Castillo-Sanchez v. Williams, et al, No. 2:2018cv01598 - Document 54 (D. Nev. 2023)

Court Description: ORDER Denying 21 Rafael Castillo-Sanchez's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Clerk to substitute Brian Williams for Dwight Neven and enter Judgment accordingly. Signed by Judge Jennifer A. Dorsey on 9/22/2023. (Copies have been distributed pursuant to the NEF - AF)

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Castillo-Sanchez v. Williams, et al Doc. 54 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Rafael Castillo-Sanchez 4 Case No.: 2:18-cv-01598-JAD-NJK Petitioner v. Order Denying Petition for a Writ of Habeas Corpus 5 Brian Williams,1 et al., 6 [ECF No. 21] Respondents 7 8 Petitioner Rafael Castillo-Sanchez was found guilty in Nevada state court of first-degree 9 murder with use of a deadly weapon for stabbing and killing his wife, Veronica Castillo,2 and of 10 assault with a deadly weapon for threatening Veronica’s brother with a knife. He was sentenced 11 to life in prison without the possibility of parole.3 In a three-count petition, Castillo-Sanchez 12 seeks a writ of habeas corpus under 28 U.S.C. § 2254, arguing that (1) trial counsel overlooked 13 DNA evidence placing Veronica’s blood on Castillo-Sanchez’s body; (2) trial counsel failed to 14 present a mental-health or insanity defense during the guilt phase of the trial; and (3) trial and 15 appellate counsel failed to challenge three jury instructions.4 I deny all three grounds on their 16 merits because Castillo-Sanchez has not shown that his counsel’s actions were deficient or 17 prejudicial. And because no reasonable jurist would disagree, I deny a certificate of 18 appealability. 19 1 The state corrections department’s inmate-locator page reflects that Castillo-Sanchez is 20 incarcerated at High Desert State Prison. Brian Williams is the warden for that facility. See HDSP Facility (nv.gov). So I direct the Clerk of the Court to substitute Brian Williams for 21 Respondent Dwight Neven under Fed. R. Civ. P. 25(d). 22 23 2 I refer to Ms. Castillo by her first name because she shares a last name with the petitioner. No disrespect is intended by doing so. 3 ECF No. 30-29. 4 ECF No. 21. Dockets.Justia.com Background5 1 2 A. The facts underlying Castillo-Sanchez’s conviction 3 1. 4 On October 27, 2005, Castillo-Sanchez lived in an apartment in Las Vegas, Nevada, with The murder 5 Veronica and three of their children, Rafael Jr., Antonio, and Iesha. Private security guard Fred 6 West was patrolling the area around the apartment at approximately 9:00 p.m. that night when he 7 heard “a lot of noise,” a woman screaming, and a window break. He also saw a light extinguish 8 from the rear window of Castillo-Sanchez’s apartment. West suspected it was a “family quarrel” 9 and left to take a break.6 Veronica’s brother, O’Sha Simmons, testified that he was walking to Veronica’s 10 11 apartment around 9:30 p.m. that night when he saw her “getting slammed up against” the rear 12 window of her apartment. Simmons went upstairs and heard Veronica screaming, “Rafael, Stop 13 it.” Unable to open the apartment door, Simmons found his nephew Antonio, who was nearby, 14 and asked for a key to the apartment. Antonio’s brother Rafael Jr. had the key, so after Simmons 15 and Antonio unsuccessfully tried to kick open the front door, they broke open an adjacent 16 window.7 17 Simmons testified that he entered the apartment through the window and saw Castillo- 18 Sanchez “laying [‘right against’] the door in, like, a fetal position,” “cut up,” and bleeding. 19 Antonio said that he saw his father walk to the kitchen, grab a knife, and head toward Simmons 20 saying, “‘You’re going to die, you’re going to die.’” Simmons went to the bedroom, saw 21 22 5 These facts are taken from the trial transcript. 23 6 ECF No. 29-57 at 11–26; ECF No. 53-14 at 4–5; ECF No. 53-15 at 5–6; ECF No. 53-16 at 19. 7 ECF No. 53-14 at 10–13; ECF No. 53-15 at 10–12. 2 1 Veronica’s reflection in the headboard mirror, and told Antonio to call the police. Antonio left to 2 call 911 from a neighbor’s cellphone, followed by Castillo-Sanchez and Simmons. Simmons 3 testified that Castillo-Sanchez appeared high or in shock and was staggering. Antonio noticed 4 that his father’s wrist was cut and he was “falling and stuff.”8 Rafael Jr. testified that he was summoned to the apartment and saw Antonio “at the 5 6 neighbor’s door screaming,” and “calling 911.” Rafael Jr. went inside and found his mother 7 lying in her bedroom. He held her, but she was non-responsive. Rafael Jr. ran to the kitchen, 8 grabbed a knife from a drawer, and left to “hurt” his father. Antonio testified that Simmons re9 entered the apartment with Rafael Jr. Antonio then saw Rafael leave the apartment with a knife 10 and heard him say, “‘You’re going to do this to my mom, I’m going to do it to you.’” Antonio 11 testified that he watched Simmons follow Rafael Jr. out of the apartment, but Simmons said that 12 he first encountered Rafael Jr. after Rafael Jr. left the apartment, and had not seen Rafael Jr. 13 inside the apartment. Rafael Jr. testified that he first saw Simmons outside after Rafael Jr. exited 14 the apartment with the knife, and that Simmons stopped him and said, “You don’t want to do 15 that.”9 Rafael Jr. testified that he threw the knife “under a car or truck” and he and Simmons ran 16 17 up the street where they found his father. Rafael Jr. asked his father, “Man, what did you do that 18 for” but his father was “in a daze” and didn’t respond. Meanwhile, Antonio went to see if his 19 mother was alive and saw “a lot of stuff” “knocked over,” his parents’ room “messed up,” their 20 bed “all crooked,” “razors on the floor,” “blood on the bed,” and a lot of blood in the room. He 21 touched his mother and “told her to wake up,” but she didn’t. Antonio left the apartment and 22 23 8 ECF No. 53-14 at 16–23; ECF No. 53-15 at 12–44. 9 ECF No. 53-14 at 16; ECF No. 53-15 at 13–24; ECF No. 53-16 at 6–8. 3 1 saw Simmons and Rafael Jr. arguing, saw Rafael Jr. drop the knife, and saw them go toward his 2 father. When the police arrived, Antonio and Rafael Jr. told police to “shoot” or “kill” their 3 father because he killed their mother. Rafael Jr. told police, “My mom, she’s up there, she’s 4 bleeding, she’s dying” and directed an officer to the apartment.10 5 Las Vegas Metropolitan Police (Metro) detective Christopher Herald testified that when 6 he arrived on the scene, he found Castillo-Sanchez standing behind a vehicle, “bloody from head 7 to toe” holding a knife; and Rafael Jr. at the front of the vehicle yelling, “He killed my mother, 8 shoot him.” Herald also heard a “kid” behind him “screaming and yelling” that Castillo-Sanchez 9 just killed their mother. Herald directed Castillo-Sanchez to drop his weapon, and Castillo10 Sanchez placed the knife on the trunk of a car. Herald testified that Castillo-Sanchez had “cuts 11 on both sides of . . . both wrists” and “a thousand[-]mile stare looking through” him. Herald 12 commanded Castillo-Sanchez to get down on the ground, but Castillo-Sanchez “was not paying 13 any attention” and walked toward him, so Herald kicked him in the chest and Castillo-Sanchez 14 fell “back onto his back.” 15 Metro detective Karl Huysentruyt testified that he responded to the scene right behind 16 Herald and found the family’s apartment door open. Without entering, he witnessed “a lot of 17 blood in the master bedroom.” He saw a mirrored headboard that reflected Veronica lying on the 18 ground covered in blood with “stab wounds on the top of her chest.” He announced his 19 presence, received no response, entered the apartment, and confirmed that Veronica was dead.11 20 21 22 23 10 ECF No. 53-15 at 14–27; ECF No. 53-16 at 9–10. 11 ECF No. 29-57 at 28–61. 4 1 2. 2 3 The Castillo children’s accounts of their father’s drug-use and their parents’ relationship Rafael Jr. testified at trial that he did not have a good relationship with his father. He told 4 police that his father smoked crack and Primo. Rafael Jr. explained he cut his hand when he 5 grabbed a knife from the kitchen drawer, got his mother’s blood on his white t-shirt when he held 6 her, and gave the t-shirt to a friend (L.G.) but later retrieved the t-shirt when police asked him for 7 it. L.G. testified that she followed Rafael to the apartment and heard Castillo-Sanchez say, 8 “Felito [Rafael’s nickname], sorry.” On cross-examination, L.G. admitted that she did not tell 9 police that Castillo-Sanchez told Rafael he was sorry or that Rafael gave her his bloody t-shirt. 10 Antonio said his father smoked crack and marijuana and acted paranoid and suspicious of 11 “everything and everybody,” thought the neighbors were stealing cable, and believed his wife 12 was cheating.12 Iesha testified that she was at her cousin’s house during the incident. She said her parents 13 14 sometimes got along, but since May of 2005, there was “more distance, more arguing” and by 15 October, the relationship was getting worse. Iesha stated that her father acted paranoid during 16 that time. She explained that her father thought her mother “was maybe being sneaky, or thought 17 that guys were calling her or something,” and he suspected that another man ordered some 18 furniture that was delivered to the apartment. Iesha testified that, beginning in May 2005, her 19 father’s “eyes were red,” he was “just up all the time,” and he thought his wife “was poisoning 20 him” and “pouring contact-lens solution into his food.” She agreed that her father’s drug use 21 increased as his behavior deteriorated.13 22 23 12 ECF No. 29-55 at 34–51; ECF No. 53-16 at 10–51. 13 ECF No. 53-15 at 53–69. 5 1 A fourth child, Veronica Castillo (Veronica Jr.), testified that Veronica and Castillo- 2 Sanchez were her parents and that she didn’t live with them when the incident occurred. She 3 stated that in 2004, her mother told her that she wanted a divorce. Veronica Jr. called “a 1-800 4 number” about a divorce at her mother’s request, but her mother ultimately didn’t go through 5 with it. She noted that her parents came to her home the day before the incident, were acting 6 “weird,” and were not speaking to each other. Veronica Jr. recounted that, after Castillo-Sanchez 7 left, her mother told her that she felt “[h]urt, sad, [and] scared for her life.”14 8 3. 9 Medical records introduced at trial showed that Castillo-Sanchez arrived at the University Castillo-Sanchez’s admission of guilt 10 Medical Center (UMC) emergency room at 10:11 P.M. with self-inflicted wounds on his wrists 11 and underwent surgery for his left wrist at 12:33 A.M. the next day. He was given several 12 narcotic medications, such as Fentanyl and Demerol, during and after the surgery to manage his 13 pain. Castillo-Sanchez’s admission paperwork reflected that he ingested “half a gram of 14 cocaine” the previous afternoon and tested positive for cocaine metabolites when he arrived at 15 the hospital. The records also indicated alcohol abuse, but they didn’t contain any blood16 alcohol-test results. 17 Dr. Michael Shawn Levy, an addiction-medicine specialist, testified at trial that cocaine 18 is a stimulant that can cause hallucinations and psychotic or delusional behavior. He explained 19 that “when under the influence of cocaine,” an individual “may magnify very innocent gestures, 20 or manufacture situations that absolutely do not exist” and “totally believe that they exist.” 21 Based on the number and type of drugs administered to Castillo-Sanchez at UMC, the blood loss 22 he suffered from his injuries and the surgery, and his cocaine use, Levy opined that an individual 23 14 ECF No. 53-14 at 5–9. 6 1 “may be confused” or disoriented after surgery and adverse effects can exist several hours after 2 ingesting such medications or cocaine.15 3 Metro corrections officer Angel Nunez testified that, the day after the incident, he 4 relieved the officer who was assigned to stand guard over Castillo-Sanchez at UMC at around 5 11:00 A.M. Nunez did not speak to Castillo-Sanchez until Castillo-Sanchez asked him if he 6 spoke Spanish. Nunez, who is fluent in Spanish, responded and Castillo-Sanchez told him that 7 he wanted the nurse to remove his catheter so he could use the restroom. Nunez told Castillo8 Sanchez he would tell the nurse when she came into the room. Nunez testified that about 15 9 minutes later, Castillo-Sanchez, speaking in Spanish, “blurted out” three times that he “had killed 10 his wife.” Nunez was surprised and didn’t respond. Nunez testified that Castillo-Sanchez’s eyes 11 were open and he was “kind of looking up” with tears coming down his face. Unsolicited, 12 Castillo-Sanchez “started talking about his wife,” commenting that his wife physically abused 13 him, “put things in his drink to make him pass out,” he was not the father of two of his four 14 children, and he heard his mother-in-law tell his wife to put things in his drink. Nunez reported 15 the statements to the officer assigned to guard Castillo-Sanchez and later prepared a report 16 memorializing them.16 17 4. 18 Forensic evidence a. Veronica’s cause of death Gary Telgenhoff, a forensic pathologist at the Clark County Coroner’s Office, performed 19 20 Veronica’s autopsy. He testified that her cause of death was homicide by “multiple incised and 21 stab wounds.” He found approximately 93 wounds, including stabs, incise wounds, cuts, nicks, 22 23 15 ECF No. 29-60 at 4–35. 16 ECF No. 29-57 at 66–84. 7 1 and abrasions all over her body, including 32 wounds concentrated in the upper-left portion of 2 her chest. The wounds were consistent with a violent confrontation and struggle. There were 26 3 defensive wounds—the most Telgenhoff had seen in his 12-year career. Telgenhoff found “three to five” stab wounds that, without medical attention, were lethal. 4 5 He explained that “the major wounds were in the lung area,” causing the lung to collapse. He 6 testified that he “would expect this person to linger for quite some time with eventual blood loss 7 and eventual respiratory difficulty.” He opined that Veronica “wouldn’t have died right away”; 8 it could have taken “minutes” or “over an hour.” Telgenhoff also posited that of the three knives 9 found at the scene, the folding knife in the bedroom was most consistent with Veronica’s 10 wounds.17 He also noted that Veronica’s blood contained cocaine at the time of the autopsy. 11 b. 12 Evidence recovered from Castillo-Sanchez and the crime scene Metro senior crime-scene analyst Stephanie Smith impounded three knives at the scene: 13 (1) a “folding knife” with “a significant amount of blood” on the handle and blade from the “foot 14 of the bed”; (2) a “kitchen-type knife” from the ground near a red pickup truck close to the 15 apartment building; and (3) a [Henckels] knife, which had “a significant amount of” apparent 16 bloodstains on the handle and blade from the “back trunk lid” of a white Nissan vehicle. The 17 knives were negative for fingerprints, but Smith obtained blood samples from the handles and 18 blades of each knife. Outside of the apartment, Smith recovered, among other things, Castillo19 Sanchez’s torn bloody shirt found near the Nissan and Rafael Jr.’s white t-shirt. Smith testified 20 that she saw a broken bedroom window with blood on the exterior wall “right above” the 21 victim’s location on the floor underneath a headboard inside the apartment.18 22 23 17 ECF No. 29-59 at 6–60. 18 ECF No. 29-51 at 32–105. 8 Robbie Dahn, another crime-scene analyst, photographed Castillo-Sanchez’s injuries at 1 2 UMC. She observed “injuries on both of his wrists,” “injuries that were scratch-like on his arms 3 near and around the elbow,” a “scratch-type injury” on his “left leg,” and an injury to his heel. 4 Dahn swabbed Castillo-Sanchez’s chest, neck, right arm, right hand, and the bottoms of his feet. 5 She also retrieved Castillo-Sanchez’s clothes and took blood samples from each item of 6 clothing.19 7 c. 8 DNA analysis Metro forensic-scientist Julie Marshner testified that she authored four reports containing 9 DNA analysis of the evidence collected in this case. Shee concluded that Castillo-Sanchez was a 10 match for one of the DNA profiles on the folding knife’s tip, hinge, and a second swab of the 11 knife’s blade. Veronica was also a minor contributor for the DNA profile taken from that knife’s 12 hinge and blade. Marshner confirmed that she found DNA alleles in the second swab of the 13 blade that did not match those of Castillo-Sanchez or Veronica, but she concluded that those 14 alleles did not indicate the presence of a third person’s DNA. She explained that a non-matching 15 allele might be “stutter peak” DNA, which is an artifact of the copying process conducted for 16 comparison testing in which a DNA profile does not fully duplicate. 17 Marshner also analyzed DNA taken from the Henckels knife recovered from the top of 18 the vehicle trunk. Castillo-Sanchez’s identity was assumed as a major contributor for a profile 19 taken from the Henckels knife handle and blade, and Veronica was a minor contributor for the 20 profile taken from the handle. No third-party profiles were present on the samples taken from 21 the Henckels knife. And Marshner’s analysis of the third, unbranded knife revealed a major 22 DNA profile consistent with Castillo-Sanchez, and Veronica was not excluded as a minor 23 19 ECF No. 53-13 at 9–14. 9 1 contributor. There were additional alleles that didn’t match Castillo-Sanchez and Veronica on 2 that knife, but Marshner opined that a third-party’s DNA wasn’t present based on the overall 3 profile. 4 Marshner testified that Castillo-Sanchez was the major contributor, and Veronica was not 5 excluded as the minor contributor (greater than 99 percent of the population being excluded and 6 she not), of DNA taken from blood on Castillo-Sanchez’s arm. The blood sample taken from the 7 front neckline of Castillo-Sanchez’s tank top bore a mixed DNA profile with Castillo-Sanchez as 8 the major contributor and Veronica not excluded as a minor contributor. DNA profiles on swabs 9 taken from Rafael Jr.’s bloody t-shirt were consistent with Veronica. 10 Marshner admitted that she received no DNA reference profiles for anyone other than 11 Castillo-Sanchez and Veronica. She agreed that swabs of the third knife’s handle, the folding12 knife’s blade, and Castillo-Sanchez’s person produced a profile including an allele that did not 13 match Castillo-Sanchez or Veronica, and that it could be stutter DNA or real DNA belonging to 14 a third person. But in Marshner’s opinion, none of the profiles provided enough information to 15 conclude that a third party’s DNA was present.20 Castillo-Sanchez’s version of events 16 5. 17 Castillo-Sanchez testified in his own defense at trial. He explained that he and Veronica 18 had “a lot of problems with [their son, Rafael Jr.] because of gangs” and his bringing “weapons 19 to the house” in 2004. In 2005, Castillo-Sanchez and Rafael Jr. were not getting along because 20 Rafael Jr. “would frequently tell [him] that [he] wasn’t his father and that [he] didn’t have any 21 reason to tell him what to do.” He averred that Rafael Jr. was “very violent” with him. Castillo22 Sanchez testified that his son got physical or aggressive “every time he would come home drunk 23 20 ECF No. 29-53 at 9–65. 10 1 or on drugs” and “two or three times [Castillo-Sanchez] had to . . . search [Rafael Jr.’s] clothes” 2 for drugs, finding the drug PCP at least once.21 Castillo-Sanchez testified that on the evening of the incident, he and Rafael Jr. “weren’t 3 4 speaking,” and Rafael was “drinking Hennessey” in the living room. Castillo-Sanchez drank 5 some beer that Veronica offered him, took his blood-pressure medication, and “just fell asleep” 6 sitting on the edge of the bed. He claimed that when he woke up, “felt something burning [his] 7 hands,” saw Rafael Jr. “on top of [him] with the knife in his hand,” and thought his son “was 8 going to kill [him].” He testified that Veronica “was saying: ‘That’s your dad, don’t do anything 9 to him.’” Castillo-Sanchez recalled being handcuffed, and Veronica was telling Rafael Jr., ‘Take 10 them off, take off those handcuffs, that’s your dad.’” Castillo-Sanchez asserted that Rafael’s 11 eyes “were red and he was sweating profusely.” When, Rafael Jr. removed the handcuffs, 12 Castillo-Sanchez “immediately reached and grabbed at the hand in which [Rafael Jr.] had the 13 knife, and [they] started to struggle.” He testified that Veronica “grabbed [Rafael Jr.] from 14 behind around the neck and threw him back . . . , and the two of us fell off the bed struggling 15 onto the floor.” Castillo-Sanchez continued struggling to get the knife while Veronica “held 16 [Rafael Jr.] tight,” but Rafael Jr. pushed her off and she fell. Veronica got up, grabbed her son 17 around the neck, “like she was choking him.” Rafael Jr. “got crazy trying to throw her off,” and 18 started hitting Veronica “like a crazy man.” Castillo-Sanchez “got on top of him,” and Rafael Jr. 19 started hitting him in the arms. Veronica jumped on Rafael Jr. again, but he threw her off and 20 started attacking her. Castillo-Sanchez said he cut his foot while kicking at Rafael Jr.22 21 22 23 21 ECF No. 30-1 at 22–27. 22 Id. at 31–39; ECF No. 30-7 at 26–28. 11 When Castillo-Sanchez saw his son “go after [Veronica] again” with a knife, he “ran out 1 2 of the room crying for help” and got a knife from the kitchen to defend himself. He claimed that 3 Veronica was alive when he left the bedroom and he saw Rafael Jr. stabbing her. Castillo4 Sanchez heard Simmons outside the back window of the apartment shouting, “‘Kill him, kill 5 him, kill him.’” Castillo-Sanchez tried to open the main door, but something held it shut. He 6 heard Simmons break “the window in front of the house” and saw him come in through the 7 window. 8 Castillo-Sanchez testified that Rafael Jr. must have exited the apartment from the 9 bedroom window after stabbing Veronica, noting that he “just felt like something went through 10 the window, a strong noise like of glass.” He then saw Rafael Jr. “coming from behind the 11 house” to the front door. Rafael Jr. looked at him “strangely like his face was disfigured” and 12 ran into the house while Castillo-Sanchez ran down the steps. Moments later, Rafael Jr. left the 13 house with a knife, and Rafael Jr. and Simmons came toward Castillo-Sanchez, “both of them 14 with knives in their hands.” Castillo-Sanchez testified that he put the knife he was holding on 15 the trunk of the car when the police arrived and got down on the ground without waiting for them 16 to tell him to do so. He said he didn’t “feel very good” and the paramedics undressed him and 17 took him to the hospital. He denied speaking to anyone, claiming that he didn’t think he had the 18 strength to speak and was confused about what happened to him.23 Castillo-Sanchez claimed that he and Veronica didn’t have any marriage problems. He 19 20 was unaware that Veronica may have sought a divorce, exclaiming, “No, my sweetheart she 21 would never ask me or want a divorce from me neither would I from her. Never.” He denied 22 suspecting an affair, that another man bought her furniture, or that his mother-in-law told 23 23 ECF No. 30-7 at 28–33; ECF No. 30-8 at 11–19. 12 1 Veronica to poison him. He admitted that he used cocaine on the afternoon of the incident but 2 not with Veronica, and that they used cocaine together twice a week for “two years or more.” 3 When asked whether he killed Veronica, Castillo-Sanchez responded, “No. She was my life, my 4 sweetheart, she was everything to me, everything. I never touched her with even the tip of my 5 finger in 22 years; never, ever, no, nothing.”24 Castillo-Sanchez testified that “everything” Officer Nunez said about his confession “was 6 7 a lie.” Castillo-Sanchez said that when he came out of surgery, an officer obtained an 8 interpreter, turned on a tape recorder, and read him his rights, but he requested an attorney. He 9 testified that the officer said, “‘So you’re not going to talk to me,’” and when Castillo-Sanchez 10 didn’t respond, the officer said “‘F’k you,’” and left. About 45 minutes later, Nunez came into 11 his hospital room. Castillo-Sanchez said that he “saw in [Nunez’s] face . . . a child that’s up to 12 doing something bad and doesn’t want anybody to know about it.” He told Nunez “absolutely 13 nothing” because he was suspicious of the officers and “didn’t know what was going on.” He 14 said the medicine the hospital administered made him drowsy, so he covered his head with a 15 sheet and went to sleep until he was taken to jail.25 Castillo-Sanchez further testified that he believed evidence was “planted” to incriminate 16 17 him as his recollection of the crime scene did not match the photographs presented by the state. 18 He insisted that his attorney showed him photographs that differed from the ones shown at trial, 19 but those original photographs must have “disappeared” or been “hidden . . . somewhere.” He 20 contended that the testimony about his t-shirt was suspicious because he was transported without 21 a shirt, but an investigator testified that he arrived at the hospital “with half of a bloody t-shirt.” 22 23 24 ECF No. 30-1 at 30–35; ECF No. 30-7 at 46; ECF No. 30-8 at 5–6. 25 ECF No. 30-7 at 40–46. 13 1 Castillo-Sanchez claimed that he had cuts on the bottoms of his feet from lying on his back 2 kicking at Rafael Jr., but the photographs taken of him at UMC omitted those injuries. And he 3 testified that he believed the police planted evidence because Rafael Jr. and Simmons had knives 4 in their hands and were standing near Castillo-Sanchez when the police arrived and told 5 everyone to drop their weapons, but Rafael Jr.’s was not recovered in the place that Castillo6 Sanchez believed it was dropped. 7 Castillo-Sanchez also testified that while he was held at the Clark County Detention 8 Center awaiting trial, he was frequently transported to UMC for “illegitimate reasons” which it 9 appears he believed were used to plant DNA evidence in his case. He said that an officer took 10 him to a doctor to have his lungs checked in 2007, but he did not suffer from lung problems. He 11 claimed that while he was there, a nurse injected something white into his arm that made him 12 feel dizzy. The nurse then used the same syringe to take blood from the back of his left hand. 13 Castillo-Sanchez testified that he believed the UMC visit corresponded with the submission of 14 DNA evidence in his case. He saved his hospital bracelets and paperwork, but they disappeared 15 from his cell.26 16 B. Procedural background 17 The state charged Castillo-Sanchez with first-degree murder and assault with a deadly 18 weapon on December 15, 2005. About a month later, the state filed a notice of intent to seek the 19 death penalty.27 In June 2010, a jury found Castillo-Sanchez guilty of first-degree murder with 20 use of a deadly weapon for killing Veronica, and guilty of assaulting Simmons with a deadly 21 26 Id. at 34–53; ECF No. 30-8 at 15–16. The defense also called Jeff Schauer, Castillo-Sanchez’s 22 former supervisor at a job he held from 2003 to 2005. ECF No. 30-8 at 20–25. Because his testimony is not relevant to the grounds raised in Castillo-Sanchez’s petition, I don’t recount it 23 here. 27 ECF No. 27-12. 14 1 weapon. During the penalty phase of the trial, the defense called psychologist Dr. Jose J. 2 LaCalle, who testified that Castillo-Sanchez suffered from an IQ of 82 and “delusional disorder 3 persecutory type.” The jury sentenced Castillo-Sanchez to life imprisonment without the 4 possibility of parole for the first-degree murder conviction, finding that the mitigating 5 circumstances outweighed the aggravating circumstances that, in the state’s view, supported 6 imposition of the death penalty. In its special verdict for mitigating circumstances, the jury 7 found that the “murder was committed while Defendant was under the influence of extreme 8 mental or emotional disturbance” and drugs, and that Castillo-Sanchez “suffers from Delusional 9 Paranoid Disorder, i.e., Delusional Disorder-Persecutory Type.” Castillo-Sanchez 10 unsuccessfully sought relief on direct appeal and in state postconviction proceedings.28 11 Discussion 12 Castillo-Sanchez contends that his trial attorneys provided ineffective assistance when 13 they overlooked one of Marshner’s DNA reports finding Veronica’s DNA on the blood sample 14 taken from Castillo-Sanchez’s arm and shirt.29 He argues that counsel’s negligence prejudiced 15 him because the defense strategy—that Castillo-Sanchez was present when Veronica was 16 attacked but wasn’t the killer—was weakened by unanticipated evidence that her blood was 17 found on him. He also contends that counsel prejudiced him by failing to convey the contents of 18 the report when advising him to accept an offer to plead guilty to second-degree murder. He 19 further claims that his trial attorneys were ineffective in failing to investigate and present a 20 mental-health, diminished-capacity, or insanity defense during the guilt phase of the trial and he 21 22 28 23 29 ECF No. 27-14 at 3; ECF No. 30-12; ECF No. 30-17 at 8–22; ECF No. 30-18 at 4; ECF No. 30-23 at 2; ECF No. 30-25 at 7–8; ECF No. 30-26; 30-29; ECF No. 31-7; ECF No. 32-25. Castillo-Sanchez had two trial attorneys, Ivette Maningo, Esq., and Charles Cano, Esq. See, e.g., ECF No. 29-44 at 2. 15 1 was prejudiced because counsel could have used those defenses to negate the intent element of 2 first-degree murder. Finally, Castillo-Sanchez avers that trial and appellate counsel were also 3 ineffective in failing to challenge jury instructions explaining the requirements for finding malice 4 and premeditation and directing the jury to administer “equal and exact justice.” 5 A. Legal standards 6 1. 7 If a state court has adjudicated a habeas corpus claim on its merits, a federal district court Antiterrorism and Effective Death Penalty Act (AEDPA) 8 may only grant habeas relief with respect to that claim if the state court’s adjudication “resulted 9 in a decision that was contrary to, or involved an unreasonable application of, clearly established 10 [f]ederal law, as determined by the Supreme Court of the United States” or “resulted in a 11 decision that was based on an unreasonable determination of the facts in light of the evidence 12 presented in the [s]tate court proceeding.”30 A state court acts contrary to clearly established 13 federal law if it applies a rule contradicting the relevant holdings or reaches a different 14 conclusion on materially indistinguishable facts.31 And a state court unreasonably applies clearly 15 established federal law if it engages in an objectively unreasonable application of the correct 16 governing legal rule to the facts at hand.32 Section 2254 does not, however, “require state courts 17 to extend” Supreme Court precedent “to a new context where it should apply” or “license federal 18 courts to treat the failure to do so as error.”33 The “objectively unreasonable” standard is 19 20 21 30 22 28 U.S.C. § 2254(d). 31 Price v. Vincent, 538 U.S. 634, 640 (2003). 23 32 White v. Woodall, 572 U.S. 415, 424–27 (2014). 33 Id. 16 1 difficult to satisfy;34 “even ‘clear error’ will not suffice.”35 “The question . . . is not whether a 2 federal court believes the state court’s determination was incorrect but whether that 3 determination was unreasonable—a substantially higher threshold.”36 Habeas relief may only be granted if “there is no possibility [that] fairminded jurists 4 5 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”37 6 As “a condition for obtaining habeas relief,” a petitioner must show that the state-court decision 7 “was so lacking in justification that there was an error well understood and comprehended in 8 existing law beyond any possibility of fairminded disagreement.”38 “[S]o long as ‘fairminded 9 jurists could disagree’ on the correctness of the state court’s decision,” habeas relief under 10 Section 2254(d) is precluded.39 AEDPA “thus imposes a ‘highly deferential standard for 11 evaluating state-court rulings,’ . . . and ‘demands that state-court decisions be given the benefit 12 of the doubt.’”40 If a federal district court finds that the state court committed an error under 13 § 2254, the district court must then review the claim de novo.41 The petitioner bears the burden 14 15 16 17 34 Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013). 35 Woods v. Donald, 575 U.S. 312, 316 (2015) (per curiam) (citation omitted). 36 Schriro v. Landrigan, 550 U.S. 465, 473 (2007). 37 Harrington v. Richter, 562 U.S. 86, 102 (2011). 38 21 Id. at 103. 39 Id. at 101. 22 40 Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted). 18 19 20 Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). 41 23 17 1 of proving by a preponderance of the evidence that he is entitled to habeas relief,42 but state2 court factual findings are presumed correct unless rebutted by clear and convincing evidence.43 3 2. 4 The right to counsel embodied in the Sixth Amendment provides “the right to the Effective assistance of counsel 5 effective assistance of counsel.”44 Counsel can “deprive a defendant of the right to effective 6 assistance[] simply by failing to render ‘adequate legal assistance[.]’”45 In the hallmark case of 7 Strickland v. Washington, the United States Supreme Court held that an ineffective-assistance 8 claim requires a petitioner to show that: (1) his counsel’s representation fell below an objective 9 standard of reasonableness under prevailing professional norms in light of all of the 10 circumstances of the particular case;46 and (2) it is reasonably probable that, but for counsel’s 11 errors, the result of the proceeding would have been different.47 A reasonable probability is “probability sufficient to undermine confidence in the 12 13 outcome.”48 Any review of the attorney’s performance must be “highly deferential” and must 14 adopt counsel’s perspective at the time of the challenged conduct so as to avoid the distorting 15 effects of hindsight.49 “The question is whether an attorney’s representation amounted to 16 incompetence under prevailing professional norms, not whether it deviated from best practice or 17 18 19 42 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 43 28 U.S.C. § 2254(e)(1). 44 Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 20 U.S. 759, 771 n.14 (1970)). 45 Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344–50 (1980)). 46 22 Id. at 690. 47 Id. at 694. 23 48 Williams v. Taylor, 529 U.S. 362, 390–91 (2000). 49 Strickland, 466 U.S. at 689. 21 18 1 most common custom.”50 The burden is on the petitioner to overcome the presumption that 2 counsel made sound trial-strategy decisions.51 The Strickland standard also applies to appellate counsel.52 Appellate counsel does not 3 4 have a constitutional obligation to raise every nonfrivolous issue requested by the appellee.53 5 “Experienced advocates since time beyond memory have emphasized the importance of 6 winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at 7 most on a few key issues.”54 So a petitioner must show that counsel unreasonably failed to 8 discover and argue nonfrivolous issues.55 It is inappropriate to focus on what could have been 9 done rather than focusing on the reasonableness of what counsel did.56 The petitioner must 10 prove that, but for counsel’s errors, he would have prevailed on appeal.57 The United States Supreme Court describes federal review of a state supreme court’s 11 12 decision on an ineffective-assistance claim as “doubly deferential.”58 So the reviewing judge 13 “take a ‘highly deferential’ look at counsel’s performance . . . through the ‘deferential lens of 14 15 16 17 18 50 Harrington, 562 U.S. at 105. 51 Id. at 104–05. 19 52 20 53 Jones v. Barnes, 463 U.S. 745, 751 (1983). 54 Id. at 751–52. 55 22 Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000) (citation omitted). 56 Williams v. Woodford, 384 F.3d 567, 616 (9th Cir. 2004) (citation omitted). 23 57 Smith, 528 U.S. at 285 (citation omitted). 58 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 21 Smith v. Robbins, 528 U.S. 259, 285 (2000) (citation omitted) (citing Strickland, 466 U.S. at 687–94). 19 1 § 2254(d)’”59 and consider only the record that was before the state court that adjudicated the 2 claim on its merits.60 3 4 Castillo-Sanchez is not entitled to habeas relief for Ground One: trial counsel’s failure to investigate and prepare for an overlooked DNA report. 5 Ground One alleges that Castillo-Sanchez’s trial attorneys were ineffective because they B. 6 overlooked a DNA report concluding that Veronica’s DNA was present in blood found on 7 Castillo-Sanchez’s arm and shirt. Castillo-Sanchez claims that there is a reasonable probability 8 that the result of the proceedings would have been different but for counsel’s errors because (1) 9 the defense strategy was based on the absence of Veronica’s blood on Castillo-Sanchez’s person, 10 leaving counsel unprepared when they discovered the omission during the prosecutor’s opening 11 statements at trial; and (2) had counsel not overlooked the report, they may have advised 12 Castillo-Sanchez differently about whether to accept a plea offer to second-degree murder.61 13 Respondents contend that these claims fail because Castillo-Sanchez does not allege 14 “what additional information would have been obtained with further investigation” or “how it 15 could have produced a different result” given the overwhelming evidence of guilt presented at 16 trial. They also argue that, based on testimony at the postconviction evidentiary hearing from 17 trial counsel and Dr. Daniel Sussman (a psychiatrist who opined on Castillo-Sanchez’s mental 18 19 59 Id. 20 60 Id. at 180–85. 61 ECF No. 21 at 7–10. In his reply, Castillo-Sanchez also suggests that, had counsel not overlooked the report, they may have changed their strategy to pursue an insanity defense at trial. ECF No. 48 at 9–10. Castillo-Sanchez did not raise this argument as it relates to the overlooked 22 DNA report in his amended habeas petition before this court, so I do not consider it. Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in 23 petitioner’s reply brief are deemed waived.”). Even if I did, I would deny it for the same reasons I deny Ground Two, infra. 21 20 1 state at the time of trial), the DNA evidence would not have convinced Castillo-Sanchez to plead 2 guilty because of his strong delusions of innocence.62 3 1. 4 Additional background a. 5 Castillo-Sanchez turned down several plea offers before trial. In 2006, the state trial court inquired whether a negotiated plea was possible and defense 6 counsel replied, “It’s always possibl[e], but at this point I seriously doubt it.” In 2007, defense 7 counsel reported to the court that Castillo-Sanchez rejected a proposed guilty plea agreement, 8 and Castillo-Sanchez confirmed his unwillingness to accept the offer. The following year, the 9 state advised the court that “there’s an offer on the table, but [Castillo-Sanchez] has never 10 indicated any desire to plead,” and defense counsel confirmed that Castillo-Sanchez again 11 rejected the offer. In 2009, defense counsel advised that, against counsel’s recommendations, 12 Castillo-Sanchez once again turned down a reasonable offer to resolve the case. The court 13 warned Castillo-Sanchez that the offer would dissolve once a jury was empaneled and advised 14 him that, if he wanted to negotiate his case, he must do so before the day of trial. Castillo15 Sanchez responded: “Your Honor, I have never, I don’t need an offer, I don’t need a negotiation. 16 I’ve never told my lawyers to seek an offer, because I’m innocent and I am going to prove my 17 innocence.”63 18 19 20 21 22 23 62 ECF No. 38 at 9–15. 63 ECF No. 27-24 at 3; ECF No. 28-22 at 3–5; ECF No. 28-33 at 4; ECF No. 29-9 at 44–45. 21 1 b. 2 3 Defense counsel overlooks a critical DNA report, discovers the oversight during the prosecution’s opening statement, and requests a mistrial. In opening statements to the jury, the prosecutor argued that the jury would learn that 4 Castillo-Sanchez confessed to killing his wife and that DNA consistent with only Veronica and 5 Castillo-Sanchez was found on two knives and on Castillo-Sanchez: 6 You’re going to hear expert testimony in this case. You’re going to hear from DNA experts. And you’re going to hear that the DNA, the blood evidence at the scene, is consistent with two people, and that’s the defendant and that’s Veronica, including blood evidence from the knife that the defendant dropped on the trunk of the vehicle, including the knife recovered from the bedroom near Veronica’s body, and Veronica’s blood is all over the defendant and his clothing. 7 8 9 10 11 Defense counsel moved for a mistrial or continuance because they overlooked the December 12 2007 report stating that Veronica’s DNA was on Castillo-Sanchez’s body. Counsel informed the 13 trial court that counsel originally planned to argue in opening statements that none of Castillo14 Sanchez’s DNA was found on Veronica. The court deferred ruling on the motions and directed 15 the trial to proceed with defense counsel’s opening remarks and Smith’s testimony about the 64 16 collection of evidence. In defense counsel’s opening statement, counsel argued that the state would fail to prove 17 65 18 its case beyond a reasonable doubt. He told the jury to be cautious in accepting Castillo- 19 Sanchez’s statement of guilt because it was made at the hospital after he had consumed cocaine, 20 alcohol, and pain medications and while he was recovering from anesthesia. Counsel argued 21 there were no direct eyewitnesses to the struggle in the apartment and the jury would hear that 22 23 64 ECF No. 29-51 at 11–17. 65 Mr. Cano presented opening statements for the defense. 22 1 Rafael Jr. attacked Castillo-Sanchez with a knife, Castillo-Sanchez was injured on his wrists, and 2 Rafael Jr. gave his blood-covered shirt to a third party before police arrived at the scene.66 3 Defense counsel later conceded that they overlooked the DNA report and reiterated their 4 request for a mistrial or continuance, arguing that they were unprepared for trial because the 5 evidence in that report complicated their defense strategy, and because Castillo-Sanchez wanted 6 an evidentiary hearing as he always believed the DNA evidence was compromised. The court 7 denied the motions, finding no prejudice because Castillo-Sanchez had admitted guilt, counsel 8 was aware that DNA from Veronica and Castillo-Sanchez was present on the knife found in the 9 bedroom, and witnesses placed Castillo-Sanchez in the apartment during the offense. The trial 10 court, however, instructed the state to provide raw data for the overlooked report to defense 11 counsel so the defense expert could examine it during trial, and promised to allow the defense to 12 recall the state’s witnesses after conferring with its expert.67 13 c. 14 Testimony at the postconviction evidentiary hearing suggests that the DNA report may have weakened Castillo-Sanchez’s defense, but he likely wouldn’t have plead guilty even if he reviewed it before trial. At the postconviction evidentiary hearing, Castillo-Sanchez’s lead trial counsel testified 15 16 that Castillo-Sanchez “maintained actual innocence from day one.”68 She stated that her planned 17 defense at trial was that Rafael Jr. was the perpetrator, and Castillo-Sanchez was another victim 18 of his son’s attacks. Counsel testified that, before giving opening statements at trial, she was 19 aware that Veronica’s DNA was found on “two knives” and was under the mistaken impression 20 that her DNA was not found on Castillo-Sanchez. Counsel said that she nonetheless had 21 22 23 66 Id. at 17–22. 67 Id. at 115–36. ECF No. 31-44 at 13. Only one of Castillo-Sanchez’s trial attorneys, Ivette Maningo, testified at the postconviction evidentiary hearing. 68 23 1 sufficient time to change the defense’s opening statement once the report was discovered. 2 Counsel testified that, had the report not been overlooked, she would have ensured that the 3 defense expert “had time to review that particular report in conjunction with the raw data” and 4 determine that “that specific evidence was tested and processed the way it should have been.” 5 She also would have discussed with Castillo-Sanchez “the significance of what [the DNA 6 evidence] meant, compared to the absence of it, and how that might have changed” the defense 7 strategy, counsel’s cross-examination of the state’s witnesses, and Castillo-Sanchez’s testimony. 8 Counsel testified that the report weakened the defense’s argument that Castillo-Sanchez was not 9 in close proximity to Veronica during the murder: 10 11 12 Q. Is there anything about the fact that this report that actually caused you to alter your defense in this case, and that is that the Defendant didn’t do it? 14 A. It did alter it in the sense that based on what I believe my client’s testimony was going to be, there was an explanation for why the victim’s blood and his blood could be on both knives. And it strengthened that position to say that none of the blood from the victim was on his body. So it altered it in a way. 15 Q. It weakened your case? 16 A. It weakens the case, yes. 17 Q. But the Defendant ultimately testified that when the attack occurred by Rafael Jr., he was actually present with the victim when that attack occurred, correct? 13 18 19 A. Present, but not necessarily close to her. So that was an issue. .... 20 21 22 23 Q. [Y]ou said on cross-examination that you had an explanation or were going to make argument with the explanation as to why both the victim’s blood and the Defendant’s blood could be on the two knives. What did you mean by that? A. The argument was that the perpetrator used those knives to injure or hurt, to inflict injuries both on Mr. Castillo and Veronica. 24 1 Q. So you were prepared at the start of opening argument to say, okay, yeah the knives contained the DNA of both victim and the Defendant, but there is a reasonable explanation for that. 2 3 A. That’s right. That was the argument. 4 5 Q. You said on cross-examination that the DNA report that you then received in trial that surprised you weakened the defense? 6 A. It did. 7 Q. That’s because now you have the victim’s DNA on the Defendant himself? 8 A. That’s right. 9 Q. Why did that concern you? 10 A. Based on the defense, he was being victimized by being handcuffed to a bed frame, so he was present in the room, but not necessarily in close proximity to the victim. And the lack of DNA on his body supported that argument.69 11 12 Castillo-Sanchez’s lead trial counsel further testified that she and her co-counsel were 13 14 unaware of the DNA report linking Veronica’s DNA to his person when they discussed with 15 Castillo-Sanchez the state’s offer to plead guilty to second-degree murder with use of a deadly 16 weapon. Counsel told Castillo-Sanchez at the time that accepting the offer was in his best 17 interest, particularly because the state’s case was strong, his defense was weak, and he faced the 18 potential of receiving a capital sentence if he went to trial. Counsel discussed Castillo-Sanchez’s 19 case with him at length before he rejected the plea agreement. Castillo-Sanchez knew that 20 family members were eyewitnesses and would testify against him, but he believed that they were 21 22 23 69 Id. at 34–36. 25 1 persecuting him. Counsel testified that the DNA report would have helped convince Castillo2 Sanchez that the “state’s case was strong and even stronger than [they] thought.”70 3 Dr. Sussman, a psychiatrist who was previously called to opine on Castillo-Sanchez’s 4 competency to stand trial, testified at the postconviction evidentiary hearing that Castillo5 Sanchez was likely insane at the time of trial, his condition made it difficult for him to assist 6 counsel, and his illness made it unlikely that counsel could persuade him to accept a guilty plea 7 because it was a “nonstarter” for him: 8 Q. Everything you have said, coming back to trying to talk to a defendant about negotiation. You know what I mean by that, hey, maybe you should take a second-degree murder here. Is everything you are describing, his condition, going to make it difficult for lawyers to make a strong case for why the Defendant should enter— 9 10 11 A. Absolutely. It’s going to be essentially a non-starter with him. He’s going to pretty much shut that down . . . You’ve been working on the post-conviction appeal for relief. But I would be very surprised if lawyers . . . from the past saw something different. As a matter of fact, the report says that there have been problems over time with him even being willing to talk with attorneys. So he’s been pretty dismissive over time, in terms of his willingness to work with attorneys.71 12 13 14 15 The Supreme Court of Nevada’s determination 16 2. 17 The Supreme Court of Nevada determined that Castillo-Sanchez failed to demonstrate 18 that trial counsel’s failure to discover the DNA report sooner prejudiced him under Strickland: 19 [C]astillo-Sanchez argues that trial counsel should have investigated a DNA report that identified his DNA on the victim. Trial counsel learned of this DNA evidence during the [s]tate’s opening statement and admitted overlooking the report that the [s]tate provided earlier. Regardless of whether counsel’s omission was deficient, Castillo-Sanchez has not demonstrated prejudice. Trial counsel explained during the evidentiary hearing that the 20 21 22 23 70 ECF No. 31-44 at 7–32. 71 ECF No. 31-44 at 40–79; ECF No. 50-5. 26 1 defense theory was constrained by both Castillo-Sanchez’s anticipated testimony that he was in the room with the victim when his son killed her in a three-person struggle and other DNA reports that counsel reviewed, indicating evidence of both his and the victim’s DNA on the knives used in the killing found at the scene. In light of the overwhelming evidence of his guilt and the minor impediment that trial counsel could not argue as planned that Castillo-Sanchez was across the room from the victim rather than closer to her, Castillo-Sanchez has failed to show prejudice stemming from counsel’s oversight. And to the extent that Castillo-Sanchez argues that appellate counsel was ineffective regarding this issue, he has not identified a meritorious appellate claim that counsel should have raised. See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995) (holding that claims of ineffective assistance generally may not be raised on direct appeal). The district court therefore did not err in denying this claim.72 2 3 4 5 6 7 8 9 10 3. 11 12 Trial counsel’s failure to investigate the DNA report before the prosecutor’s opening statement was not prejudicial.73 Castillo-Sanchez contends that I should review de novo whether counsel’s performances 13 were deficient because the Supreme Court of Nevada did not do so.74 If a petitioner fails to 14 satisfy either of the Strickland requirements, I need not consider the other.75 Because the record 15 supports the reasonableness of the Supreme Court of Nevada’s determination that Castillo16 Sanchez did not establish prejudice due to counsel’s oversight of the DNA report, I do not 17 consider whether counsel’s performances were deficient. The Supreme Court of Nevada’s determination that, due to the overwhelming evidence 18 19 of his guilt, Castillo-Sanchez was not prejudiced by counsel’s failure to find the DNA report was 20 21 72 22 ECF No. 32-25 at 2–3. 73 Castillo-Sanchez does not claim in Ground One that appellate counsel was ineffective. 23 74 ECF No. 48 at 9–10. 75 Strickland, 466 U.S. at 697. 27 1 objectively reasonable.76 Nunez testified that he overheard Castillo-Sanchez state out loud that 2 he killed Veronica. Simmons claimed that he heard Veronica scream, “Rafael, Stop it,” and 3 shortly thereafter Antonio and Simmons found Veronica’s body and Castillo-Sanchez—and no 4 one else—in the apartment. The coroner testified that, based on the wounds inflicted on 5 Veronica, the bloody folding knife found in the bedroom with Veronica’s body was the likely 6 murder weapon. The DNA expert testified that the bloody folding knife and the Henckels knife 7 Castillo-Sanchez possessed when he left the apartment each bore DNA belonging to Castillo8 Sanchez and Veronica, and no third party. And Castillo-Sanchez’s testimony placed him in close 9 proximity to Veronica at the scene of her injuries and the bloody knife. 10 When defense counsel discovered the overlooked DNA report, the trial court directed the 11 state to provide the raw data for that DNA report to defense counsel for expert review during 12 trial. Defense counsel did not recall the relevant witnesses to testify concerning that newly 13 discovered DNA evidence or attempt to call a defense expert on the topic. Although counsel 14 stated that the defense strategy would have been different had the report not been overlooked, 15 Castillo-Sanchez failed to identify a strategy that would facilitate a reasonable probability the 16 result of the proceedings would have been different had counsel known about the DNA report 17 18 19 20 21 22 23 76 In its opinion, the Supreme Court of Nevada erroneously stated that the DNA report identified Castillo-Sanchez’s DNA “on the victim.” See supra, at p. 26. But the record shows that Castillo-Sanchez argued to that court, and the trial record confirms, that the overlooked DNA report found Veronica’s DNA on Castillo-Sanchez. ECF No. 32-6 at 25–32. Neither party challenges the state supreme court’s imprecise statement, and I find that the error does not constitute a basis to conclude that the state supreme court relied on an objectively unreasonable determination of the facts in light of the state-court record. See, e.g., Wiggins v. Smith, 539 U.S. 510, 528 (2003) (finding clear and convincing evidence that the state court relied on a “on a clear factual error” for its conclusion, constituting an “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”). The Court’s conclusion—that the overwhelming evidence of Castillo-Sanchez’s guilt outweighs the impact of the overlooked DNA report—remains correct in the absence of the error. 28 1 when they prepared for trial. And ultimately, trial counsel’s defense was consistent with 2 Castillo-Sanchez’s testimony and the overlooked DNA evidence, as Castillo-Sanchez testified 3 that both he and Veronica wrestled with an armed Rafael Jr. in the moments leading up to 4 Veronica’s death. So, based on the overwhelming evidence of Castillo-Sanchez’s guilt presented 5 at trial, the Supreme Court of Nevada’s determination that Castillo-Sanchez was not prejudiced 6 by trial counsel’s oversight of the DNA report is neither contrary to, nor constitutes an 7 unreasonable application of, clearly established federal law, and is not based on an unreasonable 8 determination of the facts in light of the evidence presented in the state-court proceedings. So 9 Castillo-Sanchez is not entitled to federal habeas corpus relief for this portion of Ground One. 10 4. 11 12 Trial counsel’s failure to inform Castillo-Sanchez of the DNA report when considering whether to accept a plea deal was also not prejudicial. Castillo-Sanchez also contends that he was prejudiced by counsel overlooking the DNA 13 report because, but for that error, counsel “may” have convinced Castillo-Sanchez to accept the 14 guilty plea offer to second-degree murder.77 Though this portion of his claim was arguably 15 raised at his postconviction evidentiary hearing,78 it appears that it was not raised before the 16 Supreme Court of Nevada on direct appeal or in postconviction proceedings.79 “A federal 17 habeas court generally may consider a state prisoner’s federal claim only if he has first presented 18 that claim to the state court in accordance with state procedures.”80 But procedural default is an 19 77 20 ECF No. 48 at 9–10. 78 See ECF No. 31-44 at 47–58 (postconviction counsel asking trial counsel if this DNA evidence could have persuaded Castillo-Sanchez to take a plea deal); 79 (postconviction counsel asking to 21 orally supplement his brief to assert that, “in order to properly advise a defendant of plea 22 negotiations you must have done a thorough investigation”). 79 See ECF No. 30-52 (petitioner’s brief on direct appeal); ECF No. 32-6 (petitioner’s post23 conviction appeal). 80 Shinn v. Ramirez, 596 U.S. __, 142 S. Ct. 1718, 1727 (2022). 29 1 affirmative defense that the state must plead and prove—if it is not raised, the defense is 2 waived.81 While a federal habeas court may sua sponte consider procedural default when its 3 presence is obvious from the face of the petition,82 it is not required to do so.83 Because the state 4 did not raise a procedural-default defense to this portion of Ground One and the default is not 5 clear from the face of the complaint, I address the argument on its merits.84 I find that Castillo-Sanchez was not prejudiced by trial counsel’s failure to inform him of 6 7 the results of the overlooked DNA report when advising him whether to accept a plea deal. The 8 record does not support a reasonable probability that Castillo-Sanchez would have accepted the 9 plea offer even if counsel had confronted him with the overlooked DNA results.85 To satisfy the 10 “prejudice” requirement when a petitioner failed to accept a plea offer, the petitioner must show 11 that “the outcome of the plea process would have been different with competent advice,”86 i.e., 12 13 14 81 Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003); Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). 82 Boyd v. Thompson, 147 F.3d 1124, 1228 (9th Cir. 1998); Vang, 329 F.3d at 1073 (distinguishing circumstances when a court may sua sponte consider procedural default from 15 those circumstances when the court should consider the defense waived). 16 83 See Day v. McDonough, 647 U.S. 198, 209 (2008) (holding that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas petition” and 17 noting that a statute-of-limitations defense “must be treated the same” as a procedural-default defense). 18 84 Smith v. Ryan, 823 F.3d 1270, 1285 (9th Cir. 2015). 19 20 21 22 23 85 I note Castillo-Sanchez did not in the state postconviction proceedings or in this court claim that trial counsel were ineffective in failing to advise him to enter an Alford plea. I therefore will not consider such a claim. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding that a defendant may plead guilty “even if he is unwilling or unable to admit his participation in the acts constituting the crime.”); see also State v. Lewis, 178 P.3d 146, 147 n.1 (Nev. 2008) (noting that whenever a defendant maintains his or her innocence but pleads guilty pursuant to Alford, the plea is nolo contendere and a nolo contender plea is the equivalent of a guilty plea) (quotation marks omitted), overruled on other grounds by State v. Harris, 355 P.3d 791 (Nev. 2015). 86 Lafler v. Cooper, 566 U.S. 156, 163 (2012) (citations omitted). 30 1 but for counsel’s errors, the petitioner would have pleaded guilty and would not have insisted on 2 going to trial.87 Here, with the exception of the statement overheard by Nunez at the hospital, 3 throughout the pretrial and trial proceedings Castillo-Sanchez maintained his innocence and 4 claimed that Rafael Jr. killed Veronica. Posttrial, his handwritten postconviction petition, filed 5 long after the DNA report was discovered, voiced his opposition to a guilty plea because he 6 argued that his trial attorneys were ineffective in attempting to coerce him to plead guilty by 7 using threats, scare tactics, and putting “money on his books.”88 Castillo-Sanchez’s trial counsel 8 and Sussman testified at the postconviction hearing that he “maintained his innocence from day 9 one” and a guilty plea was a “nonstarter” for him. Sussman further opined that, even if counsel 10 was armed with the DNA report when she advised him on the plea deal, he did not believe that 11 any scientific evidence would have persuaded Castillo-Sanchez to accept, noting that “his 12 delusions are so strong and fixed” that it wouldn’t have made any difference. So I find that 13 Castillo-Sanchez fails to establish that, but for counsel’s oversight, there is a reasonable 14 probability he would have accepted the plea offer instead of proceeding to trial. 15 16 Castillo-Sanchez is not entitled to habeas relief for Ground Two: trial counsel’s failure to present an insanity defense. 17 Ground Two alleges that Castillo-Sanchez’s trial attorneys were ineffective because they C. 18 failed to investigate and present a mental-health, diminished-capacity, or insanity defense during 19 the guilt phase of the trial. Castillo-Sanchez claims that counsel should have known that a sanity 20 evaluation was necessary because Castillo-Sanchez underwent multiple competency evaluations 21 22 23 87 Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (citing Hill v. Lockhart, 474 U.S. 52, 57–58 (1985)); see also Lafler, 566 U.S. at 164. 88 ECF No. 31-17 at 13–15. 31 1 and was diagnosed with delusional disorder persecutory type. Castillo-Sanchez argues that there 2 is a reasonable probability that the result of the proceedings would have been different because, 3 but for counsel’s failure to investigate and present a mental-health defense, counsel could have 4 presented strong evidence that Castillo-Sanchez could not form the requisite intent for first5 degree murder.89 6 Respondents argue that Castillo-Sanchez cannot meet his burden because counsel 7 testified that they “explored both a diminished-capacity defense and an insanity defense” but 8 were unable to present an insanity defense because Castillo-Sanchez “was opposed to putting on 9 a defense that would in any way admit or that would portray to the jury that he harmed his wife 10 in any way.” Respondents also assert that Castillo-Sanchez fails to establish prejudice because 11 there is overwhelming evidence of guilt.90 12 1. Additional background 13 a. 14 Castillo-Sanchez’s pre-trial competency evaluations and failure to cooperate with counsel Castillo-Sanchez’s trial attorneys were concerned about his competency “early on in the 15 16 case,” and in 2006 they obtained an evaluation by a licensed clinical psychologist who 17 determined that Castillo-Sanchez was competent at that time to stand trial and to aid and assist 18 counsel. In May of 2008, defense counsel moved for a competency hearing under Nevada 19 Revised Statutes §§ 178.405 and 178.415, claiming that Castillo-Sanchez’s “ability to 20 communicate with counsel” had “deteriorated,” he became “increasingly resistant in cooperating 21 with his defense team,” and communications had completely broken down. Counsel stated that 22 23 89 ECF No. 21 at 10–13. 90 ECF No. 38 at 15–19. 32 1 Castillo-Sanchez was “unable to calmly and rationally discuss his case in preparation for trial,” 2 making it impossible to “discuss strategy, options, possible outcomes[,] or any other substantive 3 or procedural issues which are important to his defense.” Counsel argued that the facts of the 4 case presented “several possible defenses” but Castillo-Sanchez was unable to consider and 5 consent to counsel raising any of them. The next day, Castillo-Sanchez filed a motion to dismiss 6 counsel, claiming that he was innocent and counsel was keeping discovery from him.91 7 During the first round of competency evaluations, Dr. Mark J. Chambers found Castillo- 8 Sanchez competent to stand trial but opined that he had “delusional beliefs regarding the merits 9 of the case against him, which could lead to a distorted perception of his legal options,” and his 10 “paranoid, distrustful tendencies” could affect his “ability to work effectively with counsel.” 11 Chambers’s diagnostic impressions included “delusion disorder, persecutory type” but no 12 malingering.92 Dr. Greg Harder’s evaluation concluded that Castillo-Sanchez was “likely” 13 incompetent to stand trial because he had substantial impairment or gross deficiency in his 14 capacity to assist counsel in the defense. Harder’s diagnostic impressions included 15 “schizophrenic, paranoid type” with “antisocial personality traits” and “legal illusions,” but no 16 malingering.93 17 Dr. Daniel Sussman provided a third evaluation concluding that Castillo-Sanchez was 18 incompetent to stand trial due to substantial impairment or gross deficiency in his capacity to 19 assist counsel in the defense. Sussman’s diagnostic impressions included “delusional disorder, 20 persecutory type,” and cocaine abuse, but ruled out antisocial personality disorder. Unlike 21 22 91 ECF No. 28-36 at 3–6; ECF No. 28-37 at 3. 23 92 ECF No. 50-2. 93 ECF No. 50-1. 33 1 Harder and Chambers, Sussman did not rule out malingering, but he found Castillo-Sanchez’s 2 story “more consistent with paranoid or persecutory delusions.” Sussman’s evaluation noted that 3 Castillo-Sanchez was “not aware of” not-guilty-by-reason-of-insanity pleas or outcomes. 4 Although Sussman recommended anti-psychotic medication, he cautioned it “may not alter 5 chronic fixed delusions.”94 6 The state court found Castillo-Sanchez incompetent to stand trial and ordered him 7 transported to Lake’s Crossing Center (LCC) for restoration of competency. Less than two 8 months later, Castillo-Sanchez returned to court because three doctors at LCC found him 9 competent, observed no mental illness, and concluded that he suffered from anti-social 10 personality disorder, adjustment disorder, and substance abuse. At a hearing on the defense’s 11 challenge to LCC’s findings, Dr. Howard Hale Henson testified that Castillo-Sanchez’s 12 explanations for the crime were inconsistent with police reports, but there was no reason to 13 believe Castillo-Sanchez was delusional. Henson saw no indication that Castillo-Sanchez had a 14 “disabling mental illness which would disqualify him as competent” or that he lacked the 15 capacity to assist counsel. The court determined that LCC failed to address whether Castillo16 Sanchez suffered from stated delusions that defense counsel was fabricating evidence against 17 him in collusion with the prosecution and ordered Castillo-Sanchez returned to LCC. Less than a 18 month later, Castillo-Sanchez returned to court because the doctors at LCC again found him 19 competent to stand trial. The court adopted that finding. 20 Later that year, Castillo-Sanchez moved to dismiss his counsel, complaining that counsel 21 “put money on [his] books” at the jail without his consent in an attempt to coerce him “into 22 accepting a plea bargain” and that the timing and procedure of his DNA sample, blood draws, 23 94 ECF No. 50-3. 34 1 and blood evidence reports were suspect. He again insisted that he was innocent and vowed to 2 “fight this to the end.” The motion was denied.95 In 2009, Castillo-Sanchez filed another motion 3 to dismiss counsel that, in addition to the complaints in the previous motion, complained of 4 counsel’s failures to communicate about Castillo-Sanchez’s “feelings of being forced into a plea 5 bargain,” mistakes about the number of prior felonies that “influenced” that “deal,” failure to 6 investigate his case, and unauthorized communications with “other people” about his prior 7 convictions. At the hearing on the motion, Castillo-Sanchez requested the knife and blood 8 evidence, and counsel confirmed that it was provided to him. Castillo-Sanchez insisted that the 9 hospital injected him with something and drew his blood, and the prosecutor suspiciously had 10 blood evidence four days later. The motion was denied.96 11 The following month, Castillo-Sanchez again moved to dismiss counsel, claiming that his 12 lawyers called him “crazy” when he explained that an officer forced him to go to UMC to have 13 his lungs checked even though he has no lung problem, and a nurse injected him with a “liquid” 14 that made him dizzy and drew blood against his will. At the hearing on the motion, defense 15 counsel explained that the issue arose because nothing tied Castillo-Sanchez’s DNA to the scene 16 of the murder during the first year and a half the case was pending, but the defense later received 17 DNA evidence. Counsel explained that Castillo-Sanchez had been taken to the hospital for 18 angioplasty, that blood was drawn during a follow-up visit, and Castillo-Sanchez believed the 19 blood was improperly taken from him and planted as evidence against him. Counsel stated that 20 the defense believed that the DNA evidence came from Castillo-Sanchez’s buccal swab and 21 there was no reason to believe the state was “in cahoots with UMC” and the jail, or that they 22 95 ECF No. 27-10 at 40; ECF No. 28-39 at 4–5; ECF No. 28-40; ECF No. 28-42 at 4–7; ECF No. 23 28-44 at 4–42; ECF No. 28-47; ECF No. 28-48; ECF No. 28-49; ECF No. 29-1 at 2–4. 96 ECF No. 27-10 at 41–42; ECF No. 29-2. 35 1 planted evidence against him. The prosecutor confirmed that the blood evidence was impounded 2 under normal procedures and Castillo-Sanchez’s conspiracy theory was baseless. Defense 3 counsel said that they had conversations with third parties about the case to develop mitigation 4 evidence and that Castillo-Sanchez was not speaking to defense counsel. The state court denied 5 the motion.97 At a status hearing in March of 2009, defense counsel stated they had “been talking with 6 7 Mr. Castillo-Sanchez since our last court meeting” and “everything is going on the right path 8 there.” The following month, however, defense counsel advised the court that Castillo-Sanchez 9 was no longer cooperating with the defense team, and again raised concerns about competency. 10 The state court heard from counsel and Castillo-Sanchez outside the presence of the prosecutor 11 during which counsel explained that Castillo-Sanchez was unable to assist counsel because he 12 truly believed his attorneys were conspiring with the prosecutor and that he refused to speak with 13 his counsel or the defense experts to prepare for trial. After discussion with Castillo-Sanchez 14 about his concerns, the court stated, “there is no doubt in my mind that he is competent” but 15 merely unwilling to cooperate. At defense counsel’s requests, the court ordered further 16 competency evaluations.98 17 In May of 2009, the state court announced that Dr. Mortillaro found Castillo-Sanchez 18 competent to stand trial, concluding that, “if the defendant doesn’t cooperate with counsel, 19 basically, it is his choice.” Defense counsel argued that Mortillaro opined that Castillo-Sanchez 20 exhibited signs of “paranoid personality disorder,” which counsel believed prevented him from 21 assisting counsel. The court, after noting that Castillo-Sanchez was lucid and argued his position 22 23 97 ECF No. 27-10 at 43–44; ECF No. 29-5; 29-6. 98 ECF No. 29-7 at 4; ECF No. 29-8. 36 1 persuasively at the last hearing, concluded that he was capable of assisting counsel but chose not 2 to do so. Defense counsel stated that Castillo-Sanchez refused to talk with counsel, hung up 3 when they called, refused visits, and refused to talk about his defenses or testimony. Castillo4 Sanchez insisted that the court appoint alternate counsel or alternatively permit him to represent 5 himself, but the motion was denied. The court concluded that it was Castillo-Sanchez’s choice 6 whether to assist counsel with his defense or not. But at a subsequent hearing, Castillo-Sanchez 7 was found incompetent and returned to LCC. In October of 2009, Castillo-Sanchez returned 8 from LCC, and the state court noted that Dr. Henson and two other doctors at LCC found 9 Castillo-Sanchez met the criteria for competency. The court scheduled a competency hearing at 10 defense counsel’s requests, but the requests were later withdrawn, and the court concluded that 11 Castillo-Sanchez was competent to stand trial based on the LCC reports.99 In November of 2009, defense counsel informed the state court that they “still have an 12 13 issue” communicating with Castillo-Sanchez but were ready for trial. Castillo-Sanchez stated 14 that he was suing his attorneys “for doing a bad job and being in cahoots with the DA to present 15 false evidence.” In May of 2010, defense counsel informed the court that Castillo-Sanchez “is 16 still unable to assist them” and Castillo-Sanchez stated that he did not cooperate with his 17 attorneys because they were not helping him, and he would cooperate if they helped him. At a 18 trial-status hearing later that month, Castillo-Sanchez insisted on his innocence, claimed he was 19 taken to UMC 10 times where they put something in his blood, and he had documents to prove it. 20 The court directed defense counsel to review the documents, but Castillo-Sanchez interjected 21 that counsel already saw them and wouldn’t help him.100 22 99 ECF No. 29-9; ECF No. 29-10; ECF No. 29-12; ECF No. 29-13; ECF No. 29-20; ECF No. 2923 21; ECF No. 50-4. 100 ECF No. 29-22; ECF No. 29-25; ECF No. 29-28. 37 1 b. 2 3 Trial testimony concerning Castillo-Sanchez’s mental health, substance abuse, and competency Defense counsel disclosed seven of the doctors who evaluated Castillo-Sanchez for 4 competency during the pretrial proceedings as expert witnesses for trial. Counsel also submitted 5 proposed jury questions that included, “Have you or any member of your family been diagnosed 6 with a mental illness and/or disease?” and “What is your opinion of psychiatrists/ 7 psychologist[s]?” During voir dire, the trial court and counsel questioned prospective jurors 8 about their attitudes and experiences with psychologists and psychiatrists.101 9 During the guilt phase of the trial, the defense called Dr. Levy to testify about the effects 10 of cocaine and alcohol intoxication and the drugs administered to Castillo-Sanchez at the 11 hospital, but they did not call any of the seven competency evaluators. During the penalty phase 12 of the trial, the defense called psychologist Dr. Jose J. LaCalle, who testified that Castillo13 Sanchez suffered from “delusional disorder persecutory type” meaning “you think somebody is 14 after you.” LaCalle testified that he conducted six interviews with Castillo-Sanchez, 15 administered the Spanish version of the Wechsler Adult Intelligence test, and concluded that 16 Castillo-Sanchez was “functioning at IQ level of 82,” which is the “lowest end of the average 17 intelligence” range of 80 to 100. He explained that “people with 82 IQ” “cannot be expected to 18 be consistent, nor do they care to be consistent,” rather; “they incorporate whatever is happening 19 at the moment into the system.” LaCalle explained that Castillo-Sanchez’s delusional disorder is not the “bizarre type” of 20 21 delusional disorder because the delusions “might be real” and are not based on schizophrenic 22 23 101 ECF No. 29-27; ECF No. 29-40 at 4; ECF No. 29-44 at 32; ECF No. 29-46; ECF No. 29-47; ECF No. 29-50. 38 1 paranoia. He said the prior competency evaluations have “some variations” but all portray 2 Castillo-Sanchez as suffering [from] . . . delusional paranoia.” He concluded that Chambers’s 3 diagnostic impression of delusional disorder; Harder’s impression of delusional disorder, 4 persecutory type; and Mortillaro’s impression of personality disorder, paranoid type, all coincide 5 with LaCalle’s diagnosis. LaCalle asserted that Castillo-Sanchez’s trial testimony was consistent with his diagnosis 6 7 and that, although the onset of the disorder occurred many years ago, a new incident can be “an 8 event so destructive for the person, so terrifying for the person that he cannot cope with that,” 9 and “cannot admit that,” causing the person to create a reality “in which he’s not responsible for 10 that event.” LaCalle claimed that Castillo-Sanchez “never admitted to anybody that he actually 11 killed his wife,” and “his delusion is so powerful even today [that] you will never convince this 12 guy that he did it.” LaCalle explained that this was a “defense mechanism” and there is no 13 evidence “that the person suffering from this disorder will accept.” 14 LaCalle further testified that he requested a neuropsychological evaluation by Dr. Inez 15 Modillo to “rule out the organic origins or causes of” Castillo-Sanchez’s diagnosis, and Modillo 16 found no organic basis. LaCalle averred that Castillo-Sanchez’s spontaneous admission at the 17 hospital does not change his opinion because at the time Castillo-Sanchez was “heavily sedated 18 and hurting.” LaCalle denied that Castillo-Sanchez’s admission means the delusion or paranoia 19 developed after the murder, pointing out that the delusion persisted in prison in the absence of 20 narcotics.102 21 22 23 102 ECF No. 30-17 at 8–22; ECF No. 30-18 at 4. 39 1 c. 2 Postconviction proceedings In 2016, Dr. Daniel Sussman prepared a written psychiatric opinion for Castillo- 3 Sanchez’s state postconviction proceedings. In it, he diagnosed Castillo-Sanchez with 4 “delusional disorder, persecutory type” and concluded he “likely was insane at the time of the 5 commission of the murder.” At the state postconviction evidentiary hearing, Sussman testified 6 that Castillo-Sanchez believed his family members “were trying to kill him,” and Castillo7 Sanchez struck the doctor “as a strong-willed individual” who would not “want to capitulate to a 8 plea agreement in the context of strong feelings that he’s the victim and that people are trying to 9 kill him.” Sussman did not believe Castillo-Sanchez appreciated “the nature and quality of his 10 actions” as “Castillo-Sanchez tends to equivocate the murder by pointing to his own injuries 11 sustained as well as attributing murderous desire to kill him and his wife to his children.” 12 Sussman noted that “he’s never taken accountability for that murder that I’ve seen. He attributes 13 it to his son in both 2008 and 2016. First his son Rafael [Jr.]. Then more recently in 2016 he 14 attributed it to his son Juno. Anybody but him.” 15 On cross-examination, Sussman agreed that Castillo-Sanchez admitted to killing his wife, 16 but that did not change Sussman’s opinion because Castillo-Sanchez did not appreciate the 17 wrongfulness or the nature and quality of the brutality of the event. Sussman opined that 18 Castillo-Sanchez was incompetent and legally insane at trial and that defense counsel “clearly 19 could have” utilized insanity and diminished-capacity defenses.103 Trial counsel testified there were concerns “early on” about Castillo-Sanchez’s 20 21 competency. She recounted that counsel “struggled with that from day one” and “never did 22 believe [Castillo-Sanchez] could assist [counsel] in his representation in the end.” Counsel 23 103 ECF No. 31-44 at 40–79; ECF No. 50-5. 40 1 testified that the strongest defense was a mental-health defense and they “explored both” 2 diminished-capacity and insanity defenses, and at trial presented an involuntary-cocaine3 intoxication defense. Counsel maintained that Castillo-Sanchez “was opposed to putting on a 4 defense that would in any way admit or that would portray to the jury that he harmed his wife in 5 any way.” Counsel said that Castillo-Sanchez knew his admission that he killed his wife would 6 be presented at trial.104 The Supreme Court of Nevada’s determination 7 2. 8 The Supreme Court of Nevada determined that Castillo-Sanchez failed to establish 9 counsel’s performances were deficient for failing to present an insanity defense: 10 Castillo-Sanchez next argues that trial counsel should have proffered an insanity defense. Trial counsel explained that the defense theory proffered was a strategic decision in light of Castillo-Sanchez’s anticipated testimony and his refusal to permit counsel to present a theory positing that he harmed the victim in any way. Castillo-Sanchez thus did not demonstrate deficient performance. See Johnson v. State, 117 Nev. 153, 163, 17 P.3d 1008, 1015 (2001) (holding that a defendant who is mentally competent to stand trial has an absolute right to preclude counsel’s arguing an insanity defense); cf. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) (holding that the defendant defines the ultimate objective of the defense and may insist on asserting his innocence during the penalty phase notwithstanding overwhelming evidence of guilt). Castillo-Sanchez has not shown extraordinary circumstances warranting a challenge to trial counsel’s strategic decision. See Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004). Castillo-Sanchez misplaces his reliance on caselaw regarding counsel’s failure to evaluate a defendant’s competence, as his competence was evaluated multiple times and counsel raised this issue before the trial court. The district court did not err in denying this claim.105 11 12 13 14 15 16 17 18 19 20 21 22 23 104 105 ECF No. 31-44 at 6–29. ECF No. 32-25 at 4. 41 1 3. 2 I apply deference to counsel’s performances and to the Supreme Court of Nevada’s Counsel was not ineffective for failing to present an insanity defense. 3 determination that counsel did not perform deficiently in failing to present an insanity defense in 4 the face of Castillo-Sanchez’s anticipated testimony that Rafael Jr. killed Veronica and his 5 steadfast opposition to taking any responsibility for Veronica’s death. I find that the Supreme 6 Court of Nevada’s determination that counsel’s performances weren’t deficient is objectively 7 reasonable in light of the record. An insanity defense is tantamount to a concession of guilt106 8 and would have required Castillo-Sanchez to admit that he killed Veronica. But Castillo9 Sanchez repeatedly proclaimed his innocence to counsel, to the state trial court, and to 10 competency evaluators, and unwaveringly insisted that Rafael Jr. killed Veronica. Defense 11 counsel testified that Castillo-Sanchez knew the state would present Nunez’s testimony that 12 Castillo-Sanchez confessed to killing his wife. Defense counsel further testified that insanity, 13 mental-health, and diminished-capacity defenses were considered, but Castillo-Sanchez wouldn’t 14 cooperate with those defenses because they required admission of wrongdoing. “When a client 15 expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged 16 criminal acts, his lawyer must abide by that objective and may not override it by conceding 17 guilt.”107 18 19 20 106 See United States v. Read, 918 F.3d 712, 721 (9th Cir. 2019); United States v. Audette, 923 F.3d 1227, 1236 (9th Cir. 2019) (stating that, if counsel had presented an insanity defense over 21 the defendant’s objection, the defendant would have a claim of ineffective assistance of counsel); see also Pelligrini v. State, 34 P.3d 519, 539 (Nev. 2001) (noting that “[r]easonable jurists have 22 disagreed on whether proof of legal insanity satisfies the actual innocence benchmark of the fundamental miscarriage of justice exception [to procedural bars to habeas corpus claims].”) 23 107 McCoy v. Louisiana, 138 S. Ct. 1500, 1509 (2018) (citations omitted) (emphasis added in McCoy). 42 The record shows that counsel investigated Castillo-Sanchez’s mental health by pursuing 1 2 competency evaluations from 11 evaluators and presenting LaCalle’s diagnosis that Castillo3 Sanchez suffered from paranoid delusions and had an IQ of 82. Consistent with Castillo4 Sanchez’s position that he was innocent and his anticipated testimony that Rafael Jr. attacked 5 him and killed Veronica, defense counsel presented an intoxication defense during the guilt 6 phase of the trial to explain Castillo-Sanchez’s confession and presented the LaCalle’s testimony 7 to support a life, rather than death, sentence during the penalty phase. Defense counsel’s strategy 8 was objectively reasonable, consistent with Castillo-Sanchez’s desire not to accept responsibility 9 for the murder and did not fall below an objective standard of reasonableness under prevailing 10 professional norms in light of all of the circumstances that defense counsel faced in this 11 particular case. So I conclude that the Supreme Court of Nevada’s determination is objectively 12 reasonable and is neither contrary to, nor constitutes an unreasonable application of, clearly 13 established federal law and is not based on an unreasonable determination of the facts in light of 14 the evidence presented in the state-court proceedings. Castillo-Sanchez is thus not entitled to 15 federal habeas relief for Ground Two. 16 D. 17 Castillo-Sanchez is not entitled to habeas relief on Ground Three: trial and appellate counsel’s failures to challenge jury instructions 7, 8, and 28. 18 Ground Three alleges that trial and appellate counsel were ineffective because they failed 19 to challenge jury instructions 7 (malice), 8 (premeditation and deliberation), and 28 (equal and 20 exact justice). Castillo-Sanchez claims that phrases in those instructions prejudiced him because 21 the instructions are confusing and use archaic language, and his mental state at the time of the 22 23 43 1 offense raised a question whether he was capable of the requisite intent for first-degree 2 murder.108 Respondents contend that any objection would have been futile.109 3 1. 4 During voir dire, the trial court and counsel explained to the prospective jurors their Additional background—the jury instructions 5 obligations, the presumption of innocence, and the state’s burden to prove guilt beyond a 6 reasonable doubt. Before opening remarks, the trial court reiterated that the state had the burden 7 to prove guilt beyond a reasonable doubt. And before closing remarks, the trial court again 8 instructed the jury on the presumption of innocence and the state’s “burden of proving beyond a 9 reasonable doubt every material element of the crime charged and that the defendant is the 10 person who committed the offense.”110 11 The record establishes that trial counsel did not object to instructions 7, 8, and 28, and the 12 trial court instructed the jury in relevant part as follows: 13 Instruction 6: Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned. 14 15 Instruction 7: Malice aforethought means the intentional doing of a wrongful act without legal cause or excuse or what the law considers adequate provocation. The condition of mind described as malice aforethought may arise, not alone from anger, hatred, revenge, or from particular ill will, spite or grudge toward the person killed, but may result from any unjustifiable or unlawful motive or purpose to injure another, which proceeds from a heart fatally bent on mischief or with reckless disregard of consequences and social duty. Malice aforethought does not imply deliberation or the lapse of any considerable time between the malicious intention to injure another and the actual execution of the intent but 16 17 18 19 20 21 22 108 ECF No. 21 at 13–17. 23 109 ECF No. 38 at 21–28. 110 ECF No. 29-44; ECF No. 29-46; ECF No. 29-47; ECF No. 29-50; ECF No. 30-10. 44 1 denotes rather an unlawful purpose and design in contradistinction to accident and mischance. 2 3 Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. 4 5 Malice may be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart. 6 7 8 Instruction 8: First Degree Murder is murder which is perpetrated by means of any kind of willful, deliberate, and premeditated killing. All three elements—willfulness, deliberation, and premeditation—must be proven beyond a reasonable doubt before an accused can be convicted of the first-degree. 9 10 Willfulness is the intent to kill. There need be no appreciable space of time between formation of the intent to kill and the act of killing. 11 12 13 14 15 16 Deliberation is the process of determining upon a course of action to kill as a result of thought, including weighing the reasons for and against the action and considering the consequences of the action. A deliberate determination may be arrived at in a short period of time. But in all cases the determination must not be formed in passion, or if formed in passion, it must be carried out after there has been time for the passion to subside and deliberation to occur. A mere unconsidered and rash impulse is not deliberate, even though it includes the intent to kill. 17 18 19 20 21 Premeditation is a design, a determination to kill, distinctly formed in the mind by the time of the killing. Premeditation need not be for a day, an hour, or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the act follows the premeditation, it is premeditated. 22 23 Instruction 9: The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly 45 1 deliberate and premeditated. The time will vary with different individuals and under varying circumstances. 2 The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as first degree murder. 3 4 5 6 Instruction 10: The intention to kill may be ascertained or deduced from the facts and circumstances of the killing, such as the use of a weapon calculated to produce death, the manner of its use, and the attendant circumstances characterizing the act. 7 8 Instruction 11: All murder which is not First Degree Murder is Second Degree Murder. Second Degree Murder is the intentional, unlawful killing of a human being without premeditation and deliberation. 9 10 11 Instruction 28: Now you will listen to the arguments of counsel who will endeavor to aid you to reach a proper verdict by refreshing in your minds the evidence and by showing the application thereof to the law; but, whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberation by the evidence as you understand it and remember it to be and by the law as given to you in these instructions, with the sole, fixed and steadfast purpose of doing equal and exact justice between the Defendant and the State of Nevada.111 12 13 14 15 The Supreme Court of Nevada’s Determination 16 2. 17 I previously determined that Castillo-Sanchez fairly presented the Supreme Court of 18 Nevada with claims that trial and appellate counsel were ineffective in failing to object to the 19 instructions.112 However, the Supreme Court of Nevada determined only that appellate counsel 20 was not ineffective in failing to challenge the instructions: 21 Castillo-Sanchez next argues that appellate counsel should have challenged the jury instructions on implied malice, premeditation, and equal and exact justice. As this court has held the language 22 23 111 ECF No. 30-10 at 7–12, 29. 112 ECF No. 35 at 3–4. 46 1 used in the implied-malice instruction, see Leonard v. State, 117 Nev. 53, 78–79, 17 P.3d 397, 413 (2001), the premeditation instruction, see Byford v. State, 116 Nev. 215, 237, 994 P.2d 700, 714 (2000), and the equal-and-exact-justice instruction, see Leonard v. State, 114 Nev. 1196, 1209, 969 P.2d 288, 296 (1998), is not improper, we conclude that Castillo-Sanchez has failed to show that appellate counsel was ineffective in failing to raise these futile challenges. The district court therefore did not err in denying this claim.113 2 3 4 5 6 The Supreme Court of Nevada’s affirmance order carefully differentiated and expressly 7 addressed Castillo-Sanchez’s other claims of ineffective assistance of trial and appellate 8 counsel.114 So it appears that the Supreme Court of Nevada overlooked Castillo-Sanchez’s 9 claims that his trial attorneys were also ineffective in failing to challenge the jury instructions. 10 “When the evidence leads very clearly to the conclusion that a federal claim was inadvertently 11 overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to 12 make his case before a federal judge.”115 I thus conduct deferential review of the appellate13 counsel claims and find that the Supreme Court of Nevada’s determinations are consistent with 14 clearly established federal law based on a reasonable determination of the facts. But I conduct 15 de novo review of the trial-counsel claims because they were overlooked. 16 3. Counsel was not ineffective for failing to challenge the malice instruction. 17 Castillo-Sanchez claims that trial and appellate counsel were ineffective in failing to 18 challenge the phrases “abandoned or malignant heart” and “a heart fatally bent on mischief” 19 contained in the malice instruction because those phrases convey nothing in modern language, 20 are archaic and confusing, and permitted the jury to find malice if they believed that Castillo21 22 113 ECF No. 32-25 at 5–6. 23 114 Id. at 2–6. 115 See Johnson v. Williams, 568 U.S. 289, 303 (2013). 47 1 Sanchez was a bad person.116 Respondents contend that the Supreme Court of Nevada has found 2 that the instruction accurately defines “malice aforethought,” and “this was not a close case 3 where the good or bad character of the defendant might have swayed the jury.”117 The Supreme Court of Nevada reasonably determined that appellate counsel’s failure to 4 5 challenge the language in the malice instruction did not constitute deficient or prejudicial 6 performance. The Supreme Court of Nevada is the final arbiter of state law and it previously 7 determined that the phrases “abandoned and malignant heart” and “heart fatally bent on 8 mischief” are constitutional “[a]bsent some indication that the jury was confused” by the 9 instructions such as to deny a defendant a fair trial.118 Here, Castillo-Sanchez points to nothing 10 in the state-court record suggesting that his jury expressed confusion about those phrases. It is 11 well established that instructions “may not be judged in artificial isolation, but must be 12 considered in the context of the instructions as a whole and the trial record.”119 The record 13 shows that the trial court instructed the jury on the presumption of innocence, the state’s 14 obligation to prove “every material element” of the crimes charged beyond a reasonable doubt, 15 and their obligation to consider the instructions as a whole and not single out any particular 16 sentence.120 Finally, implied malice played no part in the jury’s decision to convict Castillo17 Sanchez for killing Veronica, as the first-degree-murder verdict demonstrates that the jury 18 19 20 116 ECF No. 21 at 15–16. 117 ECF No. 38 at 21–23, 26–28. See Leonard v. State, 17 P.3d 397, 413 (Nev. 2001) (holding, “[a]bsent some indication that the jury was confused by the malice instructions (including the instruction on malice 22 aforethought and express malice), a defendant’s claim that the instructions were confusing is merely speculative.”) (citation omitted). 21 23 118 119 Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citations omitted). 120 ECF No. 30-10 at 3, 21. 48 1 necessarily found he committed the crime with express malice.121 So I conclude that the 2 Supreme Court of Nevada reasonably applied Strickland in determining that appellate counsel’s 3 failure to challenge the malice instruction was neither deficient nor prejudicial. Applying de novo review to Castillo-Sanchez’s claim that his trial attorneys were 4 5 ineffective in failing to object to the malice instruction, I do not find deficient performance under 6 Strickland. The malice instruction has been upheld as constitutional by the Supreme Court of 7 Nevada.122 So counsel’s failures to challenge the language in the instruction did not fall below 8 an objective standard of reasonableness under prevailing professional norms in light of all of the 9 circumstances of the particular case. Castillo-Sanchez is therefore not entitled to federal habeas 10 corpus relief for his challenge to the malice instruction. 11 4. 12 13 Counsel was not ineffective for failing to challenge the premeditation instruction. Castillo-Sanchez claims that trial and appellate counsel were ineffective when they failed 14 to challenge the phrase “instantaneous as successive thoughts of the mind” contained in the 15 premeditation instruction because the phrase created a reasonable likelihood that the jury could 16 convict for first-degree murder without a rational basis for distinguishing first- and second17 degree murder and without proof beyond a reasonable doubt of the “premeditation and 18 deliberation” necessary to find first-degree murder. He further claims that the jury was provided 19 no guidance on how to reconcile premeditation and deliberation with the concept of 20 21 22 121 See Scott v. State, 554 P.2d 735, 738 (Nev. 1976) (holding that a verdict of first-degree murder necessarily includes a finding the defendant committed the murder deliberately, willfully, 23 and with premeditation, and those elements conclusively establish express malice). 122 Leonard, 17 P.3d at 413. 49 1 instantaneous and successive thought.123 Respondents contend that the Supreme Court of 2 Nevada approved the instruction, the instruction is unambiguous when read in conjunction with 3 Instructions 10 and 11, and Castillo-Sanchez fails to identify a different instruction that should 4 have been given.124 5 The Supreme Court of Nevada has provided an approved instruction for state trial courts 6 to present to juries in murder cases that conveys premeditation and deliberation as separate 7 prerequisites for first-degree murder.125 Castillo-Sanchez’s jury was given that instruction.126 8 The Supreme Court of Nevada reasonably determined that appellate counsel’s failure to 9 challenge the premeditation instruction was objectively reasonable because that Court, as the 10 final arbiter of state law, previously directed the state courts to use the language “instantaneous 11 as successive thoughts of the mind.” Castillo-Sanchez presents no basis upon which to conclude 12 there is a reasonable probability that the instructions, when read as a whole, deprived him of a 13 fair trial in violation of due process. The instructions did not omit an essential element of the 14 crimes alleged or relieve the state of its burden of proof.127 And Instruction 9 gave the jury a 15 way to reconcile the phrase “instantaneous as successive thoughts of the mind” for purposes of 16 distinguishing first-degree murder from other unlawful killings. Thus, the Supreme Court of 17 Nevada reasonably applied Strickland in concluding that appellate counsel’s failure to challenge 18 the premeditation-and-deliberation instruction was neither deficient or prejudicial. 19 20 123 ECF No. 21 at 16. 124 22 ECF No. 38 at 23–25, 26–28. 125 Byford v. State, 994 P.2d 700, 712–15 (Nev. 2000). 23 126 Compare ECF No. 30-10 at 9–11, with Byford, 994 P.2d 714–15. 127 See Estelle, 502 U.S. at 72. 21 50 Applying de novo review to Castillo-Sanchez’s claim that his trial attorneys were 1 2 ineffective for failing to object to Instruction 8, I find that their performance was not deficient 3 under Strickland. The Supreme Court of Nevada has upheld the constitutionality of the 4 premeditation instruction read to the jury, the record fails to demonstrate that the jury was 5 confused by the phrase, the instructions explain the concept in the context of first- versus second6 degree murder, and Castillo-Sanchez presents no basis to conclude that the instruction denied 7 him a fair trial. So Castillo-Sanchez is not entitled to federal habeas corpus relief for his 8 challenge to the premeditation instruction. 9 5. 10 11 Counsel was not ineffective for failing to challenge the equal-and-exact-justice instruction. Castillo-Sanchez claims that trial and appellate counsel were ineffective in failing to 12 challenge the phrase “equal and exact justice” contained in Instruction 28 because it minimized 13 the state’s burden of proof by creating a reasonable likelihood the jury would not apply the 14 presumption of innocence and would convict Castillo-Sanchez based on a lesser standard of 15 proof than required by the constitution.128 Respondents contend that the instruction is proper 16 under Nevada law when read in the context of the instructions advising the jury on the 17 presumption of innocence and the state’s burden of proof.129 18 I find that the Supreme Court of Nevada reasonably applied Strickland in determining 19 appellate counsel’s failure to challenge the “equal-and-exact-justice” phrase was objectively 20 reasonable. The Supreme Court of Nevada previously approved the language and concluded 21 that, contrary to Castillo-Sanchez’s assertions, the “equal-and-exact-justice” phrase “does not 22 23 128 ECF No. 21 at 16–17. 129 ECF No. 38 at 25–28. 51 1 concern the presumption of innocence or burden of proof.”130 There is also no basis to conclude 2 that it was reasonably likely that the jury applied the language in the instruction in an 3 unconstitutional manner.131 4 On de novo review, I find that trial counsel was not deficient under Strickland in failing 5 to object to the language because the record demonstrates the trial court correctly and separately 6 informed the jury on the presumption of innocence and the state’s burden of proof, the language 7 in the instruction was previously approved by the Supreme Court of Nevada, the language is 8 unambiguous, and there is no indication the phrase denied Castillo-Sanchez a fair trial. Castillo9 Sanchez is not entitled to federal habeas relief for his challenge to the equal-and-exact-justice 10 instruction. 11 E. A certificate of appealability is denied. 12 The right to appeal from a district court’s denial of a federal habeas petition requires a 13 certificate of appealability. To obtain that certificate, the petitioner must make a “substantial 14 showing of the denial of a constitutional right.”132 If the “district court has rejected the 15 constitutional claims on the merits,” that showing “is straightforward: The petitioner must 16 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 17 claims debatable or wrong.”133 When a district court denies relief on procedural grounds, the 18 petitioner seeking a COA must show both “that jurists of reason would find it debatable whether 19 the petition states a valid claim of the denial of a constitutional right and that jurists of reason 20 130 Leonard, 969 P.2d at 296. 131 See Estelle, 502 U.S. at 72 n.4. 22 132 28 U.S.C. § 2253(c). 23 133 21 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077– 79 (9th Cir. 2000). 52 1 would find it debatable whether the district court was correct in its procedural ruling.”134 2 Because I have rejected Castillo-Sanchez’s constitutional claims on their merits, and he has not 3 shown my assessment of his claims is debatable or wrong, I find that a certificate of appealability 4 is unwarranted. So I do not issue a certificate of appealability. 5 Conclusion 6 IT IS THEREFORE ORDERED that Rafael Castillo-Sanchez’s petition for a writ of 7 habeas corpus under 28 U.S.C. § 2254 [ECF No. 21] is DENIED. 8 IT IS FURTHER ORDERED that, because reasonable jurists would not find my decision 9 on the merits debatable or wrong, a certificate of appealability is DENIED. 10 IT IS FURTHER ORDERED that the Clerk of Court is directed to substitute Brian 11 Williams for Respondent Dwight Neven. 12 IT IS FURTHER ORDERED that the Clerk of Court is directed to ENTER 13 JUDGMENT accordingly and CLOSE THIS CASE. 14 15 _______________________________ U.S. District Judge Jennifer A. Dorsey September 22, 2023 16 17 18 19 20 21 22 23 134 Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012); Slack, 529 U.S. at 484. 53

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