Clark v. Neven et al
Filing
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ORDER. IT IS THEREFORE ORDERED that 35 Amended Petition for Writ of Habeas Corpus is DENIED. The clerk of the court shall enter judgment accordingly and close this action. IT IS FURTHER ORDERED that a certificate of appealability is GRANTED regarding the court's decisions on grounds 2, 3, 4, 6, 7(A), 7(B), 7(C), and 9 of 35 Amended Petition. Signed by Judge Kent J. Dawson on 3/21/16. (Copies have been distributed pursuant to the NEF - TR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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MICHAEL ALLAN CLARK,
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Petitioner,
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vs.
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Case No. 2:11-cv-00585-KJD-PAL
DWIGHT NEVEN, et al.,
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ORDER
Respondents.
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Before the court are the amended petition for writ of habeas corpus (#35), petitioner’s
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motion for partial dismissal (#58), which contains the current version of ground 2, respondents’
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answer (#73), and petitioner’s reply (#77). The court finds that petitioner is not entitled to relief,
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and the court denies the petition.
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After a jury trial in state district court, petitioner was convicted of two counts of sexual
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assault with a minor under the age of 16 and one count of preventing or dissuading a witness or
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victim from testifying and/or producing evidence; two counts of statutory sexual seduction were
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stricken. Ex. 28 (#37). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 65 (#40).
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Petitioner then filed a post-conviction habeas corpus petition in the state district court. Ex.
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71 (#41). The state district court denied the petition. Ex. 73 (decision at hearing) (#42); Ex. 79
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(written order) (#42). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 80 (#42).
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Petitioner then commenced this action. The court directed petitioner to file an amended
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petition that was not rambling and disjointed. The court dismissed the action when petitioner filed
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nothing. Petitioner appealed. The court of appeals directed appointment of counsel. This court
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granted petitioner relief from the judgment, and the amended petition followed. After litigation on
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respondents’ motion to dismiss (#46), this court dismissed ground 8 of the amended petition
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because it did not relate back to the original petition and was untimely. The court also noted that
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part of ground 2 was unexhausted. Petitioner filed a motion for partial dismissal (#58) that contains
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a rewritten ground 2.
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Reasonable jurists would not find the court’s conclusions regarding ground 8 to be debatable
or wrong, and the court will not issue a certificate of appealability for ground 8.
Congress has limited the circumstances in which a federal court can grant relief to a
petitioner who is in custody pursuant to a judgment of conviction of a state court.
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the
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merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v.
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Richter, 562 U.S. 86, 98 (2011).
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Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown
that the earlier state court’s decision “was contrary to” federal law then clearly established in
the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or
that it “involved an unreasonable application of” such law, § 2254(d)(1); or that it “was
based on an unreasonable determination of the facts” in light of the record before the state
court, § 2254(d)(2).
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Richter, 562 U.S. at 100. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal
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law is different from an incorrect application of federal law.’” Id. (citation omitted). “A state
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court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
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jurists could disagree’ on the correctness of the state court’s decision.” Id. (citation omitted).
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[E]valuating whether a rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
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Under § 2254(d), a habeas court must determine what arguments or theories supported or, as
here, could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision of this Court.
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Richter, 562 U.S. at 102.
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.
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Id. at 103.
Ground 1 is a claim that the state district court denied petitioner his right to represent
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himself. Petitioner made two such requests. In its order affirming the judgment of conviction on
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direct appeal, the Nevada Supreme Court gave the relevant background and held:
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Clark raises eight issues on appeal. First, Clark contends that the district court erred by
denying his motion for self-representation. Specifically, he argues that his motion was
timely and that the district court erred by denying his motion on the basis that he did not
understand the charges against him or his possible defenses. In addition, he argues that
because the district court denied his motion, he was unable to cross-examine witnesses,
present the defense he wanted, testify fully, call the victim’s aunt as a witness, be present
during bench conferences, and make objections for the record.
Clark made two separate motions for self-representation. The first came on the second day
of trial. This oral motion was made after jury selection but prior to opening statements.
Clark requested that he be allowed to make the opening and closing statements and to crossexamine the victim and the victim’s mother. He requested that his counsel cross-examine
the remaining witnesses. The district court denied the motion as untimely and because Clark
was requesting a hybrid form of representation. The second motion for self-representation
occurred on the third day of trial. In this written motion, Clark requested that he be allowed
to conduct the entire trial. Clark argued that counsel misrepresented facts in the opening
statement and was not asking all of the questions that Clark wanted asked of witnesses. The
district court conducted a canvass pursuant to Faretta v. California, 422 U.S. 806 (1975), and
determined that Clark did not understand the charges against him, the possible defenses, or
the evidentiary rules. The district court also found that the request was untimely. Therefore,
the district court denied Clark’s request.
A defendant has a Sixth Amendment right to conduct his own defense. Id. at 818-19. A
district court may not deny a defendant’s request to represent himself “‘solely because the
court considers the defendant to lack reasonable legal skills or because of the inherent
inconvenience often caused by pro se litigants.’” Tanksley v. State, 113 Nev. 997, 1001, 946
P.2d 148, 150 (1997) (quoting Lyons v. State, 106 Nev. 438, 444 n.1, 796 P.2d 210, 217 n.1
(1990), abrogated on other grounds by Vanisi v. State, 117 Nev. 330, 22 P.3d 1164 (2001)).
However, a district court may deny a defendant’s request where “‘[1] his request is untimely,
[2] the request is equivocal, [3] the request is made solely for the purpose of delay, [4] the
defendant abuses his right by disrupting the judicial process, or [5] the defendant is
incompetent to waive his right to counsel.’” Id. (quoting Lyons, 106 Nev. at 443-44, 796
P.2d at 213)). “District courts have discretion to deny self-representation requests when they
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are made in an untimely fashion.” Harris v. State, 113 Nev. 799, 803, 942 P.2d 151, 154
(1997). In addition, this court has rejected forms of “hybrid representation,” where a
defendant and counsel share courtroom responsibilities. See Wheby v. Warden, 95 Nev.
567, 568-69, 598 P.2d 1152, 1153 (1979), overruled on other grounds by Keys v. State, 104
Nev. 736, 766 P.2d 270 (1988). “[A]lthough a criminal defendant may have both a right of
self-representation and a right to assistance of counsel, this does not mean that a defendant is
‘entitled to have his case presented in court both by himself and by counsel.’” Id. at 568-69,
598 P.3d 1153 (quoting Miller v. State, 86 Nev. 503, 506, 471 P.2d 213, 215 (1970)).
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Clark’s claim lacks merit. His first request for self-representation was improper as his
request was for hybrid representation. As noted above, we have rejected hybrid
representation, and the district court did not err in denying this request. His second request
for self-representation was untimely as it was made on the third day of trial after several
witnesses had testified. To the extent that the district court denied Clark’s demand for selfrepresentation based on his lack of legal knowledge, Faretta held that lack of legal
knowledge is not an adequate ground for denial of a request for self-representation. 422
U.S. at 836; see also Gallego v. State, 117 Nev. 348, 356, 23 P.3d 227, 233 (2001) (finding
that defendant can choose self-representation “even though the accused lacks the skill and
experience of a lawyer”). However, the district court properly denied the request as
untimely. See Lyons, 106 Nev. at 445, 796 P.2d at 214 (holding that district court has
greater discretion to deny motion for self-representation when made during trial than if
request had been made shortly before or on first day of trial).
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Because the district court did not err by denying Clark’s claim for self-representation, his
claim that he was prejudiced also lacks merit. Counsel “‘has the immediate—and
ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call,
and what defenses to develop.’” Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002)
(quoting [Wainwright] v. Sykes, 433 U.S. 72, 93 ([1977]) (Burger, C.J., concurring)[)].
Therefore, Clark’s claims that he should have been able to dictate to counsel what witnesses
to call, questions to ask witnesses, objections to be made, and the defense to assert were
properly denied by the district court.
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Ex. 65, at 1-4 (#40). The Nevada Supreme Court correctly identified petitioner’s first request as one
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for hybrid representation. Petitioner did ask to keep counsel for cross-examination of nurses and
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professional witnesses. See Ex. 13, at 33-34 (#36). In McKaskle v. Wiggins, 465 U.S. 168, 183
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(1984), the Court noted that “Faretta does not require a trial judge to permit ‘hybrid’ representation”
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that the respondent in that case actually was allowed. Petitioner argues that that statement in
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McCaskle is a dictum, but that argument misses the point. Other courts have followed that dictum,
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and the Supreme Court of the United States has not clearly repudiated it. Petitioner has only proven
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that hybrid representation is not clearly established federal law as determined by the Supreme Court.
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Consequently, even if this court disagreed with the Nevada Supreme Court, it could not grant relief.
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Carey v. Musladin, 549 U.S. 70, 76-77 (2006).
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Petitioner argues that the question of hybrid representation is a red herring, because the trial
court rejected petitioner’s motion before the issue of hybrid representation arose. Reply, at 11-12
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(#77). Even if the trial court was premature in the rejection of the motion, it does not mean that this
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court must ignore everything that occurred afterward. Petitioner’s subsequent request for hybrid
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representation simply showed that the decision was correct under Nevada law on a matter left open
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in Federal law.
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Petitioner argues that even though the trial court told petitioner that it would not allow
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hybrid representation, the trial court did not give petitioner advice that he had the constitutional
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right to represent himself alone at trial. Reply, at 12 (#77). The court is not persuaded. Petitioner
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knew that he had that right to full self-representation. He just did not want to exercise his right to
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self-representation in that manner.
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Petitioner’s second request, this time for actual self-representation, came on the third day of
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the trial. “Because the Supreme Court has not clearly established when a Faretta request is
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untimely, other courts are free to do so as long as their standards comport with the Supreme Court’s
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holding that a request ‘weeks before trial’ is timely.” Marshall v. Taylor, 395 F.3d 1058, 1061 (9th
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Cir. 2005). Again, even if this court disagreed with the Nevada Supreme Court, it could not grant
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relief. Musladin, 549 U.S. at 76-77.
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Reasonable jurists would not find these conclusions to be debatable or wrong, and the court
will not issue a certificate of appealability for ground 1.
Ground 2 is a claim that the trial court did not conduct an adequate inquiry into petitioner’s
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claims that the attorney-client relationship had broken down. On this issue, the Nevada Supreme
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Court held:
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In connection with his motion for self-representation, Clark contends that the district court
did not adequately inquire into the conflict between Clark and counsel. Clark apparently
disagreed with counsel respecting what questions to ask witnesses. In particular, he argues
that the district court should have reviewed the questions that Clark wanted counsel to ask
witness Carol Hopkins. The record reveals that the district court held extensive hearings to
determine why Clark wanted to represent himself. Clark was given the opportunity to
explain his difficulty with the way that counsel was handling his defense, and while the
district court did not allow Clark to enter his questions into the record, Clark was able to
explain the substance of his questions for the record. Moreover, the district court inquired of
both counsel and Clark whether the relationship between the two of them had deteriorated to
the point that counsel could no longer adequately represent Clark. Counsel responded that
he could still zealously represent Clark. And Clark stated that he believed that counsel was
competent to handle his case. Accordingly, we conclude that the district court adequately
inquired into the conflict between Clark and counsel.
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Ex. 65, at 4-5 (#40). The Sixth Amendment does not guarantee petitioner a conflict-free
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relationship with his counsel, but it does protect him if “the conflict between [him] and his attorney
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prevented effective assistance of counsel.” Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000)
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(en banc) (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983)).
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Petitioner does not argue that counsel operated under a conflict of interest, that is, that
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counsel was representing a client with interests adverse to petitioner’s interests. The conflict
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between petitioner and counsel concerned strategy and the questions that petitioner wanted counsel
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to ask of witnesses. In a similar situation, the court of appeals has held:
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Plumlee has cited no Supreme Court case—and we are not aware of any—that stands for the
proposition that the Sixth Amendment is violated when a defendant is represented by a
lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate
because of dislike or distrust. Indeed, Morris v. Slappy is to the contrary.
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Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc). The list of questions that
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petitioner wanted counsel to ask the victim’s mother is frequently mentioned in this ground and in
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the petition in general, but it never has been provided to the court. This court cannot hold that
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counsel was unable to represent petitioner adequately when petitioner does not give the court the
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document that is essential for the proof of the claim.
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Furthermore, this court’s review of the trial transcript shows that the Nevada Supreme Court
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reasonably could have concluded that the personal conflict between petitioner and his attorneys did
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not affect the attorneys’ abilities to represent petitioner adequately.1 On July 11, 2006, petitioner
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was living at the house of Carol Hopkins; he slept on the couch in the living room. The other
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people who lived in the house were S.K., Hopkins’ 14-year-old daughter, Vanita Riles, Hopkins’s
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mother who had Alzheimer’s Disease, Vanita Henderson, Hopkins’ sister who had suffered a stroke
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and a heart attack five years earlier, and Peggy Morris, another sister of Hopkins who had suffered
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multiple strokes. The charge was that petitioner entered S.K.’s room, ostensibly to use the
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computer, but he then committed two acts of sexual assault upon S.K.
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Two attorneys represented petitioner. The court will refer to them collectively as counsel.
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The first prosecution witness was Carol Hopkins, the mother of the victim. She was
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working at a hotel on the night of July 11, 2006, when S.K., her daughter, called to ask her to come
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home because petitioner had raped S.K. On cross-examination, Hopkins admitted that she took 30-
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40 minutes to extract herself from work, in which time S.K. called her 3-4 more times. Ex. 13, at
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77-78 (#36). Counsel thus gave the jury the ability to infer that Hopkins did not believe S.K.’s
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complaint.
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It was through Hopkins that the prosecution also introduced the evidence supporting the
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charge of witness tampering. Petitioner had written letters asking Hopkins for permission to marry
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S.K., which would have the benefit of petitioner being released from custody because then S.K.
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would not testify against him. Ex. 13, at 70 (#36). On cross-examination, Hopkins admits that in
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the letters petitioner asked S.K. to tell the truth and that petitioner did not admit to any sexual
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relations with S.K. Id. at 74-75 (#36).
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The second prosecution witness was Vanita Henderson, S.K.’s aunt. Henderson was in the
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bedroom next to S.K.’s room at the time. She heard S.K. call petitioner up to her room, heard
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sounds of sexual intercourse, and heard S.K., she believed, express pleasure. Ex. 13, at 90-92 (#36).
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That was the direct testimony for the prosecution. Cross-examination further cemented that
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testimony. Id. at 102 (#36).
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The third prosecution witness was S.K. She testified to what petitioner did to her. On cross-
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examination, she had to admit that her trial testimony contained important information that she had
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not told to the police, that much of her testimony was inconsistent with her prior statements, and
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that immediately after petitioner attacked her she did not call her mother but returned a missed call
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from her then-boyfriend. Ex. 13, at 131-38 (#36).
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The remaining prosecution witnesses were all investigators. Counsel cross-examined them
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all. Petitioner’s DNA was found on S.K.’s skin, but not inside her. Through cross-examination,
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counsel elicited that it was possible, through unlikely, for petitioner’s DNA to transfer onto S.K.’s
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skin simply because they had been living in the same house. Ex. 15, at 86 (#36).
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The conflicts over witnesses and strategy did not affect counsel’s ability to represent
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petitioner adequately. The Nevada Supreme Court’s decision was not an unreasonable application
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of Slappy.
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Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 2.
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Ground 3 is a claim that the trial court denied petitioner his rights to compulsory process and
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to present a defense when petitioner was denied the opportunity to call Peggy Morris, S.K.’s aunt, as
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a witness for the defense. On this issue, the Nevada Supreme Court held:
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Third, Clark contends that the district court erred by refusing to compel the victim’s aunt to
testify and refusing to allow Clark’s investigator to read into evidence a statement written by
the victim’s aunt. Specifically, Clark argues that he was entitled to compulsory process and
that the district court should have held a hearing to determine whether the victim’s aunt was
medically unable or incompetent to testify. He also argues that the statement prepared by the
aunt should have been read into evidence because the statement was reliable as the aunt had
no reason to lie to help her niece’s alleged rapist.
Clark subpoenaed the victim’s aunt to testify on his behalf. On the day before she was
scheduled to testify, the victim’s mother presented a note from a doctor stating that the aunt
should not be compelled to testify because it would be harmful to her health and because, as
the result of several strokes, her mental competency was questionable. After trial that day,
Clark’s investigator interviewed the aunt. She wrote out a statement for the investigator
indicating that two years ago she had stated to Clark that “[the victim] makes up things about
people; about everybody, makes up stories about everybody.” At trial the next day, Clark
expressed his desire that the aunt should testify or, in the alternative, that her statement be
read to the jury. Counsel told the district court that he no longer wished to pursue having the
aunt testify because he determined that the doctor’s assessment of the aunt was correct, the
aunt was difficult to understand, and she was not mentally competent to testify. Moreover,
two years ago Clark was in prison when the alleged communication took place, calling into
question the aunt’s credibility respecting her statement to Clark. In addition to finding that
the witness was not reliable or competent to testify, the district court ruled that the evidence
was improper character evidence and hearsay. . . .
We conclude that the district court did not abuse its discretion in denying Clark’s request to
compel the aunt to testify. The district court reviewed the doctor’s note provided by the
victim’s mother and counsel conceded that the physical and mental condition of the aunt was
questionable. Moreover, counsel determined that he would not pursue calling the aunt as a
witness because her credibility was questionable; this decision was counsel’s
responsibility. . . . Therefore, we conclude that the district court did not err in this regard.
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Further, the district court did not abuse its discretion by denying Clark’s request to read the
aunt’s statement to the jury. The statement was not made under circumstances that assured
the accuracy of the statement given the aunt’s physical and mental condition at the time she
wrote it. Therefore, the written statement was inadmissible hearsay, and the district court
did not err in refusing to admit it.
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Ex. 65, at 7-8 (#40) (citation omitted). Counsel’s ultimate decision not to call Morris as a witness
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made the confrontation-clause claim moot. Petitioner’s argument that the right of confrontation is a
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personal right misses the point that it is counsel who decides what witnesses to call. Otherwise, the
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relationship would descend into the hybrid representation that Faretta does not require.
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Petitioner does not persuade the court that the use of the hearsay rule in this case violated his
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right to a fundamentally fair trial. Petitioner cites Chambers v. Mississippi, 410 U.S. 284 (1973).
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Chambers was accused of killing a police officer. Another person, Gable McDonald, gave a sworn
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confession to Chambers’ attorney that he was the actual shooter, but then McDonald recanted that
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confession at the preliminary hearing. Chambers tried to have witnesses testify to McDonald’s
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confession, but the trial court refused Chambers’ request because Mississippi law did not have an
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exception to the hearsay rule for statements against penal interest. Chambers called McDonald as a
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witness, McDonald again repudiated his confession, and the trial court refused Chambers’ request to
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treat McDonald as an adverse witness because Mississippi’s voucher rule did not allow Chambers to
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impeach his own witness. Id. at 287-96. The Court found that the operation of these two rules
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deprived Chambers of a fundamentally fair trial, holding:
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Although perhaps no rule of evidence has been more respected or more frequently applied in
jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the
introduction of evidence which in fact is likely to be trustworthy have long existed. The
testimony rejected by the trial court here bore persuasive assurances of trustworthiness and
thus was well within the basic rationale of the exception for declarations against interest.
That testimony also was critical to Chambers’ defense. In these circumstances, where
constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay
rule may not be applied mechanistically to defeat the ends of justice.
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Id. at 302. However, the Court also made clear that it was not establishing any new constitutional
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rule regarding the admissibility of evidence; the particular facts of Chambers’ case meant that the
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application of state law on admissibility of evidence deprived him of a fair trial. Id.
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The trial court’s refusal to allow into evidence Morris’ statement was not the mechanistic
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application of a rule to exclude trustworthy evidence. First, the court had both the note from
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Morris’ doctor and counsel’s relation of his investigator’s perception of Morris that she was not
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competent to testify. Second, the statement proves itself to be untrustworthy. Morris wrote on
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December 6, 2006, “I told Michael two years to keep away from [S.K.], she would make up stories
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on everybody.” In 2004, petitioner was in prison on a federal judgment of conviction, not living
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with S.K. or Morris. Morris had no reason or ability to speak with petitioner in 2004 about S.K.
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Third, Morris’ statement did not refer to any specific events, let alone the events of July 11, 2006. It
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was just a general statement that S.K. lied about people. Evidence of the reputation of a person for
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telling lies is inadmissible. Nev. Rev. Stat. § 50.085(2). The jury, if they chose to disbelieve S.K.,
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had much more concrete evidence that she made up stories, because counsel’s cross-examination of
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her revealed many inconsistencies with her prior statements. Under these circumstances, the
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Nevada Supreme Court reasonably could have concluded that Chambers did not require admission
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of Morris’ statement into evidence.
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Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 3.
Ground 4 is a claim that the trial court erred in not allowing petitioner himself to use his last
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peremptory challenge to remove a prospective juror, later known as Juror 9, because that person said
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that he would need to hear petitioner’s testimony. On this issue, the Nevada Supreme Court held:
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Second, Clark argues that the district court erred by not allowing Clark to use his final
peremptory challenge to dismiss juror nine over counsel’s strategic decision not to
peremptorily challenge that juror. Specifically, Clark contends that juror nine was biased
because he stated that if he were Clark, he would not want him on the jury if Clark did not
testify. Therefore, Clark argues that he was compelled to testify against his wishes because
of the bias stated by juror nine.
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Clark failed to include a transcript of the jury selection proceeding. The burden is on the
appellant to provide an adequate record enabling this court to review assignments of error.
Thomas v. State, 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State,
96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 158, 532 P.2d
1034, 1036 (1975). However, the district court stated at trial that juror nine had been
properly rehabilitated. In particular, the district court noted that juror nine stated that he
understood the law that a defendant does not have to testify and that it cannot be used
against him. Juror nine also stated that he could apply the law in this case. Therefore, the
district court left juror nine on the jury panel. Counsel stated that he did not use the last
peremptory challenge on this juror because the next potential juror had a child who had been
a victim of sexual assault. Counsel stated that he could not be sure that the district court
would remove this juror for cause and did not want her empaneled on the jury. “[W]ith few
exceptions, the means of representation, i.e., trial tactics, remain within counsel’s control.”
Rhyne, 118 Nev. at 8, 38 P.3d at 168 (Defendant has control over certain fundamental
objectives, such as whether to employ defense of not guilty by reason of insanity).
Accordingly, whether to use a peremptory challenge is counsel’s decision, and the district
court did not err in denying Clark’s request to use his last peremptory challenge.
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Ex. 65, at 5-6 (#40). This decision presents the question of what this court may consider. When
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reviewing a state-court determination for reasonableness under 28 U.S.C. § 2254(d), this court’s
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review is limited to the record that was before the Nevada Supreme Court when it made its
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determination. Cullen v. Pinholster, 563 U.S. 170 (2011). The transcript of the jury selection is
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Exhibit 9. The other transcripts of the trial, which became Exhibits 10, 13, 15, and 17, were filed
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with the Nevada Supreme Court. The transcript of the jury selection was ordered on a later date. It
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was filed with the district court, but it was not filed in the Nevada Supreme Court. It was not
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included in the appendix on appeal. It was petitioner’s responsibility to provide the relevant
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transcript to the Nevada Supreme Court, and he did not. His opening brief cited to a document that
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the Nevada Supreme Court did not possess. See Ex. 62, at 42. Consequently, this court may not
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consider Exhibit 9 when reviewing the Nevada Supreme Court’s decision.
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The Nevada Supreme Court’s description of the district court’s statements at a subsequent
13
point in the trial is accurate. Not having anything else to use, it was a reasonable application of the
14
rule that a defendant has a right to an impartial jury.
15
16
17
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 4.
Ground 5 is a claim that the trial court erred when it excluded petitioner from the bench
18
conference where the prosecution and the defense exercised their peremptory challenges. On this
19
issue, the Nevada Supreme Court held:
20
21
22
23
In a related claim, Clark argues that the district court should have allowed him to be present
at a bench conference regarding juror nine. In support of this contention, Clark cites to
Snyder v. Massachusetts, 291 U.S. 97 (1934), for the proposition that a defendant has the
right to be present during the “summoning (sic) up of counsel.” Id. at 106, 109. Clark
misquotes this case, as Snyder actually states that a defendant has the right to be present
during the “summing up of counsel.” That is, a defendant has a right to be present during
opening and closing arguments. Therefore, the district court did not err in denying Clark’s
request to be present at the bench conference.
24
25
Ex. 65, at 6 (#40-15). The court of appeals has held that a defendant has no constitutional right to
26
participate personally in peremptory challenges. United States v. Boyd, 86 F.3d 719, 722-23 (9th
27
Cir. 1996). For the purposes of 28 U.S.C. § 2254(d)(1), Boyd is not directly controlling precedent
28
for the Nevada Supreme Court, but Boyd does mean that the Supreme Court of the United States has
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1
not clearly established federal law to the contrary. This court cannot grant relief on ground 5.
2
Musladin, 549 U.S. at 76-77.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Reasonable jurists would not find these conclusions to be debatable or wrong, and the court
will not issue a certificate of appealability for ground 5.
Ground 6 is a claim that insufficient evidence existed to support the guilty verdicts on sexual
assault. On this issue, the Nevada Supreme Court held:
Fourth, Clark argues that there was insufficient evidence to convict him of sexual assault of
a minor under age of 16. Specifically, he contends that the victim’s behavior after the
incident was inconsistent with that of a sexual assault victim, circumstantial evidence and
DNA evidence were lacking, and there were several inconsistencies between the victim’s
testimony and other witnesses’ accounts.
Our review of the record reveals sufficient evidence to establish guilt beyond a reasonable
doubt as determined by a rational trier of fact. See Wilkins v. State, 96 Nev. 367, 374, 609
P.2d 309, 313 (1980); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); OrigelCandido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998). We have repeatedly held
that the uncorroborated testimony of a victim is sufficient to uphold a conviction for sexual
assault. Gaxiola v. State, 121 Nev. 1473, 1481, 930 P.2d 701, 706 (1996); Washington v.
State, 112 Nev. 1067, 1073, 922 P.2d 547, 551 (1996). The victim testified that Clark
pushed her down on the bed and held her down while he assaulted her. Clark’s DNA was
found on her neck or shoulder where the victim alleged that Clark kissed her. No DNA was
found in the victim’s vagina, but the DNA expert testified that the lab only tests for DNA if
it finds sperm and no sperm was found. In addition, although the victim’s aunt testified that
she may have heard the victim moan “oh baby,” the State presented evidence that it may
have been Clark who made this statement or that the aunt may have been mistaken about
what she hear. Counsel vigorously cross-examined the victim regarding these
inconsistencies and highlighted them during closing argument. “[W]here there is conflicting
testimony presented at a criminal trial, it is within the province of the jury to determine the
weight and credibility of the testimony.” Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271,
272 (1981). While the evidence presented was not overwhelming, the State presented
sufficient evidence that Clark was guilty of sexual assault.
20
Ex. 65, at 8-10 (#40-15). The issue for the jury came down to whom to believe. The jury believed
21
the victim, and her testimony was sufficient for a finding that petitioner was guilty of sexual assault.
22
The Nevada Supreme Court reasonably applied Jackson.
23
24
25
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 6.
Ground 7 contains five claims of ineffective assistance of counsel. A petitioner claiming
26
ineffective assistance of counsel must demonstrate (1) that the defense attorney’s representation
27
“fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688
28
(1984), and (2) that the attorney’s deficient performance prejudiced the defendant such that “there is
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1
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
2
would have been different,” id. at 694. “[T]here is no reason for a court deciding an ineffective
3
assistance claim to approach the inquiry in the same order or even to address both components of
4
the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
5
Strickland expressly declines to articulate specific guidelines for attorney performance
6
beyond generalized duties, including the duty of loyalty, the duty to avoid conflicts of interest, the
7
duty to advocate the defendant’s cause, and the duty to communicate with the client over the course
8
of the prosecution. 466 U.S. at 688. The Court avoided defining defense counsel’s duties so
9
exhaustively as to give rise to a “checklist for judicial evaluation of attorney performance. . . . Any
10
such set of rules would interfere with the constitutionally protected independence of counsel and
11
restrict the wide latitude counsel must have in making tactical decisions.” Id. at 688-89.
12
Review of an attorney’s performance must be “highly deferential,” and must adopt counsel’s
13
perspective at the time of the challenged conduct to avoid the “distorting effects of hindsight.”
14
Strickland, 466 U.S. at 689. A reviewing court must “indulge a strong presumption that counsel’s
15
conduct falls within the wide range of reasonable professional assistance; that is, the defendant must
16
overcome the presumption that, under the circumstances, the challenged action ‘might be considered
17
sound trial strategy.’” Id. (citation omitted).
18
The Sixth Amendment does not guarantee effective counsel per se, but rather a fair
19
proceeding with a reliable outcome. See Strickland, 466 U.S. at 691-92. See also Jennings v.
20
Woodford, 290 F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell
21
below an objective standard of reasonableness alone is insufficient to warrant a finding of
22
ineffective assistance. The petitioner must also show that the attorney’s sub-par performance
23
prejudiced the defense. Strickland, 466 U.S. at 691-92. There must be a reasonable probability that,
24
but for the attorney’s challenged conduct, the result of the proceeding in question would have been
25
different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence
26
in the outcome.” Id.
27
28
Establishing that a state court’s application of Strickland was unreasonable under § 2254(d)
is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly
deferential,” . . . and when the two apply in tandem, review is “doubly” so . . . . The
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1
2
3
4
Strickland standard is a general one, so the range of reasonable applications is substantial.
Federal habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.
Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citations omitted).
5
In ground 7(A), petitioner argues that counsel was ineffective because counsel did not use
6
the final peremptory challenge on Juror 9, as described above in ground 4. The Nevada Supreme
7
Court held:
8
9
10
11
12
13
Sixth, appellant claimed his trial counsel was ineffective for failing to use a peremptory
challenge on a biased juror because appellant asserts he was compelled to testify due to that
juror’s bias. Appellant failed to demonstrate that counsel’s performance was deficient or
that he was prejudiced. Counsel stated that he made a tactical decision to use the
peremptory challenge on a different juror because that juror had a family member who had
been the victim of sexual abuse. “Tactical decisions [of counsel] are virtually
unchallengeable absent extraordinary circumstances,” and appellant failed to demonstrate
this decision constituted an extraordinary circumstance. Ford v. State, 105 Nev. 850, 853,
784 P.2d 951, 953 (1989). In addition, appellant cannot demonstrate prejudice because the
underlying claim regarding juror bias was raised on direct appeal and was rejected by this
court. Clark v. State, Docket No. 48647 (Order of Affirmance, January 30, 2009).
Therefore, the district court did not err in denying this claim.
14
15
Ex. 80, at 3-4 (#42).2 The quoted passage has one factual error. Counsel actually did not use a
16
peremptory challenge on a juror who had a family member that was a victim of sexual abuse.
17
Instead, counsel decided not to use his last remaining peremptory challenge on Juror 9 because Juror
18
9's replacement would have been the person who had a family member that was a victim of sexual
19
abuse. Counsel did not want that person on the jury. If that person was seated, and if counsel could
20
not convince the court to excuse that person for cause, then counsel would have been stuck with that
21
person being on the jury because no peremptory challenges would have remained to him.
22
Nonetheless, this error would not have changed the Nevada Supreme Court’s analysis of what was a
23
tactical decision by counsel, and this court cannot say that the Nevada Supreme Court’s analysis was
24
an unreasonable application of Strickland.
25
26
27
2
28
The Nevada Supreme Court did have the transcript of the jury selection in its record for the
appeal from the denial of the state habeas corpus petition.
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1
2
3
4
5
6
7
8
9
10
11
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 7(A).
Ground 7(B) is a claim that appellate counsel failed to raise on direct appeal the issue of the
bias of Juror 9. On this issue, the Nevada Supreme Court held:
First, appellant claimed that appellate counsel was ineffective for failing to include a
transcript of jury selection in the appendices on direct appeal in order to allow this court to
properly review his claim concerning juror bias. Appellant failed to demonstrate prejudice
because our review of the transcript reveals that the district court did not err in determining
that the juror was unbiased as the juror stated that he understood that a defendant did not
have to testify and stated that he could apply the law. . . . Therefore, the district court did not
err in denying this claim
Ex. 80, at 4 (#42) (citation omitted). On direct appeal, the argument was:
Trial court could have eliminated the compulsion [to testify] by dismissing juror number
nine who admitted bias if Mr. Clark chose not to testify. (Jury Selection, pp. 146-149). If
trial court had impaneled an alternate juror only then would the motion for mistrial have
been properly denied.
12
13
Ex. 62, at 42 (#40). However, a few pages further on in the opening brief on appeal were the
14
relevant facts and legal theory. Petitioner quoted parts of the trial transcript where petitioner, his
15
counsel, and the court were discussing this juror. Ex. 62, at 48-50 (#40). This part of the appellate
16
brief, titled “Appellant’s Edited Arguments,” is jumbled. Petitioner convinced appellate counsel to
17
present the claims that petitioner wanted presented, in the order that petitioner wanted presented,
18
and appellate counsel merely edited them lightly. Ex. 62, at 12 (#40). Nonetheless, the Nevada
19
Supreme Court pieced together these separate threads of an argument to determine what petitioner
20
actually was claiming on direct appeal and ruled upon that claim. Ex. 65, at 5-6 (#40). This court
21
discussed the claim of bias in ground 4. Then, when the Nevada Supreme Court finally had the
22
transcript of the jury selection before it, its earlier assumptions of what occurred in jury selection
23
were confirmed. The court and the prosecutor explained to the juror that petitioner did not need to
24
testify, that the defense counsel can bring out many facts in cross-examination to give petitioner’s
25
side of the story, and the juror accepted that.3 Perhaps the trial judge might have ruled differently on
26
27
3
28
The court has noted in its discussions of other grounds that counsel’s cross-examination of
S.K., her mother, and her aunt Vanita did elicit facts that were favorable to the defense.
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1
the challenge for cause, but there was no reason for the Nevada Supreme Court to overturn the
2
ruling that the trial court did make. Now, in federal court, petitioner has not explained what else
3
appellate counsel could have done that would have created a reasonable probability that the result on
4
appeal would have been different. The Nevada Supreme Court reasonably applied Strickland.
5
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
6
7
appealability for ground 7(B).
Ground 7(C) is a claim that counsel failed to take the steps necessary to ensure that Peggy
8
Morris, S.K.’s aunt, testified. Ground 3 is the underlying claim. On this issue, the Nevada Supreme
9
Court held:
10
11
12
13
14
Third, appellant claimed that his trial counsel was ineffective for failing to seek an expert
who would have examined the victim’s aunt to see if she was actually unable to testify due
to physical and mental issues. Appellant failed to demonstrate that counsel’s performance
was deficient or that he was prejudiced. The district court was informed by the aunt’s doctor
that, due to multiple strokes, the aunt was unable to testify at trial. In addition, counsel
informed the district court that his investigator stated that the aunt would not have provided
helpful testimony due to her condition. Appellant failed to demonstrate a reasonable
probability of a different outcome had there been further examination of the aunt. Therefore,
the district court did not err in denying this claim
15
Ex. 80, at 2-3 (#42-8). The court already has explained in its discussion of ground 3 how Morris’
16
statement would have been inadmissible. Her testimony would have been improper character
17
evidence for S.K.’s reputation for untruthfulness. Nev. Rev. Stat. § 50.085(2). Furthermore,
18
petitioner has not shown why counsel should not have relied upon his investigator’s impression that
19
Morris would not be a good witness. The court already has explained how she would have had no
20
reason or ability to speak with petitioner at the time when she said that she spoke with petitioner.
21
The decision whether to call a witness is a tactical matter for which counsel has great discretion.
22
Furthermore, the decision of the Nevada Supreme Court is due deference unless it is an
23
unreasonable determination of the facts or an unreasonable application of clearly established federal
24
law. This court cannot say that the Nevada Supreme Court’s decision was an unreasonable
25
application of Strickland in this situation.
26
27
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 7(C).
28
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1
2
3
4
5
Ground 7(D) is a claim that counsel failed to assist petitioner in fully effectuating his right to
testify. On this issue, the Nevada Supreme Court held:
Fourth, appellant claimed that trial counsel was ineffective during appellant’s testimony.
Appellant failed to demonstrate that counsel’s performance was deficient or that he was
prejudiced. The questions that appellant indicated he wanted to ask counsel to ask him
related to statements made by the victim’s aunt [Peggy Morris, described above], but those
statements were inadmissible because the district court determined that those statements
were hearsay. NRS 51.065. Therefore, the district court did not err in denying this claim.
6
7
Ex. 80, at 3 (#42-8). Other than the questions that would have led to inadmissible hearsay,
8
petitioner has not alleged in the petition what questions he wanted counsel to ask him.
9
Consequently, he has not demonstrated that counsel performed deficiently. The Nevada Supreme
10
11
Court reasonably applied Strickland when it denied this claim.
Furthermore, the court agrees with respondents’ arguments at 35-37 of the answer (#73).
12
Counsel and the judge urged petitioner not to testify. Ex. 17, at 6-7, 10-12 (#37). Even if they did
13
not know ahead of time the specifics of petitioner’s testimony, they had observed him long enough
14
to know that he would have given rambling answers that would lead to the jury hearing very
15
unfavorable information. That is exactly what happened. Petitioner would not confine his answers
16
to the questions that counsel asked of him, even after counsel and the judge asked him simply to
17
answer the questions. He gave the jury very incriminating information, apparently while thinking
18
that he was helping himself.
19
20
21
Reasonable jurists would not find this conclusion debatable, and the court will not issue a
certificate of appealability for ground 7(D).
Ground 7(E) is a claim that counsel failed to fully cross-examine Carol Hopkins, S.K.’s
22
mother. The Nevada Supreme Court ruled upon this claim in the context of petitioner’s argument
23
for self-representation:
24
25
26
27
Because the district court did not err by denying Clark’s claim for self-representation, his
claim that he was prejudiced also lacks merit. Counsel “‘has the immediate—and
ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call,
and what defenses to develop.’” Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002)
(quoting [Wainwright] v. Sykes, 433 U.S. 72, 93 ([1977]) (Burger, C.J., concurring)[)].
Therefore, Clark’s claims that he should have been able to dictate to counsel what witnesses
to call, questions to ask witnesses, objections to be made, and the defense to assert were
properly denied by the district court.
28
-17-
1
Ex. 65, at 1-4 (#40). In this court, petitioner has failed to demonstrate deficient performance or
2
prejudice, because he has not included the questions that he wanted counsel to ask. Consequently,
3
the court cannot rule that the Nevada Supreme Court’s determination was contrary to, or an
4
unreasonable application of, clearly established federal law. Ground 7(E) is without merit.
5
6
Reasonable jurists would not find this conclusion debatable, and the court will not issue a
certificate of appealability for ground 7(E).
7
Ground 9 is a claim of cumulative error. On direct appeal, the Nevada Supreme Court held:
8
10
Finally, Clark asserts that the cumulative effect of the claimed errors denied him a fair trial,
requiring reversal. “If the cumulative effect of errors committed at trial denies the appellant
his right to a fair trial, this court will reverse the conviction.” Homick v. State, 112 Nev.
304, 316, 913 P.2d 1280, 1288 (1996). We conclude that any error, considered individually
or cumulatively, does not warrant relief.
11
Ex. 65, at 12 (#40-15). In the appeal from the denial of the state habeas corpus petition, the Nevada
12
Supreme Court held:
9
13
14
15
Sixth, appellant claimed that appellate counsel was ineffective for failing to support the
cumulative error argument with all of the errors that occurred during the trial. Appellant
failed to demonstrate prejudice for any of the previous claims, and therefore, failed to
demonstrate a reasonable likelihood of success had appellate counsel raised further
arguments concerning cumulative error. Therefore, the district court did not err in denying
this claim.
16
17
Ex. 80, at 6 (#42-8). Having found no errors, it was reasonable for the Nevada Supreme Court to
18
conclude that a claim of cumulative error did not warrant relief. Ground 9 is without merit.
19
20
21
22
23
24
25
Reasonable jurists might debate this conclusion, and the court will issue a certificate of
appealability for ground 9.
IT IS THEREFORE ORDERED that the amended petition for writ of habeas corpus (#35) is
DENIED. The clerk of the court shall enter judgment accordingly and close this action.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED regarding the
court’s decisions on grounds 2, 3, 4, 6, 7(A), 7(B), 7(C), and 9 of the amended petition (#35).
DATED:
March 21, 2016
26
27
_________________________________
KENT J. DAWSON
United States District Judge
28
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