Wesley v. Director Nevada Department of Corrections et al

Filing 38

ORDER. IT IS HEREBY ORDERED that 36 Wesley's amended petition for writ of habeas corpus is DENIED; and I decline to issue a certificate of appealability. The Clerk of Court is instructed to enter judgment for respondents and against petitioner and to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Narcus Wesley,
2:13-cv-01513-JAD-CWH

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Petitioner
Order Denying Amended Petition for
Writ of Habeas Corpus and Closing
Case

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v.

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Director, Nevada Department of Corrections, et al.,
[ECF No. 36]

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Respondents

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10

Narcus Wesley brings this § 2254 petition to challenge his Nevada state conviction and

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sentence for robbery and a slew of related charges. Having reviewed respondents’ answer to

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Wesley’s remaining grounds for relief, I deny Wesley’s petition in its entirety, decline to issue a

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certificate of appealability, and close this case.
Background1

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A.

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Wesley’s trial
In April 2007, the state charged Wesley and his co-defendant Delarian Wilson with 18

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counts, all stemming from Wesley and Wilson’s February 2007 robbery. The two successfully

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moved to sever, Wilson pleaded guilty to 3 of the 18 counts, and Wesley proceeded to trial.

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At trial, the evidence established the following: In February 2007, Wesley and Wilson barged

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into an apartment occupied by five men and one woman, drew guns, and demanded cash, cell

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phones, and wallets. Unsatisfied with their plunder, Wilson obtained ATM cards and PINs from two

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victims and then had one of the victims drive him to two ATMs and withdraw a total of $900.

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Meanwhile, Wesley stayed at the apartment with the other five victims, whom he threatened to shoot

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if they moved. When Wilson returned, he ordered one of the male victims and the female victim to

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undress and engage in various sex acts with each other. When the male victim was unable to

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Except where otherwise indicated, this background section is derived from respondents’ exhibits at
ECF Nos. 15–19 and this court’s docket.
Page 1 of 15

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perform, Wilson ordered another male victim to have sex with the female victim. That male victim

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was also unable to perform, so Wesley moved the female victim, still undressed, to a recliner,

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ordered her to put her legs in the air, and digitally penetrated her vagina. Wilson and Wesley then

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left with all of the victims’ cell phones.

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On April 8, 2008, a jury found Wesley guilty of conspiracy to commit burglary, conspiracy to

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commit robbery, two counts of burglary while in possession of a deadly weapon, four counts of

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robbery with the use of a deadly weapon, two counts of assault with the use of a deadly weapon,

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first-degree kidnapping with the use of a deadly weapon, five counts of sexual assault with the use of

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a deadly weapon, coercion with the use of a deadly weapon, and open or gross lewdness with the use

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of a deadly weapon.

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B.

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Procedural history
Wesley unsuccessfully moved for a new trial, and the trial court judge sentenced him to

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various consecutive and concurrent terms of imprisonment ranging from 12 months to life. The

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court filed the judgment of conviction on July 18, 2008. Wesley appealed his convictions, and on

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the state’s motion, the state district court entered an amended judgment on October 8, 2008, that

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corrected deadly-weapon enhancements to comply with state law.

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The Nevada Supreme Court affirmed Wesley’s convictions, and Wesley filed a habeas

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petition in the state district court. The court denied the petition; Wesley appealed, and the Nevada

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Supreme Court affirmed. On August 19, 2013, Wesley dispatched his federal habeas petition, and he

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filed his first-amended petition seven months later.2 After dismissals, Wesley’s remaining grounds

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are 1, 4, 5, 7, 8, 9, 10, 11, and 12.3 Respondents have filed their answer, and I now address Wesley’s

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remaining claims on their merits.

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2

ECF No. 36.

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3

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On respondents’ motion, I dismissed grounds 2, 6, and 14 of the amended petition as unexhausted,
ground 13 as procedurally barred, and ground 3 as redundant to grounds 7 and 8. ECF No. 27.
Page 2 of 15

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Discussion
A.

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Standard for habeas relief under 28 U.S.C. § 2254(d)
A federal court may not grant an application for a writ of habeas corpus on behalf of a person

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in state custody on any claim that was adjudicated on the merits in state court unless the state-court

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decision (1) was contrary to, or involved an unreasonable application of, clearly established federal

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law or (2) was based on an unreasonable determination of the facts in light of the evidence presented

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in the state-court proceeding.4 In making this determination, federal courts look to the last reasoned

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state-court decision.5 “Where there has been one reasoned state judgment rejecting a federal claim,

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later unexplained orders upholding that judgment or rejecting the same claim rest upon the same

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ground.”6 To the extent no reasoned opinion exists, courts must independently review the record to

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determine whether the state court clearly erred in its application of controlling federal law or whether

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the state court’s decision was objectively unreasonable.7

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1.

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In ground one, Wesley claims that recorded statements by co-defendant Wilson were

Ground one: confrontation-clause violations

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admitted in violation of the confrontation clause because Wilson did not testify at trial. Wesley

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argues that, if Wilson had not pleaded guilty, his statements would not have been admissible at trial

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under Bruton v. United States,8 and that, because these statements would not have been admissible at

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a joint trial, they were inadmissible at Wesley’s trial unless Wesley had an opportunity to cross-

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examine Wilson regarding his statements.

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22

4

28 U.S.C. § 2254(d).

23

5

Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir. 2013), cert. denied 133 S.Ct. 1831 (2013).

24

6

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

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7

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Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); see also Harrington v. Richter, 562 U.S. 86,
98 (2011) (holding that “[w]here a state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state
court to deny relief.”).

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8

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Bruton v. United States, 391 U.S. 123 (1968).
Page 3 of 15

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The Nevada Supreme Court rejected a similar claim on direct appeal. The Court reasoned

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that “Wilson’s statements during the perpetration of the crime were non-hearsay” and were thus

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admissible and that “Wilson’s confession and guilty plea were admitted by the defense over the

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State’s objections,” and Wesley had thus waived his confrontation rights.9

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The Nevada Supreme Court applied the correct federal standard and its ruling is not

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objectively unreasonable. “Under Bruton and its progeny, the admission of a statement made by a

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non-testifying codefendant violates the Confrontation Clause when the statement facially, expressly,

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clearly, or powerfully implicates the defendant.”10 But Bruton does not afford Wesley any relief

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because Bruton applies only when co-defendants are tried jointly and is inapplicable when the

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non-testifying co-defendant is severed out, as was the case here.11

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Ground one also fails under general confrontation-clause jurisprudence. Wesley—not the

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state—offered Wilson’s taped confession as evidence.12 Indeed, the state vehemently objected to the

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admission of the confession.13 And, to the extent Wesley is challenging the admission of statements

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attributed to Wilson by victim witnesses, those statements were “nontestimonial,” which means their

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admissibility was governed by Nevada’s evidence laws.14 The Nevada Supreme Court correctly

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determined that those statements were non-hearsay because they were statements by a co-conspirator

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of a party during the course and in furtherance of the conspiracy.15

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19

9

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10

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ECF No. 18-11 (citing Ford v. State, 138 P.3d 500, 506 (Nev. 2006)).

United States v. Angwin, 271 F.3d 786, 795 (9th Cir. 2001), overruled on other grounds by United
States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc).

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11

See United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007).

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12

ECF No. 16-6 at 20–22.

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13

Id. at 14–20.

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14

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See Crawford v. Washington, 541 U.S. 36, 68 (2004) (“Where non-testimonial hearsay is at issue,
it is wholly consistent with the Framers’ design to afford the States flexibility in their development
of hearsay law . . . as would an approach that exempted such statements from Confrontation Clause
scrutiny altogether.”).

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15

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ECF No. 18-11 at 2 (citing NEV. REV. STAT. § 51.035(3)(e)).
Page 4 of 15

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I therefore find that Wesley is not entitled to habeas relief under ground one.

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2.

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In ground four, Wesley alleges that the trial court erred by failing to suppress (1) evidence

Ground 4: Fourth and Fifth Amendment violations

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obtained under a search warrant and (2) Wesley’s statements to police made after he invoked his

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Miranda rights.

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Wesley claims that the search warrant affidavit contained false information: that Wesley had

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a power bill in his name at the residence to be searched. Under Franks v. Delaware, evidence

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obtained as the result of a search warrant containing intentionally false or misleading statements

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necessary to the finding of probable cause must be suppressed.16 However, under the United States

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Supreme Court’s decision in Stone v. Powell, the rule announced in Franks is not cognizable on

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habeas review if the defendant had a full and fair opportunity to litigate his Fourth Amendment

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claim.17

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The record reflects that Wesley had a full and fair opportunity to litigate his Fourth

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Amendment claim challenging the warranted search of his residence. On Wesley’s motion, the trial

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court conducted a Franks hearing to determine if knowingly false information was included in the

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search warrant affidavit and if that information was necessary to the finding of probable cause. At

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the hearing, the detective who obtained the warrant, an employee of the power company, Wesley’s

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parents, and Wesley himself all testified.18 The trial court denied Wesley’s suppression motion,

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finding that, although the search warrant application contained incorrect information, the detective

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did not intentionally or recklessly falsify it.19 Wesley does not explain or offer any evidence to show

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that the procedures afforded at this hearing were deficient. Because Wesley had a full and fair

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opportunity to litigate this claim in state court, this claim is barred under Stone v. Powell.

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As to Wesley’s Miranda claim, Wesley alleges that his father asked police officers to contact

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16

Franks v. Delaware, 98 S.Ct. 2674, 2676 (1978).

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17

Stone v. Powell, 428 U.S. 465, 494 (1976).

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18

ECF No. 15-22.

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19

Id. at 115–16.

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Page 5 of 15

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the family attorney before questioning him (Wesley). Wesley contends that this was sufficient to

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invoke his Miranda rights, which the police then violated by interrogating him without contacting

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the attorney. Thus, according to Wesley, the trial court erred in not suppressing his statements to the

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police.

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The Nevada Supreme Court rejected this claim on direct appeal, reasoning that “Wesley was

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properly informed of his Miranda rights before he consented to questioning” and that his “father’s

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request for an opportunity to contact the family attorney did not constitute an invocation of Wesley’s

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right to counsel.”20 The Nevada Supreme Court applied the correct federal standard to Wesley’s

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claim and its decision is not based on an unreasonable application of that standard or based on an

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unreasonable determination of the facts in light of the evidence presented. Section 2254(d) therefore

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requires me to defer to the state court’s decision.

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Accordingly, Wesley is not entitled to relief on ground four.

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3.

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Wesley next claims that there was insufficient evidence presented at trial for the jury to find

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him guilty beyond a reasonable doubt. He alleges that there were no out-of-court identifications by

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any of his victims and that the in-court identifications were suspect because each of the witnesses

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testified that his or her head was down and that he or she did not see Wesley’s face. He also claims

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that most of the testimony attributed very few, if any, activities to him, but instead primarily referred

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to either “they/them” or Wilson.

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Ground 5: sufficiency of the evidence

The Nevada Supreme Court rejected this claim on direct appeal, reasoning that, “in addition

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to the consistent testimony of six victims regarding the crime and their identification of Wesley as

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matching the description of one of the two perpetrators, Wesley admitted his willing involvement.”21

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Thus, the evidence “was more than sufficient for a rational juror to find beyond a reasonable doubt

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that Wesley was guilty of all the charged crimes.”

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20

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ECF No. 18-11 at 3 (citing Terry v. LeFevre, 862 F.2d 409, 412 (2nd Cir. 1988) (mother cannot
invoke right of counsel of behalf of son); Dewey v. State, 169 P.3d 1149, 1150 (Nev. 2007) (request
for counsel must be “clear, unequivocal, and unambiguous”).

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21

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ECF No. 18-11 at 3.
Page 6 of 15

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In reviewing sufficiency-of-evidence claims, federal courts ask only if, “after viewing the

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evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt.”22 Where the state court applies this

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standard, federal habeas courts ask only whether the state court’s application was “objectively

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unreasonable.”23 The Nevada Supreme Court correctly applied this standard on direct appeal. The

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Court’s decision is also not based on an unreasonable application of the facts in light of the evidence

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presented. Nevada law follows general conspiracy principals and does not distinguish between “an

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aider or abettor to a crime and an actual perpetrator of a crime; both are equally culpable.”24 A jury

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therefore could have found Wesley guilty beyond a reasonable doubt even though certain acts were

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purportedly perpetrated by Wilson and not Wesley. The Nevada Supreme Court’s conclusion is not

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objectively unreasonable, and Wesley is not entitled to relief on ground five.

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B.

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Ineffective assistance of counsel under 28 U.S.C. § 2254(d)
In Strickland v. Washington, the United States Supreme Court established a two-prong test

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for ineffective-assistance-of-counsel claims.25 A petitioner must show (1) that the defense attorney’s

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representation “fell below an objective standard of reasonableness” and (2) that the attorney’s

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deficient performance prejudiced the defendant so severely that “there is a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceeding would have been

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different.”26 If a state court has adjudicated a claim of ineffective assistance of counsel, federal

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habeas courts ask only “whether there is any reasonable argument that counsel satisfied Strickland’s

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deferential standard.”27 Wesley has not met his burden for any of his remaining claims.

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22

22

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

23

23

See Boyer v. Belleque, 659 F.3d 957, 954–65 (9th Cir. 2001).

24

24

Sharma v. State, 56 P.3d 868, 870 (Nev. 2002).

25

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Strickland v. Washington, 466 U.S. 668, 694 (1984).

26

Id. at 694.

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27

27

28

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994–95 (9th Cir.
2010) (acknowledging double deference required for state court adjudications of Strickland claims).
Page 7 of 15

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1.

2

In ground seven, Wesley argues that his counsel was constitutionally deficient for conceding

Ground 7: Ineffective assistance of counsel—conceding guilt

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his guilt throughout trial without his consent. Wesley cites the following comments during counsel’s

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opening statement:

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As the State said, and they are correct, Danielle Browning was
raped. Many of those kids were robbed. One of those kids was
kidnapped. They were terrorized for an [sic] upwards of two hours.
They had guns waved in their faces.

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8

I’m not disputing that. Mr. Banks is not disputing that, and Mr.
Wesley is not disputing that.

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...

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And at the end of this trial, all we ask you to do is to hold
Narcus Wesley responsible for what he did, nothing more, and
certainly nothing less.28

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12
13

Wesley also notes that counsel referred to Wesley’s statement to police as a “confession”
when cross-examining a police detective and made the following comments in his closing argument:

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What Narcus did was vile.
It was disgusting.
It was horrific.
And Danielle didn’t deserve that. She didn’t deserve that.
It was bad, and don’t think that everyone in this room doesn’t feel that
way.29

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18

The Nevada Supreme Court rejected this claim on appeal in Wesley’s state habeas

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proceeding, clarifying that “[t]rial counsel conceded that the facts of the crime occurred, but argued

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[Wesley] was not criminally liable because he acted under duress based upon perceived threats from

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his codefendant,”30 which is a legally viable defense under Nevada law. The court reasoned that,

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“because trial counsel argued [Wesley] was not criminally liable for the charged offenses [because

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he] acted under duress, counsel’s admission that the facts surrounding the crime were true did not

24
28

ECF No. 15-25 at 52, 56.

29

ECF No. 16-6 at 24; ECF No. 16-7 at 23.

25
26
27
28

30

ECF No. 19-15 at 3. See Browning v. State, 91 P.3d 39, 49 (Nev. 2004) (stating “[u]nder NRS
194.010(7), duress requires a reasonable belief that one’s life would be endangered or that one would
suffer great bodily harm”).
Page 8 of 15

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amount to a concession of guilt” and counsel was thus not ineffective.31 The court also found that

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Wesley failed to show prejudice because he failed “to demonstrate a reasonable probability of a

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different outcome had counsel argued the facts surrounding the crime had not occurred as there was

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overwhelming evidence of [Wesley’s] guilt given [his] confession.”32

5

The United States Supreme Court has held that a defense counsel’s failure to obtain the

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defendant’s express consent before conceding guilt in a capital case does not automatically place

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counsel’s performance below constitutional standards.33 In those situations, courts should apply

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Strickland to determine whether counsel’s performance in that particular case fell below objective

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standards of reasonableness.34 The Ninth Circuit Court of Appeals has extended this rule to

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noncapital trials as long as the concession does not abandon all meaningful adversarial testing of the

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prosecution’s case.35

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The Nevada Supreme Court’s application of Strickland is not objectively unreasonable.

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Wesley’s counsel faced overwhelming evidence of Wesley’s participation in the crimes. Counsel’s

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decision to attempt to minimize Wesley’s role by placing primary responsibility for the crimes on

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Wilson was reasonable under the circumstances. Wesley also has not demonstrated a reasonable

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probability that, but for counsel’s concessions, the outcome of his trial would have been different.

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Because the state court’s decision denying relief is not based on an unreasonable application of

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Strickland or an unreasonable determination of the facts, Wesley is not entitled to habeas relief for

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ground seven.

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22

31

Id.

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32

Id.

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33

Florida v. Nixon, 543 U.S. 175, 188–89 (2004).

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34

Id.

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27
28

35

See, e.g., United States v. Thomas, 417 F.3d 1053, 1057–59 (9th Cir. 2005), cert. denied 546 U.S.
1121 (2006) (applying Nixon and holding that Strickland, not Cronic, controlled even though
counsel conceded guilt to one of two robbery counts because concession did not abandon all
meaningful adversarial testing of the prosecution’s case).
Page 9 of 15

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2.
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Ground 8: Ineffective assistance of counsel----introduction of co-conspirator’s
statements

Wesley also claims that his trial counsel was ineffective for introducing inculpatory

4

statements made by Wilson, including Wilson’s guilty plea and taped interview with police, without

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Wesley’s consent.

6

The Nevada Supreme Court rejected this claim in Wesley’s state post-conviction proceeding,

7

finding that Wesley failed to show that counsel was deficient or that Wesley was prejudiced as a

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result. The court recounted that, “during a lengthy discussion, in [Wesley’s] presence but not before

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the jury, counsel informed the district court that he believed the codefendant’s statements would

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show that the codefendant was the leader during the incident and that the codefendant changed his

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story so often that the jury would not believe the codefendant’s version of events.”36 The court

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reasoned that “this was a tactical decision related to appellant’s duress defense” and was thus

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“‘virtually unchallengeable absent extraordinary circumstances’” not present here.37

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Counsel’s decision to present Wilson’s statements and guilty plea was part of a reasonable

15

strategy to convince the jury that Wilson was primarily responsible for the charged crimes and that

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Wesley participated under duress. And the record belies Wesley’s assertion that his counsel

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admitted these statements without his consent. The Nevada Supreme Court’s application of

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Strickland is not objectively unreasonable, and Wesley is not entitled to relief on ground eight.

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3.

20

Wesley claims he received ineffective assistance of counsel because trial counsel and

Ground nine: Ineffective assistance of counsel—conflict of interest.

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appellate counsel labored under a conflict of interest. Wesley’s counsel, the Clark County Public

22

Defender’s Office, also represented Wesley’s father in a felon-in-possession case stemming from the

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discovery of a rifle during the execution of the search warrant in Wesley’s case.

24

The detective who executed the search warrant mentioned the discovery of the rifle during

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26
27

36

ECF No. 19-15 at 3–4.

28

37

Id. (citing Ford v. State, 784 P.2d 951, 953 (Nev. 1989)).
Page 10 of 15

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direct examination at Wesley’s trial.38 Outside the presence of the jury, defense counsel moved for a

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mistrial, arguing that he could not defend the suggestion that Wesley had access to the rifle without

3

inculpating Wesley’s father in a crime.39 The trial judge denied the motion, noting that the evidence

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presented to that point indicated that whatever Wesley had in his hand during the events in question

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was certainly not a rifle.40 And the judge gave a curative instruction that the rifle belonged to

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Wesley’s father, was found in the garage, and had “absolutely nothing to do with this case.”41

7

“To establish a violation of the right to conflict-free counsel, the petitioner must show either

8

that (1) in spite of an objection, the trial court failed to allow him the ‘opportunity to show that

9

potential conflicts impermissibly imperil[ed] his right to a fair trial;’ or (2) that an actual conflict of

10

interest existed.”42 To show an actual conflict of interest, the petitioner must demonstrate that

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counsel’s performance was adversely affected by the alleged conflict.43

12

The Nevada Supreme Court rejected this claim in Wesley’s state post-conviction proceeding,

13

finding that Wesley had not shown an actual conflict. The court reasoned that “[a]ll parties agreed

14

that the firearm belonged to the father, but counsel stated he felt he could not state to the jury in

15

appellant’s case that the father owned the firearm, as that was effectively accusing a client

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represented by his office of a crime. The district court instructed the jury that the firearm belonged

17

to the father, not appellant, thereby relieving counsel of the burden of posing questions regarding the

18
19
20
38

ECF No. 16-5 at 44.

22

39

Id. at 46.

23

40

Id. at 46–47.

24

41

Id. at 48.

25

42

21

26
27
28

Alberni v. McDaniel, 458 F.3d 860, 869–70 (9th Cir. 2006) (citing Cuyler v. Sullivan, 446 U.S.
335, 348 (1980)).
43

Mickens v. Taylor, 535 U.S. 162, 171 (2002) (“[A]n actual conflict of interest [means] precisely a
conflict that affected counsel’s performance—as opposed to a mere theoretical division of
loyalties.”).
Page 11 of 15

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father’s gun ownership.”44

2

Any conflict arising from public defenders office’s concurrent representation of Wesley and

3

his father was quickly resolved by the trial court. Wesley has failed to establish the existence of an

4

actual conflict or to link the purported conflict to a particular defect in counsel’s performance. The

5

Nevada Supreme Court adjudicated this claim under the correct standard, and Wesley has not shown

6

that the state court's denial of this claim was based on an unreasonable application of that standard or

7

on an unreasonable determination of the facts. Ground nine is denied.

8

4.

9

Wesley argues that his trial counsel was ineffective for failing to (1) present witnesses to

Ground 10: Ineffective assistance of counsel—failure to investigate

10

testify about Wesley’s good character, (2) impeach the female victim’s testimony with inconsistent

11

statements in her police report, and (3) investigate the victims’ motives to make false accusations

12

The Nevada Supreme Court rejected this claim in Wesley’s state post-conviction proceeding,

13

reasoning that Wesley failed to (1) identify any witnesses who could have testified about his good

14

character, (2) identify which portions of the victim’s testimony conflicted with her statements to

15

police (and the court noted that trial counsel did question the victim about differences between her

16

preliminary hearing testimony and her trial testimony), (3) explain why and how he believes the

17

victim’s allegations were fabricated.45

18

The Nevada Supreme Court’s application of Strickland is not objectively unreasonable.

19

Wesley still has not substantiated these claims with any specific information or evidence. He still

20

has not identified the character witnesses counsel failed to investigate, the inconsistencies between

21

the female victim’s trial testimony and her police report, or the motives the victims may have had to

22

make false allegations. Wesley is therefore not entitled to federal habeas relief on ground ten.

23

5.

24

Wesley contends that his trial counsel was ineffective for failing to challenge the admission

25

Ground 11: Ineffective assistance of counsel—pretrial identification

of a suggestive pretrial identification. Wesley claims that his counsel should have sought to preclude

26
27

44

ECF No. 19-15 at 4–5.

28

45

Id. at 5–6.
Page 12 of 15

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Wilson’s identification of Wesley’s photograph, which was admitted through the testimony of a

2

police detective. Wesley argues that the identification violated Bruton because Wilson did not testify

3

at trial and that it violated Neil v. Biggers46 because it was impermissibly suggestive.
A suggestive identification procedure alone does not establish a Biggers violation.47 Instead,

4
5

the court must determine whether there was a “‘very substantial likelihood of irreparable

6

misidentification.’”48 If a witness identification is tainted by suggestive procedures, the court must

7

consider the reliability of the identification under the totality of the circumstances.49 If suggestive

8

procedures are not used, the reliability of the identification is generally a question for the jury.50

9

The Nevada Supreme Court rejected this claim, finding that the identification procedure was

10

not unnecessarily suggestive and reasoning that “[t]he codefendant knew [Wesley] and told the

11

police [Wesley’s] first name and that [Wesley] attended UNLV before the police showed a

12

photograph of [Wesley] to the codefendant for identification purposes.”51 The court also found that

13

Wesley failed to show prejudice given that he admitted to police that he participated in the incident

14

and because his duress defense rendered identification of the participants a nonissue at trial.

15

The Nevada Supreme Court correctly applied Biggers, and its application of Strickland to this

16

claim is not objectively unreasonable. A pretrial motion to suppress based on Biggers had little if

17

any chance for success given that, prior to the identification, Wilson had already identified Wesley

18
19

46

Neil v. Biggers, 409 U.S. 188 (1972).

20

47

Biggers, 409 U.S. at 198.

21

48

Id. (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

22

49

23
24
25

Biggers, 409 U.S. at 199. The factors to be considered under Biggers are: (1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the
accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by
the witness at the confrontation, and (5) the length of time between the crime and the confrontation.
50

27

Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (Biggers factors are to be weighed against the
corrupting effect of the suggestive identification); see also United States v. Wong, 40 F.3d 1347,
1359 (2nd Cir. 1994) (where impermissibly suggestive procedures were not used, the reliability of
the identification becomes a question for the jury).

28

51

26

ECF No. 19-15 at 6–7.
Page 13 of 15

1

by name and informed the police that he had played football with him at UNLV. Because Wilson

2

was not available as a witness at trial, the detective’s testimony regarding Wilson’s identification of

3

Wesley was objectionable on hearsay grounds.52 But, as the Nevada Supreme Court explained,

4

Wilson’s identification of Wesley was inconsequential because Wesley’s defense was premised on

5

his level of involvement in the crimes, and he did not deny that he was the person with Wilson when

6

the crimes were committed.53 Thus, even if counsel was ineffective for failing to object to the

7

detective’s testimony about Wilson’s identification of Wesley, Wesley has not shown prejudice.

8
9

Because the Nevada Supreme Court correctly applied Briggers and its application of
Strickland is not objectively unreasonable, Wesley is not entitled to relief on ground 11.

10

6.

11

Finally, Wesley argues that his trial counsel was ineffective for failing to request a

Ineffective assistance of counsel—psychological exam

12

psychological exam on the female victim. Wesley does not indicate why an examination was

13

necessary or explain how it would have benefitted his defense.54 Thus, Wesley falls well short of

14

showing counsel’s omission amounted to ineffective assistance of counsel, and ground 12 is also

15

denied.

16

C.

17

I decline to issue a certificate of appealability.
To obtain a certificate of appealability, a petitioner must make “a substantial showing of a

18

denial of a constitutional right”55 by showing that “reasonable jurists would find the district court’s

19

assessment of the constitutional claim debatable or wrong.”56 To meet this threshold, the petitioner

20

must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the

21
22
23

52

Cf. United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981) (holding that FBI agent’s testimony
regarding witness’s prior identification was admissible where nothing in the record suggested that
the declarant was unavailable for reexamination after the agent’s testimony).

24

53

25

54

Wesley’s Bruton claim again misses the mark because he and Wilson were tried separately.

26

See Koerschner v. State, 13 P.3d 451, 455 (Nev. 2000) (trial court should order a psychological
examination of the victim only if the defendant presents a compelling reason).

27

55

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).

28

56

Slack, 529 U.S. at 484.
Page 14 of 15

1

issues differently, or that the questions are adequate to deserve encouragement to proceed further.57

2

Because no reasonable jurist would find my conclusion that Wesley’s grounds for relief fail on their

3

merits debatable or wrong, I decline to issue Wesley a certificate of appealability.

4

Conclusion

5

Accordingly, IT IS HEREBY ORDERED that Wesley’s amended petition for writ of

6

habeas corpus [ECF No. 36] is DENIED; and I decline to issue a certificate of appealability.

7
8

The Clerk of Court is instructed to enter judgment for respondents and against petitioner and
to CLOSE THIS CASE.

9

Dated this 17th day of August 2016.

10

_________________________________
________________ _____
_ __________ __
_____
___ ___
Jennifer A. Dorsey
ennifer A. Dorsey
ni
ni
r
United States District Judge
ed States District Judge
d tat
ic u

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

57

Id.
Page 15 of 15