 16 amended petition. 17 II. Background and Procedural History 18 19 20 21 22 23 24 25 26 The following is a summary of the facts as described by the Nevada Supreme Court in its opinion on direct appeal: Appellant Ricky Nolan was charged with 24 counts of various crimes arising from interactions with two women on separate occasions. The district court granted Nolan’s motion to sever the counts into two trials. At the first trial, Nolan was tried on multiple counts arising from his alleged sexual assault of victim Lynda Weishaar and his subsequent unauthorized use of her credit card. Trial testimony indicated that in October 2002, Weishaar and Nolan arrived separately at a local pub where they engaged in conversation. Weishaar, who had taken an antidepressant and a painkiller earlier that day, drank alcohol for several hours at that bar. Although they left the pub around the same time, they were not seen leaving together. Thereafter, Weishaar was sexually assaulted in a Las Vegas apartment complex. After the assault, Weishaar was found on a street near the exit of 4 1 the apartment complex. The woman who found her testified Weishaar could not remember her own name. The treating nurse at the hospital stated that Weishaar’s memory was limited and “sketchy,” and that Weishaar did not know what had happened to her. The treating physician testified that Weishaar had no recollection of the events that had occurred. Moreover, Weishaar told the investigating detective that the events of the night were like a “fuzzy dream” and everything was a “blur.” Prior to the preliminary hearing, Weishaar underwent hypnosis to assist her recall of the events. But Weishaar testified at the preliminary hearing that she had little recollection of the sexual assault. However, at trial, she was permitted to testify in more detail about the assault because she claimed she had some memories independent of the hypnotic session. The district court limited Weishaar’s testimony to those memories that she maintained she recalled before undergoing hypnosis. Weishaar testified she had two clear memories of the assault before she underwent hypnosis; the first was lying on a soft mattress while having Nolan over her and forcing her to have intercourse, and the second was lying on her stomach while being sodomized by a person that had the same voice as Nolan. The jury found Nolan guilty in the first trial of first-degree kidnapping, sexual assault, sexual assault with substantial bodily harm, robbery, burglary, unauthorized signing of a credit or debit transaction, and attempted unauthorized signing of a credit or debit transaction. In the second trial, Nolan was tried on multiple counts arising from his alleged sexual assault of victim Cynthia Dyson at his apartment and a fight with Dyson’s son after the alleged assault. Dyson testified that in September 2002, Nolan approached her on the street and expressed an interest in her church. Dyson offered to walk with Nolan to his home and provide him with information concerning the church. According to Dyson, once the two arrived at Nolan’s apartment, Nolan pulled Dyson inside and sexually assaulted her. After Nolan released her, Dyson went immediately to the apartment she shared with her son and informed him about the incident. Dyson’s son located Nolan and the two individuals engaged in a fight outside Nolan’s apartment. During the altercation, Nolan repeatedly struck Dyson’s son with a large rock. Dyson’s son was taken to the hospital and received treatment for a laceration to his head and a broken nose. At the close of trial, the jury found Nolan guilty of first-degree kidnapping, sexual assault, attempted murder with the use of a deadly weapon, and battery with the use of a deadly weapon with substantial bodily harm. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (Exhibits to Mot. to Dismiss Ex. 44 at 3-5.)1 23 On October 23, 2002, the State of Nevada filed a criminal complaint in the Eighth Judicial 24 District Court for the State of Nevada (“District Court”) charging petitioner, Ricky Nolan, with 18 25 1 26 The exhibits referenced in this order are found in the court’s record at ECF Nos. 27-30. 5 1 counts including the following: (1) 1 count of first-degree kidnapping and 1 count of sexual assault 2 perpetrated on Cynthia Edens; and (2) 1 count of first- degree kidnapping; 6 counts of sexual assault 3 with substantial bodily harm; 4 counts of burglary; 2 counts of attempted unauthorized signing of a credit 4 card or debit card transaction document; 2 counts of unauthorized signing of a credit or debit card 5 transaction document; and 1 count of robbery, all perpetrated on Lynda Weishaar. (Id. Ex. 1.) 6 On November 6, 2002, the state filed an amended criminal complaint which contained 24 counts 7 and corrected the name Cynthia Edens to Cynthia Dyson. (Id. Ex. 2.) The 6 new counts consisted of 8 3 additional sexual assault charges and 1 robbery charge perpetrated upon Cynthia Dyson. (Id.) The 9 amended criminal complaint also included a charge for attempted murder with use of a deadly weapon 10 and a charge for battery with use of a deadly weapon, both perpetrated against Lawrence Dyson. (Id.) 11 On November 6, 2002, and November 7, 2002, the justice court conducted a preliminary hearing. 12 (Id. Exs. 3, 4.) At the conclusion of the preliminary hearing, the justice court bound petitioner over on 13 all charges. (Id. Exs. 4, 5.) 14 On November 19, 2002, the state filed an information containing the above 24 counts. (Id. Ex. 15 7.) On November 25, 2002, the state amended the information to add a notice of intent to seek habitual 16 criminal punishment, petitioner entered a plea of not guilty, and trial was set for March 17, 2003. (Id. 17 Exs. 8, 9.) On May 7, 2003, the court granted petitioner’s motion to sever the Dyson counts (counts 1-8) 18 from the Weishaar counts (counts 9-24), set trial for the Weishaar counts for October 20, 2003, and set 19 trial for the Dyson counts for January 12, 2004. (Id. Ex. 13.) 20 On July 23, 2003, the state public defender filed a motion to withdraw due to conflict of interest; 21 the court granted the motion and appointed Mr. Goodman to represent petitioner. (Id. Exs. 14, 15, 16, 22 and 17.) On September 22, 2003, the court continued the trial on the Weishaar counts (“Weishaar 23 Trial”) to January 12, 2004, and the trial on the Dyson counts (“Dyson Trial”) to March 15, 2004. (Id. 24 Ex. 20.) 25 On January 12, 2004, the state filed a second amended information which corrected two dates 26 and renumbered the Weishaar counts 1 through 16. (Id. Ex. 21.) The Weishaar Trial took place from 6 1 January 12, 2004 to January 16, 2004. (Id. Exs. 22 - 26.) The jury found petitioner guilty on 13 counts 2 and not guilty on 3 counts. (Id. Exs. 26, 27.) On March 8, 2004, the District Court sentenced petitioner 3 as follows: count 1 – life with the possibility of parole after 5 years; counts 4 and 6 – life without the 4 possibility of parole and a special sentence of lifetime supervision, to run concurrently with each other 5 but consecutively to count 1; count 3 – life with the possibility of parole after 10 years and a special 6 sentence of lifetime supervision, to run consecutively to counts 1, 4 and 6. The remaining sentences 7 were ordered to run concurrently with each other and consecutively to counts 1, 4 and 6, as follows: 8 counts 9, 11, 13, 15, and 16 – 22 to 96 months; counts 10, 12 and 14 – 12 to 36 months; and count 8 9 – 35 to 156 months. (Id. Exs. 28, 30.) The District Court entered its judgment of conviction on March 10 12, 2004. (Id. Ex. 30.) 11 The Dyson Trial took place from March 15, 2004, to March 18, 2004. (Id. Exs. 31, 35.) The jury 12 found petitioner guilty on 7 counts and not guilty on 1 count. (Id. Ex. 35.) On May 10, 2004, the 13 District Court sentenced petitioner as follows: count 1 – life with the possibility of parole after five 14 years, to run consecutively to the Weishaar sentences; counts 2, 3, 4, and 5 – life with the possibility 15 of parole after 10 years, to run concurrently with each other but consecutively to count 1; count 7 – 96 16 to 240 months plus an equal and consecutive 96 to 240 months to run concurrently with count 8 but 17 consecutively to counts 2, 3, 4, and 5; count 8 – 72 to 180 months to run concurrently with count 7 but 18 consecutively to counts 2, 3, 4, and 5. (Id. Exs. 37, 38.) On June 8, 2004, the court entered its judgment 19 of conviction. (Id. Ex. 38.) 20 Petitioner filed direct appeals from both judgments of conviction, and the Nevada Supreme Court 21 consolidated the two appeals. (Id. Exs. 36, 38, 44.) On April 5, 2005, the Nevada Supreme Court 22 entered its order affirming in part, reversing in part and remanding. The court affirmed all the 23 convictions except the Dyson battery with use of a deadly weapon with substantial bodily harm 24 conviction. (Id. Ex. 44.) 25 On December 4, 2006, petitioner filed his first state post-conviction petition, which contained 26 76 grounds stemming from the Weishaar Trial. (Id. Ex. 46.) On March 5, 2007, petitioner filed his 7 1 second state post-conviction petition, which contained 61 grounds stemming from the Dyson Trial. (Id. 2 Ex. 50.) On April 4, 2007, petitioner filed a supplement containing one ground, ground 62. (Id. Ex. 3 51.) 4 On August 13, 2007, pursuant to the Nevada Supreme Court’s order on petitioner’s direct appeal, 5 the state filed separate amended judgments of conviction for the Weishaar Trial and the Dyson Trial. 6 (Id. Exs. 57, 58.) The amended judgment for the Dyson Trial omitted the battery with a deadly weapon 7 with substantial bodily harm conviction. (Id. Ex. 58.) Although petitioner appealed from the amended 8 judgments, the Nevada Supreme Court found a jurisdictional defect. (Id. Ex. 66.) The Nevada Supreme 9 Court concluded that the amended judgments did not add any additional counts, and that petitioner was 10 thus not an aggrieved party. (Id.) It therefore dismissed the appeal. (Id.) 11 On August 22, 2007, petitioner filed a third post-conviction petition in which he challenged the 12 amendments of the judgments of conviction. (Id. Exs. 67, 72) The District Court denied all three of 13 petitioner’s post-conviction petitions and petitioner appealed. (Id. Exs. 67, 72, 74.) On March 24, 2009, 14 the Nevada Supreme Court entered its order of affirmance and limited remand to correct the amended 15 judgment of conviction. (Id. Ex. 74.) The court concluded that petitioner was not entitled to relief, but 16 remanded the judgment in the Dyson case for correction of a clerical error. (Id.) 17 This court received petitioner’s original federal petition for writ of habeas corpus in this action 18 on April 10, 2009. (ECF No. 1.) On June 18, 2009, the court entered an order which provided, in part, 19 as follows: 20 21 22 23 24 25 26 Petitioner has also filed a habeas corpus petition in case #:09-cv0218-BES-VPC that is challenging the same conviction in state criminal case no. C-188025. Although the two petitions appear to state different grounds for relief, they both challenge the same state convictions and Nevada Supreme Court orders. The Court will consolidate the two actions, will dismiss petitioner’s action in 3:09-cv-0218-BES-VPC, and will give the petitioner an opportunity to file an amended petition in 3:09cv-0188-BES-RAM setting forth all of this grounds for habeas relief challenging conviction C-188025. The court notes that petitioner should not merely attach documents previously filed but should list each claim for relief, and state facts to indicate clearly why he believes he is in custody in violation of the constitution, laws, or treaties of the United States. Petitioner must do his best to organize and state his claims, such that they are understandable to the court and to respondents. 8 1 The Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts instruct that “notice pleading” is not sufficient in a habeas corpus action. The petition is expected to state facts that point to a real possibility of constitutional error. Advisory Committee Note to Rule 4, Rules Governing Section 2254 Cases, citing Aubut v. State of Maine, 431 F.2d 688, 689 (1st. Cir. 1970), cited in Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977). In fact, a petition for writ of habeas corpus may be dismissed summarily if the allegations in it are vague or conclusory. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 2 3 4 5 6 (ECF No. 7 at 2-3.) Petitioner filed his amended petition on July 15, 2009, containing 99 grounds for 7 relief. (ECF No. 14.) On September 20, 2010, the court issued an order dismissing grounds 2, 5, 6, 10, 8 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 29, 31, 33, 34, 36, 37, 38, 39, 40, 41, 43, 45, 46, 9 47, 48, 49, 50, 51, 52, 53(a), 53(c), 54, 55, 57, 59, 60, 62, 64, 66, 67, 68, 70, 71, 72, 76 , 78, 79, 81, 82, 10 11 86, 94, 97, 98, and 99.2 On November 19, 2010, respondents filed their answer to the remaining grounds in the amended petition. (ECF No. 64.) On January 12, 2011, petitioner filed his reply. (ECF No. 83.)3 12 III. Federal Habeas Corpus Standards 13 The Antiterrorism and Effective Death Penalty Act (“AEDPA”), at 28 U.S.C. § 2254(d), provides 14 the legal standard for the court’s consideration of this habeas petition: 15 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 – 16 17 (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 18 19 (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. 20 21 22 23 24 25 26 2 In its September 20, 2010 order, the court stated that it was dismissing portions of grounds 29, 60, 76, 86, 97 and 99. To the extent that petitioner seeks to raise claims beyond those portions specifically dismissed in the court’s prior order, the court concludes that petitioner fails to state any additional claims because his allegations are conclusory and devoid of factual support giving rise to claims under the broad constitutional principles he invokes. 3 It appears that petitioner inadvertently omitted a claim enumerated as ground 77. Therefore, the court does not address a ground 77 in ruling on the merits of the petition. 9 1 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in 2 order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the 3 extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is 4 contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if 5 the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” 6 or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the 7 Supreme Court] and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 8 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) 9 and citing Bell, 535 U.S. at 694 (2002)). 10 A state court decision is an unreasonable application of clearly established Supreme Court 11 precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing 12 legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts 13 of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The 14 “unreasonable application” clause requires the state court decision to be more than merely incorrect or 15 erroneous; the state court’s application of clearly established federal law must be objectively 16 unreasonable. Id. (quoting Williams, 529 U.S. at 409). 17 In determining whether a state court decision is contrary to, or an unreasonable application of 18 federal law, this court looks to the state courts’ last reasoned decision. See Ylst v.Nunnemaker, 501 U.S. 19 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), cert. denied, 534 20 U.S. 944 (2001). Moreover, “a determination of a factual issue made by a State court shall be presumed 21 to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by 22 clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 23 IV. Discussion 24 A. Grounds 84, 85, 87, 89 25 Respondents argue that grounds 84, 85, 87, and 89 are procedurally defaulted. 26 In ground 84, petitioner claims that the trial court committed judicial misconduct and abused its 10 1 discretion in violation of his constitutional rights when it failed to grant his motion for a mistrial. 2 Petitioner alleges that the trial court knew that the prosecutor had fabricated an internal investigation of 3 Detective Conboy because there was no proof of the investigation introduced at trial. 4 In ground 85, petitioner claims that the trial court committed judicial misconduct and abused its 5 discretion in violation of his constitutional rights when it deprived him of his right to confront witnesses 6 against him. Petitioner alleges that the trial court interfered with his cross-examination of Detective 7 Kisner. 8 In ground 87, petitioner claims that the trial court committed judicial misconduct and abused its 9 discretion in violation of his constitutional rights when it allowed his prior statements to be read aloud 10 by Detective Kisner in front of the jury, causing petitioner to be a witness against himself. 11 In ground 89, petitioner claims that the trial court committed judicial misconduct in violation of 12 his constitutional rights because it failed to give jury instructions on every element of the offense of 13 attempted murder with use of a deadly weapon. 14 1. Legal Standard 15 “Procedural default” refers to the situation where a petitioner in fact presented a claim to the state 16 courts but the state courts disposed of the claim on procedural grounds, instead of on the merits. A 17 federal court will not review a claim for habeas corpus relief if the decision of the state court regarding 18 that claim rested on a state law ground that is independent of the federal question and adequate to 19 support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 20 21 22 23 The Coleman Court stated the effect of a procedural default, as follows: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 24 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The procedural 25 default doctrine ensures that the state’s interest in correcting its own mistakes is respected in all federal 26 habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). 11 1 To demonstrate cause for a procedural default, the petitioner must be able to “show that some 2 objective factor external to the defense impeded” his efforts to comply with the state procedural rule. 3 Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external impediment must have 4 prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 5 Ineffective assistance of counsel may satisfy the cause requirement to overcome a procedural default. 6 Murray, 477 U.S. at 488. However, for ineffective assistance of counsel to satisfy the cause 7 requirement, the independent claim of ineffective assistance of counsel, itself, must first be presented 8 to the state courts. Murray, 477 U.S. at 488-89. In addition, the independent ineffective assistance of 9 counsel claim cannot serve as cause if that claim is procedurally defaulted. Edwards v. Carpenter, 529 10 U.S. 446, 453 (2000). With respect to the prejudice prong of cause and prejudice, the petitioner bears: 11 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. 12 13 White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 14 (1982)). If the petitioner fails to show cause, the court need not consider whether the petitioner suffered 15 actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 528, 530 16 n.3 (9th Cir. 1988). 17 2. Discussion 18 Petitioner raised the claims he asserts in grounds 84, 85, 87, and 89 of his federal petition in 19 grounds 34, 38, 33, and 20 of his second state post-conviction petition. (Exhibits to Mot. to Dismiss 20 Ex. 50.) In affirming the District Court’s denial of petitioner’s post-conviction petition on these 21 grounds, the Nevada Supreme Court concluded that the claims “could have been raised in appellant’s 22 direct appeal, and appellant failed to demonstrate good cause for his failure to do so and actual prejudice. 23 NRS 34.810(1)(b)(1), (2).” (Id. Ex. 74 at 23.) The Nevada Supreme Court explicitly relied on Nev. 24 Rev. Stat. § 34.810 as a procedural bar when it declined to review the claims. (Id.). The Ninth Circuit 25 Court of Appeals has held that, at least in non-capital cases, application of the procedural bar at issue 26 in this case – Nev. Rev. Stat. § 34.810 – is an independent and adequate state ground. Vang v. Nevada, 12 1 329 F.3d 1069, 1073-75 (9th Cir. 2003); see also Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 2 1999). Therefore, this court finds that the Nevada Supreme Court’s holding that grounds 34, 38, 33, and 3 20 of the state post-conviction petition are procedurally barred under Nev. Rev. Stat. § 34.810(1)(b) and 4 Nev. Rev. Stat. § 34.810(3) was an independent and adequate ground for the court’s dismissal. 5 Petitioner does not argue otherwise, and does not present any argument concerning cause and prejudice 6 in his reply. Accordingly, the court dismisses grounds 84, 85, 87, and 89 as procedurally defaulted. 7 B. Ground 1 8 In ground 1, petitioner claims that the trial court violated his constitutional rights when it allowed 9 Weishaar to testify regarding events only recalled after hypnosis without complying with the provisions 10 of Nev. Rev. Stat. § 48.039. 11 Respondents argue that petitioner is not entitled to relief on this ground because although the 12 Nevada Supreme Court found error in admitting the testimony, it concluded that the error was harmless. 13 On direct appeal, the Nevada Supreme Court held that the District Court’s admission of 14 Weishaar’s posthypnotic testimony was error because the procedural requirements of Nev Rev. Stat. § 15 48.039 were not met and the testimony was unreliable. (Exhibits to Mot. to Dismiss Ex. 44 at 2.) 16 Although the Nevada Supreme Court analyzed this issue as an error of state law, it appears that it 17 implicitly concluded that petitioner’s constitutional rights were violated because it undertook a harmless- 18 error analysis pursuant to Chapman v. California, 386 U.S. 18, 24 (1967). Therefore, in addressing the 19 merits of this claim, the court assumes without deciding that the trial court’s admission of the testimony 20 in question was constitutional error and focuses its inquiry on whether such an error was harmless.4 21 22 23 24 25 26 4 The court notes that under the law in the Ninth Circuit, it is unclear whether petitioner’s claim amounts to a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 955-957 (9th Cir. 2002) (explaining that the Ninth Circuit Court of Appeals has “specifically rejected the constitutional argument that the in-court testimony of a witness who had earlier been subject to hypnosis is unreliable as a matter of law” and that “[t]he only procedural requirement in this Circuit, however, is that a complete stenographic record of the hypnosis interview be maintained.” (citations and internal quotation marks omitted)). Neither the Nevada Supreme Court, nor either party in this action, discusses whether or not a stenographic record of Weishaar’s hypnosis interview was maintained. Thus, for the purposes of analysis in this order, the court assumes, but does not decide, that petitioner’s constitutional rights were violated when Weishaar’s posthypnotic testimony was admitted. 13 1 1. Legal Standard 2 When a habeas petitioner establishes that a non-structural constitutional error occurred at trial, 3 “habeas relief is the appropriate remedy only if the constitutional violation resulted in error that was not 4 harmless.” Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012). Under Fry v. Plilier, 551 U.S. 112 5 (2007), a court “‘need not conduct an analysis under AEDPA of whether the state court’s harmlessness 6 determination on direct review . . . was contrary to or an unreasonable application of clearly established 7 federal law.” Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011) (citations and internal quotation 8 marks omitted). Rather, the court applies a harmless-error test using the “substantial and injurious 9 effect” standard pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993), “without regard for the state 10 court’s harmlessness determination.” Id. Relevant factors to the court’s analysis of whether the 11 constitutional violation resulted in a “substantial and injurious effects” include “the importance of the 12 witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or 13 absence of evidence corroborating or contradicting the testimony of the witness on material points, the 14 extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s 15 case.” Id. 16 2. Discussion 17 Weishaar testified at trial that on the night she was attacked, she remembered being in what 18 seemed like an apartment, seeing someone besides her attacker in the apartment, waking up a couple of 19 times during the night, being assaulted, being raped and sodmized, and being hit. (Exhibits to Mot. to 20 Dismiss Ex. 23 at 60.) Weishaar testified that she did not remember much of the attack, but that she 21 recalled being on her back and having someone “slamming into [her].” (Id. Ex. 23 at 61.) Weishaar 22 testified that she remembered the face and voice of her attacker and identified petitioner as her attacker. 23 (Id. Ex. 23 at 67-70.) Prior to the preliminary hearing in this case, Weishaar underwent hypnosis to 24 assist her recall of the events surrounding the attack. 25 The court concludes that the admission of Weishaar’s posthypnotic testimony did not result in 26 a “substantial and injurious effect” because other evidence corroborates her testimony, defense counsel 14 1 vigorously cross-examined Weishaar regarding her ability to recollect the events surrounding the attack, 2 and the prosecution’s case was relatively strong. 3 At trial, a nurse testified that the injuries Weishaar sustained were not consistent with consensual 4 sex but were consistent with sexual assault. (Id. Ex. 23 at 147-47, 172.) The nurse testified that 5 Weishaar sustained injuries to her face, anus, and vagina. (Id. Ex. 23 at 138, 142-44, 148-49.) A doctor 6 testified at trial that the injuries to Weishaar’s face were the result of multiple blows and that they were 7 not consistent with a fall onto flat pavement. (Id. Ex. 25 at 38-39.) In his statement to Detectives Kisner 8 and Courtney, the audio recording of which was played at trial, petitioner admitted that he had left the 9 bar with Weishaar and had sex with her orally, vaginally, and anally at a friend’s apartment. (Id. Ex. 6, 10 Voluntary Statement of Ricky Nolan at 12, 15, 16.) Although petitioner argued at trial that he and 11 Weishaar had consensual sex, testimony from the nurse and doctor was sufficient for the jury to conclude 12 that petitioner sexually assaulted Weishaar. 13 Furthermore, petitioner’s defense counsel thoroughly cross-examined Weishaar at trial regarding 14 her memory and her ability to recall the events surrounding the night of the attack. (Id. Ex. 23 at 61-65, 15 89-110.) 16 Last, the prosecution’s case that petitioner had sexually assaulted Weishaar was relatively strong. 17 As discussed above, evidence beyond Weishaar’s testimony indicated that she and petitioner had 18 engaged in sex and that it was not consensual sex. Petitioner argued that another person, identified as 19 “Hamburger,” had engaged in sex with Weishaar (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 12), 20 and that any injuries Weishaar sustained were inflicted by “Hamburger.” (Id. Ex. 25 at 236.) However, 21 petitioner’s defense, as supported by his voluntary statement played at trial, is significantly weakened 22 because many of his statements are contradicted by the testimony of other witnesses. Petitioner stated 23 that he and Weishaar had been hugging and kissing at the bar. (Id. Ex. 6, Voluntary Statement of Ricky 24 Nolan at 11.) Two of the bartenders at the bar that night testified that they did not see petitioner and 25 Weishaar touching each other or kissing each other. (Id. Ex. 24 at 26-27, 91-92.) Petitioner stated that 26 Weishaar sustained an injury to her head because she fell off of a ledge or curb and hit her head on the 15 1 concrete. (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 13.) As discussed above, a doctor testified 2 at trial that the injuries to Weishaar’s face were the result of multiple blows and that they were not 3 consistent with a fall onto flat pavement. (Id. Ex. 25 at 38-39.) Petitioner also stated that after he had 4 sex with Weishaar, he saw blood on the bed and that Weishaar told him it was because she was having 5 her period. (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 16-17.) At trial, a nurse testified that at 6 the time of the attack, Weishaar was postmenopausal and had not had a period for the last three years. 7 (Id. Ex. 23 at 135.) In conclusion, when viewed in light of all the evidence presented at trial, and in light 8 of the defense presented by petitioner, the prosecution’s case concerning Weishaar’s sexual assault was 9 relatively strong. Therefore, in sum, the admission of Weishaar’s posthypnotic testimony did not result 10 in “substantial and injuries effect” because other evidence corroborated her testimony, defense counsel 11 vigorously cross-examined Weishaar regarding her ability to recollect the events surrounding the attack, 12 and the prosecution’s case overall was relatively strong. This court will deny habeas relief as to ground 13 1. 14 C. Ground 3 15 In ground 3, petitioner claims that his constitutional rights were violated when the state 16 introduced Weishaar’s hearsay statements through other witnesses at trial. Petitioner alleges that the trial 17 court erred when it allowed Detective Kisner to read prejudicial portions of his interview with Weishaar 18 into the record. 19 20 21 Respondents argue that petitioner is not entitled to relief on this ground because Weishaar was available at trial for cross examination. 1. Legal Standard 22 “The Sixth Amendment guarantees a criminal defendant the right ‘to be confronted with the 23 witnesses against him.’” United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (quoting U.S. 24 Const. amend. VI). However, the Confrontation Clause “‘includes no guarantee that every witness called 25 by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or 26 evasion.’” Id. (quoting United States v. Owens, 484 U.S. 554, 558 (1988)). “[W]hen the declarant 16 1 appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use 2 of his prior testimonial statements.” Crawford v. Washington, 541 U.S. 36, 67 n.9 (2004). Simply put, 3 “[a]ll the Confrontation Clause requires is the ability to cross-examine the witness about his [or her] 4 faulty recollections.” Romo-Chavez, 681 F.3d at 961. 5 6 7 2. Discussion In addressing whether the trial court’s admission of Detective Kisner’s testimony violated petitioner’s Sixth Amendment rights, the Nevada Supreme Court held: 8 Nolan argues that allowing a detective to read portions of a statement Weishaar gave violated his confrontation rights under the Sixth Amendment. For a Confrontation Clause violation to occur, a witness must make a testimonial statement. The witness who made the testimonial statement must then be unavailable at trial and the defendant must have been deprived of an opportunity to cross-examine that witness on that statement. While the statements Weishaar made to the detective may have been testimonial, Weishaar was available at trial and was subject to cross-examination by Nolan. Although her memory was severely compromised, Nolan could crossexamine her about her lack of memory. Thus, Nolan’s Sixth Amendment right to confront Weishaar was not violated. 9 10 11 12 13 14 (Exhibits to Mot. to Dismiss Ex. 44 at 10) (footnotes omitted). 15 As mentioned above, Weishaar testified at trial and was throughly cross-examined by petitioner’s 16 counsel. (Id. Ex. 23 at 61-65, 89-110.) In conducting its analysis on this claim, the Nevada Supreme 17 Court cited to and applied the correct federal standard, Crawford v. Washington, 541 U.S. 36 (2004). 18 (Id. Ex. 44 at 10 n.8.) 19 2254(e)(1). Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 20 to, or involved an unreasonable application of, clearly established federal law, as determined by the 21 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 22 in light of the evidence presented in the state court proceeding. This court will deny habeas relief as to 23 ground 3. The factual findings of the state court are presumed correct. 28 U.S.C. § 24 D. Ground 4 25 In ground 4, petitioner claims that his constitutional rights were violated when the trial court 26 disallowed evidence of Weishaar’s recent sexual encounter even though the state introduced testimony 17 1 that she had no interest in a consensual sexual encounter. Petitioner alleges that the trial court violated 2 Nev. Rev. Stat. § 48.069 and that the jury was left with the impression that Weishaar was not capable 3 under any circumstances to have consented to sex on the night of the attack. 4 5 6 Respondents argue that alleged errors in the application of state laws are not cognizable in a habeas corpus action. 1. Legal Standard 7 State court rulings do not give rise to cognizable habeas claims unless the ruling violated 8 petitioner’s due process right to a fair trial. Estelle v. McGuire, 502 U.S. 62, 70-72 (1991). “Under the 9 Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing 10 notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479, 485 (1984). “In short, 11 violations of state law are not cognizable on federal habeas review.” Rhoades v. Henry, 611 F.3d 1133, 12 1142 (9th Cir. 2010). Under “sufficiently egregious” circumstances, the misapplication of state law may 13 violate federal due process safeguards. Pulley v. Harris, 465 U.S. 37, 41 (1984); see Lewis v. Jeffers, 14 497 U.S. 764, 780 (1990). Thus, federal habeas courts are “limited, at most, to determining whether the 15 state court’s finding was so arbitrary or capricious as to constitute an independent due process” violation. 16 Jeffers, 497 U.S. at 780. 17 2. Discussion 18 Nev. Rev. Stat. § 48.069 provides the procedure for the admission of a victim’s previous sexual 19 conduct to prove the victim’s consent. On direct appeal, petitioner withdrew this argument after 20 acknowledging that he had failed to comply with Nev. Rev. Stat. § 48.069. (Exhibits to Mot. to Dismiss. 21 Ex. 43 at 5.) Thus, this claim is unexhausted. A federal court will not grant a state prisoner’s petition 22 for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose 23 v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair 24 opportunity to act on each of his claims before he presents those claims in a federal habeas petition. 25 O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). 26 Here, petitioner did not give the Nevada Supreme Court a fair opportunity to act on his claim because 18 1 he withdrew the claim on appeal. 2 The Ninth Circuit Court of Appeals has held that § 2254(b)(2) permits the denial of a federal 3 habeas petition on the merits, notwithstanding the petitioner’s failure to exhaust, “only when it is 4 perfectly clear that the applicant does not raise even a colorable federal claim.” Cassett v. Stewart, 406 5 F.3d 614, 623-24 (9th Cir. 2005). The court concludes that ground four fails to raise a colorable federal 6 claim because petitioner concedes that he did not comply with Nev. Rev. Stat. § 48.069, and thus, the 7 trial court did not error in excluding this evidence. Without an underlying state-law error, petitioner fails 8 to raise a colorable due process claim that the error was so arbitrary or capricious as to constitute an 9 independent due process violation. Accordingly, the court denies habeas relief on ground 4. 10 E. Grounds 7 and 58 11 In ground 7, petitioner claims that insufficient evidence supports his convictions from the 12 Weishaar Trial and the Dyson Trial in violation of his constitutional rights. As to the Weishaar Trial, 13 petitioner argues that insufficient evidence supports his convictions for first-degree kidnapping or the 14 multiple sexual assault convictions. 15 In ground 58, petitioner claims that insufficient evidence supports the multiple sexual assault 16 convictions at the Dyson Trial. Additionally, petitioner argues that insufficient evidence supports his 17 kidnapping conviction at the Dyson Trial because the state did not introduce evidence that Cynthia 18 Dyson was moved in a way that was more than incident to the alleged sexual assault. Petitioner also 19 argues that insufficient evidence supports his conviction at the Dyson Trial for attempted murder with 20 a deadly weapon. 21 22 23 Respondents argue that sufficient evidence existed at both trials to support petitioner’s convictions. 1. Legal Standard 24 When a habeas petitioner challenges the sufficiency of evidence to support his conviction, the 25 court reviews the record to determine “whether, after viewing the evidence in the light most favorable 26 to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond 19 1 a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. Wood, 207 F.3d 557, 563 2 (9th Cir. 2000). The court must assume that the jury resolved any evidentiary conflicts in favor of the 3 prosecution, and the court must defer to that resolution. Jackson, 443 U.S. at 326; Schell v. Witek, 218 4 F.3d 1017, 1023 (9th Cir. 2000) (en banc). The credibility of witnesses is beyond the scope of the 5 court’s review of the sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995). Under 6 the Jackson standard, the prosecution has no obligation to rule out every hypothesis except guilt. Wright 7 v. West, 505 U.S. 277, 296 (1992) (plurality opinion); Jackson, 443 U.S. at 326; Schell, 218 F.3d at 8 1023. Jackson presents “a high standard” to habeas petitioners claiming insufficiency of evidence. 9 Jones, 207 F.3d at 563. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. Discussion In addressing the sufficiency of the evidence with respect to petitioner’s convictions, the Nevada Supreme Court ruled: “The standard of review [when analyzing the sufficiency of the evidence] in a criminal case is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Additionally, “it is the jury’s function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses.” After reviewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of Nolan’s crimes against Weishaar beyond a reasonable doubt. Bartenders testified that they saw Nolan and Weishaar together the evening of the alleged crime and that the left the bar around the same time. Weishaar was found by an off-duty EMT, after she suffered extensive injuries, including a vaginal laceration, anal bruising, substantial blood loss, and facial bruising. Weishaar also explained to a detective what occurred to her that night. While at the hospital, Weishaar realized her ATM card was missing, and Nolan was found using her card to purchase several pairs of shoes. Nolan admitted to having sexual relations with Weishaar but denied sexually assaulting her. Although Nolan argued another individual assaulted Weishaar, the evidence points to Nolan. From that evidence, a jury could have found the essential elements of the crimes committed against Weishaar beyond a reasonable doubt. Likewise, after reviewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of Nolan’s crimes against Dyson and her son beyond a reasonable doubt. First, Dyson testified as to all the events that occurred with Nolan. While no physical indications of forced sexual penetration were found, the examining nurse stated trauma is not always present and Dyson’s blood was found in Nolan’s apartment. Second, Dyson’s son engaged in an altercation 20 1 2 3 4 5 with Nolan after throwing rocks at his window, Dyson and her daughter testified that Nolan used a rock to hit her son in the head, and Dyson’s son suffered a broken nose and head injuries requiring staples. Viewed in the light most favorable to the prosecution, the jury could have found the essential elements of the crimes committed against Dyson and her son beyond a reasonable doubt. Although conflicting testimony was given, the jury has the prerogative of weighing the credibility of the witnesses. In this case, the jury rejected Nolan’s version of events, and we will not disturb the jury’s determination that the witnesses against Nolan were more credible. 6 (Id. Ex. 44 at 16-17) (footnotes omitted). 7 The Nevada Supreme Court cited to and applied the correct federal standard, Jackson v. Virginia, 8 433 U.S. 307 (1979), in reviewing petitioner’s insufficiency of the evidence claim. (Id. Ex. 44 n. 21.) 9 With respect to the first-degree kidnapping and sexual assault convictions from the Weishaar 10 Trial, the court concludes that the Nevada Supreme Court’s determination that sufficient evidence 11 supports the convictions was not contrary to, or involved an unreasonable application of, clearly 12 established federal law, as determined by the United States Supreme Court, or that the ruling was based 13 on an unreasonable determination of the facts in light of the evidence presented in the state court 14 proceeding. 15 Nev. Rev. Stat. § 200.366 provides, in relevant part, “[a] person who subjects another person to 16 sexual penetration . . . against the will of the victim or under conditions in which the perpetrator knows 17 or should know that the victim is mentally or physically incapable of resisting or understanding the 18 nature of his or her conduct, is guilty of sexual assault.” 19 As mentioned above with respect to ground 1, at trial, a nurse testified that the injuries Weishaar 20 sustained were not consistent with consensual sex but were consistent with sexual assault. (Id. Ex. 23 21 at 147-47, 172.) The nurse testified that Weishaar sustained injuries to her face, anus, and vagina. (Id. 22 Ex. 23 at 138, 142-44, 148-49.) A doctor testified at trial that the injuries to Weishaar’s face were the 23 result of multiple blows and that they were not consistent with a fall onto flat pavement. (Id. Ex. 25 at 24 38-39.) Additionally, the doctor testified that Weishaar’s blood alcohol level was .255 and that she was 25 diagnosed with acute intoxication. (Id. Ex. 25 at 33, 43-44.) In his statement to Detectives Kisner and 26 Courtney, petitioner admitted that he had left the bar with Weishaar and had sex with her orally, 21 1 vaginally, and anally at a friend’s apartment. (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 12, 15, 2 16.) Petitioner also stated that when he was with Weishaar, she was drunk, and he knew that she was 3 drunk. (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 8, 14.) Although petitioner argued at trial that 4 he and Weishaar had consensual sex, testimony from the nurse and doctor in combination with 5 petitioner’s statement that he had sex with Weishaar when he knew she was drunk was sufficient for the 6 jury to conclude that petitioner sexually assaulted Weishaar. With respect to the conviction for sexual 7 assault with an unknown object, count 4 of the second amended information, a nurse testified that the 8 5-inch laceration to Weishaar’s vagina indicated that something other than a penis penetrated the vagina. 9 (Id. Ex. 23 at 143.) All of this evidence supports the elements of sexual assault. See Nev. Rev. Stat. § 10 200.366. As to the first-degree kidnapping conviction, Nev. Rev. Stat. § 200.310(1) provides, in relevant 11 12 part: 15 A person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away a person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person . . . for the purpose of committing sexual assault . . . is guilty of kidnapping in the first degree . . . . 16 Under Nevada law, “movement or restraint incidental to an underlying offense where restraint or 17 movement is inherent, as a general matter, will not expose the defendant to dual criminal liability under 18 either the first- or second-degree kidnapping statutes.” Mendoza v. State, 130 P.3d 176, 180 (Nev. 19 2006). “However, where the movement or restraint serves to substantially increase the risk of harm to 20 the victim over and above that necessarily present in an associated offense, i.e., robbery, extortion, 21 battery resulting in substantial bodily harm or sexual assault, or where the seizure, restraint or movement 22 of the victim substantially exceeds that required to complete the associated crime charged, dual 23 convictions . . . are proper.” Id. 13 14 24 At trial, a bartender testified that Weishaar was never interested in men when they hit on her and 25 had never seen her in a pick-up situation. (Exhibits to Mot. to Dismiss Ex. 24 at 23.) The bartender 26 testified that she had never seen Weishaar in the bar with a man or in a romantic situation. (Id. Ex. 24 22 1 at 33.) The bartender stated that Weishaar was even more rude to men when she was drunk. (Id. Ex. 2 42 at 34.) Moreover, the bartender stated that if she had seen Weishaar touching or kissing the defendant 3 she would have intervened, in part, because based on what she knew about Weishaar, she “wasn’t the 4 type of person to kiss somebody . . . .” (Id. Ex. 24. at 27.) Another bartender testified that he had never 5 seen Weishaar in the bar with a man, touching a man, or kissing a man. (Id. Ex. 24 at 91.) This 6 bartender testified that on the night of the attack, he saw Weishaar and petitioner leave the bar at 7 approximately the same time, in single file, and not holding hands. (Id. Ex. 24 at 92.) In his statement 8 to Detectives Kisner and Courtney, petitioner stated that he and Weishaar had gone to an apartment to 9 have sex. (Id. Ex. 6, Voluntary Statement of Ricky Nolan at 12.) The testimony from the two bartenders 10 raises the inference that Weishaar was not interested in men romantically and would not leave the bar 11 with a man. In viewing the evidence in the light most favorable to the prosecution, a rational trier of fact 12 could have found that petitioner either seized, inveigled, enticed, abducted, or carried away Weishaar 13 for the purpose of committing sexual assault because of Weishaar’s observed pattern of total disinterest 14 and stand-off nature with men. Additionally, a rational trier of fact could have found that petitioner 15 having moved Weishaar to an apartment, an indoor location, substantially increased the risk of harm 16 over and above that existent with sexual assault, standing alone, because it increased that risk that other 17 people would not see or hear the assault and come to Weishaar’s aid. 18 With respect to the sexual assault, kidnapping, and attempted murder with a deadly weapon 19 convictions from the Dyson Trial, the court concludes that the Nevada Supreme Court’s determination 20 that sufficient evidence supports the convictions was not contrary to, or involved an unreasonable 21 application of, clearly established federal law, as determined by the United States Supreme Court, or that 22 the ruling was based on an unreasonable determination of the facts in light of the evidence presented in 23 the state court proceeding. 24 25 26 Nev. Rev. Stat. § 200.366 provides, in relevant part: A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or herself . . . against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or 23 1 2 physically incapable of resisting or understanding the nature of his or her conduct, is guilty of sexual assault. At trial, Cynthia Dyson5 testified that petitioner told her that they could go to his place so that she could 3 write down information about her church. (Exhibits to Mot. to Dismiss Ex. 32 at 171.) Once they 4 arrived at petitioner’s apartment, Cynthia testified that petitioner pulled her into the apartment, took off 5 all of his clothes, and told her he hadn’t had sex in a while and was going to have sex with her. (Id.) 6 Cynthia testified that petitioner took her to the bedroom, pulled her underwear aside and started licking 7 her vagina while he masturbated. (Id. Ex. 32 at 172.) Cynthia testified that when petitioner pulled her 8 back into the bedroom, she didn’t want to be there and was trying to get out. (Id. Ex. 32 at 171-72.) 9 Cynthia testified that petitioner inserted his penis into her vagina and anus, and afterward, told her to 10 stick her fingers in his anus while he masturbated. (Id. Ex. 32 at 173-74.) Cynthia testified that she 11 threw a lamp through a window so that she could jump out the window. (Id. Ex. 32 at 174-75.) All of 12 this evidence supports the elements of sexual assault. See Nev. Rev. Stat. § 200.366. 13 As to the first-degree kidnapping conviction, Nev. Rev. Stat. § 200.310(1) provides, in relevant 14 part: 15 A person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away a person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person . . . for the purpose of committing sexual assault . . . is guilty of kidnapping in the first degree . . . . 16 17 18 Again, under Nevada law, “movement or restraint incidental to an underlying offense where restraint 19 or movement is inherent, as a general matter, will not expose the defendant to dual criminal liability 20 under either the first- or second-degree kidnapping statutes.” Mendoza v. State, 130 P.3d 176, 180 (Nev. 21 2006). “However, where the movement or restraint serves to substantially increase the risk of harm to 22 the victim over and above that necessarily present in an associated offense, i.e., robbery, extortion, 23 battery resulting in substantial bodily harm or sexual assault, or where the seizure, restraint or movement 24 of the victim substantially exceeds that required to complete the associated crime charged, dual 25 26 5 Because Cynthia Dyson, Natalie Dyson, and Lawrence Nathaniel Dyson all testified at trial and share the same last name, the court refers to them by their first names. 24 1 convictions . . . are proper.” Id. 2 At trial, Cynthia testified that petitioner told her that they could go to his place so that she could 3 write down information about her church. (Id. Ex. 32 at 171.) Once they arrived at petitioner’s 4 apartment, Cynthia testified that petitioner pulled her into the apartment where he sexually assaulted her. 5 (Id.) In viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could 6 have found that petitioner inveigled Cynthia to his apartment for the purpose of committing sexual 7 assault because he feigned an interest in her church so that she would go with him to his apartment. 8 Additionally, a rational trier of fact could have found that Cynthia’s movement to petitioner’s apartment, 9 an indoor location, substantially increased the risk of harm over and above that existent with sexual 10 assault, standing alone, because it increased that risk that other people would not see or hear the assault 11 and come to Cynthia’s aid. 12 As to the attempted murder with a deadly weapon conviction, Nev. Rev. Stat. § 193.330, 13 provides, in relevant part that “[a]n act done with the intent to commit a crime, and tending but failing 14 to accomplish it, is an attempt to commit that crime.” Under Nev. Rev. Stat. § 200.010, murder “is the 15 unlawful killing of a human being . . . [w]ith malice aforethought, either express or implied.” Express 16 malice is defined as the “deliberate intention unlawfully to take away the life of a fellow creature, which 17 is manifested by external circumstances capable of proof.” Nev. Rev. Stat. § 200.020. Implied malice 18 exists when “when no considerable provocation appears, or when all the circumstances of the killing 19 show an abandoned and malignant heart.” Id. Under Nev. Rev. Stat. § 193.165, a deadly weapon means 20 “[a]ny weapon, device, instrument, material or substance which, under the circumstances in which it is 21 used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily harm 22 or death.” 23 At trial, Cynthia and Natalie testified that they saw petitioner hit Lawrence in the face two to 24 three times with a large rock. (Exhibits to Mot. to Dismiss Ex. 32 at 110, 180-81.) Natalie testified that 25 after Lawrence fell to the ground, petitioner kicked him more than 10 times. (Id. Ex. 32 at 111-12.) A 26 person living in an apartment nearby testified that he saw the fight between petitioner and Lawrence and 25 1 was going to call an ambulance because it was apparent that Lawrence would need one. (Id. Ex. 32 at 2 149-51.) Lawrence testified that petitioner first hit him in the back of the head with the large rock, then 3 hit him in the head, face, and back while he tried to block the blows, and then kicked him several times. 4 (Id. Ex. 33 at 97-100.) Lawrence testified that he did not have any weapons on him and that he thought 5 he was going to die during the altercation. (Id. Ex. 33 at 98-99. 103.) Natalie testified that even after 6 she and her mother tried to stop petitioner from hitting and kicking her brother, petitioner only stopped 7 after a large, heavyset male intervened. (Id. Ex. 32 at 114-115.) Cynthia and Lawrence returned to 8 Cynthia’s apartment where, according to Natalie, after she arrived, she saw Lawrence laying on the floor 9 with blood all over him and vomiting blood. (Id. Ex. 32 at 117.) As a result of the altercation with 10 petitioner, Lawrence suffered several broken bones, including a broken nose, a split to the back of his 11 head requiring 5 staples, stitches on his hand, injuries to his hip and back, and several injuries to his face. 12 (Id. Ex. 33 at 102–04, 109-11.) In viewing the evidence in the light most favorable to the prosecution, 13 a rational trier of fact could have found that because petitioner repeatedly and struck Lawrence in the 14 head and face with a large rock and kicked him numerous times while he was on the ground, and 15 continued to do so even after two people tried to stop him, he acted with an abandoned and malignant 16 heart, and that he intended, but failed, to kill Lawrence. Additionally, a rational trier of fact could have 17 found that the large rock was a deadly weapon because under the circumstances in which petitioner used 18 it in striking Lawrence, it was readily capable of causing substantial bodily harm or death. The blows 19 petitioner inflicted on Lawrence with the rock required medical attention at the hospital, including 5 20 staples to Lawrence’s head. 21 In sum, sufficient evidence supports his convictions for first-degree kidnapping or the multiple 22 sexual assault convictions at the Weishaar Trial, as well as his convictions for sexual assault, first-degree 23 kidnapping, and attempted murder with a deadly weapon at the Dyson Trial. The factual findings of the 24 state court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of 25 proving that the state court’s ruling was contrary to, or involved an unreasonable application of, clearly 26 established federal law, as determined by the United States Supreme Court, or that the ruling was based 26 1 on an unreasonable determination of the facts in light of the evidence presented in the state court 2 proceeding. This court will deny habeas relief as to grounds 7 and 58. 3 F. Grounds 8, 9, 11, 25, 28, 30, 32, 35, 42, 44, 53(b), 56, 63, 65, 69, 73, 74, 75, 80, 88, 91, 92, 4 93, 95, 96 5 In grounds 8, 9, 11, 25, 28, 30, 32, 35, 42, 44, and 53(b) petitioner argues that he was denied his 6 7 8 9 10 11 constitutional right to the effective assistance of counsel at the Weishaar Trial. In grounds 56, 63, 65, 69, 73, 74, 75, 80, 88, 91, 92, 93, 95, and 96, petitioner argues that he was denied his constitutional right to the effective assistance of counsel at the Dyson Trial. Respondents argue that petitioner fails to show that he is entitled to relief on any of his claims of ineffective assistance of counsel. 1. Legal Standard 12 Ineffective assistance of counsel claims are governed by the two-part test announced in 13 Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner 14 claiming ineffective assistance of counsel has the burden of demonstrating that (1) the attorney made 15 errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth 16 Amendment, and (2) that the deficient performance prejudiced the defense. Williams v. Taylor, 529 U.S. 17 362, 390-91 (2000) (citing Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must 18 show that counsel’s representation fell below an objective standard of reasonableness. Id. To establish 19 prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s 20 unprofessional errors, the result of the proceeding would have been different. Id. A reasonable 21 probability is “probability sufficient to undermine confidence in the outcome.” Id. Additionally, any 22 review of the attorney’s performance must be “highly deferential” and must adopt counsel’s perspective 23 at the time of the challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 24 466 U.S. at 689. It is the petitioner’s burden to overcome the presumption that counsel’s actions might 25 be considered sound trial strategy. Id. 26 Ineffective assistance of counsel under Strickland requires a showing of deficient performance 27 1 of counsel resulting in prejudice, “with performance being measured against an objective standard of 2 reasonableness,. . . under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) 3 (internal quotations and citations omitted). If the state court has already rejected an ineffective assistance 4 claim, a federal habeas court may only grant relief if that decision was contrary to, or an unreasonable 5 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a 6 strong presumption that counsel’s conduct falls within the wide range of reasonable professional 7 assistance. Id. 8 The United States Supreme Court recently described federal review of a state supreme court’s 9 decision on a claim of ineffective assistance of counsel as “doubly deferential.” Cullen v. Pinholster, 10 131 S.Ct. 1388, 1403 (2011) (quoting Knowles v. Mirzayance, 129 S.Ct. 1411, 1413 (2009)). The 11 Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s performance . . . . 12 through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal citations omitted). Moreover, federal 13 habeas review of an ineffective assistance of counsel claim is limited to the record before the state court 14 that adjudicated the claim on the merits. Cullen, 131 S.Ct. at 1398-1401. 15 16 2. Ground 8 In ground 8, petitioner claims that his trial counsel was ineffective because he failed to undertake 17 adequate pre-trial investigation with regard to material facts, witnesses, and exculpatory evidence. 18 Petitioner alleges that his trial counsel failed to locate, question, or have DNA matched to “Hamburger.” 19 Additionally, petitioner alleges that trial counsel failed to become more familiar with Nev. Rev. Stat. § 20 48.039 and the extent to which Weishaar’s posthypnotic testimony would be used at trial. 21 22 23 24 25 26 In addressing this claim, the Nevada Supreme Court ruled: Second, appellant claimed that his trial counsel was ineffective for failing to investigate Hamburger. Specifically, appellant asserted that his trial counsel should have sought to show that Hamburger was the man that Weishaar described as assaulting her and that biological evidence found on Weishaar matched Hamburger. Appellant failed to demonstrate that he would not have been convicted had his counsel investigated and introduced testimony related to Hamburger. At trial, witnesses testified that appellant followed Weishaar out of a bar several blocks from the apartment complex where the victim was later discovered injured. When questioned by police, appellant admitted that 28 1 2 3 4 he had consensual sex with Weishaar. He claimed that Weishaar’s head injuries resulted from falling off of a three-foot wall where she was later discovered. Further, appellant used, and attempted to use, Weishaar’s credit cards at several businesses after the assault. Morever, the biological evidence recovered from Weishaar could not be matched to anyone, including Hamburger, because the amount recovered did not contain enough genetic material to develop a DNA profile. Therefore, the district court did not err in denying this claim. 5 (Exhibits to Mot. to Dismiss Ex. 74 at 7.) 6 First, petitioner’s claim concerning trial counsel’s failure to become familiar with Nev. Rev. Stat. 7 § 48.039 is without merit because, as discussed above with respect to ground 1, even if the admission 8 of Weishaar’s posthypnotic testimony was constitutional error, it was harmless. Thus, petitioner fails 9 to show that he was prejudiced by trial counsel’s failure to become familiar with Nev. Rev. Stat. § 10 48.039 because, even without the statute’s procedural safeguards, admission of Weishaar’s testimony 11 did not result in a “substantial and injurious effect.” Accordingly, petitioner fails to show that had 12 counsel invoked the procedural safeguards of Nev. Rev. Stat. § 48.039 that there is a reasonably 13 probability that the result at trial would have been different. See White v. Johnson, 153 F.3d 197, 208 14 (5th Cir. 1998) (concluding that a court’s finding that constitutional error is harmless forecloses any 15 argument that counsel’s performance with respect to the error was prejudicial). 16 Second, as noted by the Nevada Supreme Court, at trial, the state’s DNA analyst testified that 17 the very small amount of biological material was insufficient to perform DNA testing. (Id. Ex. 23 at 18 201-02.) Under such circumstances, matching DNA recovered from the scene to Weishaar’s attacker 19 was not possible. Moreover, even assuming counsel’s performance was deficient, petitioner fails to 20 show that if “Hamburger” had been located that the result of the trial would have been different. As 21 discussed previously, much of the evidence at trial pointed to petitioner as Weishaar’s attacker. 22 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 23 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 24 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 25 to, or involved an unreasonable application of, clearly established federal law, as determined by the 26 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 29 1 2 in light of the evidence presented in the state court proceeding. This court denies relief on ground 8. 3. Ground 9 3 In ground 9, petitioner claims that his trial counsel was ineffective because he conceded on direct 4 appeal that he had not complied with the statutory requirements of Nev. Rev. Stat. § 48.069. Petitioner 5 alleges that the material testimony in this case was Weishaar’s posthypnotic testimony and had counsel 6 complied with Nev. Rev. Stat. § 48.069, her testimony could have been impeached. 7 8 9 10 11 12 13 14 15 In addressing this claim, the Nevada Supreme Court ruled: Twenty-second, appellant claimed that his counsel was ineffective for failing to follow the requirements of NRS 48.069 and properly introduce evidence of Weishaar’s prior sexual conduct. He asserted that evidence existed that Weishaar had sex three weeks before the assault and this testimony would have impeached her testimony that she did not have sex and was not in the habit of engaging in sex and would have supported his claim that the sex was consensual. Appellant failed to demonstrate that he was prejudiced. As discussed above, this court concluded that there was sufficient evidence upon which to sustain appellant’s convictions even if Weishaar’s testimony was not admitted at trial. Nolan, 122 Nev. at 372-73, 132 P.3d at 570. Thus, impeachment of her testimony would not have altered the outcome of the trial. Further, considering the substantial nature of Weishaar’s injuries, appellant did not demonstrate that the evidence would have raised sufficient doubt concerning whether the sex was consensual. Therefore, the district court did not err in denying this claim. 16 (Exhibits to Mot. to Dismiss Ex. 74 at 17.) 17 Petitioner’s claim concerning trial counsel’s failure to become familiar with Nev. Rev. Stat. § 18 48.069 is without merit because, as discussed above with respect to ground 1, even if the admission of 19 Weishaar’s posthypnotic testimony was constitutional error, it was harmless. Thus, petitioner fails to 20 show that he was prejudiced by trial counsel’s failure to comply with Nev. Rev. Stat. § 48.069 and 21 impeach Weishaar’s testimony under the statute. 22 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 23 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 24 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 25 to, or involved an unreasonable application of, clearly established federal law, as determined by the 26 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 30 1 2 in light of the evidence presented in the state court proceeding. This court denies relief on ground 9. 4. Ground 11 3 In ground 11, petitioner claims that his trial counsel was ineffective because he failed to hire an 4 expert witness to test the remaining DNA and present his findings at trial. Petitioner alleges that counsel 5 should have hired an expert so that a match to the DNA could be found. 6 7 8 9 10 In addressing this claim, the Nevada Supreme Court ruled: Third, appellant claimed that his counsel was ineffective for failing to hire an expert to test the biological evidence recovered from Weishaar. He asserts that the fact that it had not been matched to anyone confused the jury. Appellant failed to demonstrate that his counsel was deficient of that he was prejudiced. As noted above, the amount of biological evidence collected was too small for testing to develop a DNA profile. Therefore, the district court did not err in denying this claim. 11 (Exhibits to Mot. to Dismiss Ex. 74 at 7.) 12 As discussed with respect to ground 8, at trial, the state’s DNA analyst testified that the very 13 small amount of biological material was insufficient to perform DNA testing. (Id. Ex. 23 at 201-02.) 14 Therefore, an independent expert would have been of no benefit to petitioner because there was not 15 enough DNA evidence to perform a DNA analysis. 16 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 17 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 18 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 19 to, or involved an unreasonable application of, clearly established federal law, as determined by the 20 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 21 in light of the evidence presented in the state court proceeding. This court denies relief on ground 11. 22 5. Ground 25 23 In ground 25, petitioner claims that his trial counsel was ineffective because he failed to object 24 to Weishaar’s posthypnotic identification of him. 25 In addressing this claim, the Nevada Supreme Court ruled: 26 Seventh, appellant claimed that his trial counsel was ineffective 31 1 for failing to challenge the introduction of hypnotically induced testimony, which included the posthypnotic show-up and voice identification . . . . Appellant failed to demonstrate that he was prejudiced. While this court recognized that the district court erred in admitting Weishaar’s posthypnotic testimony, it ultimately concluded that the error was harmless beyond a reasonable doubt. Nolan v. State, 112 Nev. 363, 372-73, 132 P.3d 564, 570 (2006). Appellant failed to demonstrate that had his counsel challenged the post-hypnotic testimony or sought a cautionary instruction, the outcome of the trial would have been different. Therefore, the district court did not err in denying this claim. 2 3 4 5 6 7 (Exhibits to Mot. to Dismiss Ex. 74 at 9-10.) 8 As the court explained above under ground 1, even if the admission of Weishaar’s posthypnotic 9 testimony was constitutional error, including her posthypnotic show-up and voice identification, it was 10 harmless. Thus, petitioner fails to show that he was prejudiced by trial counsel’s failure to object to 11 Weishaar’s identification testimony because admission of her testimony did not result in a “substantial 12 and injurious effect.” 13 identification testimony, there is a reasonable probability that the result at trial would have been 14 different. Accordingly, petitioner fails to show that had counsel objected to her 15 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 16 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 17 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 18 to, or involved an unreasonable application of, clearly established federal law, as determined by the 19 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 20 in light of the evidence presented in the state court proceeding. This court denies relief on ground 25. 21 22 6. Ground 28 23 In ground 28, petitioner claims that his trial counsel was ineffective because he failed to object 24 to the trial court’s highly prejudicial comments or preserve the issue for appeal. Petitioner alleges that 25 the trial court committed misconduct when it told his counsel that it was going to overrule every 26 objection he made. 32 1 2 3 4 5 6 7 8 9 10 11 In addressing this claim, the Nevada Supreme Court ruled: Sixteenth, appellant claimed that his counsel was ineffective for failing to object to the district court’s comment that it would overrule every objection that he made. He claimed that this demonstrated judicial bias. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. During trial, appellant objected to Dr. Meeks’ testimony regarding the head trauma sustained by Weishaar. In response, the court stated “you stipulated to his qualification. So I’m going to overrule every objection you make so sit down.” This comment did not indicate bias. The district court merely indicated that because defense counsel stipulated to Dr. Meeks’ qualifications, it would not consider later objection asserting that there was a lack of foundation for his testimony. Further, appellant failed to prove bias at the evidentiary hearing and the district court’s finding is supported by substantial evidence. Therefore, we affirm the denial of this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 13-14.) At trial, the following exchange occurred, in relevant part: [PETITIONER’S COUNSEL]: Just for the record, we’re willing to stipulate to the doctor’s background. I think his consultation report has been admitted as evidence as well. 12 13 THE COURT: We’ll allow him to testify as a medical doctor and as the treating physician for Ms. Weishaar. You may proceed, counsel ... 14 15 16 [STATE’S COUNSEL]: Regarding the memory loss, is that a permanent thing with a head injury? 17 18 [DR. MEEKS]: Again, there’s a wide range. 19 [PETITIONER’S COUNSEL]: Again, your Honor, I’m going to renew my objection based on the State has not laid a proper foundation that this doctor – 20 21 THE COURT: [Petitioner’s counsel], you stipulated to his qualification. So I’m going overrule every objection you make so sit down. Thank you. 22 23 (Exhibits to Mot. to Dismiss Ex. 25 at 29, 35-36.) 24 The court discerns no judicial misconduct in this exchange, and thus, concludes that counsel’s 25 performance in failing to object to the court’s comment did not fall below an objective standard of 26 reasonableness. 33 1 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 2 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 3 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 4 to, or involved an unreasonable application of, clearly established federal law, as determined by the 5 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 6 in light of the evidence presented in the state court proceeding. This court denies relief on ground 28. 7 7. Ground 30 8 In ground 30, petitioner claims that his trial counsel was ineffective because he failed to call 9 rebuttal expert medical witnesses to challenge the findings of the state’s medical witnesses. Petitioner 10 alleges that nurse Linda Ebbert was allowed to testify with regard to collecting and gathering evidence. 11 Petitioner argues that trial counsel should have called an expert to challenge Ebbert’s qualifications to 12 collect and gather evidence dealing with DNA because Ebbert is not a gynecologist and only a doctor 13 in that field is qualified to testify. 14 15 16 17 18 19 20 In addressing this claim, the Nevada Supreme Court ruled: Twelfth, appellant claimed that his trial counsel was ineffective for failing to object to Nurse Ebbert’s testimony about Weishaar’s injuries because she was not a doctor. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. Nurse Ebbert testified that she had received a degree in nursing, had been a nurse for 40 years, and a sexual assault examiner for nine years. She had also received specialized training in gathering forensic evidence as part of a sexual assault investigation. Further, she had been qualified as an expert witness in Nevada courts approximately 40 times. There was significant evidence that Nurse Ebbert possessed specialized knowledge and training related to sexual assault examinations and evidence gathering. Therefore the district court did not err in denying this claim. 21 (Exhibits to Mot. to Dismiss Ex. 74 at 12.) 22 As noted by the Nevada Supreme Court, Ebbert testified at trial as to her extensive qualifications. 23 Ebbert stated that she attended nursing school for three years, received her diploma, has been a practicing 24 nurse for 40 years, has been a sexual assault nurse examiner for nine years, and that as part of her 25 training to become a sexual assault nurse examiner, she was observed by physicians until they felt she 26 was capable of doing sexual assault examinations and gathering forensic evidence. (Id. Ex. 23 at 12934 1 30.) Given Ebbert’s qualifications, petitioner fails to show that had counsel called an expert to challenge 2 her ability to collect and gather evidence that there is a reasonable probability that the result at trial 3 would have been different. 4 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 5 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 6 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 7 to, or involved an unreasonable application of, clearly established federal law, as determined by the 8 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 9 in light of the evidence presented in the state court proceeding. This court denies relief on ground 30. 10 8. Ground 32 11 In ground 32, petitioner claims that his trial counsel was ineffective because he failed to preserve 12 the issue for appeal that a nurse is not qualified to testify that all medical records are true and accurate. 13 14 15 16 17 18 19 20 In addressing this claim, the Nevada Supreme Court ruled: Eleventh, appellant claimed that his trial counsel was ineffective for failing to object to the introduction of Weishaar’s medical records because Nurse Linda Ebbert’s testimony was not sufficient to authenticate the records. He claimed that Nurse Ebbert was contradicted by Dr. Derek Meeks who stated that the records were incomplete. Moreover, Nurse Ebbert was not a gynecologist and therefore could not have testified about the accuracy of the records. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. The district court admitted Weishaar’s medical records based on the certificate of the custodian of records, not on the authentication of Nurse Ebbert. See NRS 52.325(2). Further, the custodian of records certified that the records submitted at trial were a “true and exact copy” of Weishaar’s medical records. Therefore, the district court did not err in denying this claim. 21 (Exhibits to Mot. to Dismiss Ex. 74 at 11-12.) 22 Petitioner’s argument is wholly without merit because as the Nevada Supreme Court stated, 23 Weishaar’s medical records were not authenticated by nurse Ebbert, but rather, were authenticated by 24 the custodian of records. (Id. Ex. 23 at 137.) 25 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 26 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 35 1 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 2 to, or involved an unreasonable application of, clearly established federal law, as determined by the 3 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 4 in light of the evidence presented in the state court proceeding. This court denies relief on ground 32. 5 9. Ground 35 6 In ground 35, petitioner claims that his trial counsel was ineffective because he failed to hire an 7 expert witness concerning hypnosis who could testify about the problems associated with a person who 8 undergoes hypnosis. 9 10 11 12 13 14 In addressing this claim, the Nevada Supreme Court ruled: Seventh, appellant claimed that his trial counsel was ineffective for failing to . . . hire an expert to testify about problems with hypnotic testimony . . . . Appellant failed to demonstrate that he was prejudiced. While this court recognized that the district court erred in admitting Weishaar’s posthypnotic testimony, it ultimately concluded that the error was harmless beyond a reasonable doubt. Nolan v. State, 112 Nev. 363, 372-73, 132 P.3d 564, 570 (2006). Appellant failed to demonstrate that had his counsel challenged the post-hypnotic testimony or sought a cautionary instruction, the outcome of the trial would have been different. Therefore, the district court did not err in denying this claim. 15 (Exhibits to Mot. to Dismiss Ex. 74 at 9-10.) 16 As the court has explained several times previously, even if the admission of Weishaar’s 17 posthypnotic testimony was constitutional error, it was harmless. Thus, petitioner fails to show that he 18 was prejudiced by trial counsel’s failure to present an expert witness to discuss the problems with 19 hypnotically-induced testimony because admission of Weishaar’s testimony did not result in a 20 “substantial and injurious effect.” Accordingly, petitioner fails to show that had counsel presented an 21 expert witness to discuss the problems with hypnotically-induced testimony, there is a reasonable 22 probability that the result at trial would have been different. 23 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 24 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 25 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 26 to, or involved an unreasonable application of, clearly established federal law, as determined by the 36 1 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 2 in light of the evidence presented in the state court proceeding. This court denies relief on ground 35. 3 10. Ground 42 4 In ground 42, petitioner claims that his trial counsel was ineffective because he failed to object 5 to parts of the medical records that were missing. Petitioner alleges that the missing records would have 6 shown Weishaar’s preexisting medical conditions. 7 8 9 10 11 12 13 14 In addressing this claim, the Nevada Supreme Court ruled: Tenth, appellant claimed that his counsel was ineffective for failing to object to the introduction of Weishaar’s medical records on the basis that they were incomplete. He further asserted that his counsel should have sought to introduce the victim’s prior medical history and the testimony of her prior treating physicians. He claimed that it would demonstrate that Weishaar’s injuries were the result of a pre-existing condition. Appellant failed to demonstrate that he was prejudiced. Considering the severe facial trauma; significant blood loss; substantial laceration in her vagina; bruising around her vagina and anus; and a large blood clot, which contained foreign matter that was removed from Weishaar’s vagina, appellant did not demonstrate that he would not have been convicted had his counsel introduced evidence of Weishaar’s prior medical history. Therefore the district court did not err in denying this claim. 15 (Exhibits to Mot. to Dismiss Ex. 74 at 11.) 16 As explained by the Nevada Supreme Court, at trial, testimony showed that Weishaar’s injuries 17 were extensive and severe. (See id. Ex. 23 at 138, 142-44, 148-49; Ex. 25 at 38-39.) Petitioner fails to 18 show that had counsel introduced Weishaar’s prior medical records to show that she has pre-existing 19 conditions that there is a reasonable probability that the result at trial would have been different. 20 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 21 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 22 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 23 to, or involved an unreasonable application of, clearly established federal law, as determined by the 24 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 25 in light of the evidence presented in the state court proceeding. This court denies relief on ground 42. 26 11. Ground 44 37 1 2 In ground 44, petitioner claims that his trial counsel was ineffective because of the cumulative errors he committed at trial. 3 In addressing this claim, the Nevada Supreme Court ruled: Twenty-seventh, appellant claimed that his counsel’s errors resulted in reversible cumulative error. We conclude that because appellant’s ineffective assistance of counsel claims are without merit, he failed to demonstrate any cumulative error and is therefore not entitled to relief on this basis. Therefore, the district court did not err in denying this claim. 4 5 6 7 (Exhibits to Mot. to Dismiss Ex. 74 at 20.) 8 This court discerns no individual instances of trial counsel’s ineffective assistance, and thus, a 9 claim seeking relief for counsel’s cumulative errors must fail. 10 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 11 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 12 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 13 to, or involved an unreasonable application of, clearly established federal law, as determined by the 14 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 15 in light of the evidence presented in the state court proceeding. This court denies relief on ground 44. 16 12. Ground 53(b) 17 In ground 53(b), petitioner claims that his appellate counsel was ineffective because he failed to 18 follow the district court’s ruling to sever the trials and allowed petitioner’s separate judgments of 19 conviction to be consolidated on appeal, which resulted in the Nevada Supreme Court making a biased 20 ruling. 21 In addressing this claim, the Nevada Supreme Court ruled: 22 23 24 25 26 Appellant claimed that his appellate counsel was ineffective for permitting his direct appeals to be consolidated despite the district court’s order severing the trials. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. Considering that this court may elect to consolidate related appeals on its own motion, NRAP 3(b), appellant did not demonstrate that his appeals would not have been consolidated had his counsel not pursued consolidated appeals. Further, he did not demonstrate that the outcome of his appeals would have been altered if the appeals were considered 38 1 separately. Therefore, the district court did not err in denying this claim. 2 (Exhibits to Mot. to Dismiss Ex. 74 at 21.) 3 Under Nev. R. App. P. 3 (b), “[w]hen the parties have filed separate timely notices of appeal, the 4 appeals may be joined or consolidated by the [Nevada] Supreme Court upon its own motion or upon 5 motion of a party.” Petitioner provides no cogent argument in support of his claim that the consolidation 6 of his appeals resulted in a biased ruling from the Nevada Supreme Court. Therefore, he fails to show 7 that had appellate counsel kept his appeals separate, there is a reasonable probability that the outcome 8 on appeal would have been different. 9 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 10 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 11 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 12 to, or involved an unreasonable application of, clearly established federal law, as determined by the 13 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 14 in light of the evidence presented in the state court proceeding. This court denies relief on ground 53(b). 15 13. Ground 56 16 In ground 56, petitioner claims that his trial counsel was ineffective because he failed to 17 interview or call Detective Conboy as a witness at trial. Petitioner alleges that Conboy could have 18 testified as to why he decided not to charge petitioner with a crime and accepted Dyson’s do not 19 prosecute card. 20 In addressing this claim, the Nevada Supreme Court ruled: 21 22 23 24 25 26 Eighth, appellant claimed that his trial counsel was ineffective for failing to object to Dyson’s testimony that Detective Conboy forced her to sign a do not prosecute card, and for failing to interview or subpoena Detective Conboy to testify. He asserted that Detective Conboy would have undermined the State’s insinuation that Detective Conboy’s misconduct caused Dyson to sign a no prosecute statement and state that she was not assaulted. He further claimed that his counsel failed to object to assertions that Detective Conboy had been disciplined or to the State’s statements mischaracterizing the facts of that discipline. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. At trial, Dyson testified that 39 1 2 3 4 5 6 7 8 Detective Conboy threatened to charge her with sexual assault if she did not sign a do not prosecute card. She did not offer her statements for the truth of those statements, but merely to demonstrate the effect his statements had on her. See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) (“A statement merely offered to show that the statement was made and the listener was affected by the statement, and which is not offered to show the truth of the matter asserted, is admissible as non-hearsay.”). Further, at the evidentiary hearing, the State introduced documentation of the disciplinary action against Detective Conboy for the incident involving Dyson. Thus, if Detective Conboy was called and testified truthfully, he would have confirmed the reports. Therefore, the district court did not err in denying this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 28-29.) 9 Petitioner fails to articulate what Detective Conboy would have testified to in order to sufficiently 10 show a reasonable probability that, but for counsel’s failure to call Detective Conboy, the result of the 11 proceeding would have been different. Even assuming Detective Conboy would have testified that he 12 requested that Cynthia Dyson sign the do not prosecute card because he did not believe her and did not 13 believe sexual assault had occurred, other law enforcement officers testified that they believed the 14 circumstances warranted an investigation. (Id. Ex. 32 at 72, 77-78; Ex. 33 at 79-80.) Therefore, 15 petitioner fails to show that had counsel called Conboy as a witness, there is a reasonable probability that 16 the outcome on appeal would have been different. 17 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 18 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 19 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 20 to, or involved an unreasonable application of, clearly established federal law, as determined by the 21 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 22 in light of the evidence presented in the state court proceeding. This court denies relief on ground 56. 23 24 25 26 14. Ground 63 In ground 63, petitioner claims that his trial counsel was ineffective because he failed to assert a Batson challenge. Petitioner states that he is a black male who was convicted by an all white jury. In addressing this claim, the Nevada Supreme Court ruled: 40 1 2 3 4 5 6 7 8 9 10 11 First, appellant claimed that his counsel failed to raise a Batson challenge during jury selection. See Batson, 476 U.S. 79. In deciding a Batson objection, the trial court must engage in a three-step analysis: (1) the opponent of a peremptory challenge must make a prima facie case of racial discrimination; (2) the burden of production then shifts to the proponent of the strike to give a race neutral explanation; and (3) the trial court must then decide whether the opponent of the challenge has proven purposeful discrimination. See Kaczmarek v. State, 120 Nev. 314, 332, 91 P.3d 16, 28-29 (2004) (following Purkett v. Elem, 514 U.S. 765, 767-78 (1995)). Appellant alleged that he was improperly tried by all white jurors after two African-American venirepersons were dismissed. Appellant did not identify the jurors that he alleged were improperly dismissed or seek to elicit facts at the evidentiary hearing concerning who dismissed the jurors and whether the jurors were dismissed using peremptory challenges or challenged for cause. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). Thus, appellant failed to meet his burden to demonstrate that counsel was ineffective. Therefore, the district court did not err in denying this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 24.) 12 Here, as in his state court proceedings, petitioner fails to identify particular jurors that were 13 improperly dismissed or specify, when, why, or how they were dismissed during voir dire. Without such 14 specificity, petitioner fails to show a reasonable probability that, but for counsel’s failure to raise a 15 Batson challenge, the result of the proceeding would have been different. 16 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 17 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 18 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 19 to, or involved an unreasonable application of, clearly established federal law, as determined by the 20 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 21 in light of the evidence presented in the state court proceeding. This court denies relief on ground 63. 22 23 24 25 26 15. Ground 65 In ground 65, petitioner claims that his appellate counsel was ineffective because he failed to argue on appeal that a mistrial should have been granted regarding the Detective Conboy issue. In addressing this claim, the Nevada Supreme Court ruled: Fourth, appellant claimed that his appellate counsel was ineffective for failing to argue that the district court erred in denying 41 1 2 3 4 5 6 7 8 appellant’s motion for a mistrial that was based on mention of the Detective Conboy investigation. During the trial, the State asked Detective Kisner whether there was an investigation concerning Detective Conboy. Detective Kisner answered that there was an investigation. Defense counsel objected and moved for a mistrial. Upon the conclusion of the sidebar, the district court instructed the jury that it was not to be concerned with the procedure that the police department used in assigning cases. Considering the collateral nature of the statement and the immediate instruction to the jury to disregard it, appellant failed to demonstrate that the district court abused its discretion in denying the motion. Because appellant failed to demonstrate that this claim had a reasonable probability of success on appeal, the district court did not err in denying this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 33-34.) 9 As noted by the Nevada Supreme Court, at trial, after Detective Kisner testified that there was 10 an internal investigation concerning Detective Conboy, the court, out of the presence of the jury 11 discussed the matter with counsel. (Id. Ex. 33 at 52-59.) Defense counsel moved for a mistrial, and in 12 the alternative, for a cautionary instruction. (Id. Ex. 54.) The court denied the motion and noted that 13 the fact of the investigation regarding Detective Conboy had already been testified to previously by 14 Cynthia Dyson. (Id. Ex. 33 at 55-56.) In the presence of the jury, the court informed the jury that how 15 the police department assigns its cases and changes case assignments is not something for them to be 16 concerned about. (Id. Ex. 33 at 59.) “[I]mproper advocacy that places prejudicial and inadmissible 17 evidence before the jury can create an unacceptable risk of biased jury deliberations and also require 18 mistrial as a matter of ‘manifest necessity.’” Glover v. Eighth Judicial Dist. Court of Nev., 220 P.3d 684, 19 692 (Nev. 2009) (quoting Arizona v. Washington, 434 U.S. 497, 514, 516 (1978)). “‘A judicial 20 determination of manifest necessity is reviewed for abuse of discretion, but the level of deference varies 21 according to the circumstances in each case.’” Id. (quoting United States v. Chapman, 524 F.3d 1073, 22 1082 (9th Cir. 2008)). In this case, petitioner fails to show that had appellate counsel raised a claim on 23 appeal concerning the district court’s failure to declare a mistrial, that the Nevada Supreme Court would 24 have granted relief. Accordingly, petitioner fails to show a reasonable probability that, but for counsel’s 25 failure to raise the claim on appeal, the result of the proceeding would have been different. 26 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 42 1 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 2 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 3 to, or involved an unreasonable application of, clearly established federal law, as determined by the 4 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 5 in light of the evidence presented in the state court proceeding. This court denies relief on ground 65. 6 16. Ground 69 7 In ground 69, petitioner claims that his trial counsel was ineffective because he failed to object 8 and argue that the prosecutor committed misconduct when she stated to the jury that the sexual assault 9 expert was wrong and incompetent. 10 11 12 13 14 15 16 17 18 19 In addressing this claim, the Nevada Supreme Court ruled: Fifteenth, appellant claimed that his counsel was ineffective for failing to object to prosecutorial misconduct. Specifically, appellant claimed that the State committed misconduct with it argued that (1) the sexual assault expert that testified at trial was incompetent . . . . Appellant failed to demonstrate that he was prejudiced. As discussed above, prosecutorial misconduct may be harmless where there is overwhelming evidence of guilt. See King v. State, 116 Nev. 349, 356, 998 P.2d 1172, 1176 (2000); Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1006 (1990). Here, there was overwhelming evidence of guilt. Dyson testified that appellant induced her to follow him to his apartment. Once at the apartment, he forced her inside and then undressed. He then took her to a bedroom where, against her will, he performed oral sex on her, placed his penis into her vagina and anus, and forced her to place her fingers in his anus while he masturbated. Further, witnesses testified that when Lawrence confronted appellant, the engaged in a fight during which appellant struck Lawrence in the head with a rock multiple times and kicked him while he was on the ground. Therefore, the district court did not err in denying this claim. 20 (Exhibits to Mot. to Dismiss Ex. 74 at 31-32.) 21 Even if the prosecutor’s comments were prosecutorial misconduct, petitioner fails to show that 22 there is a reasonably probability that, but for counsel’s failure to object, the result of the proceeding 23 would have been different in light of the evidence produced at trial supporting his guilt. 24 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 25 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 26 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 43 1 to, or involved an unreasonable application of, clearly established federal law, as determined by the 2 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 3 in light of the evidence presented in the state court proceeding. This court denies relief on ground 69. 4 5 6 7 8 9 10 11 12 17. Ground 73 In ground 73, petitioner claims that his trial counsel was ineffective because he failed to crossexamine Byron Rowsen. Petitioner alleges that Rowsen’s testimony was hearsay. In addressing this claim, the Nevada Supreme Court ruled: Ninth, appellant claimed that his counsel was ineffective for failing to cross-examine Byron Rowsen. Specifically, he claimed that Rowsen’s testimony was hearsay because his statement that there was blood on the wall of the apartment was contradicted by a forensic investigator. Appellant failed to demonstrate that his counsel was deficient of that he was prejudiced. Rowsen testified concerning the condition of the apartment as he observed it when he cleaned it after appellant moved. His testimony is not hearsay. It was not rendered hearsay merely because it was contradicted by another witness. Therefore, the district court did not err in denying this claim. 13 (Exhibits to Mot. to Dismiss Ex. 74 at 29.) 14 At trial, Rowsen testified about the condition of the apartment based on his own observations. 15 (Id. Ex. 32 at 294-305.) Such testimony was based on Rowsen’s own personal knowledge and is not 16 hearsay. Thus, the basis of petitioner’s claim of ineffective assistance of counsel is erroneous, and he 17 therefore fails to show a reasonable probability that, but for counsel’s failure challenge Rowen’s 18 testimony, the result of the proceeding would have been different. 19 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 20 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 21 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 22 to, or involved an unreasonable application of, clearly established federal law, as determined by the 23 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 24 in light of the evidence presented in the state court proceeding. This court denies relief on ground 73. 25 18. Ground 74 26 In ground 74, petitioner claims that his trial counsel was ineffective because he failed to file a 44 1 motion to sever the crimes of sexual assault, kidnapping, and attempted murder because the crimes were 2 separate instances and could have confused the jury. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 In addressing this claim, the Nevada Supreme Court ruled: Third, appellant claimed that his counsel was ineffective for failing to file a motion to sever the crimes of sexual assault, kidnapping, and attempted murder because they were separate instances and could have confused the jury. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. Two or more offenses may be charged in the same information if the offenses are “[b]ased on the same act of transaction” or “[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” NRS 173.115. Further, “[i]f . . . evidence of one charge would be cross-admissible in evidence at a separate trial on another charge, then both charges may be tried together and need not be severed.” Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989). Here, the evidence at trial showed that the kidnapping of the victim was part of the same transaction that culminated in the sexual assault. Further the attempted murder of Lawrence Dyson occurred after Cynthia Dyson told her son that appellant had raped her and she showed her son where appellant lived. Thus, the crimes were so “blended with one another” that full proof by testimony of one crime could not be given without showing the others. Allan v. State, 92 Nev. 318, 321, 549 P.2d 1402, 1404 (1976). Thus, appellant failed to demonstrate that his counsel would have been able to demonstrate that the “joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court’s discretion to sever.” Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002) (quoting United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976)), overruled on other grounds by Carter v. State, 121 Nev. 759, 121 P.3d 592 (2005). Therefore, the district court did not err in denying this claim. 18 (Exhibits to Mot. to Dismiss Ex. 74 at 25-26) (alterations in original). 19 Here, petitioner alleges that the jury “could have” been confused, not that they actually were 20 confused. Such speculation is inadequate to allege that not severing the three charges resulted in a 21 constitutional violation. Petitioner therefore fails to show a reasonable probability that, but for counsel’s 22 failure to sever the three charges, the result of the proceeding would have been different. 23 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 24 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 25 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 26 to, or involved an unreasonable application of, clearly established federal law, as determined by the 45 1 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 2 in light of the evidence presented in the state court proceeding. This court denies relief on ground 74. 3 19. Ground 75 4 In ground 75, petitioner claims that his appellate counsel was ineffective because he failed to 5 follow the trial court’s ruling to sever the trials because he allowed the trials to be consolidated on 6 appeal. 7 8 9 10 11 12 13 14 In addressing this claim, the Nevada Supreme Court ruled: Second, appellant claimed that his appellate counsel was ineffective for permitting his direct appeals to be consolidated. He claimed that his counsel failed to follow the district court’s order severing the trials. Appellant failed to demonstrate that his counsel was deficient or that he was prejudiced. Considering that his court may elect to consolidate related appeals on its own motion, NRAP 3(b), appellant did not demonstrate that his appeals would not have been consolidated had his counsel not pursued consolidated appeals. Further, he did not demonstrate that he outcome of his appeals would have been altered if the appeals were considered separately. Therefore, the district court did not err in denying this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 32-33.) 15 As discussed with regard to ground 53(b), under Nev. R. App. P. 3 (b), “[w]hen the parties have 16 filed separate timely notices of appeal, the appeals may be joined or consolidated by the [Nevada] 17 Supreme Court upon its own motion or upon motion of a party.” Petitioner provides no cogent argument 18 in support of his claim that the consolidation of his appeals resulted prejudice. Therefore, he fails to 19 show that had appellate counsel kept his appeals separate, there is a reasonable probability that the 20 outcome on appeal would have been different. 21 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 22 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 23 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 24 to, or involved an unreasonable application of, clearly established federal law, as determined by the 25 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 26 in light of the evidence presented in the state court proceeding. This court denies relief on ground 75. 46 1 2 3 4 5 6 7 8 9 20. Ground 80 In ground 80, petitioner claims that his trial counsel was ineffective because he failed to object to the reasonable doubt instruction at trial. In addressing this claim, the Nevada Supreme Court ruled: Tenth, appellant claimed that his counsel was ineffective for failing to object to the district court’s reasonable doubt instruction. Appellant failed to demonstrate that his counsel’s performance was deficient. The district court gave Nevada’s statutory reasonable doubt instruction as set forth in and mandated by NRS 175.211. This court has repeatedly held that the current statutory definition is constitutional. See, e.g., Chambers v. State, 113 Nev. 974, 982-83, 944 P.2d 805, 810 (1997); Evans v. State, 112 Nev. 1172, 1191, 926 P.2d 265, 277 (1996); Lord v. State, 107 Nev. 28, 40, 806 P.2d 548, 556 (1991). Therefore, the district court did not err in denying this claim. 10 (Exhibits to Mot. to Dismiss Ex. 74 at 29.) 11 Here, petitioner’s claim is wholly conclusory. He provides one sentence alleging that counsel 12 was ineffective for failing to object to the reasonable doubt instruction, but he does not allege what 13 aspect of the instruction was problematic, and what, if any, harm resulted from the instruction. 14 Therefore, he fails to show that had counsel objected to the reasonable doubt instruction, there is a 15 reasonable probability that the outcome on appeal would have been different. 16 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 17 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 18 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 19 to, or involved an unreasonable application of, clearly established federal law, as determined by the 20 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 21 in light of the evidence presented in the state court proceeding. This court denies relief on ground 80. 22 21. Ground 88 23 Ground 88 is the same as ground 69, and therefore, the court denies relief for the same reasons 24 as stated above with respect to ground 69. 25 22. Ground 91 26 In ground 91, petitioner claims that his trial counsel was ineffective because he failed to object 47 1 to the empaneled jury. Petitioner alleges that several jurors were victims of sexual abuse or had family 2 that were victims of sexual abuse. Petitioner also alleges that family members of Las Vegas law 3 enforcement sat on the jury. 4 5 6 7 8 9 10 11 12 In addressing this claim, the Nevada Supreme Court ruled: Second, appellant claimed that his counsel was ineffective for failing to challenge several jurors because they were victims of sexual abuse, knew victims of sexual abuse, sat on prior trials concerning sexual abuse, or were law enforcement officers or related to law enforcement officers. Appellant failed to demonstrate that counsel was deficient or that he was prejudiced. During voir dire, no juror indicated that any relationship, past experience, or job would affect his or her ability to serve as a fair and impartial juror. Further, no juror expressed a prejudicial attitude that would have supported a challenge for cause. Thus, appellant failed to demonstrate that any objection to any juror would have been successful of have lead to a reasonable probability of a different outcome a trial. Therefore, the district court did not err in denying this claim. (Exhibits to Mot. to Dismiss Ex. 74 at 24-25.) 13 Petitioner fails to specify which jurors were impartial based on their past experiences or 14 relationships, and the record confirms that no juror expressed an inability to be fair or a prejudicial 15 attitude sufficient for cause. (See id. Ex. 31 at 15-158.) Therefore, petitioner fails to show that had trial 16 counsel objected to certain members of the jury, there is a reasonable probability that the outcome at trial 17 would have been different. 18 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 19 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 20 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 21 to, or involved an unreasonable application of, clearly established federal law, as determined by the 22 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 23 in light of the evidence presented in the state court proceeding. This court denies relief on ground 91. 24 23. Ground 92 25 In ground 92, petitioner claims that his trial counsel was ineffective because he failed to object 26 to the photographs Natalie Dyson took of Lawrence Dyson’s injuries. Petitioner alleges that these photos 48 1 2 3 4 5 6 7 8 9 were fabricated evidence that were not taken by a crime scene analyst. In addressing this claim, the Nevada Supreme Court ruled: Sixth, appellant claimed that his counsel was ineffective for failing to object to the introduction of photographs of Lawrence’s injuries. He asserted that the photographs were not taken by a crime scene photographer and thus he had no way of knowing if they were altered. Appellant failed to demonstrate that his counsel was deficient. A photograph may be admitted through the testimony of a witness with “personal knowledge that a matter is what it is claimed to be.” NRS 52.025. Lawrence’s sister testified that she took the photographs of Lawrence’s injuries and the photographs accurately depicted his injuries on the day she took the photographs. Further the photographs were relevant as they depicted the extent of the injuries that the State contended appellant inflicted on Lawrence. See NRS 48.025(1) (providing that “[a]ll relevant evidence is admissible”). Therefore, the district court did not err in denying this claim. 10 (Exhibits to Mot. to Dismiss Ex. 74 at 27) (alterations in original). 11 Here, the photographs were properly admitted under state law, and thus, there is no error and no 12 resulting constitutional violation. 13 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 14 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 15 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 16 to, or involved an unreasonable application of, clearly established federal law, as determined by the 17 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 18 in light of the evidence presented in the state court proceeding. This court denies relief on ground 92. 19 24. Ground 93 20 Ground 93 is the same as ground 65, and therefore, the court denies relief for the same reasons 21 as stated above with respect to ground 65. 22 25. Ground 95 23 In ground 95, petitioner claims that his trial counsel was ineffective because he failed to include 24 a jury instruction of a lesser included charge of a lewd act. 25 In addressing this claim, the Nevada Supreme Court ruled: 26 Thirteenth, appellant claimed that his counsel was ineffective 49 1 2 3 4 for failing to request an instruction for the lesser-included offense of open and gross lewdness. Because there was sufficient evidence to find appellant guilty of sexual assault and sexual assault with substantial bodily harm, see Nolan v. State, 122 Nev. 363, 376-77, 132 P.3d 564, 573 (2006), appellant did not show that the outcome of the proceeding would have been different had a lesser-included offense instruction been given. See Strickland v. Washington, 466 U.S. 668, 694 (1984). Therefore, the district court did not err in denying this claim. 5 (Exhibits to Mot. to Dismiss Ex. 74 at 30.) 6 This court concluded in its analysis of petitioner’s sufficiency of the evidence claim, ground 58, 7 that sufficient evidence supports his convictions for sexual assault at the Dyson Trial. The Nevada 8 Supreme Court reached the same conclusion, and thus, petitioner fails to show that its determination that 9 counsel’s failure to request an instruction for the lesser-included offense of open and gross lewdness did 10 not prejudice petitioner is objectively unreasonable under the doubly deferential standard of Cullen v. 11 Pinholster, 131 S. Ct. 1388 (2011). 12 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 13 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 14 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 15 to, or involved an unreasonable application of, clearly established federal law, as determined by the 16 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 17 in light of the evidence presented in the state court proceeding. This court denies relief on ground 95. 18 26. Ground 96 19 In ground 96, petitioner claims that his trial counsel was ineffective because he failed to object 20 to the deletion of the jury instruction on direct and circumstantial evidence. Petitioner alleges that the 21 deletion of this instruction caused the attempted murder jury instructions to be defective. 22 In addressing this claim, the Nevada Supreme Court ruled: 23 24 25 26 Eleventh, appellant claimed that his trial counsel was ineffective for failing to object to the district court’s instructions for attempted murder with the use of a deadly weapon. Specifically, appellant contended that his attorney failed to oppose the district court’s decision to remove language concerning direct and circumstantial evidence from the instruction. Appellant failed to demonstrate that he was prejudiced. Instruction 26 properly instructed the jury on the difference between 50 1 direct and circumstantial evidence. Therefore, the district court did not err in denying this claim. 2 (Exhibits to Mot. to Dismiss Ex. 74 at 29-30.) 3 Here, it appears that the jury instruction concerning direct and circumstantial evidence was given 4 at trial. (Id. Ex. 33 at 164.) Additionally, even if the instruction was not given, petitioner fails to 5 specifically allege what, if any, harm resulted. Therefore, he fails to show that had counsel objected to 6 the alleged deletion, there is a reasonable probability that the result at trial would have been different. 7 In conducting its analysis on this claim, the Nevada Supreme Court cited to and applied the 8 correct federal standard, Strickland v. Washington, 466 U.S. 668 (1984). (Exhibits to Mot. to Dismiss 9 Ex. 74 at 5.) Petitioner has failed to meet his burden of proving that the state court’s ruling was contrary 10 to, or involved an unreasonable application of, clearly established federal law, as determined by the 11 United States Supreme Court, or that the ruling was based on an unreasonable determination of the facts 12 in light of the evidence presented in the state court proceeding. This court denies relief on ground 96. 13 G. Ground 61 14 In ground 61, petitioner claims that he is actually innocent of sexually assaulting Cynthia Dyson 15 because she came to his house for a drug deal and sexually assaulted him. Petitioner also alleges that 16 he was physically assaulted by the Dysons and was defending himself when the fight with Lawrence 17 started. 18 Respondents argue that petitioner fails to present any new and reliable evidence supporting his 19 claims of actual innocence. 20 1. Legal Standard 21 Whether a freestanding actual innocence claim can support federal habeas relief is an open 22 question. District Attorney’s Office For the Third Jud. Dist. v. Osborne, 557 U.S. 52, 71 (2009) 23 (whether there is a federal constitutional right to release upon proof of actual innocence “is an open 24 question”); see Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on 25 newly discovered evidence have never been held to state a ground for federal habeas relief absent an 26 independent constitutional violation occurring in the underlying state criminal proceeding.”). Assuming 51 1 that an actual innocence claim could support federal habeas relief, “the threshold showing for such an 2 assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417. 3 2. Discussion 4 Assuming that a freestanding actual innocence claim exists, petitioner fails to meet the 5 extraordinarily high threshold to obtain relief. Petitioner merely presents his own side of the story with 6 respect to the incident with the Dysons. Petitioner does not provide any evidence in support of his claim 7 or other compelling argument. Accordingly, the court denies relief on ground 61.6 8 V. Certificate of Appealability 9 In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 10 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-51 (9th 11 Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a 12 petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a 13 certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 14 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court;s 15 assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In 16 order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are 17 debatable among jurists of reason; that a court could resolve the issues differently; or that the questions 18 are adequate to deserve encouragement to proceed further. Id. This court has considered the issues 19 raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of 20 appealability, and grants a certificate of appealability on the following issues: 21 (1) Whether the trial court’s admission of Weishaar’s posthypnotic testimony was constitutional 22 error (ground 1); 23 (2) If the trial court’s admission of Weishaar’s posthypnotic testimony was constitutional error, 24 whether the error was harmless (ground 1); and 25 6 26 To the extent petitioner has attempted to raise claims other than those discussed on the merits in this order, the court concludes that he fails to state any additional claims because his allegations are conclusory and devoid of factual support. 52 1 (3) Whether petitioner’s convictions for sexual assault and first-degree kidnapping from the 2 Weishaar Trial are supported by sufficient evidence (ground 7). 3 VI. Conclusion 4 IT IS THEREFORE ORDERED that petitioner’s motion for recusal (ECF No. 104), motion 5 for reconsideration (ECF No. 105), and motions to amend and/or motions for reconsideration (ECF Nos. 6 106, 109, 114, 117, 118), and motion to disqualify counsel (ECF No. 119) are DENIED. 7 8 9 10 11 12 13 14 15 16 IT IS FURTHER ORDERED that petitioner’s motion for status check (ECF No. 123) is DENIED as moot. IT IS FURTHER ORDERED that grounds 84, 85, 87, and 89 are DISMISSED as procedurally defaulted. IT IS FURTHER ORDERED that the amended petition for a writ of habeas corpus (ECF No. 14) is DENIED IN ITS ENTIRETY. IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT ACCORDINGLY. IT IS FURTHER ORDERED that petitioner is GRANTED A CERTIFICATE OF APPEALABILITY on the following issues: 17 (1) 18 constitutional error; 19 (2) If the trial court’s admission of Weishaar’s posthypnotic testimony was constitutional error, 20 whether the error was harmless; and 21 (3) Whether petitioner’s convictions for sexual assault and first-degree kidnapping from the 22 Weishaar Trial are supported by sufficient evidence. 23 Whether the trial court’s admission of Weishaar’s posthypnotic testimony was DATED this 28th day of September, 2012. 24 25 26 UNITED STATES DISTRICT JUDGE 53

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