Brown v. Williams et al
Filing
82
ORDER DISMISSING CASE. IT IS ORDERED that all remaining claims in the Petition are DENIED on the merits and that this action shall be DISMISSED with prejudice. IT FURTHER IS ORDERED that a certificate of appealability is GRANTED IN PART and DENIED IN PART. The Clerk of the Court shall enter final judgment accordingly in favor of Respondents and against Petitioner, DISMISSING this action with prejudice. Signed by Judge Philip M. Pro on 09/24/2013. (Copies have been distributed pursuant to the NEF - AC)
1
2
3
4
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
5
6
7
JOHNNY RAY BROWN,
8
Petitioner,
2:10-cv-00407-PMP-GWF
9
10
ORDER
vs.
11
BRIAN WILLIAMS, et al.,
12
Respondents.
13
14
15
This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision
on the grounds that remain.
16
17
18
19
20
21
22
23
24
Background
Petitioner Johnny Ray Brown challenges his 2002 Nevada state conviction, pursuant
to a jury verdict, of three counts of sexual assault and one count each of battery with intent
to commit a crime, burglary and grand larceny. He challenged the judgement of conviction
in the state courts on direct appeal and state post-conv iction review.
On federal habeas review, Petitioner presents a number of grounds, including a ground
challenging the sufficiency of the evidence on the three counts of sexual assault. Brown
maintains that he instead had a consensual sexual relationship with his stepdaughter.
The trial evidence tended to establish the following on the sexual assault counts. 1
25
26
1
27
28
The Court makes no credibility findings or other factual findings regarding the truth or falsity of
evidence or statements of fact in the state court. The Court summarizes same solely as background to the
issues presented in this case, and it does not summarize all such material. No statement of fact made in
(continued...)
1
In March 2000, Nichole Coates was Johnny Ray Brown’s stepdaughter. She then was
2
eighteen, and Brown was in his early forties. Coates worked at a Subway sandwich shop on
3
Sahara and Eastern in Las Vegas, Nevada. Her mother, Mary Stadler, was the manager; and
4
Brown was the assistant manager. They worked a daytime shift and Coates worked an
5
evening shift. Brown and Coates’ mother lived in an apartment that was only a short distance
6
away, at Karen and Eastern, perhaps a five minute walk from the Subway. At that time,
7
Coates lived in Henderson, Nevada, an outlying suburb of Las Vegas. She did not have a
8
car, and she would catch rides to get around town. Coates occasionally would stay over at
9
her mother’s apartment. She testified that she did not spend much time there, however,
10
because she did not get along with Brown and did not feel comfortable around him. Stadler
11
also did not schedule them on the same shift because they did not get along.2
12
During the evening hours of March 20, 2000, Nichole Coates was visiting a friend at
13
an apartment in the same building as her mother’s apartment. At approximately 12:30 to 1:00
14
a.m. on what by then was March 21, 2000, Coates went to her mother’s apartment. Her
15
mother was either asleep or laying down in the bedroom, and Brown was in the living room
16
drinking and singing loudly with both music and the television also playing loudly. Coates
17
went to the bedroom. Her mother shouted to Brown to turn off the sound and go to sleep, but
18
he ignored her. After getting a snack, Coates laid down to sleep beside her mother on her
19
mother’s side of the bed.3
20
Later in the night, Coates awoke to find Brown sitting beside her on the bed, i.e. sitting
21
by her on the edge of the bed on her mother’s side of the bed. Coates and then her mother
22
23
24
25
26
27
28
1
(...continued)
describing statements, testimony or other evidence in the state court constitutes a finding by this Court. The
significance of other evidence or categories of evidence referred to by Petitioner in support of his claims is
addressed in the discussion of the particular claims. The present recital of the evidence constitutes only an
overview for context. Any absence of mention of a specific piece of evidence or category of evidence in this
overview does not signify that the Court has overlooked the evidence in considering Petitioner’s claims.
2
#29, Ex. 55, at 26-31, 91-92 & 125 (Coates); id., Ex. 57, at 35-39, 41-43, 64, 67-68 & 103 (Stadler);
see also id., at 111-13 (coworker); #67, Ex. 132, at 53.
3
Id., Ex. 55, at 31-34 & 86-88 (Coates); id., Ex. 57, at 42-44, 81-86 & 101-02 (Stadler).
-2-
1
yelled at Brown, and Coates went to the living room. She turned off the television and went
2
to sleep on the couch with a comforter and blanket wrapped around her. 4
3
Later that morning, Nichole Coates, as she described it, “got woke up to a frying pan.”
4
That is, she was woken up by Brown hitting her on the head with a frying pan. She did not
5
know how many times Brown had hit her before she woke up, but it was Brown hitting her with
6
a cast iron skillet that woke her up. He was sitting on the coffee table by the couch with what
7
by then was only a remaining part of the skillet in his hand. Mary Stadler testified that the
8
skillet neither had been out nor had it been broken prior to when she left for work earlier that
9
morning.5
10
11
Brown then gripped Coates’ arm tightly. He told her that if she did what he said that
he would not kill her. He told her that he had a pistol close by .6
12
Brown pushed the comforter away and started rubbing Coates’ breasts through her
13
shirt. She started crying and told him “no.” Brown told her that if she did not shut up she
14
would not live anymore. When Coates tried to resist, Brown gripped her arm with even
15
greater force, pressing and pinning her arm down against the couch, telling her, again, that
16
if she did not do what he said, he would kill her.7
17
Brown unbuttoned the overalls that Coates was wearing, put his hand inside the
18
overalls, and started rubbing her vagina. She continued saying “no” even louder and trying
19
to resist and move away from his grip. He continued to grip her arm tightly, and he told her
20
again that if she did not stay still and do what he said, he would kill her.8
21
Brown then stood Coates up while pulling her overalls all the way off her. To do this,
22
he gripped her arm even tighter and forcefully lifted her up. She continued crying, telling him
23
4
#29, Ex. 55, at 34-37, 95-97 & 100-01 (Coates); id., Ex. 57, at 43-44 & 85 (Stadler).
5
Id., Ex. 55, at 37-39 & 97-101 (Coates); id., Ex. 57, at 45-46 (Stadler).
26
6
Id., at 39-40 & 102.
27
7
Id., at 40 & 102-03.
28
8
Id., at 40-41, 54-55 & 103.
24
25
-3-
1
“no,” and tried to sit back down and move away from Brown. He forced her to stand up,
2
telling her that if she wanted to live, she would do what he said.9
3
Brown then took Coates by the arms and forced her into the bedroom, telling her that
4
if she did not go he would kill her. He forced her onto the bed, and he then took off her shirt,
5
bra and panties while still gripping her arm. Brown then started touching Coates’ breasts
6
again. He inserted his fingers and then his tongue into her vagina. Brown, who had disrobed
7
by this time, then penetrated her vagina with his penis with Coates laying on her back. He
8
then flipped her over onto her stomach, with the comforter on the bed partially underneath
9
her, and again penetrated her vagina with his penis, until he ejaculated. 10
10
Brown flipped Coates onto her back again and started choking her. Coates said to him
11
that she did not want to die and to not kill her. Brown said that he knew that Coates and her
12
friends had stolen a vehicle of his that had been repossessed. He then told her to perform
13
oral sex on him but to not bite him. Coates did not comply. Brown said that he had not
14
allowed any of her male friends to come over because they could not do anything for her that
15
he could not do and that all that she needed w as him.11
16
Coates, still crying, tried to convince Brown that she would not call the police or tell
17
anyone. Brown let Coates sit up on the edge of the bed, but he continued to hold her firmly
18
by the arm. At one point, Brown stated that he knew that he had done wrong and should not
19
have done so but that even if he went to jail he got what he always wanted.12
20
Several minutes later Brown released Coates’ arm. He told her that she had to take
21
a shower so that there would not be any evidence. Coates tried to stall him, first getting him
22
to allow her to go to the kitchen to get a drink of water, with Brown again holding her by her
23
arm. Ultimately, however, he forced her to go to the shower in the bathroom, physically
24
25
9
#29, Ex. 55, at 41-42.
26
10
Id., at 41-46, 55-56 & 103-08.
27
11
Id., at 46-47 & 107-08.
28
12
Id., at 47.
-4-
1
forcing her with his hold on her arm to the bathroom. He had picked up a butcher knife at
2
some point while they were in the kitchen, and he threatened her with the butcher knife. He
3
again told her that if she wanted to live that she would do what he told her to do. He said that
4
it would be very easy to kill her and that no one would even know, that he could pretend that
5
he came home and found her dead. 13
6
Coates got in the shower, but she tried to stay as far away from the running water as
7
she could without Brown noticing as he stood nearby. When she got out, Brown, with the
8
butcher knife still in hand, made her get dressed in clothes that he had picked out for her. He
9
then made her brush her hair. She still had been telling him that she would not tell the police.
10
Coates then saw her face in the mirror, and she could see the swelling from where she had
11
been hit on the head. When Brown asked what she was going to say to her mother about
12
that, Coates said that she would tell her that she got beat up outside the apartment. Brown
13
was skeptical at first, but Coates persisted. 14
14
Brown then set the knife down, and he started to get in the shower. Coates ran for the
15
door and was able to get through the locked door before Brown was able to turn off the
16
shower and come after her. She ran to the friend’s apartment, in the same building, where
17
she had been visiting before she went to her mother’s apartment the prior evening.15
18
The friend was home. Coates – immediately – asked to use his phone. She told her
19
friend – again, immediately – that her mother’s husband had just raped her and that she
20
needed to call 911. 16
21
Coates – immediately – called 911. 17
22
////
23
13
#29, Ex. 55, at 47-49 & 108-13.
14
Id., at 49-51 & 114-19.
26
15
Id., at 51, 56-57, 92-94 & 117-19.
27
16
Id., at 51-52.
28
17
Id., at 52 & 57-58. The 911 tape was played for the jury. Id., at 57-58.
24
25
-5-
1
Coates then called her mother at the Subway – immediately after the 911 call. She
2
told her that Brown had just raped her and to lock the door because Coates did not know what
3
he might do. Stadler described her voice as: “It was terror, she was scared to death.” 18
4
As she was hanging up from the call, Stadler saw Brown running across the parking
5
lot in front of the sandwich shop. He got into their car, “gave her the finger,” waved goodbye,
6
and drove away “[a]s fast as he could get out of there.”19
7
Paramedic Dianna Toney was dispatched at 11:12 a.m. and arrived at the friend’s
8
apartment at 11:23 a.m. Nichole Coates was sitting quietly at a table crying softly, but she
9
was calm enough to give a rational statement. Coates told Toney that she had been sleeping
10
on the couch, that she was awoken by her mother’s husband hitting her with a frying pan on
11
the right side of the head, that he raped her, and that he forced her to take a shower after the
12
rape while holding a butcher knife. Coates stated that she did not wash her genital area while
13
in the shower. She also stated that she was hit in the back of the head after she was raped.20
14
Toney observed a contusion and bruise on Coates’ right eyelid, a contusion on the right
15
side of her head and face, some scrapes on her right arm, and a bit of a contusion around her
16
right elbow, which probably would have produced blood at some point.21
17
About an hour after the initial 911 call, the crime scene analyst took photographs of the
18
apartment reflecting, inter alia, the clothes that Coates had said that Brown had taken off her
19
at the various locations. The analyst recovered, inter alia, a comforter that later tested
20
positive for the presumptive presence of semen and the pieces of the frying pan. The analyst
21
was unable to secure fingerprints from the handle due to the type of surface involved.22
22
////
23
18
#29, Ex. 55, at 58-59 (Coates); id., Ex. 57, at 39-40 & 87 (Stadler).
19
Id., Ex. 57, at 39-42 & 86-88 (Stadler).
26
20
Id., Ex. 55, at 126-31 & 134-36.
27
21
Id., at 128-29 & 132-33.
28
22
Id., at 136-51, 154-68 & 172-76 (crime scene analyst); see also id., at 65-67 (Coates).
24
25
-6-
1
Photographs of Coates taken shortly after 2:15 p.m. at the hospital showed fresh
2
bruising and injuries to her forehead, the right side of her face and neck, and her elbows. The
3
crime scene analyst who took the photographs testified that there was redness and bleeding
4
in the facial injuries consistent with Coates having been hit by something or someone. The
5
analyst declined to opine, as she was not a physician, as to the age of the bruising or the
6
extent to which there would have been surface bleeding from Coates’ injuries.23
7
The sexual assault nurse examiner was the first and only person to examine Nichole
8
Coates in the triage unit at the hospital, with her exam starting between 12:30 and 1:00 p.m.
9
When she examined her, Coates was frightened, agitated, angry, and in physical pain. She
10
testified that most sexual assault victims were frightened and agitated after being sexually
11
assaulted and that they also tended to be angry if they knew the assailant.24
12
13
Coates had a black eye; a bump on the back of her head; abrasions to her forehead,
neck, eye and cheek; and abrasions and bruises on her arm s.25
14
At the time that the photographs were taken, the blood then was building up on the top
15
lid of the black eye. The eye was closing but not quite yet swollen completely shut from the
16
swelling. The eye could be opened only with manual assistance or extreme effort.26
17
The bump on the back of Coates’ head was not immediately visible to the eye.
18
However, the nurse could feel the soft tissue swelling when she manually palpated the area.27
19
Regarding the bruising and abrasions on Coates’ forehead, face, neck, and arms, the
20
21
nurse testified that from the coloring it was evident that they were recent injuries.28
////
22
23
#29, Ex. 55, at 152-54 & 169-71 (crime scene analyst); see also id., at 61-64 (Coates).
24
Id., Ex. 57, at 3-4, 9, 11-13 & 29.
25
Id., at 4-10, 22-23 & 30-31.
26
26
Id., at 4 & 8-10.
27
27
Id., at 4-5.
28
28
Id., at 8-10 & 31.
23
24
25
-7-
1
The nurse did not observe any trauma to the vaginal area. She testified that there was
2
no trauma in about forty-five percent of overall sexual assault cases. If there was a threat of
3
injury or death by the attacker, there was little resistance by the victim. She testified that the
4
victim would tend to comply with the assailant at that time because “[s]elf-preservation is the
5
main motive at that time.” Where there was a threat of force, she testified that ninety percent
6
of the cases would show no trauma.29
7
The nurse did not observe the presence of semen at least in the assisted visual
8
examination that she performed. She testified that this was not common. The nurse
9
elaborated, however, that different males secrete different amounts of semen. Moreover,
10
Coates had been in the shower, had changed clothes, and also had urinated prior to the
11
exam. Both urination and the act of wiping after could result in the loss of evidence.30
12
Coates told the nurse, inter alia, that she had been hit in the head, face, back of the
13
head, and arm and elbow areas with a frying pan, that the assailant had her take her clothes
14
off, that he told her that he had a gun but that she never saw it, that he put his mouth on her
15
vagina and then his penis in her vagina, that she believed that he ejaculated, that he had her
16
take a shower while armed with a butcher knife, and that she was able to leave when he got
17
into the shower.31
18
The nurse checked “yes” for responses by Coates as to penetration of the vagina,
19
mouth, and rectal area. However, a “yes” would be marked on that portion of the form for
20
touching of the area without actual penetration, as the purpose of that portion of the form was
21
to identify areas for the nurse to swab for the possible presence of semen.32
22
////
23
24
25
26
29
#29, Ex. 57, at 6-7 & 13-17; see also id., at 23-28 (acknowledging that she might have testified in
an earlier case then to a thirty-five percent figure as to the percentage of overall cases without trauma).
30
Id., at 10, 11, 21-22 & 30. As discussed herein, Brown did not deny sexual activity with Coates. He
instead claimed that the sex was consensual.
27
31
Id., at 7.
28
32
Id., at 8, 19, 29-30 & 32-33.
-8-
1
The nurse acknowledged on cross-examination that Coates said that her vagina had
2
not been penetrated by Brown’s finger (as opposed to be his tongue and penis), that he had
3
placed his mouth on her vagina in addition to penetration with his tongue, that his finger had
4
“penetrated” her rectum (at least in the sense used in completing the form), that he had either
5
kissed or licked her mouth, and that she had scratched Brown.33
6
The nurse testified on cross-examination that Coates “was not coherent in her thoughts
7
as far as what happened in what order,” that “she was like having flights,” and that “[s]he
8
would say one thing and then it would not be in context [of] what happened at that particular
9
time.” She testified that “[i]t’s not uncommon for victims to space out at different points.” The
10
nurse observed that “she was still in semi-shock,” and that “her sequencing was not good at
11
that time.” According to the nurse, “‘she’d say something and then say, oh, no, that happened
12
later or no, that happened like this way or that way.”34
13
When Stadler saw her daughter at the hospital, Nichole Coates’ face was black and
14
blue and swollen, and she was trembling and crying. Stadler further testified that her
15
daughter was “[t]rembling, shaking, crying, totally upset,” “a little bit angry,” and experiencing
16
“[a] lot of emotions.”35
17
When Coates spoke to the investigating detective, Detective Debbie Love, she once
18
again stated, consistent with her prior statements immediately after the attack and thereafter,
19
that her stepfather had hit her in the head with a frying pan and then sexually assaulted her.
20
Detective Love testified that while Coates was rational, she “was a little bit distraught” and that
21
she cried several times during the interview.36
22
The state trial court allowed the defense to cross-examine Detective Love about
23
alleged inconsistencies between Coates’ statement to the detective and Coates’ trial
24
33
#29, Ex. 57, at 17-20.
26
34
Id., at 22 & 29.
27
35
Id., at 50-55 & 91.
28
36
Id., at 158, 174 & 185.
25
-9-
1
testimony, as to which alleged inconsistencies the defense had not inquired about first in
2
cross-examining Coates.37
3
The defense sought to establish, inter alia, the following, alleged, inconsistencies in
4
Coates’ statement: (a) that there was no altercation between her and Brown the night before;
5
(b) that she was laying on her back rather than her side when Brown hit her with pan; (c) that
6
Brown asked her about her sexual relationships and went through her purse and found
7
condoms; (d) that all of her clothes were removed by Brown in the living room; (e) that Brown
8
laid her on her back and started kissing her before he penetrated her with his penis; (f) that,
9
when Coates went to get a drink in the kitchen after the attack, she walked there first with him
10
following, after she tried to convince him that she would not call the police; and (g) that she
11
first saw the knife after she got out of the shower and he then walked out and put it away.38
12
The prosecution established on redirect that Coates related in her statement to the
13
detective, inter alia: (a) that the kiss came only after Brown threatened to shoot Coates, with
14
Brown saying “either kiss me or die;” and (b) that Brown’s questioning her about other sexual
15
relationships and finding condoms in her purse occurred after he sexually assaulted her. 39
16
17
Four days after the attack, on March 25, 2000, the vehicle in which Brown apparently
had left Las Vegas was recovered, without Brown, in Missouri.40
18
About a week after the attack, Brown called Stadler and told her that he had been
19
having consensual sex with Coates. Stadler would not talk with him. She did not believe him
20
because “they never were ever close, they were always at each other’s throats.” 41
21
////
22
23
24
37
#29, Ex. 57, at 175-79. But cf. N.R.S. 50.135(2)(b)(“Extrinsic evidence of a prior contradictory
statement by a witness is inadmissible unless . . . [t]he witness is afforded an opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to interrogate the witness thereon.”).
38
#29, Ex. 57, at 186-98 & 201-03.
26
39
Id., Ex. 58, at 2-7.
27
40
Id., Ex. 57, at 162.
28
41
Id., at 103-05.
25
-10-
1
Sixteen days after the attack, on April 6, 2000, Brown was apprehended in Michigan
2
at his sister’s house. He tried to pass himself off to officers instead as his brother. The
3
officers inside the house at the time, as opposed to the uniformed officer on detail at the rear
4
of the house, were dressed in civilian clothes. However, they identified themselves as officers
5
and plainly displayed badges hanging from their necks on lanyards. The officer who testified
6
at trial did not observe, at the arrest, any injuries to Brown’s face.42
7
Detective Love interviewed Brown in custody back in Las Vegas on April 18, 2000. 43
8
Brown acknowledged having sex with Nichole Coates on March 21, 2000. According
9
to Brown, he and Coates had been having a sexual relationship since between the Christmas
10
and New Year’s holidays in 1998. He maintained that, prior to that time, they had been very
11
friendly, hugging frequently. He stated that, once they became sexually involved, they had
12
sex at least twenty times prior to March 21, 2000. 44
13
Brown told Detective Love that Coates also “used to bring a bunch of guys over too.”
14
Coates’ mother typically went to bed early, and according to Brown, “[h]er and the guys would
15
have sex in the living room on the floor and stuff like that.”45
16
According to Brown, he took Stadler and Coates out for dinner earlier in the evening
17
of March 20, 2000, and they were drinking and smoking marijuana. He maintained that, later,
18
after her mother had gone to sleep, her former boyfriend and a friend came over and they
19
stayed up doing more drinking and smoking.46
20
////
21
22
42
#29, Ex. 57, at 144-50.
23
43
Id., at 163-66.
24
44
25
26
#67, Ex. 132, at 2-3, 5, 17-19, 24-25, 30-37, 39-47 & 52-53; #29, Ex. 57, at 144-50. The transcript
of the statement filed on federal habeas review was introduced as State Exhibit 23, which was read by jurors
during a reading break dedicated to that purpose. The blank spaces in the transcript represent redactions.
See #29, Ex. 55, at 176-79; id., Ex. 57, at 2 & 166.
27
45
#67, Ex. 132, at 58.
28
46
Id., at 5-7, 55-57 & 61-62.
-11-
1
Under Brown’s account, the next morning on March 21, 2000, he and Coates had sex
2
after her mother left for work. He said that they started to become intimate on the couch and
3
then had sex in the bedroom. Coates purportedly had three orgasms during oral sex. Brown
4
stated that Coates became angry when they were talking after the consensual sex because
5
he would not leave her mother for her and told her that he would not have sex with her
6
anymore. He told the detective that this made Coates mad because she told him that other
7
men could not make her orgasm like he could.47
8
According to Brown, Coates retrieved a switchblade from a cabinet and started
9
brandishing it at him. As his account continues, Coates then took a shower and attacked him
10
barehanded afterwards. Brown maintained that he threw her down on the floor as they
11
struggled. According to Brown, she then reached over, grabbed the frying pan, and struck
12
him in the head with it. He maintained that he took the frying pan from her, hit her in the face
13
with the frying pan but only once, and then threw it. Brown told the detective that the injuries
14
to the back of Coates’ head must have occurred when he threw her to the floor.48
15
During the April 18, 2000, custodial interview, Brown showed Detective Love a bump
16
on his head. She felt the bump, but she did not see any bruising, and she did not know if the
17
bump was from the March 21, 2000, incident almost a month earlier.49
18
Detective Love also asked Brown whether the frying pan broke at that point. He
19
responded: “I don’t know. _____ after I hit her, I just threw it.” He further said: “I don’t know
20
where it go to.”50
21
As Brown’s account continued, Coates went back into the shower and settled down.
22
He stated that he joined her in the shower and then she asked to wear one of his shirts.
23
According to Brown, Coates then left, but he followed her because “I knew what she was
24
47
#67, Ex. 132, at 62-64 & 67-81; #29, Ex. 57, at 169.
26
48
#67, Ex. 132, at 81-87; #29, Ex. 57, at 168-70 & 174.
27
49
#29, Ex. 57, at 170-71.
28
50
#67, Ex. 132, at 87.
25
-12-
1
gonna do.” He knew that she was going to tell her mother that he raped her, because Coates
2
wanted him to leave her mother for her. According to his account, he followed her “right to
3
Subway,” contrary to the testimony that Coates was seen by paramedics at the apartment
4
complex and never went to the Subway that day after the attack. Brown maintained that he
5
then waved to Stadler, said “I’ll be back,” and left.51
6
Brown’s assertion that he knew that Coates was leaving the apartment to accuse him
7
of rape stood in contrast to his statement at the beginning of the interview. When Detective
8
Love asked Brown on April 18, 2000, whether he was aware that he had been accused of
9
raping Coates, he responded: “I just got aware of it when I got down here.”52
10
Detective Love also asked Brown about an incident the day after the sexual assault
11
in which he went into the back room of the Subway in his work uniform when Stadler was not
12
there and stole money from the store.53 Brown told the detective that both of the young
13
women employees who observed him at the time were lying. When the detective asked him
14
why the young women would lie, he stated that he thought that one of the women was a
15
lesbian and that she was having a sexual relationship with Mary Stadler.54
16
17
While in custody, Brown also made statements to a corrections officer in which he
maintained that he had had only consensual sex with Coates.55
18
Additional testimony reflected the following regarding how long Nichole Coates had
19
known Brown, following upon testimony initially elicited by defense counsel on cross-
20
examination of Coates.
21
////
22
23
51
#67, Ex. 132, at 87-90. #29, Ex. 57, at 171 & 173.
24
52
Id., at 3.
53
The Court discusses the charges regarding the stolen money in more detail in regard to Ground 2.
54
#67, Ex. 132, at 91-93.
25
26
27
55
28
#29, Ex. 57, at 150-56 (the statements were made in the course of a running belligerent tirade in
which Brown threatened the officer and his family).
-13-
1
Before they moved to Las Vegas, Coates and her mother had lived together in
2
Pennsylvania and prior to that in North Carolina. Coates testified that they lived together in
3
an apartment along with their boyfriends in Pennsylvania. Stadler acknowledged that her
4
daughter’s boyfriend was in his thirties and that she started dating him when she was fifteen.
5
She maintained that Coates’ boyfriend lived nearby rather than with them in North Carolina.56
6
While in Pennsylvania, Coates’ mother broke up with her longstanding boyfriend, and
7
she later became involved with Brown. He ultimately moved into the apartment with Coates’
8
mother, Coates, and her boyfriend.57
9
A short time, later, however, Brown and Coates’ mother moved to Las Vegas, with
10
Coates and her boyfriend staying behind in Pennsylvania. Coates and her boyfriend followed
11
a short time thereafter, however, and they initially stayed with Brown and her mother. They
12
then moved to another apartment in the same complex up until the point where Coates broke
13
up with her boyfriend, for being physically abusive. It was then that Coates moved out to
14
Henderson, but she still had some of her clothes at her mother’s apartment. Brown had given
15
her a ride a couple of times out to Henderson, at her mother’s request.58
16
Defense counsel also elicited the initial testimony from Coates regarding an incident
17
about six months earlier during which Brown attempted to kiss Coates and an altercation
18
ensued. Coates was visiting her mother at their apartment, when she and Brown were at a
19
different complex. Brown and Coates’ mother were arguing, and Brown said to her mother
20
that she had better watch herself, referring to a knife that he had just set down. Coates asked
21
Brown “what are you going to do,” and she then followed her mother to the bathroom. Brown
22
followed and attempted to kiss Coates. She slapped him hard with an open hand, and he
23
punched her in the mouth and then continued punching her in the stomach. Coates fell to the
24
ground as Brown punched her, but she eventually was able to break free and leave with her
25
26
56
#29, Ex. 55, at 69-73 (Coates); id., Ex. 57, at 34-35, 61-63 & 107-08 (Stadler).
27
57
Id., Ex. 55, at 69-73 (Coates); id., Ex. 57, at 34-35 & 63-64 (Stadler).
28
58
Id., Ex. 55, at 73-85 (Coates); id., Ex. 57, at 34-35, 64-71 & 94-95 (Stadler).
-14-
1
mother to a 7-11 to call the police. Brown left before the police could apprehend him and no
2
arrest had been made by the time of the second incident in March 2000. Coates had a cut
3
lip and bruises from the first incident, but she did not seek medical attention. 59
4
5
6
7
8
9
The defense called two witnesses to testify. Their testimony collectively pertained to
how Brown and Coates related to one another and/or Coates’ dem eanor after the attack.
Mary Cyronek was the resident administrator, or manager, of the apartment complex
in which Stadler and Brown had their apartment.60
Cyronek testified that Brown and Coates came to the office on two occasions, once
regarding a work order and another time to obtain an air filter. She testified initially:
I believe at one time he came in with Nichole and there
was a work order that needed to be done in the apartment and he
told me what it was. I asked him if we could have permission to
enter, he said yes. She was with him, they seemed very friendly.
On another occasion, I think they came up and got an air filter for
their – for his and Mary’s apartment. And they seemed, you
know, very friendly then at the time, friendly as in just, you know,
they just came in, said hello. They were very nice to us, they
always had been as we had been to them.
10
11
12
13
14
15
#29, Ex. 58, at 23 (emphasis added).
16
testimony as being that “they seemed to be friendly with one another” in a compound question
17
primarily directed to distinguishing Brown and Coates from Brown and Stadler.61 Cyronek
18
affirmed that she did not notice any animosity between Brown and Coates -- when they were
19
in the office briefly while requesting a work order and later getting an air filter.62
20
21
22
Defense counsel thereafter characterized this
On cross-examination, Cyronek acknowledged that Brown and Coates did not appear
to be affectionate in her presence. 63
////
23
24
59
#29, Ex., 55 at 85, 88-90 & 119-25 (Coates); id., Ex. 57, at 36-37 & 70-73 (Stadler).
60
Id., Ex. 58, at 21.
26
61
Id., at 24.
27
62
Id.
28
63
Id., at 28.
25
-15-
1
No testimony was elicited from Cyronek that she had any dealings with Brown and
2
Coates together other than during these two brief incidents, that she had any basis for
3
knowing how they related to one another in private as opposed to in public, that she observed
4
any specific behavior – such as affectionate touching or glances – suggesting that Brown and
5
Coates were intimate, or that she had any basis whatsoever for believing that they were
6
engaging in a consensual sexual relationship merely because they did not show animosity to
7
one another in the few minutes in public that it took, for example, to get an air filter.
Cyronek also testified regarding her observation of Coates on two occasions after the
8
9
attack.
With regard to the first occasion, Cyronek observed Coates shortly after the attack
10
11
while she was making her rounds:
17
Well, on that day, I was walking [the] property as I normally
do every day, and I came upon Apartment 169 and I saw a
couple of police officers outside. I went over and inquired, you
know, what was going on, and they had told me that she had –
there was a girl that lived, that was in Apartment 201 that was
allegedly raped. And I looked inside, I would say I was maybe
fifteen feet away. I saw Nichole sitting there talking to two
officers, her hands were folded like this, I can’t recall if she was
crying or not. And they said we’ve got everything, you know,
under control and I said, okay, fine, and so I just went back to
office.
18
#29, Ex. 58, at 25. When asked immediately thereafter whether anything struck her as
19
unusual about Coates behavior at that time, she responded: “No, not really. Not at that time,
20
no.”
12
13
14
15
16
21
The foregoing was the entirety of the examination on direct on the point.
22
On cross-examination, it was established that Cyronek was standing in the doorway
23
“two, three minutes at the most;” that she saw only a side view of Coates from the fifteen feet
24
away; that the side that she saw was Coates left side, which would have been the opposite
25
side from her facial injuries; that Coates was sitting slumped over with her elbows on her
26
knees; and that Cyronek neither had any face to face contact with Coates nor spoke with her.
27
#29, Ex. 58, at 28-30.
28
////
-16-
1
In sum, Cyronek’s testimony on this point provided no more insight into whether or not
2
Coates had been raped than would testimony by any other lay bystander observing a rape
3
victim for “two, three minutes at the most” from one side from fifteen feet away while they
4
were being interviewed by law enforcement professionals.
5
With regard to the second occasion, Mary Stadler and Nichole Coates came to the
6
office the next day accompanied by a female police officer. The police were seeking to move
7
Stadler and Coates out of the apartment to another location for their protection. Cyronek
8
testified that during the ten minutes that Coates also was in the office she was bored and
9
wanted to leave. This struck Cyronek “as a little funny for somebody who’s supposedly
10
allegedly raped that, you know, wasn’t upset or anything like that.” Cyronek testified that in
11
her opinion, “I just, with my own self, that if somebody had been raped that they would seem
12
a little bit more nervous, more . . . [counsel supplies word] . . . [y]eah, traumatized, that’s the
13
word I want to use, traumatized.” Cyronek testified that Coates was not “shaking in terror” –
14
the day after the attack – and that she instead acted bored and like it was an imposition to be
15
there, asking two times if they could leave.64
16
17
The resident apartment manager acknowledged on cross-examination that she never
personally had had any contact with a rape victim.65
18
The second defense witness, Kathryn Uhrich, previously had been a roommate and
19
coworker with Coates. Uhrich in the main corroborated testimony by prosecution witnesses,
20
including Coates, that: (a) Coates did not like Brown; (b) she did not like him because he
21
made sexual advances toward her when her mother was not nearby; and (c) she therefore
22
did not like going to her mother’s apartment when she was not around. Uhrich testified that
23
it was Brown only that made sexual advances and that they were not acted on by Coates.
24
25
26
64
#29, Ex. 58, at 25-27.
65
Id., at 30-32.
27
28
Cyronek otherwise corroborated testimony by State witnesses that Coates was not on the lease for
the apartment and did not have a key to the apartment. Id., at 22-23.
-17-
1
Uhrich’s last contact with Coates was in the summer of 1999, approximately nine months
2
before the attack. 66
3
No other evidence was introduced at trial in an attempt to call the State’s evidence into
4
question by corroborating Brown’s assertion that he was having a consensual sexual
5
relationship with Coates on and prior to March 21, 2000.
6
Standard of Review
7
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a “highly
8
deferential” standard for evaluating state-court rulings that is “difficult to meet” and “which
9
demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster,
10
131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court
11
may not grant habeas relief merely because it might conclude that a decision was incorrect.
12
131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the
13
decision: (1) was either contrary to or involved an unreasonable application of clearly
14
established law as determined by the United States Supreme Court based on the record
15
presented to the state courts; or (2) was based on an unreasonable determination of the facts
16
in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.
17
A state court decision on the merits is “contrary to” law clearly established by the
18
Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme
19
Court case law or if the decision confronts a set of facts that are materially indistinguishable
20
from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell
21
v. Esparza, 540 U.S. 12, 15-16 (2003). A decision is not contrary to established federal law
22
merely because it does not cite the Supreme Court’s opinions. Id. Indeed, the Court has held
23
that a state court need not even be aware of its precedents, so long as neither the reasoning
24
nor the result of its decision contradicts them. Id. Moreover, “[a] federal court may not
25
26
66
#29, Ex. 58, at 33-34, 37-40 & 41-42.
27
28
Uhrich otherwise testified to the collateral matter of Coates’ prior abusive relationship with her former
boyfriend.
-18-
1
overrule a state court for simply holding a view different from its own, when the precedent
2
from [the Supreme] Court is, at best, ambiguous.” 540 U.S. at 16. For, at bottom, a decision
3
that does not conflict with the reasoning or holdings of Supreme Court precedent is not
4
contrary to clearly established federal law.
5
A state court decision constitutes an “unreasonable application” of clearly established
6
federal law only if it is demonstrated that the state court’s application of Supreme Court
7
precedent to the facts of the case was not only incorrect but “objectively unreasonable.” E.g.,
8
Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9 th Cir. 2004).
9
To the extent that the state court’s factual findings are challenged, the “unreasonable
10
determination of fact” clause of Section 2254(d)(2) controls on federal habeas review. E.g.,
11
Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal
12
courts “must be particularly deferential” to state court factual determinations. Id. The
13
governing standard is not satisfied by a showing merely that the state court finding was
14
“clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more deference
15
to the state court’s determination:
16
17
18
19
20
21
22
23
24
. . . . [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that
we would reverse in similar circumstances if this were an appeal
from a district court decision. Rather, we must be convinced that
an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is
supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9 th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct
unless rebutted by clear and convincing evidence.
The petitioner bears the burden of proving by a preponderance of the evidence that
he is entitled to habeas relief. Pinholster, 131 S.Ct. at 1398.
Discussion
25
26
27
28
Ground 3: Sufficiency of the Evidence
The Court discusses Ground 3 before the remaining grounds because it provides
context for the remaining claims.
-19-
1
In Ground 3, Petitioner alleges that there was insufficient evidence to sustain his
2
conviction for three counts of sexual assault because he allegedly instead had a consensual
3
sexual relationship with his stepdaughter.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On direct appeal, the Supreme Court of Nevada rejected the claim presented to that
court on the following grounds:
. . . Brown contends that insufficient evidence was
adduced at trial to support his conviction on three counts of
sexual assault. Brown argues that he had a consensual sexual
relationship with his stepdaughter, and that she "was never raped,
but was acting as a hurt and jilted partner" because he refused
[to] leave her mother. In support of his contention, Brown cites to
allegedly inconsistent statements made by the victim, and points
out that a witness testified at trial that after the attack, "she did
not notice any unusual behavior on the part of [the victim]." We
conclude that Brown's contention is without merit.
Evidence of sexual penetration is required to sustain a
conviction for sexual assault. Pursuant to NRS 200.366(1), the
State must prove that the sexual penetration occurred "against
the will of the victim or under conditions in which the perpetrator
knows or should know that the victim is mentally or physically
incapable of resisting." Sexual penetration is defined in NRS
200.364(2) as "cunnilingus, fellatio, or any intrusion, however
slight, of any part of a person's body . . . into the genital or anal
openings of the body of another, including sexual intercourse in
its ordinary meaning."
In this case, our review of the record on appeal reveals
sufficient evidence to establish guilt beyond a reasonable doubt
as determined by a rational trier of fact." In particular, we note
that the victim testified to the following facts at trial. After finishing
a late shift at work, she arrived at her mother's apartment around
12:30-1:00 a.m., hoping to sleep. She found her mother asleep
in the bedroom and Brown in another room listening to music and
watching television, so she slept beside her mother in the bed. At
a certain point during the night, the victim awoke to find Brown
sitting on the bed next to her. She immediately jumped up and left
the room, and went to sleep on the couch in the living room.
After her mother left work the following morning, the victim
was awakened when Brown hit her over the head with a cast iron
skillet. Brown told her that he had a pistol but would not kill her
if she did what he said. With a tight grip around her arm, Brown
proceeded to grope her breasts, outside and underneath her
shirt. The victim protested repeatedly and cried. Brown told her
that if she did not quiet down, he would kill her, and then took off
her pants. The victim testified that Brown forcibly carried her into
the bedroom. Despite her continuous crying and resistance,
Brown digitally and orally penetrated her vagina, and ultimately
engaged in sexual intercourse.
-20-
1
2
3
4
5
6
7
8
9
10
Based on the above, we conclude that the jury could
reasonably infer from the evidence presented that Brown
committed three counts of sexual assault. Although the medical
examination revealed no conclusive evidence of a sexual assault,
the nurse who examined the victim testified at trial that in
approximately "forty to forty-five percent of [sexual assault] cases,
there is no trauma." Photographs taken of the victim and witness
testimony confirmed the victim's injuries, yet the victim's
uncorroborated testimony alone would have been sufficient to
prove that a sexual assault had occurred. Additionally, evidence
of Brown's flight after the assault is relevant to demonstrate
consciousness of guilt. As this court has stated many times, it is
for the jury to determine the weight and credibility to give any
allegedly conflicting testimony, and the jury's verdict will not be
disturbed on appeal where, as here, substantial evidence
supports the verdict. Therefore, we conclude that Brown's
contention is without merit.
#30, Ex. 76, at 4-6 (citation footnotes omitted).
11
The state supreme court’s rejection of this claim was neither contrary to nor an
12
unreasonable application of clearly established federal law as determined by the United
13
States Supreme Court.
14
On a challenge to the sufficiency of the evidence, the habeas petitioner faces a
15
"considerable hurdle." Davis v. Woodford, 333 F.3d 982, 992 (9th Cir. 2003). Under the
16
standard announced in Jackson v. Virginia, 443 U.S. 307 (1979), the jury's verdict must stand
17
if, after viewing the evidence in the light most favorable to the prosecution, any rational trier
18
of fact could have found the essential elements of the offense beyond a reasonable doubt.
19
E.g., Davis, 333 F.3d at 992. Accordingly, the reviewing court, when faced with a record of
20
historical facts that supports conflicting inferences, must presume that the trier of fact
21
resolved any such conflicts in favor of the prosecution and defer to that resolution, even if the
22
resolution by the state court trier of fact of specific conflicts does not affirmatively appear in
23
the record. Id. The Jackson standard is applied with reference to the substantive elements
24
of the criminal offense as defined by state law. E.g., Davis, 333 F.3d at 992. When the
25
deferential standards of the AEDPA and Jackson are applied together, the question for
26
decision on federal habeas review thus becomes one of whether the state supreme court's
27
decision unreasonably applied the Jackson standard to the evidence at trial. See,e.g., Juan
28
H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). Thus, when a federal court assesses a
-21-
1
sufficiency of the evidence challenge to a state conviction under AEDPA, “there is a double
2
dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th
3
Cir. 2011).
4
Petitioner relies, first, on his own self-serving statements maintaining that he had been
5
having a consensual sexual relationship with Coates and that he had consensual sex with her
6
on March 21, 2000. A suggestion that self-serving statements by the defendant on trial
7
render the State’s evidence insufficient to sustain a conviction would be risible. The conflict
8
between Coates’ account and Brown’s account was a matter to be considered and resolved
9
by the jury. That is bedrock law on this issue. The jury accepted Coates’ account over
10
Brown’s account. That is the end of that matter.
11
Petitioner urges, second, that Coates’ injuries were not consistent with a frying pan
12
being broken over her head because she did not suffer any broken bones and did not have
13
a concussion. He contends that his injuries – allegedly a confirmed knot over his eyebrow –
14
instead were consistent with Coates hitting him with the frying pan. Petitioner posits that the
15
broken frying pan was consistent with his story that he threw the pan after hitting Coates
16
because “[t]he pan likely broke upon impact against a wall or the floor.”67
17
Petitioner points to no evidence – as opposed to bald supposition – that the injuries
18
that Coates sustained were not consistent with a frying pan being broken over her head.
19
Moreover, Coates testified only that she woke up to being hit in the head with the frying pan
20
and thereafter saw Brown sitting on the coffee table with the piece of the frying pan with the
21
handle in his hand.68 Her testimony did not establish what Brown hit before she woke up,
22
when he hit what he hit, how he hit what he hit, and/or how many times he hit what he hit
23
before she woke up. Nor did her testimony establish specifically when the frying pan broke
24
and on what it broke. She simply woke to being hit in the head with a frying pan that she
25
thereafter observed was broken. Petitioner thus relies on nothing more than supposition both
26
27
67
#80, at 25-26.
28
68
See text and record cites, supra, at 3.
-22-
1
that: (a) the frying pan broke in two specifically when striking Coates in the head before she
2
woke up; and (b) if Brown hit her head in some manner that broke the frying pan, he could do
3
so only by also fracturing her skull and causing a concussion. Petitioner’s bald supposition
4
constitutes neither medical nor metallurgical evidence -- much less evidence combining both
5
disciplines -- tending to establish what was and was not physically possible with regard to
6
what medical injuries might be associated with what damage to the particular frying pan used
7
under various possible scenarios.
8
The State of course had the burden of proof. However, the State discharged that
9
burden, amply, with testimony by Coates that she woke up to being beaten by Brown with a
10
frying pan, which she then observed had split in two, and that he then forcibly raped her while
11
threatening to kill her if she did not comply. To carry its burden of proof, the State was not
12
required to negate every post hoc unsubstantiated supposition by counsel as to what
13
allegedly necessarily would or would not happen to either the victim or the instrument used
14
when someone attacked a sleeping victim with a particular frying pan.69
15
16
17
18
Petitioner contends, third, that alleged inconsistencies between Coates’ trial testimony
and her prior statement to Detective Love rendered the evidence insufficient.
At the outset, a number of the alleged inconsistencies relied upon by Petitioner are at
best strained on their face.
19
Petitioner maintains that alleged statements to the detective that there was absolutely
20
no altercation between Coates and Brown and no motivating event for the sexual assault was
21
inconsistent with Coates trial testimony that Brown was partying loudly the night before and
22
23
24
25
26
27
28
69
While the point is a collateral one, the actual evidence at trial does not support the assertion that
Brown had “a confirmed knot over his eyebrow” that was consistent with Brown’s account that Coates hit him
with the frying pan. Detective Love testified only that Brown showed her “a bump” almost a month after the
incident, that she did not observe any bruising at that time, and that she did not know the source of the bump.
See text and record cites, supra, at 12. Merely because the prosecution does not affirmatively negate every
unsubstantiated and/or speculative assertion that defense and/or federal habeas counsel may postulate does
not signify that the State’s case was based on speculation. Coates testified that Brown brutally attacked and
then raped her. Her testimony was more than sufficient to sustain the conviction, and was not grounded in
speculation as to what happened, from the point that she woke up while being beaten by Brown with a frying
pan and thereafter was forcibly raped.
-23-
1
sat next to Coates on the bed while she was sleeping. An arguendo statement that there was
2
no “altercation” the night before and no motivating event is not at all necessarily inconsistent
3
with testimony that Brown was loud the night before and startled Coates by sitting next to her
4
on the bed while she slept. Assuming, arguendo, that the word “altercation” was the word
5
actually used in Coates’ statement, Coates easily could have construed the word to mean
6
“fight.” She did not have a fight per se with Brown the night before; she yelled at him when
7
she woke up to him sitting by her. Moreover, nothing in that incident remotely provided a
8
“motivating event” for Brown to brutally attack and then rape Coates. 70
9
Petitioner next maintains that Coates told the detective that “she was laying on her
10
back with her arm over her face” but testified instead at trial that “she was lying on her side,
11
with her hand over her face.” Petitioner urges that this distinction is important “because
12
Brown would not have been able to hit Coates in the back of the head with the pan if she was
13
lying on her back at the time.”71
14
Petitioner overstates the clarity of the trial testimony, by both witnesses, as to the
15
actual positioning of Coates’ head. While Coates testified that her back -- more or less -- was
16
facing outward from the couch, the trial transcript reflects that she demonstrated the position
17
of her body and specifically of her head more than describing it clearly in words.72 Detective
18
Love, in turn, testified – only from recollection – initially that Coates “said she was laying on
19
her back and that her arm was over her face.” Per counsel’s request, she demonstrated that
20
21
22
23
24
25
26
27
28
70
Indeed, Coates testified on cross that there was no “altercation” before she went to bed. #29, Ex.
55, at 88; see also #29, Ex. 55, at 85 (defense counsel asks about “a physical altercation, by that I mean
fight”). Because of the trial court ruling allowing the defense to cross-examine the detective on Coates’
statement without having cross-examined Coates on the points, the trial record often contains only defense
counsel’s characterization of the statements. The detective pointed out that she had not reviewed the victim’s
statement in preparing for her testimony because she was not expecting to testify as to the statement. #29,
Ex. 57, at 190. While counsel on occasion provided her a copy of the statement to refresh her recollection,
counsel did not do so as to all of the questions asked. The State could have recalled Coates per the ruling,
but such a move would have allowed the defense a windfall cross-examination opportunity that a prosecutor
could have concluded was not worth allowing in order to address collateral points.
71
#80, at 26.
72
#29, Ex. 55, at 37, lines 15-19; 99, lines 17-24; & 100.
-24-
1
“I believe she was like this.” Love then testified that “that’s how I demonstrated,” and that “I
2
couldn’t tell your from memory how she demonstrated it, though.” The detective testified that
3
Coates was “laying on her back a little bit propped up on a pillow,” and agreed with a leading
4
question that she “otherwise was on her back, flat on her back.” 73
5
The record does not affirmatively demonstrate that testimony by Coates, inter alia, that
6
“[n]o, it wasn’t on my back, it was on my side, but not exactly on my back” and “I was laying
7
exactly like this right here, this”74 necessarily is inconsistent with testimony by Detective Love
8
that “I believe she was like this.” The trial transcript before this Court on federal habeas
9
review does not establish that Coates told Detective Love in the first instance that her head
10
was in a position where she could not have been struck in the back of the head by the frying
11
pan. The necessary predicate that her statement suggested that Coates was in a position
12
that ruled out being struck in the back of the head is not supported by the trial record. Nor
13
does the trial evidentiary record establish that the physical demonstration given by Coates at
14
trial differed either from what she actually said75 to Love and/or from Love’s own
15
demonstration. Petitioner’s supposition that Coates’ statement to Detective Love necessarily
16
would rule out the prospect of her being hit in the back of the head thus simply is not
17
supported by the trial record.
18
Moreover, Coates testified that she did not know how many times that she may have
19
been hit, woke up, blacked out, and then woke up again while still being hit.76 Under Jackson,
20
reasonable jurors readily could reach a natural and very permissible inference that a victim
21
being beaten with a frying pan while asleep might not be able to definitively and conclusively
22
23
24
25
26
27
28
73
#29, Ex. 57, at 188-89.
74
Id.., Ex. 55, at 99-100.
75
See note 70, supra. Detective Love was not presented with a transcript of Coates’ statement on
this point and then asked questions about the other witness’ statement. She was testifying “cold” based on
recollection and leading questioning. There perhaps is a reason why evidence rules instead require that the
witness who allegedly made the inconsistent statement be the one subject to cross-examination regarding the
statement.
76
#29, Ex. 55, at 97-98.
-25-
1
establish the exact positioning of her head at all points during such a process, whether while
2
asleep, temporarily knocked unconscious and/or dazed while being hit.
3
Petitioner further maintains that “Coates provided inconsistent testimony on the issue
4
of . . . whether Brown went through her purse looking for condoms (ex. 57, p. 198).”77
5
Petitioner cites in the foregoing to testimony by Detective Love on cross-examination.
6
Petitioner does not cite to any trial testimony by Coates – one way or the other – regarding
7
Brown going through her purse looking for condoms. The Court could find no such trial
8
testimony by Coates. Obviously, an alleged inconsistency that does not even exist in the trial
9
record cannot provide a viable basis for challenging the sufficiency of the evidence even if the
10
Court were to indulge an arguendo assumption that such an alleged inconsistency could
11
render the evidence insufficient in the first instance.78
12
Neither the foregoing nor the remaining alleged inconsistencies relied upon by
13
Petitioner – regarding, e.g., where clothes were removed and when Coates first saw Brown
14
holding the knife – rendered the extensive inculpatory testimony sustaining the conviction
15
insufficient to sustain the conviction. The testimony of both the sexual assault nurse and the
16
detective reflected that Coates was rational yet traumatized after the attack and rape. The
17
nurse testified that Coates was coherent but her account was disjointed at times as to what
18
happened specifically in what order, which was not uncommon for victims of an attack.79 The
19
remaining alleged inconsistencies relied upon herein were explored in cross-examination of
20
the detective and weighed by the jury in the context of the remaining evidence. Under well-
21
established law, a court reviewing the sufficiency of the evidence under the Jackson standard
22
must presume that the jury resolved all such inconsistencies in favor of the prosecution.
23
Petitioner contends, fourth, that “Coates testified that she ‘resisted the whole time’
24
while Brown was sexually assaulted her, however there were no injuries supporting such
25
26
77
#80, at 26.
27
78
See also text and record cites, supra, at 10 (detective’s testimony on redirect).
28
79
See text, supra, at 9-10.
-26-
1
testimony.” Petitioner misstates the trial testimony. Coates testified that she resisted Brown
2
in the context of testimony that she resisted his efforts to molest her on the couch, to remove
3
her clothes, and to move her from the couch to the bedroom.80 The bruises and abrasions
4
on her arms were consistent with her resistance, over and above the substantial injuries that
5
she sustained at the very outset of the attack.81 The absence of injury to which Petitioner
6
apparently refers is the absence of vaginal injury from Brown’s sexual penetration.82 By that
7
point, Brown had hit Coates on the head and face an indeterminate number of times,
8
repeatedly threatened to kill her if she did not comply with his demands, and forcibly held and
9
then moved her about by the arms. As the sexual assault nurse testified, a rape victim often
10
would not exhibit trauma from sexual penetration in circumstances where they simply were
11
trying to stay alive by the time of the actual sexual penetration.83 Petitioner’s suggestion –
12
that Coates’ testimony that she resisted and did not consent to having sex with Brown was
13
inconsistent with medical testimony that she sustained no vaginal injury after having been
14
brutally attacked and threatened with death prior to being raped – has nil persuasive force,
15
whether under the Jackson standard or otherwise.
16
The proposition that there was insufficient evidence of forcible sexual assault in this
17
case is wholly without merit. There is no good faith argument on the facts of this case that
18
the trial evidence was insufficient to sustain Brown’s conviction on three counts of sexual
19
assault – whether on a de novo review or most assuredly on deferential AEDPA review.
20
Petitioner presents – at the exceeding level best – conflicts in the evidence coupled with bald
21
speculation as to the circumstances under which a particular frying pan necessarily would split
22
on impact. It is established beyond all peradventure that conflicts in the evidence and
23
competing inferences to be drawn from the evidence do not render the evidence insufficient
24
80
See text and record cites, supra, at 3-4.
26
81
Id., at 6-7.
27
82
Id., at 8.
28
83
Id.
25
-27-
1
to convict under the Jackson standard. Nor must the State negate every unsupported post
2
hoc speculative supposition advanced by a defendant. Merely reurging debating points from
3
a defense closing argument does not set forth a viable claim of insufficiency of the evidence.
4
There, again, simply is no good faith argument on the facts of this case that the evidence at
5
trial was constitutionally insufficient to sustain a conviction for sexual assault.
6
7
8
Ground 3 therefore does not provide a basis for federal habeas relief, as the evidence
indisputably was sufficient to sustain a conviction under Jackson v. Virginia.
Ground 1(B): Effective Assistance at Trial – Unfavorable Defense Witness
9
In Ground 1(B),84 Petitioner alleges that he was denied effective assistance of trial
10
counsel in violation of the Sixth and Fourteenth Amendments when defense counsel called
11
a witness, Kathryn Uhrich, who allegedly only bolstered the State’s case.
12
The Court summarized Uhrich’s testimony, supra, at 17-18.85
13
The state district court concluded that trial counsel rendered deficient performance in
14
calling Uhrich. The state courts held, however, that Petitioner did not demonstrate the
15
requisite prejudice to sustain a claim of ineffective assistance of counsel.
16
The Supreme Court of Nevada held in particular as follows:
. . . Brown claims that trial counsel was ineffective for
calling a defense witness who bolstered the State’s case. Brown
fails to demonstrate that he was prejudiced. At trial, the defense
called Kathryn Uhrich as a witness in an attempt to show that
Brown and the victim had a preexisting loving relationship.
However, Uhrich testified that the victim did not like Brown. The
district court found that Uhrich’s testimony “did not help put
forward [Brown’s] theory that he and the victim had a loving
relationship.” However, despite concluding that counsel’s
performance was deficient, the district court found that Brown
failed to demonstrate prejudice. We agree that in light of the
evidence presented at trial, Brown fails to demonstrate that but
for this brief testimony, there was a reasonable probability of a
different result at trial. Therefore, the district court did not err in
denying this claim.
17
18
19
20
21
22
23
24
25
#31, Ex. 117, at 4.
26
27
84
The Court dismissed Grounds 1(A) and (H) as untimely.
28
85
See also #31, Ex. 96, at 9-13 & 61-62 (counsel’s testimony at the state court evidentiary hearing).
-28-
1
2
The state courts’ rejection of this claim – for absence of the requisite prejudice – was
neither contrary to nor an unreasonable application of clearly established federal law.
3
On a claim of ineffective assistance of counsel, a petitioner must satisfy the
4
two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate
5
that: (1) counsel's performance fell below an objective standard of reasonableness; and (2)
6
counsel's defective performance caused actual prejudice. On the performance prong, the
7
issue is not what counsel might have done differently but rather is whether counsel's
8
decisions were reasonable from her perspective at the time. The court starts from a strong
9
presumption that counsel's conduct fell within the wide range of reasonable conduct. On the
10
prejudice prong, the petitioner must demonstrate a reasonable probability that, but for
11
counsel's unprofessional errors, the result of the proceeding would have been different. E.g.,
12
Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
13
14
This Court cannot say that it might not have reached the same conclusion as the
Supreme Court of Nevada on a de novo review.
15
To be sure, the case turned to a not insignificant degree on an assessment of the
16
relative credibility of the accounts by Coates and Brown as to what actually occurred inside
17
the apartment on the morning in question. However, Coates immediately called 911 and
18
reported the rape after running from the apartment and then immediately called her mother.
19
She exhibited not only significant injuries to her head and face, including an eye that was
20
swelling shut as she was being examined, but also had contusions and bruises on her arms
21
that were consistent with her account of Brown holding and/or directing her forcibly by her arm
22
or arms at several points. Professionals – as opposed to a bystander called by the defense
23
who saw Coates only from one side briefly from a distance – who examined Coates
24
immediately after the attack observed a traumatized, crying and distraught young woman who
25
was coherent but nonetheless slightly “scattered” by the trauma when describing the events.86
26
////
27
28
86
See text and record cites, supra, at 5-10.
-29-
1
Brown, in contrast, instead immediately fled after the attack, and his self-serving
2
account nearly a month later after being apprehended hardly resonates with credibility even
3
on a cold record. Brown’s account included embellishments that did not fit the time line
4
and/or that otherwise strained credulity. These included allegedly taking Stadler and Coates
5
out to a special dinner the evening before, allegedly following Coates to the Subway after the
6
attack at a time when paramedics instead already were being dispatched to a nearby
7
apartment following her 911 call, and his assertion that two female employees lied about his
8
being in the Subway the following day because one of them was having a lesbian relationship
9
with Stadler. His account otherwise reads as an over-the-top fantasy where Coates allegedly
10
had been bringing multiple males to the apartment and having sex with them on the floor but
11
also was accusing him of rape because she wanted him to leave her mother for her because
12
no one else allegedly could satisfy her the way that he did. Brown made these assertions
13
after immediately fleeing from apprehension, ultimately leaving the state altogether, and
14
thereafter lying to officers in Michigan regarding his identity.87
15
The Court thus cannot say that it would not have reached the same conclusion on a
16
de novo review that there was not a reasonable probability that, but for trial counsel’s deficient
17
performance in calling Uhrich, the result of the trial would have been different. Even if this
18
Court would have reached a different conclusion, it may not grant habeas relief merely
19
because it may believe that the state court decision was incorrect. Rather, “[a] state court's
20
21
22
23
24
25
26
27
28
87
Respondents further point to defense counsel’s reliance upon Uhrich’s testimony in closing as being
inconsistent with an alleged statement by Coates to Detective Love that Brown had made no prior sexual
advances other than the incident where Brown kissed her on the mouth. Defense counsel relied upon this
alleged inconsistency as part of a general argument attacking Coates’ credibility. See #29, Ex. 59, at 55-56.
While that may have been what counsel argued, the Court has not been able to locate any reference in
Detective Love’s testimony that Coates made a prior statement in that regard. It therefore appears that
defense counsel was arguing based upon facts not actually in evidence. In any event, any such alleged
inconsistency hardly carries any substantial weight in weighing the probabilities at trial. What Uhrich
characterized as “sexual advances” in her testimony may well have corresponded to the uncomfortable looks
to which Coates in fact did testify. #29, Ex. 55, at 125. Lawyers perhaps attach far more significance than do
jurors, or judges, to such dubious cross-witness “impeachment” on collateral points that may turn on little
more than the inexact terminology used by different witnesses and/or different witnesses’ differing recollection
as to hearsay from long before trial. This collateral use of Uhrich’s testimony by trial counsel in her closing
argument does not have any significant bearing on this Court’s analysis of prejudice under Strickland in this
case, one way or the other.
-30-
1
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
2
jurists could disagree’ on the correctness of the state court's decision.” Harrington v. Richter,
3
131 S.Ct. 770, 786 (2011). Petitioner has not demonstrated that the state supreme court’s
4
rejection of his claim under the prejudice prong of Strickland was objectively unreasonable
5
under this deferential standard of review.88
6
7
Ground 1(B) therefore does not provide a basis for federal habeas relief.
Ground 1(C): Effective Assistance – Evidence of Prior Confrontation
8
In Ground 1(C), Brown alleges that he was denied effective assistance of trial counsel
9
when defense counsel elicited testimony regarding a prior confrontation between Brown and
10
the victim where Brown allegedly attempted to kiss the victim and they fought one another.
11
The Court summarized the trial testimony relevant to this claim, supra, at 14-15.
12
At the state post-conviction evidentiary hearing, defense counsel testified that she
13
made a strategic decision to elicit the testimony because she wanted to use the testimony to
14
suggest that Brown and Coates had a volatile – but romantically volatile – relationship prior
15
to the alleged attack. That is, she sought to portray the incident as in fact a thinly-veiled
16
lover’s quarrel that broke out while the two actually were in the presence of Stadler.89
17
18
The Supreme Court of Nevada rejected the claim presented to that court on the
following grounds:
. . . Brown claims that trial counsel was ineffective for
opening the door to evidence of a prior confrontation between
Brown and the victim. Brown fails to demonstrate that trial
counsel's performance was deficient or that he was prejudiced.
19
20
21
22
23
24
25
26
27
28
88
Petitioner essentially rehashes the point that Uhrich’s testimony corroborated the State’s case and
did not help the defense case. Deficient performance rarely will be helpful to the defense. Strickland requires
that the deficient performance be harmful to the point of there being a reasonable probability of a different
outcome but for the deficient performance. Petitioner has not demonstrated prejudice under that standard on
the facts presented. Strickland clearly does not establish an essentially one-prong test where demonstration
of deficient performance automatically establishes resulting prejudice to the requisite degree. To the extent,
if any, that Uhrich’s testimony undermined the testimony of the other defense witness, Mary Cyronek, as
argued by Petitioner, the allegedly undermined testimony itself was not of substantial significance. See text
and record cites, supra, at 15-18. There is not a reasonable probability that the outcome of the case turned
on the testimony elicited from either witness, whether singly or collectively.
89
#30, Ex. 94, at 16-20; #31, Ex. 96, at 3-8, 43-48 & 57-58.
-31-
1
2
3
4
5
6
7
8
9
10
11
12
13
During cross-examination of the victim, trial counsel elicited
testimony that Brown had previously tried to kiss the victim, she
had then struck him, he struck her back, and the police were
called. No one was arrested. The record reflects, and the district
court found, that trial counsel made a tactical decision to elicit this
testimony in order to show a pattern of fighting followed by
consensual contact. In the context of claims of ineffective
assistance of counsel, "`a tactical decision . . . is virtually
unchallengeable absent extraordinary circumstances."' Foster v.
State, 121 Nev. 165, 170, 111 P.3d 1083, 1087 (2005) (quoting
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81
(1996)) (internal quotation marks omitted). Brown has not
demonstrated extraordinary circumstances here. Moreover,
defense counsel testified that she "still was not certain that the
facts of that prior incident as revealed to the jury was actually
damaging to the defendant." Brown fails to demonstrate that, but
for trial counsel's elicitation of this incident, there is a reasonable
probability that the result of trial would have been different.
Therefore, the district court did not err in denying this claim.
#31, Ex. 117, at 3-4.
The state supreme court’s rejection of this claim was neither contrary to nor an
unreasonable application of Strickland.
14
While surmounting Strickland's high bar is "never an easy task," federal habeas review
15
is "doubly deferential" on the performance prong in a case governed by the AEDPA. In such
16
cases, the reviewing court must take a "highly deferential" look at counsel's performance
17
through the also "highly deferential" lens of § 2254(d). Pinholster, 131 S.Ct. at 1403 & 1410.
18
19
20
21
22
23
24
25
26
27
28
As the Supreme Court explained in Pinholster:
In Strickland, . . . [t]he Court acknowledged that “[t]here are
countless ways to provide effective assistance in any given case,”
and that “[e]ven the best criminal defense attorneys would not
defend a particular client in the same way.” Id., at 689, 104 S.Ct.
2052.
Recognizing the “tempt[ation] for a defendant to
second-guess counsel's assistance after conviction or adverse
sentence,” ibid., the Court established that counsel should be
“strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment,” id., at 690, 104 S.Ct. 2052. To overcome
that presumption, a defendant must show that counsel failed to
act “reasonabl[y] considering all the circumstances.” Id., at 688,
104 S.Ct. 2052. The Court cautioned that “[t]he availability of
intrusive post-trial inquiry into attorney performance or of detailed
guidelines for its evaluation would encourage the proliferation of
ineffectiveness challenges.” Id., at 690, 104 S.Ct. 2052.
-32-
1
.....
2
The [reviewing court must not overlook] “the
constitutionally protected independence of counsel and ... the
wide latitude counsel must have in making tactical decisions.”
466 U.S., at 689, 104 S.Ct. 2052. Beyond the general
requirement of reasonableness, “specific guidelines are not
appropriate.” Id., at 688, 104 S.Ct. 2052. “No particular set of
detailed rules for counsel's conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel
or the range of legitimate decisions ....” Id., at 688–689, 104
S.Ct. 2052. Strickland itself rejected the notion that the same
investigation will be required in every case. Id., at 691, 104 S.Ct.
2052 (“[C]ounsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary” (emphasis added)). It is “[r]are” that
constitutionally competent representation will require “any one
technique or approach.” [Harrington v. Richter, 562 U.S. ––––,
––––, 131 S.Ct. 770, 779, 178 L.Ed.2d 624 (2011)] . . . . .
3
4
5
6
7
8
9
10
11
12
13
14
. . . . Strickland specifically commands that a court “must
indulge [the] strong presumption” that counsel “made all
significant decisions in the exercise of reasonable professional
judgment.” 466 U.S., at 689–690, 104 S.Ct. 2052.
The
[reviewing court is] required not simply to “give [the] attorneys the
benefit of the doubt,” . . . but to affirmatively entertain the range
of possible “reasons . . . counsel may have had for proceeding as
they did” . . . .
15
16
Pinholster, 131 S.Ct. at 1403 & 1407.
17
Petitioner contends that counsel made the tactical decision without making an
18
adequate investigation of the prior incident because she allegedly did not review the police
19
report from the prior incident. He alleges that counsel so testified at the state post-conviction
20
evidentiary hearing. Petitioner maintains that a tactical decision made without adequate
21
investigation is not entitled to deference under Strickland. He contends that the state courts’
22
rejection of the claim thus both was based upon an unreasonable determination of fact and
23
was an objectively unreasonable of Strickland.
24
Petitioner’s argument is not supported by the entire testimony presented. Trial counsel
25
had only an incomplete independent recollection of the trial by the time of the evidentiary
26
hearing. The hearing transcripts are replete with instances where counsel stated that she did
27
not recall or remember the point in question or only “believed” or “thought” that some fact was
28
correct. She had not independently reviewed the trial transcript or other materials from the
-33-
1
criminal case beforehand to refresh her recollection. On a number of points, what she
2
purportedly did “recall” at the evidentiary hearing was based upon what state post-conviction
3
counsel had told her about the case either in a recent meeting about the case and/or while
4
she then was on the stand. In short, trial counsel’s testimony was to an extent “coached”
5
based upon what a lawyer representing one side of the post-conviction case had told her had
6
happened. 90
7
This point is critical – on a number of claims discussed herein, including this one –
8
because what state post-conviction counsel told trial counsel well after the fact was belied by
9
the record on a number of points. Trial counsel thus on occasion was speaking based upon
10
assumptions as to what she did or did not do and/or the consequences thereof that were not
11
supported by the actual historical record as opposed to what state post-conviction counsel
12
had told her had happened.
13
On direct at the evidentiary hearing, trial counsel proceeded on assumptions, supplied
14
by state post-conviction counsel, that: (a) she had elicited testimony as to the prior incident
15
without having read the police report and being familiar with the particulars; and (b) the State
16
thereafter was able to introduce additional significantly prejudicial particulars regarding the
17
incident of which she allegedly had been unaware due to an incomplete investigation.91 On
18
cross-examination, however, it was established that trial counsel in fact had defended Brown
19
20
21
22
23
24
25
26
27
28
90
See, from direct and redirect, #30, Ex. 94, at 10, lines 14-19; 12, line 25; 13, lines 7 & 16; 16, line
15 (referring to what counsel had told her); 17, lines 8 & 20-21 (referring to what counsel had told her); 18,
lines 9-11 & 15-18; 19, lines 7 & 10; 20, line 20; #31, Ex. 96, at 3, lines 5-7; 4, line 5; 5, lines 2-7; 6, lines 6,
14 & 22-23; 7, lines 7 & 20-23; 8, lines 2-25 (“I remember it slightly, ‘cause you brought it up to me . . . you
talked to me about it prior to the – this hearing”); 9, lines 3-25 (“If you say so, yes.”); 10, lines 3-22 (then
recollection thereafter refreshed by document); 12, lines 8-23; 13, line 8-24; 15, lines 11-23 (“That makes
sense, but I don’t remember.”); 18, lines 23-25; 19, at lines 10-11 (. . . perhaps. Is that what you’re saying?”);
20, at lines 7, 10-12, 18-25; 21, lines 1-4 & 14-19 (“If you say so . . . .”)(recollection refreshed by document);
23, lines 18-20; 24, lines 4-9 & 24; 25, lines 2-9; 26, lines 7-24; 27, lines1-27 (recollection, partially, refreshed
by document); 28, lines 5-24; 29, lines 2-25; 30, lines 1-23; 31, lines 11-25; 32, lines 1-4 & 32-33; 33, line 1;
35, lines 23-25; 37, at 2-7 (“I don’t remember. You’ve pointed that out to me . . . .”)(recollection refreshed by
document); 38, at 7-13 (“Well, actually it’s not [after reviewing the actual document] – it’s not as bad as what I
thought you said originally when you were telling me about it.”); 54, lines 1-9 (recollection refreshed by
document); 55, lines 4-10; 56, lines 7-19; 57, line 21; and 62, lines 5-12.
91
#30, Ex. 94, at 16-20; #31, Ex. 96, at 3-8.
-34-
1
on the charges arising from the prior incident in a May 2000 trial prior to the August 2001 trial
2
in the present case. She therefore was familiar with the particular circumstances of the prior
3
incident at the time of the August 2001 trial. Counsel’s entire testimony on the point ultimately
4
led to this conclusion: “I got into [it] knowingly. I got into [it] knowingly what this was about,
5
yes. I got into it because I thought it would not be inconsistent with our defense.”92
6
Moreover, the additional particulars that were developed by the State regarding the
7
incident were not necessarily damningly prejudicial in the context of the defense theory being
8
pursued. On cross at trial, defense counsel elicited testimony that Brown tried to kiss Coates,
9
she slapped him, he hit her, and she and her mother left to call the police at a 7-11.93 On
10
redirect, the prosecution elicited details that the confrontation allegedly arose out of an
11
argument between Brown and Coates’ mother in which he “mumbled something to her . . .
12
concerning the knife” and Coates confronted him about what he meant to do. According to
13
Coates, her mother then went into the bathroom as Stadler and Brown continued arguing
14
while ignoring Coates, Brown tried to kiss Coates, she slapped him, and he punched her in
15
the mouth and they fell fighting to the floor with him punching her in the stomach.94
16
At the state court evidentiary hearing, post-conviction counsel generally referred
17
vaguely in his questioning to unspecified prejudicial evidence coming in. When defense
18
counsel asked state post-conviction counsel what the evidence was, he referred to "the issue
19
where Mr. Brown was alleged to have attacked Mary, Nichole's mother; that he had physically
20
assaulted her."95 However, there was no such evidence introduced at trial regarding the prior
21
incident. There was evidence of Brown mumbling something about a knife in an argument,
22
but no evidence of Brown beating or otherwise physically abusing his wife. And while there
23
was additional information regarding the fight between Brown and Coates, the very point of
24
92
#31, Ex. 96, at 43-45, 46-47 & 57-58.
26
93
#29, Ex. 55, at 88-90.
27
94
Id., at 119-25.
28
95
#31, Ex. 96, at 7.
25
-35-
1
the strategy pursued by defense counsel was to try to portray the two as having a history of
2
“both loving and fighting” as described by defense counsel at the hearing.96
3
On federal habeas review, Petitioner urges that the evidence showed that Brown was
4
a bad person and the sole aggressor, supporting the State’s case and undermining the
5
defense theory of a mutually tumultuous relationship. Petitioner ignores the fact that defense
6
counsel elicited the testimony precisely to suggest a tumultuous relationship where Coates
7
and Brown both “fought and loved.” The defense theory was to use the incident to argue that
8
Coates and Brown “fought and loved” in the prior incident just as they did on the day of the
9
alleged attack, where according to Brown’s account, they had consensual sex and then had
10
a – similarly – very violent fight where each hit the other with the frying pan. The additional
11
detail elicited on redirect regarding how violent the prior fight had been added to rather than
12
detracted from that defense theory.
13
As the Supreme Court has observed, “[t]here are countless ways to provide effective
14
assistance in any given case,” and “[e]ven the best criminal defense attorneys would not
15
defend a particular client in the same way.” Strickland, 466 U.S. at 689. Petitioner in the final
16
analysis is engaging in a post hoc second-guessing of defense counsel’s strategy at trial
17
based on the evidence available to her. While federal habeas counsel now seeks to draw
18
other inferences from the evidence, defense counsel at the time instead was seeking to draw
19
other inferences consistent with Brown’s theory of defense. She elicited the testimony in an
20
effort to indirectly corroborate Brown’s account in which he and Coates allegedly had
21
consensual sex but also then fought one another viciously on the day of the alleged attack.
22
Strategic choices by trial counsel made after investigation are "virtually unchallengeable."
23
Strickland, 466 U.S. at 690. The state supreme court’s conclusion in this case, inter alia, that
24
25
26
27
28
96
E.g., #31, Ex. 94, at 3. The Court notes that defense counsel’s initial testimony on direct -- after
also having had state post-conviction counsel “refresh” her recollection in a prior meeting – was premised
upon misrepresentation of the record by post-conviction counsel. A reviewing court never is bound on postconviction review by purported “admissions” of a defense attorney at an evidentiary hearing, especially so
when the underlying premises are belied by the record. In this case, defense counsel was not always given
accurate information when she sought to have her recollection refreshed by state post-conviction counsel.
-36-
1
trial counsel’s strategic decision -- which the full record reflects was made on adequate
2
investigation -- did not constitute deficient performance was based upon neither an
3
unreasonable determination of fact nor an objectively unreasonable application of Strickland.
4
5
Ground 1(C) therefore does not provide a basis for federal habeas relief.97
Ground 1(D): Effective Assistance – Custodial Status and Threats to Officer
6
In Ground 1(D), Brown alleges that he was denied effective assistance of trial counsel
7
when defense counsel failed to seek to exclude evidence of his fugitive and custodial status
8
at trial and of his threats to a correctional officer while maintaining his innocence.
9
With regard to custodial status, Petitioner refers to: (a) testimony by a Michigan law
10
enforcement officer as to his apprehension of Brown as part of a multi-agency fugitive task
11
force pursuant to a fugitive warrant; (b) testimony by the investigating detective that she
12
interviewed Brown at the detention center following his arrest in Michigan and extradition to
13
Nevada and further that he would not have been free to leave but would have to return to his
14
cell after the interview; and (c) testimony by a correctional officer regarding statements made
15
by Brown while in custody.98
16
With regard to threats, Petitioner refers to threats made to the correctional officer in
17
the course of vehemently maintaining his innocence, including threats to harm his family.99
18
The Supreme Court of Nevada rejected the claims presented to that court on the
19
following grounds:
20
. . . Brown claims that trial counsel was ineffective for
failing to preclude evidence of his fugitive status, his violent
behavior while in custody, and his threats against a correctional
officer. Brown fails to demonstrate that he was prejudiced. With
regard to the evidence of Brown's fugitive status, this court, has
already concluded that it was admissible because it was relevant
21
22
23
24
25
26
27
28
97
Strickland is a two-pronged standard. If the state supreme court’s holding on deficient performance
withstands review under AEDPA, this Court need not address the prejudice prong.
98
See text, supra, at 11 & 13 n.55; #29, Ex. 57, at 144-49 (Michigan officer); id., at 150-56 (detention
center officer); id., at 161-64 & 167-68 (investigating detective). The Michigan officer was not an FBI agent.
99
#29, Ex. 57, at 150-56.
-37-
to demonstrate his consciousness of guilt. Brown v. State,
Docket No. 39514 (Order of Affirmance, August 13, 2003).
Accordingly, Brown fails to demonstrate that trial counsel was
deficient for failing to object to this evidence.
1
2
3
With respect to the testimony of Corrections Officer Steven
Young about Brown's violent conduct and threats after being
apprehended, the district court concluded that this evidence
should have been objected to and should not have come in.
Nevertheless, the district court found that Brown had "not shown
that but for said errors, there was a reasonable probability that he
would have been acquitted at trial." The trial record reflects that
Officer Young's testimony was brief and the prosecutor never
asked Officer Young to elaborate on his statements. And Officer
Young confirmed that Brown had maintained his story that the
sexual encounter with the victim was consensual. Officer Young's
testimony in this regard supported the defense theory at trial. In
light of the evidence presented at trial, including the victim's
testimony, her 911 call, documentation of her physical injuries,
and Brown's subsequent flight to Michigan, Brown fails to
demonstrate that objection to the testimony had a reasonable
probability of resulting in his acquittal. Therefore, the district court
did not err in denying this claim.
4
5
6
7
8
9
10
11
12
13
#31, Ex. 117, at 2-3.
14
Petitioner has not demonstrated that the state supreme court’s rejection of the claim
15
pertaining to the references to his fugitive and custodial status – as not constituting deficient
16
performance – was contrary to or an unreasonable application of clearly established federal
17
law as determined by the United States Supreme Court.
18
Petitioner points to the fact that the state supreme court referred explicitly only to the
19
aspect of the claim regarding his fugitive status.100 The state high court implicitly rejected,
20
however, his exhausted claim as well regarding the references to his custodial status.
21
Petitioner does not point to any decisions of the United States Supreme Court that would
22
require that the state supreme court conclude that defense counsel failed to raise a
23
meritorious objection. The United States Supreme Court holdings to date address only
24
25
26
27
28
100
The Court would note in this regard that it was necessary to establish that the officers in Michigan
were seeking to execute a fugitive warrant on Brown in order to lay the predicate for the admission of his
attempt to avoid apprehension by lying about his identity. Merely establishing that he lied about who he was
to a number of individuals who happened to be at his sister’s house that day would not have laid the required
predicate. To that extent, the references to fugitive status and warrants was part and parcel of the flight
evidence. Fleeing or seeking to avoid apprehension by officers seeking to take the defendant into custody
clearly is admissible evidence rather than any impermissible reference to fugitive and/or custodial status.
-38-
1
presence at trial in prison garb. Petitioner relies upon a number of federal appellate opinions
2
in regard to references to custodial status, but a federal court of appeals is not the United
3
States Supreme Court. Citation to decisions from other state courts fail to satisfy Petitioner’s
4
burden under AEDPA for the same reason. The state supreme court’s implicit conclusion that
5
an objection on the facts presented in this particular case would not have been a meritorious
6
objection that should have been raised by counsel under its own state law precedents is a
7
matter as to which that court is the final arbiter.
8
Petitioner further has not demonstrated that the state supreme court’s rejection of the
9
claim pertaining to the threats to the correctional officer – under the prejudice prong of
10
Strickland – was contrary to or an unreasonable application of clearly established federal law.
11
Against the backdrop of the trial evidence, the state supreme court’s conclusion that
12
there was not a reasonable probability that an objection to the testimony would have resulted
13
in a different outcome at trial was not an objectively unreasonable application of Strickland.101
14
Petitioner urges that he has established the requisite prejudice because the evidence
15
allegedly constituted improper propensity evidence. Merely rehashing the point that the
16
evidence allegedly should not have been admitted in the first instance does not establish that
17
the Strickland prejudice standard has been satisfied. Moreover, as Petitioner acknowledges,
18
the United States Supreme Court has not held as yet that the introduction of propensity
19
evidence violates due process. See,e.g., Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir.
20
2006). Again, however, merely establishing that evidence allegedly was inadmissible,
21
whether on federal constitutional or state law grounds, but was not objected to does not
22
automatically establish prejudice under Strickland. The Strickland standard, again, is a two-
23
pronged standard. Showing deficient performance, as was found to be present by the state
24
courts, does not in and of itself establish the requisite prejudice.
25
Ground 1(D) therefore does not provide a basis for federal habeas relief.
26
27
101
28
See text, supra, at 1-18 (extensive summary of trial evidence); id., at 29-31 (discussing the trial
evidence in addressing prejudice issue on a claim of ineffective assistance of counsel herein).
-39-
1
Ground 1(E): Effective Assistance – Cross-Examination of Victim
2
In Ground 1(E), Petitioner alleges, in the main, that he was denied effective assistance
3
of trial counsel when counsel elected to not impeach the victim’s testimony with prior
4
inconsistent statements during cross-examination and instead developed the inconsistent
5
statements through the testimony of the investigating detective.
6
7
The Court summarized the trial testimony relevant to this claim, including the victim’s
testimony, supra, at 2-6 & 9-10.
8
At the state post-conviction evidentiary hearing, defense counsel testified that she
9
made a strategic decision to develop the victim’s prior inconsistencies through the testimony
10
of the investigating detective rather than on cross-examination of the victim. As defense
11
counsel explained in response to state post-conviction counsel’s questions:
12
A
13
14
15
16
17
.....
A
18
19
20
21
Q
With regard to Johnny being the stronger party, was
there not any time when you felt that you had a defense
against the physical contact between them with regard to
Nichole being an initial aggressor [based on Brown’s
statement that Coates attacked him first], or did you
discount that?
A
I didn’t consider it strongly, because I didn’t think
the jury would buy that that she was the physical
aggressor, number one; and that she – and that he was
entitled to self-defense.
23
24
26
27
I didn’t want to be perceived as beating her up,
because I don’t – I thought the jury would come to the
conclusion that there was a fight between Johnny and
Nichole, and certainly he was probably the stronger party.
....
.....
22
25
Okay. Basically there was no question that Ms.
Coates was battered in this case, and I felt like if I could
avoid beating her up on the stand and still bring out her
lies through another witness, that would be more beneficial
to Johnny not to make the jury angry at me for beating up
on a person who obviously had been abused, while not
sexually abused, but at least abused, and she was a
young girl as well, so, and he was an older gentleman.
.....
28
-40-
1
A
No. I just didn’t want to be perceived as beating her
up about it. I didn’t think that they would buy a selfdefense for Johnny, but – so I did not think it was
worthwhile. I mean, we were trying to beat the rape
charge to be quite honest with you [as opposed to a
battery charge that would be a misdemeanor if not
committed in the course of a sexual assault], and so I did
not think it was worth upsetting the jury for me to beat up
this girl who obviously got into a fight with Johnny and
perhaps got the raw end of it, and I’m – so, I just – that’s
– I hope that answers your question . . . .
A
Yeah. I didn’t think it mattered who I challenged her
credibility with [regarding prior inconsistent statements],
and if I make the jury upset attacking this young girl, it
could go against Johnny, so that’s why I didn’t do it.
2
3
4
5
6
7
8
9
....
10
Q
Now in hindsight do you still think that you made the
right strategy decision with regard to that [after the State
criticized the defense in closing argument for not
challenging Coates directly regarding the inconsistencies]?
A
11
I don’t know. I don’t know how that weighed. I
don’t know. I occasionally do that though, try not to attack
the – if I feel that there’s a victim in the case that’s going
to be sympathetic, sometimes I try to. I try to avoid an
attack upon that victim, so I don’t know. If it hurt Johnny,
I’m sorry that it happened that way, but I don’t know.
12
13
14
15
16
17
#30, Ex. 94, at 13-16. See also #31, Ex. 96, at 16-18 & 34-45 (regarding battery charge); id.,
18
at 39-40 & 59-60 (regarding Coates being half the size of Brown, other bases for questioning
19
her character on the evidence, and the use of the inconsistent statements in the defense
20
closing).
21
22
23
24
25
26
27
28
The Supreme Court of Nevada rejected the claim presented to that court on the
following grounds:
. . . Brown claims that trial counsel was ineffective for
failing to adequately cross-examine the victim. Specifically, Brown
claims that trial counsel was ineffective for failing to impeach the
victim with inconsistencies in her prior statements. Brown fails to
demonstrate that counsel's performance was deficient or that he
was prejudiced. Brown's trial counsel testified that she
"intentionally brought out the victim's inconsistent statements
through her examination of Detective Love, rather than by
impeaching the victim" as a trial strategy intended to "avoid
arousing the jury's sympathies for the victim." As stated above, in
the context of claims of ineffective assistance of counsel, "`a
-41-
tactical decision . . . is virtually unchallengeable absent
extraordinary circumstances." Id. Brown has not demonstrated
extraordinary circumstances here. Moreover, the record reflects
that trial counsel "made a very long list for the jury regarding
every inconsistent statement the victim made during the
investigation of the case" and highlighted them in closing
argument. Thus, Brown fails to demonstrate a reasonable
probability that, had trial counsel conducted a more forceful
cross-examination of the victim, the results of trial would have
been different. Therefore, the district court did not err in denying
this claim.
1
2
3
4
5
6
7
8
9
#31, Ex. 117, at 4-5.
The state supreme court’s rejection of this claim was neither contrary to nor an
unreasonable application of Strickland.
10
Petitioner contends that “[t]rial counsel admitted at the evidentiary hearing that her
11
strategy might have been unreasonable.”102 That assertion does not fairly characterize
12
defense counsel’s testimony at the evidentiary hearing. A reviewing court does not second
13
guess trial counsel’s decisions after the fact with the benefit of hindsight. Post hoc second
14
guessing based on hindsight – even arguendo by trial counsel herself – does not satisfy a
15
petitioner’s burden of proof under Strickland. Moreover, reviewing courts are not bound by
16
any such arguendo “admission” by defense counsel. It is abundantly clear that trial counsel
17
made a calculated strategic decision to not evoke further sympathy by the jury for the victim
18
by appearing figuratively to further “beat up” on the victim on the stand.
19
Strategic choices by counsel made after investigation are "virtually unchallengeable."
20
Strickland, 466 U.S. at 690. Petitioner’s argument that counsel’s “purported strategy was
21
unreasonable” fails to establish that the state supreme court’s rejection of this claim was an
22
objectively unreasonable application of the performance prong of the Strickland standard.
23
Ground 1(E) therefore does not provide a basis for federal habeas relief.103
24
25
26
27
28
102
#80, at 14.
103
As noted previously, Strickland is a two-pronged standard. If the state supreme court’s holding on
deficient performance withstands review under AEDPA, this Court need not address the prejudice prong.
Petitioner further asserts that Coates testified that she resisted but there allegedly were no supporting
injuries. Petitioner does not explain how this assertion relates to this claim. See also text, supra, at 26-27.
-42-
1
Ground 1(F): Effective Assistance – Brown’s Statement
2
In Ground 1(F), Petitioner alleges that he was denied effective assistance of trial
3
counsel when counsel failed to move to suppress his statement to the police on the grounds
4
that he was not competent to voluntarily, knowingly, and intelligently waive his Miranda rights.
5
The content of the statement as presented at trial is summarized in the text, supra, at
6
7
8
11-13.
Brown had prior mental health issues but ultimately was found competent to stand trial
after a period of time in a mental health facility.
9
During the trial, the state trial court conducted an on-the-record colloquy with Brown
10
outside the presence of the jury regarding his election as to whether to testify. During that
11
colloquy, it was noted that Brown had a prior felony conviction for kidnaping as to which the
12
sentence had been fully discharged less than ten years prior to the trial. The conviction
13
therefore properly could be a subject of inquiry on cross-examination if he testified. Brown
14
indicated that he would not be testifying because the jury already had his statement and
15
nothing had changed in his account. 104
16
17
At the state post-conviction evidentiary hearing, defense counsel testified as follows
regarding her decision to not challenge the admission of the statement:
Q
18
19
Okay. Given the rambling nature and the lengthy
nature of the statement and your knowledge of some
mental health issues of Mr. Brown –
20
A
21
Q
– did you ever consider attempting to suppress
some or all of the statement based on those type of
issues?
A
Not really, because if – there’s other things I regret,
but if we were going to trial and consent was our defense,
his statement was certainly consistent with that. The
district attorney agreed to redact what I felt were most of
the really inflammatory and prejudicial portions of it, but I
did not think that Johnny would have – well I didn’t want to
22
23
24
25
26
Uh-huh, yes.
27
28
104
#29, Ex. 58, at 17-20.
-43-
put him on the stand because of his priors and also wasn’t
sure he’d make a good witness, so I made a trial strategy
decision to let it go into evidence.
1
2
.....
3
Q
So did you feel though that you were stuck with
Johnny’s statement that if it was out it would have been
better or worse for the defense?
A
4
I think – in the grand scheme of this case the
statement is better to have come in, ‘cause we couldn’t
have had the consent issue brought before the jury without
the opportunity for the State to bring in his priors and also
have him on cross-examination.
5
6
7
8
9
.....
10
Q
11
12
13
A
15
Yes, that’s right.
Q
14
Is that correct?
A
16
17
18
19
Q
20
A
21
22
So is your testimony . . . with regard to the
statement itself, you may have had grounds to do a motion
to suppress, but you felt it was a strategic decision to bring
that statement in?
I’m not positive I would have had grounds to
suppress it, but I may have because he definitely had
mental health issues and it was definitely sort of a
rambling statement. I mean it’s, you know, but part of it
was coherent, but there were parts that were sort of
rambling. I’m not positive whether or not we would have
had anyone to say it was an involun – you know, it was -But certainly not raised to the court?
Exactly. I – we decided not to raise it, and we may
have had it; we may not have. I didn’t check it out.
#31, Ex. 96, at 34-36. See also id., at 47-48 & 52-53. 105
23
24
25
26
27
28
105
Counsel further explained that she did not argue self-defense against the battery charge premised
upon Brown’s account that Coates had been the aggressor. The charge was a felony only if committed with
the intent to commit a sexual assault. If the jury believed Brown’s account and acquitted him of the sexual
assault but nonetheless found him guilty of battery based on his account, his maximum exposure on what
then would become a misdemeanor charge of battery would be only six months. He had been detained
longer than that prior to trial. As counsel explained, the defense to the felony battery charge was not selfdefense but instead was that “there was consent and therefore no intent to commit sexual assault.” She did
not believe that a jury would accept self-defense. #31, Ex. 96, at 16-18 & 34-36.
-44-
1
The state district court concluded, inter alia, that “[m]ental illness is not the equivalent
2
of mental incompetence and Defendant has failed to overcome the presumption that he was
3
sane at the time that he gave his statement.”106
4
The state supreme court rejected the claim on the post-conviction appeal on the basis
5
that Petitioner had failed to provide any argument in support of the claim demonstrating error
6
in the decision below.107
7
Petitioner contends that the Court must look to the state district court decision as the
8
last reasoned decision of the state courts, pursuant to Ylst v. Nunnemaker, 501 U.S. 797
9
(1991). He maintains that the state district court found that trial counsel was ineffective under
10
the totality of the circumstances and that a conclusion that Petitioner did not demonstrate
11
prejudice was an unreasonable application of Strickland.
12
Although the Court cited Ylst v. Nunnemaker in its pior holding on the exhaustion issue,
13
it is not entirely sanguine that the rule of Harrington v. Richter, supra, does not instead apply
14
in this context.
15
unaccompanied by a specifically articulated explanation – such as the state supreme court’s
16
decision on this claim – is subject to the same standard of deferential review as an articulated
17
decision. See 131 S.Ct. at 784.
In Harrington, the Supreme Court held that a state court decision
18
It is not clear that the state district court made a specific holding as to this particular
19
claim that trial counsel had rendered deficient performance. The discussion of “ineffective
20
assistance” under a “totality of the circumstances” analysis is ambiguous.
21
It would be difficult to conclude on the record presented that trial counsel rendered
22
deficient performance in not seeking to suppress the redacted statement. Trial counsel quite
23
clearly made a strategic decision to use rather than seek to suppress the statement.
24
Petitioner urges that the strategic decision was not based upon an adequate investigation
25
because counsel did not first investigate whether the statement might be suppressed for lack
26
27
106
#31, Ex. 99, at 10.
28
107
See discussion of the procedural history and state supreme court decision in #74, at 3-6.
-45-
1
of competency. However, “counsel has a duty to make reasonable investigations or to make
2
a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S.
3
at 691 (emphasis added). Once counsel made a strategic decision to rely upon the statement
4
even if it perhaps might be subject to potential objection, there was no further need to spend
5
limited preparation time to determine whether a viable objection might be presented.
6
Counsel’s strategic decision was based upon the quite common sense point that she would
7
have no other affirmative evidence to present that the sex instead was consensual – short of
8
putting a defendant on the stand with a prior conviction and who in her judgment might be a
9
worse witness on cross-examination (perhaps even on direct) than the statement itself. A
10
holding that Petitioner had not demonstrated prejudice was not an objectively unreasonable
11
application of Strickland.
12
First, as the state district court order suggested, establishing that Brown had a history
13
of mental health issues did not necessarily establish that a motion to suppress would have
14
been successful based on the premise that Brown was not competent at the time to waive his
15
Miranda rights. Findings at one point that Brown was not competent to stand trial did not
16
establish that he was not competent at any and all other points in time. Moreover, a suspect
17
is not necessarily incompetent merely because he gives a rambling statement.
18
Second, further to the point, Petitioner cannot establish that there was a reasonable
19
probability that the suppression of the statement would have resulted in a different outcome
20
at trial. Absent the statement, the only account at trial of what happened inside the apartment
21
would have been provided by the victim. After having reviewed the evidence herein on
22
Petitioner’s challenge to the sufficiency of the evidence, including the medical testimony
23
discussing the absence of vaginal trauma, the Court can hardly imagine a quicker route to a
24
conviction on the facts of this case other than by the defense securing the suppression of
25
Brown’s statement. Petitioner’s underlying premise apparently is that there was a reasonable
26
probability of a different result at trial had defense counsel instead relied only on
27
inconsistencies in the, clearly battered, victim’s statements and the absence specifically of
28
vaginal trauma. That premise is, at the exceeding best, highly questionable given the
-46-
1
evidence at trial.108 To be sure, Brown could have taken the stand rather than the defense
2
relying instead on the statement. The jury then would have learned of Brown’s felony
3
conviction and would have been presented with a witness who may well have been a poorer
4
witness than the statement standing alone.
5
Petitioner therefore cannot establish a reasonable probability that the suppression of
6
the statement – if it arguendo could have been suppressed in the first instance – would have
7
led to a different outcome at trial, which is the pertinent issue under Strickland.
8
9
10
11
The state courts’ rejection of this claim accordingly was neither contrary to nor an
unreasonable application of Strickland.
Ground 1(F) therefore does not provide a basis for federal habeas relief.
Ground 1(G): Effective Assistance – Cross-Examination of Victim
12
In Ground 1(G), Petitioner alleges that he was denied effective assistance of trial
13
counsel when counsel failed to ask any followup questions of the victim and the sexual
14
assault examination nurse regarding an alleged inconsistency between the victim’s testimony
15
that she resisted and the nurse’s testimony that the absence of evidence of vaginal trauma
16
was consistent with a witness who did not resist during the sexual assault itself.
17
18
The related trial testimony of the victim and the nurse is summarized in the text, supra,
at 2-5 and 7-9.
19
Neither the state district court decision nor the state supreme court decision provided
20
an articulated rationale for rejecting this specific claim. Petitioner concedes that Harrington
21
v. Richter, supra, states the appropriate standard of review on this claim.
22
In Harrington v. Richter, the Supreme Court rejected the proposition that a summary
23
rejection of a claim is entitled to less deference on AEDPA review. The Court held that
24
“[w]here a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
25
burden still must be met by showing there was no reasonable basis for the state court to deny
26
relief.” 131 S.Ct. at 784. The Court made it clear that satisfying this burden is every bit as
27
28
108
See also the discussion of Ground 1(G), infra.
-47-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
difficult in a case with a summary denial as it is in a case with a fully-articulated decision:
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short of
imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings. Cf. Felker v. Turpin, 518
U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)
(discussing AEDPA's “modified res judicata rule” under § 2244).
It preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state court's
decision conflicts with this Court's precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard
against extreme malfunctions in the state criminal justice
systems,” not a substitute for ordinary error correction through
appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in
judgment). As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.
131 S.Ct. at 786-87.
Under this standard of review, the state supreme court’s rejection of this claim was
neither contrary to nor an unreasonable application of clearly established federal law.
16
For the convenience of reviewing courts, the Court simply sets forth again what it has
17
stated herein with regard to the alleged “inconsistency” between the testimony of the victim
18
and that by the nurse:
19
20
21
22
23
24
25
26
27
28
Petitioner contends, fourth, that "Coates testified that she
‘resisted the whole time' while Brown was sexually assaulted her,
however there were no injuries supporting such testimony."
Petitioner misstates the trial testimony. Coates testified that she
resisted Brown in the context of testimony that she resisted his
efforts to molest her on the couch, to remove her clothes, and to
move her from the couch to the bedroom. The bruises and
abrasions on her arms were consistent with her resistance, over
and above the substantial injuries that she sustained at the very
outset of the attack. The absence of injury to which Petitioner
apparently refers is the absence of vaginal injury from Brown's
sexual penetration. By that point, Brown had hit Coates on the
head and face an indeterminate number of times, repeatedly
threatened to kill her if she did not comply with his demands, and
forcibly held and then moved her about by the arms. As the
sexual assault nurse testified, a rape victim often would not
exhibit trauma from sexual penetration in circumstances where
they simply were trying to stay alive by the time of the actual
-48-
sexual penetration. Petitioner's suggestion – that Coates'
testimony that she resisted and did not consent to having sex with
Brown was inconsistent with medical testimony that she sustained
no vaginal injury after having been brutally attacked and
threatened with death prior to being raped – has nil persuasive
force, whether under the Jackson standard or otherwise.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Text, supra, at 26-27 (record citation footnotes therein omitted).
The argument that the victim’s testimony was inconsistent with the nurse’s testimony
has no persuasive force. Trial counsel did not render deficient performance by not pursuing
additional questions regarding an alleged inconsistency that was illusory rather than real.109
There was not a reasonable probability that pursuing questions of either witness on such an
illusory inconsistency would have altered the outcome at trial.
The state courts’ rejection of this plainly insubstantial claim without further articulation
was neither contrary to nor an objectively unreasonable application of Strickland.
Ground 1(G) therefore does not provide a basis for federal habeas relief.
Ground 1(I): Effective Assistance at Trial – Victim Drug Use
In Ground 1(I),110 Petitioner alleges that he was denied effective assistance of trial
counsel when defense counsel failed to adequately develop evidence of the victim’s drug use.
Petitioner alleges that counsel failed to call the appropriate foundation witness to introduce
a toxicology report, failed to request that the sample be retested to determine whether the
victim used drugs closer to the time of the assault, and failed to present expert testimony
allegedly establishing the impact of the victim’s drug use on her perception of the events
20
21
22
23
24
25
26
27
28
109
Nothing in trial counsel’s testimony at the state court evidentiary hearing contradicts the conclusion
in the text. As noted previously herein, trial counsel did not have complete recall regarding the case; she had
been “coached” prior to the hearing by state post-conviction counsel; and state post-conviction counsel did
not provide completely accurate information to trial counsel as to all areas of inquiry. See text, supra, at 3334. In this instance, trial counsel had cross-examined the particular nurse in question in multiple trials and did
not recall her cross in the particular case. State post-conviction counsel sought repeatedly to get counsel to
concede that she overlooked or side-stepped an issue, but she repeatedly stated that she did not recall
having done so. See #31, Ex. 96, at 25-27. State post-conviction counsel did not refresh her recollection at
the hearing with any transcript pages reflecting deficient action on her part in this regard. Neither state postconviction nor federal habeas counsel have identified what additional questions should have been asked of
either witness that would have effectively further developed a purported inconsistency that simply was not
there in the first instance. This claim simply has no basis in underlying fact.
110
The Court dismissed Grounds 1(A) and (H) as untimely.
-49-
1
during the incident.
2
At trial, Nichole Coates acknowledged having smoked marijuana when she was over
3
at her friend’s apartment the evening prior to the attack. She further acknowledged having
4
used methamphetamine and cocaine previously in the past. On cross-examination, she
5
testified that “it had been awhile . . . I’d say two to three months” prior to the incident since she
6
had used cocaine. She testified that she had used methamphetamine “[t]wo days, three days
7
before.”111
8
During cross-examination of the sexual assault nurse, defense counsel sought to elicit
9
testimony as to the results of the toxicology lab test results obtained in connection with the
10
examination of Coates after the incident. The State’s hearsay objection was sustained.112
11
The defense thereafter did not introduce evidence of the contents of the toxicology report
12
through other means.
13
The only evidence at trial regarding Coates’ drug usage was her testimony that she
14
had smoked marijuana the evening prior to the morning attack, had used methamphetamine
15
two to three days prior to that, and had used cocaine two to three months before the incident.
16
According to the time line reflected by the testimony at trial, Coates had left her friend’s
17
apartment approximately nine hours before the attack the next morning.113
18
At the state post-conviction evidentiary hearing, defense counsel lacked complete
19
independent recall with regard to the evidence of drug use at trial.
Throughout the
20
questioning, state post-conviction counsel referred to there having been evidence that Coates
21
had used methamphetamine – not marijuana – prior to the attack, as if that were a fact
22
established by the trial evidence.114 No such fact of Coates allegedly being intoxicated on
23
24
111
#29, Ex. 55, at 67-68 & 87-88.
25
112
Id., Ex. 57, at 26-27.
26
113
See text and record cites, supra, at 2-6.
114
See #31, Ex. 96, at 3, lines 1-7; 13-16 (inter alia, referring to the possibility of Coates being on
27
28
(continued...)
-50-
1
methamphetamine at that time of course was established in the actual trial evidence.
2
Defense counsel acknowledged having not being able to introduce the toxicology
3
report through the nurse over the State’s hearsay objection when showed the relevant portion
4
of the trial transcript. Her recollection was that she did not seek to introduce the report
5
through another witness because Coates had admitted drug usage. She further did not
6
believe that the levels of a drug or drugs would be reflected in the toxicology report.115
7
Defense counsel testified on questioning by the State that she did not believe that an
8
attack on Coates’ ability to coherently perceive the events based upon a toxicology report and
9
expert testimony would have presented a viable argument based on the evidence at trial. She
10
testified that the recording of Coates’ coherent call to 911, which was played to the jury, would
11
have undercut any such avenue of defense.116
12
Petitioner did not present any expert testimony at the state court evidentiary hearing
13
tending to establish that an actual rather than a hypothetical expert in fact would have
14
provided probative testimony that Coates’ ability to perceive events at the relevant time was
15
impaired due to drug intoxication at that time.
16
Petitioner did not present any evidence at the hearing tending to establish that, if the
17
laboratory sample had been further tested, it would have established any further relevant and
18
probative evidence regarding the level of drugs in Coates’ system at the time of the attack,
19
as a necessary factual predicate for such expert testimony.
20
Nor has Petitioner – on federal habeas review – established even that the excluded
21
toxicology report itself was part of the record on state post-conviction review, which also would
22
appear to have been a necessary factual predicate for any expert testimony. This Court was
23
unable to locate a record citation in Petitioner’s federal filings reflecting that the toxicology
24
25
26
114
(...continued)
methamphetamine at the time of the 911 call); & 19-20 (referring to “the fact that methamphetamine use was
there”).
27
115
Id., at 53-55.
28
116
Id., at 41-42.
-51-
1
report was part of the state post-conviction record. However, the Court was able to locate in
2
the record from the federal evidentiary hearing on timeliness what appears to be the excluded
3
toxicology report.117
4
The “chemistry” section of the report has three columns – one listing various drugs or
5
drug categories, a second reflecting “negative” or “positive,” and a third to the far right under
6
the heading “REFER. RANGE UNITS.” The report appears to reflect118 “positive” for cocaine,
7
amphetamine, and the active ingredient in marijuana, tetrahydrocannabinol (THC) in the
8
second column. However, that column shows no quantitative values for how much of each
9
drug was in Coates’ system at the time, down perhaps to trace metabolites from prior
10
ingestion. The third column shows “negative” for all columns, i.e., there is no quantitative
11
value shown for any drug, including the drugs with a “positive” result in the second column.
12
The toxicology report – even if arguendo in the state post-conviction record – therefore
13
would not establish how much of any of the drugs then was in Coates’ system, how long prior
14
to the test that she may have done a particular drug or drugs, or how the drug or drugs would
15
have impacted her ability to perceive events at the relevant time. A subject of course can
16
“fail” a laboratory drug test by having residual amounts in her system even though she has
17
not done a particular drug for an interval prior to the test and is not currently intoxicated on
18
a drug or drugs. The toxicology report – standing alone without expert testimony – did not
19
establish the parameters required to generate a positive result for that particular report or
20
what having metabolites at that level would mean with regard to either recency of use or effect
21
on perception.
22
The state district court’s findings largely tracked defense counsel’s post-conviction
23
testimony as to what she did not do and why with regard to drug use evidence. The court
24
further concluded that “speculation about what an expert could have said is insufficient to
25
26
117
See Hearing Exhibit 11, at Bates 0007.
27
118
28
The Court is reading through what appears to be highlighting on the material, which produces a
black image on a photocopied document.
-52-
1
establish prejudice” and that Brown had “not shown and cannot show that level of prejudice
2
such that it was reasonably probable the outcome of his trial would have been different.”119
3
The state supreme court rejected the claim on the post-conviction appeal on the basis
4
that Petitioner had failed to provide any argument in support of the claim demonstrating error
5
in the decision below.120
6
As the Court discussed also with regard to Ground 1(F), it is not sanguine that it must
7
look through to the state district court decision under Ylst v. Nunnemaker, supra, in this
8
situation rather than apply the rule of Harrington v. Richter, supra.
9
Under either approach, the state courts’ rejection of this claim was neither contrary to
10
nor an objectively unreasonable application of the prejudice prong of the Strickland analysis.
11
Even if the toxicology report excluded at trial arguendo was part of the state post-conviction
12
record, Petitioner presented nothing more than supposition that further pursuit of the issue
13
would have developed probative evidence that the victim was intoxicated to a sufficient
14
degree at a relevant time that would have affected her perception to a relevant degree at that
15
time. The cursory toxicology report itself did not constitute such evidence. Petitioner presents
16
nothing more than speculation that an expert could have based a probative opinion based
17
upon either the toxicology report or whatever other evidence might have been developed
18
along with the report. Speculation does not establish prejudice.
19
20
21
22
The state courts’ rejection of this claim therefore was neither contrary to nor an
unreasonable application of clearly established federal law.
Ground 1(I) therefore does not provide a basis for federal habeas relief.
Ground 2: Joinder of Charges
23
In Ground 2, Petitioner alleges that he was denied rights to due process of law and a
24
fair trial in violation of the Fifth and Fourteenth Amendments when the sexual assault and
25
battery charges against him were joined with charges of burglary and grand larceny arising
26
27
119
#31, Ex. 99, at 6 & 10.
28
120
See discussion of the procedural history and state supreme court decision in #74, at 3-6.
-53-
1
out of his stealing money from the Subway at which he, Stadler, and Coates worked prior to
2
leaving town after the sexual assault.
3
On direct appeal, the Supreme Court of Nevada summarized the evidence on the
4
burglary and grand larceny charges and stated its reasons for rejecting the claim of improper
5
joinder as follows:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
. . . Brown contends that the district court abused its
discretion in denying his pretrial motion to sever the burglary and
grand larceny counts from the battery and sexual assault counts
because the counts were unrelated. Brown argues that the
joinder of the charges was unduly prejudicial, and as a result, he
was deprived of his right to a fair trial. We disagree with Brown’s
contention.
.....
In this case, soon after sexually assaulting his wife's
19-year old daughter, Brown called the district manager of the
Subway where he worked with the victim's mother and told the
manager that he would no longer be working there. Brown asked
for his last paycheck, but was told he needed to wait until payday.
Brown proceeded to go to the Subway where he was scheduled
to work that day. Evidence presented at trial indicated that while
Brown's co-workers were busy with the afternoon lunch rush,
Brown stole the change bag and money from the safe, an amount
totaling approximately $600.00. Brown subsequently fled to
Michigan where he was arrested on a fugitive warrant more than
two weeks later.[FN8]
We conclude that the district court did not abuse its
discretion in denying Brown's motion to sever the burglary and
grand larceny counts from the battery and sexual assault counts.
The evidence adduced at trial demonstrates that the offenses
"were at the very least ‘connected together."' Moreover, evidence
of the offenses would be cross-admissible in separate trials to
prove motive and intent. The State's theory was that the burglary
and grand larceny were clearly linked to the sexual assault and
were committed in order to aid Brown's flight from Las Vegas and
that Brown fled to Michigan in order to avoid future felony charges
stemming from the sexual assault. Brown failed to demonstrate
that joinder of the charges substantially influenced the jury or
rendered his trial fundamentally unfair, or that the joinder was
manifestly prejudicial. Therefore, we conclude that Brown's
contention is without merit.
[FN8] Brown claims that he was in Michigan for his
sister's wedding. When the Grand Rapids Police
Department detective approached Brown upon
seeing him in his sister's house, both Brown and his
sister tried to deceive the detective and identified
-54-
him as Jeffrey Brown, his brother.
1
2
#30, Ex. 76, at 1-4 (statement of legal standards and citation footnotes omitted).
3
The state supreme court’s rejection of Petitioner’s federal constitutional claim was
4
neither contrary to nor an objectively unreasonable application of clearly established federal
5
law as determined by the United States Supreme Court.
6
7
Petitioner relies upon United States v. Lane, 474 U.S. 438 (1986), which stated in a
footnote:
8
Improper joinder does not, in itself, violate the Constitution.
Rather, misjoinder would rise to the level of a constitutional
violation only if it results in prejudice so great as to deny a
defendant his Fifth Amendment right to a fair trial.
9
10
11
474 U.S. at 446 n.8.
12
The Ninth Circuit has held that this statement in Lane is dicta and that it thus does not
13
set forth clearly established law binding on the States on federal habeas review. See
14
Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766
15
(2013); Collins v. Runnels, 603 F.3d 1127, 1132-33 (9 th Cir. 2010).
16
The Ninth Circuit’s holding eliminates any further need for discussion on this claim.
17
Under controlling Ninth Circuit authority, the August 13, 2003, decision of the Supreme Court
18
of Nevada was neither contrary to nor an unreasonable application of clearly established
19
federal law as determined by the United States Supreme Court at the time of its decision.
20
Ground 2 therefore does not provide a basis for federal habeas relief.121
21
22
23
24
25
26
27
121
The Court further notes the following in passing. First, Lane addressed joinder of multiple
defendants under Federal Rule of Criminal Procedure 8(b), not joinder of charges against a single defendant.
Any constitutional joinder holding in that case would not have stated a standard for joinder of charges against
a single defendant, which would be the issue here. Second, the more general a constitutional rule, the more
leeway the states have in applying the rule in case-by-case determinations when later reviewed under
AEDPA. Harrington v. Richter, 131 S.Ct. at 786. Third, Petitioner’s reliance on lower federal court decisions,
including in particular cases applying federal criminal procedure rules or decided well before AEDPA, is
wholly unavailing. This Court is not engaging in a de novo review of the Supreme Court of Nevada decision
for conformity with, for example, joinder cases arising out of the Ninth Circuit. That court’s holdings instead in
Runningeagle and Collins instead state the dispositive rule on this claim on deferential review under AEDPA.
Fourth, similarly, Petitioner is airing his disagreement with the state supreme court’s application of the joinder
28
(continued...)
-55-
Consideration of Possible Issuance of a Certificate of Appealability
1
2
3
Under Rule 11 of the Rules Governing Section 2254 Cases, the Court must issue or
deny a certificate of appealability (COA) when it enters a final order adverse to Petitioner.
4
As to the claims rejected by on the merits, under 28 U.S.C. § 2253(c), a petitioner must
5
make a "substantial showing of the denial of a constitutional right" in order to obtain a
6
certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Hiivala v. Wood,
7
195 F.3d 1098, 1104 (9th Cir. 1999).
8
demonstrate that reasonable jurists would find the district court's assessment of the
9
constitutional claim debatable or wrong." Slack, 529 U.S. at 484.
To satisfy this standard, the petitioner "must
10
As to claims rejected on procedural grounds, the petitioner must show: (1) that jurists
11
of reason would find it debatable whether the petition stated a valid claim of a denial of a
12
constitutional right; and (2) that jurists of reason would find it debatable whether the district
13
court was correct in its procedural ruling. Slack, 529 U.S. at 484. While both showings must
14
be made to obtain a COA, "a court may find that it can dispose of the application in a fair and
15
prompt manner if it proceeds first to resolve the issue whose answer is more apparent from
16
the record and arguments." 529 U.S. at 485. Where a plain procedural bar is properly
17
invoked, an appeal is not warranted. 529 U.S. at 484.
18
The Court will grant a certificate of appealability as to its rejection on the merits of
19
Grounds 1(B), 1(C), 1(D) and 1(E). The Court remains of the view that its ruling on these
20
grounds was correctly decided. However, the points are sufficiently debatable to warrant
21
22
23
24
25
26
121
(...continued)
rule in N.R.S. 173.115 in the wrong court. That court’s application of its own state’s law, including its holding
that evidence of the offenses would have been cross-admissible in separate trials under its prior Petrocelli
decision, is the final word on that subject. Neither Nevada state law regarding severance in state criminal
trials nor the rules regarding severance in federal trials is controlling on the federal constitutional question.
E.g., Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). Fifth, Petitioner’s strained suggestion that the
State was relieved of its burden of establishing that Petitioner stole the money from the Subway begs the
question of whether the joinder of the charges was unconstitutional. There in any event was sufficient
circumstantial evidence reflected in the testimony of Subway employees Patricia Thorne and Tammy Cox for
a jury to conclude that Brown stole the money. See #29, Ex. 57, at 114-125 & 128-42.
27
28
In all events, however, there simply is no potentially viable claim here, given the binding Ninth Circuit
authority in Runningeagle and Collins.
-56-
1
2
3
appeal.
The Court will deny a COA as to the remaining claims considered on the merits as well
as with respect to the dismissal of two grounds as untimely.
4
Taking the remaining grounds out of order to provide context, Ground 3 alleges that
5
the evidence was insufficient to sustain a conviction on the three counts of sexual assault.
6
There in truth simply is no good faith argument available on the facts presented that the
7
evidence was insufficient to convict for sexual assault.
8
summarized the trial evidence herein. See text, supra, at 1-18. Petitioner would resolve all
9
inconsistencies in the evidence and inferences that might be drawn from the evidence
10
presented at trial in favor of the defense. Controlling law instead clearly requires that a
11
reviewing court resolve all such inconsistencies and competing inferences in favor of the
12
prosecution, particularly under what is a doubly deferential review of the state supreme court
13
decision on the issue under AEDPA. There, again, simply is no good faith argument in this
14
case that the evidence was constitutionally insufficient to sustain the conviction, particularly
15
on deferential review. See text, supra, at 19-28.
The Court has extensively
16
In Ground 1(F), Petitioner alleges that he was denied effective assistance of trial
17
counsel when counsel failed to move to suppress his statement to the police on the grounds
18
that he was not competent to waive his Miranda rights. Regardless of whether or not the
19
reviewing court looks through to the state district court decision as the last reasoned decision,
20
jurists of reason would not find the rejection of the claim to be debatable or wrong. Trial
21
counsel clearly made a strategic decision to rely on a redacted version of the statement,
22
rather than on live testimony by the previously convicted defendant, to present his side of the
23
story. Having made that strategic decision, counsel was not required to further investigate
24
whether it would have been possible to suppress the statement. In all events, however, a
25
holding that Petitioner did not demonstrate prejudice was not an objectively unreasonable
26
application of Strickland. Petitioner did not demonstrate a reasonable probability of a different
27
outcome, based upon the prospect of either a motion to suppress actually succeeding or of
28
there being a different outcome at trial without the statement. There was no other affirmative
-57-
1
evidence available to present Brown’s side of the story, and if he took the stand himself to
2
give his account – subject to cross-examination and impeachment by the prior conviction –
3
there is not a reasonable probability of a different outcome at trial. See text, supra, at 43-47.
4
In Ground 1(G), Petitioner alleges that he was denied effective assistance when trial
5
counsel failed to ask any followup questions of the victim and the sexual assault examination
6
nurse regarding an alleged inconsistency between the victim’s testimony that she resisted and
7
the nurse’s testimony that the absence of evidence of vaginal trauma was consistent with a
8
witness who did not resist during the sexual assault itself. The argument that the victim’s
9
testimony was inconsistent with the nurse’s testimony has nil persuasive force. By the time
10
of vaginal penetration, the victim had been hit in the head with a frying pan, forcibly held and
11
then forcibly moved to the bedroom, and threatened repeatedly with death if she did not
12
comply with Petitioner’s demands. Petitioner seeks to equate the victim’s actual testimony
13
that she resisted at earlier points with testimony that she did not give of continuing to resist
14
during actual vaginal penetration, after she was attacked and threatened with death. Trial
15
counsel did not render deficient performance by not pursuing additional questions regarding
16
an alleged inconsistency that was illusory rather than real. See text, supra, at 47-49.
17
In Ground 1(I), Petitioner alleges that he was denied effective assistance of trial
18
counsel when defense counsel failed to adequately develop evidence of the victim’s drug use.
19
Petitioner alleges that counsel failed to call the appropriate foundation witness to introduce
20
a toxicology report, failed to request that the sample be retested to determine whether the
21
victim used drugs closer to the time of the assault, and failed to present expert testimony
22
allegedly establishing the impact of the victim’s drug use on her perception of the events
23
during the incident. It does not appear that the toxicology report, if it had been admitted at
24
trial, would have established the amounts of drugs in the victim’s system. She had admitted
25
to smoking marijuana approximately nine hours before the attack and using
26
methamphetamine two to three days prior. On state post-conviction review, Petitioner
27
presented nothing more than bald supposition that further development of the evidence would
28
have established that the amounts of drug metabolite left in the victim’s system at the time
-58-
1
would support an expert opinion that she was intoxicated to the point of impairing her
2
perception during the attack. The fact that metabolites in undefined amounts remained in her
3
system at the time of the sexual assault examination – standing alone – did not establish that
4
further factual development would have resulted in the presentation of significantly probative
5
expert testimony. Petitioner therefore did not demonstrate that there was a reasonable
6
probability of a different outcome at trial but for the alleged deficiency by counsel. The same
7
conclusion follows regardless of whether or not the reviewing court looks through to the state
8
district court decision as the last reasoned decision. See text, supra, at 49-53.
9
In Ground 2, Petitioner alleges that he was denied rights to due process of law and a
10
fair trial when the sexual assault and battery charges against him were joined with charges
11
of burglary and grand larceny arising out of his stealing money from the Subway at which he,
12
the victim and her mother worked prior to his leaving town after the sexual assault. Under
13
controlling Ninth Circuit precedent, Petitioner cannot demonstrate that the state courts’
14
rejection of this claim was either contrary to or an unreasonable application of clearly
15
established federal law because there are no United States Supreme Court holdings, as
16
opposed to dicta, on the point. See text, supra, at 53-55.
17
With regard to the untimely Grounds 1(A) and 1(H), Petitioner does not present a
18
viable argument establishing a basis for either relation back or purported post-filing equitable
19
tolling at to these grounds. See #74, at 8-14.
IT THEREFORE IS ORDERED that all remaining claims in the Petition are DENIED
20
21
on the merits and that this action shall be DISMISSED with prejudice.
22
IT FURTHER IS ORDERED that a certificate of appealability is GRANTED IN PART
23
and DENIED IN PART, such that a certificate of appealability is GRANTED as to Grounds
24
1(B), 1(C), 1(D) and 1(E) and a certificate of appealability is DENIED as to the dismissal of
25
Grounds 1(F), 1(G), 1(I), 2 and 3 on the merits and the dismissal of Grounds 1(A) and 1(H)
26
as untimely. See text, supra, at 56-59.
27
///
28
///
-59-
1
2
The Clerk of the Court shall enter final judgment accordingly in favor of Respondents
and against Petitioner, dismissing this action with prejudice.122
DATED: September 24, 2013
3
4
5
6
___________________________________
PHILIP M. PRO
United States District Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
122
Petitioner’s request for an evidentiary hearing is denied, as review under AEDPA is restricted to the
record presented to the state court that adjudicated the merits of the claims. See Pinolster, 131 S.Ct. at
1398-1401.
-60-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?