Bradford v. Baker

Filing 166

ORDER. IT IS ORDERED that 67 Petitioner's Second Amended Petition for Writ of Habeas Corpus is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly. See Order for details/deadlines. Signed by Judge Richard F. Boulware, II on 7/20/2021. (Copies have been distributed pursuant to the NEF - MR)

Case 2:13-cv-01784-RFB-EJY Document 166 Filed 07/20/21 Page 1 of 20

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JULIUS BRADFORD,

Case No. 2:13-cv-01784-RFB-EJY

Petitioner,

ORDER

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v.
CALVIN JOHNSON, et al.,
Respondents.

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I.

Introduction

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This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

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by Julius Bradford, an individual incarcerated at Nevada’s High Desert State Prison.

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Bradford is represented by appointed counsel. He is serving prison sentences that in their

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aggregate amount to life with the possibility of parole after forty years on convictions in

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Nevada’s Eighth Judicial District Court (Clark County) of murder with use of a deadly

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weapon and attempted robbery with use of a deadly weapon. Bradford’s second amended

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habeas petition is before the Court for adjudication of his claims on their merits. The Court

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held an evidentiary hearing relative to one of Bradford’s claims—Ground 2—and will grant

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Bradford relief on that claim. The Court will deny Bradford’s other claims, without

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prejudice, as moot.

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II.

Background

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The following facts are as described in the Second Amended Petition:

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…. On the morning of June 8, 2003, Benito Zambrano-Lopez was
walking toward a grocery store near his house [in Las Vegas]. He had just
over $100 cash on him and he was wearing a watch. Tyrone Williams, a
sixteen-year old, approached Mr. Zambrano-Lopez and started a fight. Two
of Mr. Williams’ friends, Steven Perry, a seventeen-year old, and Mr.

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Bradford, who had just turned eighteen, were walking nearby. At some
point, they both stepped in to assist Mr. Williams, who was losing the fight.
Soon afterward, Mr. Williams pulled out a gun and shot Mr. ZambranoLopez four times. Mr. Bradford and Mr. Perry ran away immediately after
the first shot was fired, and Mr. Williams followed soon after. None of Mr.
Zambrano-Lopez’s belongings, including the cash or his watch, were taken
from him. Mr. Zambrano-Lopez died the next day, and the state charged
Mr. Bradford with felony murder.
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Only one eyewitness testified at trial. Tracy Jimenez testified that she
was walking down the street with her young daughter when she saw the
three men surround Mr. Zambrano-Lopez, hitting and kicking him. She said
that Mr. Zambrano-Lopez fought back to defend himself. She testified that
Mr. Williams then pulled out a gun and shot Mr. Zambrano-Lopez, while Mr.
Bradford and Mr. Perry immediately fled. At the preliminary hearing, Ms.
Jimenez testified she did not see the men try to take anything from Mr.
Zambrano-Lopez. At trial five years later, she testified that, after Mr.
Bradford had fled, Mr. Williams “pat[ted]” down Mr. Zambrano-Lopez’s
body.
Two other state’s witnesses provided equivocal testimony about
what they heard Mr. Williams and Mr. Perry say about the murder. Neither
testified that Mr. Bradford said anything about it. Chetique Vercher testified
that after the shooting, she was in the same house as Mr. Williams, Mr.
Perry, and Mr. Bradford. She testified that the crime was “supposed to be
robbery,” but did not say that she actually heard anyone say that. She also
testified that she heard Mr. Perry say that Mr. Bradford had told Mr. Williams
to shoot Mr. Zambrano-Lopez. Nelson Rodgers, a friend of Mr. Bradford’s,
testified he was in the house with Ms. Vercher and the others after the
shooting. Mr. Rodgers testified that he heard Mr. Perry and Mr. Williams talk
about a robbery, but that Mr. Bradford was not present during that
discussion.
.... [T]he state presented a recorded conversation between Mr.
Bradford and Ms. Vercher, which took place shortly before Mr. Bradford’s
preliminary hearing. During the call, Mr. Bradford told Ms. Vercher to say
“nothing about the rees-obbery”:
Look, come to court, right come to court, ah just tell them. Cuz,
don’t say nothing about the rees-obbery, cuz. Don’t say
nothing about that, cuz. All right. I am tell you cuz don’t
because that’s what they got me on. That’s why they are trying
to stick me with the hezour.
Ms. Vercher testified that she understood Mr. Bradford was asking her not
to say anything about a robbery. Mr. Bradford testified that he told her not
to say anything about a robbery because there had, in fact, been no robbery,
and the state was trying to make the fight look like one. Mr. Bradford’s
former counsel, Sean Sullivan, also testified at trial about the phone call,
after counsel convinced Mr. Bradford to waive the attorney-client privilege.
Mr. Sullivan testified that, just before Mr. Bradford’s call to Ms. Vercher, he
met with Mr. Bradford and “broke down” the felony murder rule....

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Ashton Parker, a jailhouse snitch who got a deal in exchange for his
testimony, testified about conversations he claimed he had with Mr.
Bradford while they were incarcerated in the same module. He testified that
Mr. Bradford admitted both that the crime was a robbery and that he
directed Mr. Williams to “smoke” Mr. Zambrano-Lopez. Mr. Parker also
testified that Mr. Bradford gave him a map to Ms. Vercher’s house, and
asked him to shoot into Ms. Vercher’s house to intimidate her. The state
admitted a copy of the map, and other evidence established that Mr.
Bradford’s fingerprints were on the map and that it matched his handwriting.
To counter the jailhouse informant’s allegations, the defense focused
on his incentive for lying — a plea deal with the state involving a closed
conviction....
.... Although Mr. Bradford confirmed [in his testimony at trial] that
neither he nor the other two men tried to rob Mr. Zambrano-Lopez, and
testified that he had no idea Mr. Williams intended to shoot Mr. ZambranoLopez, his testimony on collateral issues left the jury with the impression
that Mr. Bradford was the type of man who deserved to go to prison.
.... Trial counsel elicited an admission that Mr. Bradford had drawn
the map and given it to Mr. Parker. While he denied the map actually
directed Mr. Parker to Ms. Vercher’s house, her address was written on it.
Likewise, while Mr. Bradford testified that he was actually giving Mr. Parker
directions to his ex-girlfriend’s house, which was near Ms. Vercher’s, he
also testified that he provided the directions so that Mr. Parker could rob
her....
.... On cross, the state elicited [evidence] that Mr. Bradford was a
gang member who earned his stripes by selling drugs for his gang. The
state also played for the jury a surveillance videotape from a 7-11 from an
unrelated case, which the state argued depicted Mr. Bradford using an ATM
card that he had stolen at gunpoint.
Second Am. Pet. at 2–5, ECF No. 67 (argument and citations to record omitted).

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At Bradford’s first trial in 2004, the jury found him guilty of murder with use of a

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deadly weapon and attempted robbery with use of a deadly weapon. On June 3, 2004,

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the trial court sentenced Bradford to two consecutive life sentences for murder with use

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of a deadly weapon, with parole eligibility after twenty years, and two consecutive

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sentences of six years for the attempted robbery with use of a deadly weapon, with parole

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eligibility after two years, to be served concurrently with the life sentences. See Judgment

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of Conviction, Ex. 54, ECF No. 25-11.

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Bradford appealed, and on April 18, 2006, the Nevada Supreme Court reversed

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and remanded for a new trial, ruling that the trial court gave the jury improper instructions

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regarding accomplice and co-conspirator liability as well as adoptive admissions. See

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Order of Reversal and Remand, Ex. 60, at 2–9, ECF No. 25-17.

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On remand, the trial court initially reappointed Sean Sullivan as Bradford’s counsel.

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However, Sullivan notified the court that he had a conflict of interest because he was a

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potential witness in the retrial, and he was permitted to withdraw. The court then

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appointed another attorney, Mace Yampolsky, to represent Bradford in the retrial. See

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Order Appointing Counsel, Ex. 63, at 2, ECF No. 25-20; Tr. of Proceedings, Ex. 65, at 2–

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15, ECF No. 25-22; Tr. of Proceedings, Ex. 66, at 3–4, ECF No. 25-23; Order Appointing

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Counsel, Ex. 67, at 2, ECF No. 25-24. At a pretrial hearing on July 27, 2007, Bradford

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waived the attorney-client privilege as to the subject of Sullivan’s testimony and Sullivan

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testified; his testimony was video recorded. See Tr. of Trial, Ex. 74, ECF No. 25-31.

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Bradford’s retrial commenced on July 30, 2007. See Tr. of Trial, Exs. 77, 78, 82,

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87, 90, ECF Nos. 26, 26-1, 27, 28, 28-3. Bradford was again found guilty of murder with

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use of a deadly weapon and attempted robbery with use of a deadly weapon. See Tr. of

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Trial, Ex. 90, at 8, ECF No. 28-3; Verdict, Ex. 94, at 2–3, ECF No. 28-7. He was again

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sentenced to two consecutive life sentences for murder with use of a deadly weapon, with

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parole eligibility after twenty years, and two consecutive sentences of six years in prison

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for the attempted robbery with use of a deadly weapon, with parole eligibility after two

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years, to be served concurrently with the life sentences. See Tr. of Sentencing Hr’g, Ex.

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100, at 5, ECF No. 28-13; Am. J. of Conviction, Ex. 102, at 2–4, ECF No. 28-15.

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Bradford appealed from the amended judgment, and the Nevada Supreme Court

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affirmed on June 30, 2009. See Order of Affirmance, Ex. 111, at 2–12, ECF No. 29-4.

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Bradford filed a petition for rehearing and a petition for en banc reconsideration, both of

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which were denied. See Order Den. Rehearing, Ex. 113, at 2, ECF No. 29-6; Order Den.

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En Banc Recons., Ex. 115, at 2, ECF No. 29-8.

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Bradford then filed a Petition for Writ of Habeas Corpus in the state district court.

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See Pet. for Writ of Habeas Corpus (Post Conviction), Ex. 123, ECF No. 29-18. The state

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district court denied that petition on May 13, 2011. See Findings of Fact, Conclusions of
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Law and Order, Ex. 127, at 3–9, ECF No. 29-22. Bradford appealed, and the Nevada

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Supreme Court affirmed on July 23, 2013. See Order of Affirmance, Ex. 154, at 2–6, ECF

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No. 34.

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On May 4, 2012, Bradford filed a second Petition for Writ of Habeas Corpus in the

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state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Ex. 138,

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ECF No. 30-3. The state district court dismissed that petition on July 30, 2012, upon a

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motion by the State, ruling Bradford’s claims to be time-barred and successive. See Order

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Grant’g State’s Resp. and Mot. to Dismiss Def’s Pet. for Writ of Habeas Corpus (Post-

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Conviction), Ex. 141, at 2–3, ECF No. 31-2. Bradford appealed, and the Nevada Supreme

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Court affirmed on October 16, 2014. See Order of Affirmance, Ex. 174, at 2–6, ECF No.

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42-3. Bradford filed a petition for rehearing, which was denied. See Order Den. Reh’g,

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Ex. 186, at 2–3, ECF No. 62-4.

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This Court received Bradford’s federal Petition for Writ of Habeas Corpus initiating

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this action on September 27, 2013. ECF No. 1. On December 3, 2013, the Court

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appointed the Federal Public Defender to represent Bradford. See ECF No. 16. With

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counsel, Bradford filed an amended habeas petition on August 12, 2014. ECF No. 22. On

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March 31, 2015, this action was stayed upon a motion by Bradford pending further

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proceedings in state court. ECF No. 53.

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Bradford filed a third state-court habeas petition on August 29, 2014. See Pet. for

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Writ of Habeas Corpus (Post-Conviction), Ex. 172, ECF No. 42-1. The state district court

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dismissed that petition on March 25, 2015, upon a motion by the State, ruling Bradford’s

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claims to be time-barred. See Findings of Fact, Conclusions of Law and Order, Ex. 189,

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at 2–9, ECF No. 62-7. Bradford appealed, and the Nevada Court of Appeals affirmed on

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July 27, 2016. See Order of Affirmance, Ex. 197, at 2–8, ECF No. 62-15.

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The stay of this action was lifted on January 13, 2017, ECF No. 66, and Bradford

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filed a Second Amended Petition for Writ of Habeas Corpus, ECF No. 67, which is the

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operative petition in this matter. In the second amended petition, Bradford asserts the

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following grounds for relief:
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Ground 1: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective “for presenting inculpatory testimony from Mr.
Bradford’s former attorney, Sean Sullivan, about a privileged conversation
Mr. Sullivan had with Mr. Bradford regarding the felony murder rule.”
Ground 2: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective “for failing to advise Mr. Bradford that he faced
the death penalty if he did not accept the state’s plea bargain offers.”
Ground 3: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective for improperly advising him to testify in his own
defense.
Ground 4: Bradford’s federal constitutional rights were violated because
“[t]he trial court improperly admitted irrelevant and prejudicial evidence that
Mr. Bradford was a member of the Crips gang who sold drugs to benefit his
gang.”
Ground 5: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective “for opening the door to the damaging gang
affiliation evidence during direct examination.”
Ground 6: Bradford’s federal constitutional rights were violated because
“[t]he trial court improperly admitted a videotape purportedly showing
Mr. Bradford using an ATM card he stole at gunpoint.”
Ground 7: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective “for opening the door to damaging videotape
evidence of an unrelated robbery during direct examination.”
Ground 8: Bradford’s federal constitutional rights were violated because
“[t]he trial court failed to provide the jury with a limiting instruction regarding
improperly admitted bad act evidence.”
Ground 9: Bradford’s federal constitutional rights were violated because his
trial counsel was ineffective “for failing to request a limiting instruction once
he opened the door to damaging bad act evidence.”
Ground 10: Bradford’s federal constitutional rights were violated because
“[t]he trial court failed to accurately describe the elements of murder with a
deadly weapon and robbery with a deadly weapon, relieving the prosecution
of its burden to prove every element of the charges beyond a reasonable
doubt.”
Ground 11: Bradford’s federal constitutional rights were violated because
his trial counsel was ineffective “for failing to ensure the jury received the
proper instructions regarding the meaning of ‘use of deadly weapon.’”
Ground 12: Bradford’s federal constitutional rights were violated because
“[t]he trial court failed to properly instruct the jury on adoptive admissions.”
Ground 13: Bradford’s federal constitutional rights were violated because
his trial counsel was ineffective “for failing to request an adequate
instruction on adoptive admissions.”
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Ground 14: Bradford’s federal constitutional rights were violated because
his trial counsel was ineffective “for failing to request and review recordings
of phone calls of a key prosecution witness.”

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Ground 15: Bradford’s federal constitutional rights were violated because
“[t]he prosecution withheld material exculpatory evidence that a state
[witness] received a material benefit in exchange for his testimony.”

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Ground 16: Bradford’s federal constitutional rights were violated because
“[t]here was insufficient evidence to support Mr. Bradford’s murder with a
deadly weapon and [attempted] robbery with a deadly weapon convictions.”

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Ground 17: Bradford’s federal constitutional rights were violated as a result
of the “cumulative effect of the constitutional errors in his case.”

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ECF No. 67 at 14–65.

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On September 11, 2017, the Respondents filed a Motion to Dismiss, ECF No. 73,

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and on November 27, 2017, Bradford filed a Motion for Evidentiary Hearing, ECF No. 77.

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The Court denied both of those motions without prejudice on April 12, 2018, determining

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that the issues raised in the Motion to Dismiss would be better considered in conjunction

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with the merits of Bradford’s claims after Respondents filed an answer and Bradford a

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reply. ECF No. 88.

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The Respondents filed an Answer on March 25, 2019, ECF No. 98, and Bradford

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filed a Reply, ECF No. 116, and a further Motion for Evidentiary Hearing, ECF No. 117,

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on August 7, 2019. The Court granted the Motion for Evidentiary Hearing, with respect to

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Ground 2, on May 27, 2020. ECF No. 124. The evidentiary hearing was held on June 11,

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2021.

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III.

Discussion

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A.

Procedural Default

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In Coleman v. Thompson the Supreme Court held that a state prisoner who fails

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to comply with state-law procedural requirements in presenting his claims is barred by the

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adequate and independent state ground doctrine from obtaining a writ of habeas corpus

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in federal court. Coleman v. Thompson, 501 U.S. 722, 731–32 (1991) (“Just as in those

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cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who

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has failed to meet the State’s procedural requirements for presenting his federal claims
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has deprived the state courts of an opportunity to address those claims in the first

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instance.”). Where such a procedural default constitutes an adequate and independent

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state ground for denial of habeas corpus, the default may be excused only if “a

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constitutional violation has probably resulted in the conviction of one who is actually

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innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting

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from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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In this case, on Bradford’s direct appeal, and on the appeal in his first state habeas

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action, the Nevada Supreme Court generally ruled on his claims on their merits. See

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Order of Affirmance, Ex. 111, ECF No. 29-4; Order of Affirmance, Ex. 154, ECF No. 34.

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On the other hand, on the appeal in Bradford’s second state habeas action, the Nevada

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Supreme Court ruled that Bradford’s petition was procedurally barred under state

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procedural rules:

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Appellant filed his petition on May 4, 2012, more than two years after
this court issued the remittitur from his direct appeal on December 15, 2009.
Bradford v. State, Docket No. 50630 (Order of Affirmance, June 30, 2009).
Thus, appellant’s petition was untimely filed. See NRS 34.726(1). Moreover,
appellant’s petition was successive because he had previously filed a postconviction petition for a writ of habeas corpus [footnote: Bradford v. State,
Docket No. 58529 (Order of Affirmance, July 23, 2013)], and it constituted
an abuse of the writ because he raised claims new and different from those
raised in his previous petition. See NRS 34.810(1)(b)(2); NRS 34.810(2).

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Order of Affirmance, Ex. 174, at 1, ECF No. 42-3. The Nevada Supreme Court went on

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to rule that Bradford did not show cause and prejudice, actual innocence, or any other

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ground to overcome the procedural bars. See id. at 1–4. The Nevada Supreme Court,

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therefore, affirmed the denial of Bradford’s second state habeas petition on state

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procedural grounds. And, similarly, on the appeal in Bradford’s third state habeas action,

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the Nevada Court of Appeals ruled Bradford’s petition to be time-barred and successive

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under state procedural rules:

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Appellant Julius Bradford filed his petition on August 29, 2014, more
than four years after issuance of the remittitur on direct appeal on December
15, 2009. Bradford v. State, Docket No. 50630 (Order of Affirmance, June
30, 2009). Thus, Bradford’s petition was untimely filed. See NRS 34.726(1).
Moreover, Bradford’s petition was successive because he had previously
filed two postconviction petitions for a writ of habeas corpus, and it
constituted an abuse of the writ as he raised claims new and different from
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those raised in his previous petitions. [Footnote: Bradford v. State, Docket
No. 61559 (Order of Affirmance, October 16, 2014); Bradford v. State,
Docket No. 58529 (Order of Affirmance, July 23, 2013).] See NRS
34.810(1)(b)(2); NRS 34.810(2).

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Order of Affirmance, Ex. 197, at 1, ECF No. 62-15. The Nevada Court of Appeals went

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on to rule that Bradford did not show cause and prejudice, actual innocence,

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nondisclosure of information by the State, or any other ground to overcome the procedural

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bars. See id. at 1–7. Therefore, the Nevada Court of Appeals affirmed the denial of

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Bradford’s third state habeas petition on state procedural grounds.

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Consequently, claims asserted by Bradford in his second or third state habeas

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action but not on his direct appeal or in his first state habeas action are subject to denial

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as procedurally defaulted, unless he can overcome the procedural default.

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A petitioner can overcome a procedural default by making a showing of cause and

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prejudice. To demonstrate cause for a procedural default, the petitioner must “show that

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some objective factor external to the defense impeded” his efforts to comply with the state

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procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment

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must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499

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U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden

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of showing not merely that the errors [complained of] constituted a possibility of prejudice,

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but that they worked to his actual and substantial disadvantage, infecting his entire

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[proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603

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(9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

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In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective

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assistance of post-conviction counsel may serve as cause, to overcome the procedural

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default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court

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noted that it had previously held, in Coleman, that “an attorney’s negligence in a

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postconviction proceeding does not establish cause” to excuse a procedural default.

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Martinez, 566 U.S. at 15. The Martinez Court, however, “qualif[ied] Coleman by

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recognizing a narrow exception: inadequate assistance of counsel at initial-review

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collateral proceedings may establish cause for a prisoner’s procedural default of a claim
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of ineffective assistance at trial.” Id. at 9. A showing of cause and prejudice under Martinez

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consists of four elements: (1) the underlying claim must be “substantial;” (2) the “cause”

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for the procedural default consists of there being “no counsel” or only “ineffective” counsel

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in the state postconviction proceeding; (3) the state postconviction proceeding was the

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“initial” collateral review proceeding where the claim could have been brought; and (4)

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state law requires that the claim be raised in an initial collateral review proceeding, or by

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“design and operation” such claims must be raised that way, rather than on direct appeal.

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See Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013). The failure to meet any of these

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four prongs renders the Martinez exception unavailable to excuse a procedural default.

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To show that a claim is “substantial” under Martinez, a petitioner must demonstrate

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that the underlying ineffectiveness claim has “some merit.” See Martinez, 556 U.S. at 14.

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That is, the petitioner must submit at least some evidence tending to show that trial

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counsel performed deficiently, and that the deficient performance harmed the defense.

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See Strickland v. Washington, 466 U.S. 668, 695–96 (1984).

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Bradford argues that he can overcome the procedural default of his claims of
ineffective assistance of trial counsel—including Ground 2—under Martinez.

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B.

Standard of Review of Merits of Claims

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a

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federal court may not grant a petition for a writ of habeas corpus on any claim that was

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adjudicated on the merits in state court unless the state court decision was contrary to,

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or involved an unreasonable application of, clearly established federal law as determined

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by United States Supreme Court precedent, or was based on an unreasonable

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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). A state-court ruling is “contrary to” clearly established federal law if

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it either applies a rule that contradicts governing Supreme Court law or reaches a result

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that differs from the result the Supreme Court reached on “materially indistinguishable”

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facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an

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unreasonable application” of clearly established federal law under section 2254(d) if it
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correctly identifies the governing legal rule but unreasonably applies the rule to the facts

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of the case. See Williams v. Taylor, 529 U.S. 362, 407–08 (2000). To obtain federal

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habeas relief for such an “unreasonable application,” however, a petitioner must show

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that the state court’s application of Supreme Court precedent was “objectively

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unreasonable.” Id. at 409–10; see also Wiggins v. Smith, 539 U.S. 510, 520–21 (2003).

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Or, in other words, habeas relief is warranted, under the “unreasonable application”

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clause of section 2254(d), only if the state court’s ruling was “so lacking in justification

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that there was an error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

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With respect to a claim that the state courts did not address on its merits, the

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federal habeas court reviews such a claim de novo, rather than under the deferential

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AEDPA standard. See, e.g., Cone v. Bell, 556 U.S. 449, 472 (2009); Stanley v. Cullen,

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633 F.3d 852, 860 (9th Cir. 2011) (“When it is clear ... that the state court has not decided

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an issue, we review that question de novo.”).

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C.

Ground 2

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In Ground 2, Bradford claims that his federal constitutional rights were violated

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because his trial counsel was ineffective “for failing to advise Mr. Bradford that he faced

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the death penalty if he did not accept the state’s plea bargain offers.” Second Am. Pet. at

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23–26, ECF No. 67.

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Before the first trial in the Zambrano-Lopez case, the State offered Bradford a plea

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deal whereby Bradford would have pleaded guilty to second-degree murder with use of a

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deadly weapon and conspiracy to commit robbery in this case, the Zambrano-Lopez case,

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and second-degree murder with use of a deadly weapon and conspiracy to commit

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robbery in another case, the Limongello case, and the State would have recommended

25

concurrent prison sentences with parole possible after twenty years. See Tr. of

26

Proceedings, Ex. 49, at 13–15, ECF No. 25-6. Sean Sullivan, the attorney who

27

represented Bradford at his first trial in the Zambrano-Lopez case, advised Bradford to

28

accept the State’s offer, but Bradford declined it. See id.; Second Am. Pet. at 24, ECF
11

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1

No. 67; Decl. of Julius Bradford, Ex. 167, at 1, ECF No. 34-13. Bradford claims, though,

2

that Sullivan did not sufficiently investigate the Limongello case before advising him about

3

the plea offer, and that Sullivan did not advise him that if he declined the offer and was

4

convicted in the Zambrano-Lopez case, the State could seek the death penalty in the

5

Limongello case and could use the conviction in the Zambrano-Lopez case as an

6

aggravating circumstance, and Bradford could be sentenced to death. See Second Am.

7

Pet. at 24–25, ECF No. 67; Decl. of Julius Bradford, Ex. 167, at 1, ECF No. 34-13.

8

Bradford went to trial in the Zambrano-Lopez case and was convicted, and later

9

he was charged with the Limongello murder, was tried in that case, and was convicted of

10

first-degree murder; the conviction in the Zambrano-Lopez case was used as an

11

aggravating circumstance in the Limongello case, and he was sentenced to death. See

12

Judgment of Conviction, Ex. 165, ECF No. 34-11. The Nevada Supreme Court

13

subsequently reversed Bradford’s conviction in the Limongello case and remanded the

14

case for a new trial; Bradford’s retrial has not yet commenced. See Order of Reversal and

15

Remand, Ex. 244, ECF No. 148-43. Bradford represents that the State is seeking the

16

death penalty at the retrial. See Notice of Intent to Seek the Death Penalty, Ex. 223, ECF

17

No. 148-22; Reply at 29, ECF No. 116. Bradford claims that, if he had been advised that

18

there was a possibility that he could be sentenced to death in the Limongello case, he

19

would have accepted the plea agreement offered by the State before the first trial in the

20

Zambrano-Lopez case. See Second Am. Pet. at 26, ECF No. 67; Decl. of Julius Bradford,

21

Ex. 167, ECF No. 34-13.

22

In Strickland, the Supreme Court propounded a two-prong test for analysis of

23

claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the

24

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

25

that the attorney’s deficient performance prejudiced the defendant such that “there is a

26

reasonable probability that, but for counsel’s unprofessional errors, the result of the

27

proceeding would have been different.” Strickland, 466 U.S. at 688, 694. A court

28

considering a claim of ineffective assistance of counsel must apply a “strong presumption”
12

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1

that counsel’s representation was within the “wide range” of reasonable professional

2

assistance. Id. at 689. The petitioner’s burden is to show “that counsel made errors so

3

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

4

the Sixth Amendment.” Id. at 687. To establish prejudice under Strickland, it is not enough

5

for the habeas petitioner “to show that the errors had some conceivable effect on the

6

outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to

7

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

8

The constitutional right to effective assistance of counsel in criminal proceedings

9

extends to the plea-bargaining process. See Missouri v. Frye, 566 U.S. 134, 140–44

10

(2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). The Strickland standard applies. See

11

Lafler, 566 U.S. at 162–63. In the context of plea bargaining, with respect to the

12

performance prong of the Strickland standard, the habeas petitioner must show that his

13

trial counsel did not adequately advise him such that he had “the tools he need[ed] to

14

make an intelligent decision” regarding the plea offer. See Turner v. Calderon, 281 F.3d

15

851, 881 (9th Cir. 2002). With respect to the prejudice prong of the Strickland standard,

16

the petitioner must show “that but for the ineffective advice of counsel there is a

17

reasonable probability that the plea offer would have been presented to the court (i.e.,

18

that the defendant would have accepted the plea and the prosecution would not have

19

withdrawn it in light of intervening circumstances), that the court would have accepted its

20

terms, and that the conviction or sentence, or both, under the offer’s terms would have

21

been less severe than under the judgment and sentence that in fact were imposed.”

22

Lafler, 566 U.S. at 163–64.

23

Bradford raised this claim for the first time in state court in his third state habeas

24

action, see Second Am. Pet. at 23, ECF No. 67, and, as is discussed above, it was ruled

25

procedurally barred in that action. Therefore, this claim is subject to dismissal as

26

procedurally defaulted unless Bradford can show that some exception to the procedural

27

default doctrine applies. Bradford argues that he can show cause and prejudice, such as

28
13

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1

to excuse the procedural default under Martinez, because of ineffective assistance of his

2

counsel in his first state habeas action. See Reply at 10–16, ECF No. 116.

3

The Court held an evidentiary hearing regarding this claim on June 11, 2021. At

4

the evidentiary hearing, Bradford called Sullivan to testify, and Bradford testified himself.

5

Respondents called Giancarlo Pesci to testify; Pesci was one of the prosecutors on the

6

Zambrano-Lopez case when the plea offer was extended to Bradford prior to the first trial

7

in that case.

8

Sullivan confirmed that when he represented Bradford he had not before acted as

9

first-chair defense counsel in a murder trial. Sullivan testified that when the prosecution

10

made the plea offer, seven to ten days before the first trial in the Zambrano-Lopez case,

11

he, Sullivan, was aware of the Limongello case, knew that Bradford was a suspect in that

12

case, and knew the prosecution was threatening to charge Bradford in that case. Sullivan

13

confirmed that the prosecution’s plea offer was to resolve both the Zambrano-Lopez case

14

and the LImongello case, with concurrent sentences and parole possible after twenty

15

years.

16

Before advising Bradford regarding the plea offer, Sullivan did not do any

17

investigation regarding the Limongello case, other than following it in the media and

18

having an investigator sit in on a preliminary hearing. Perhaps most importantly, Sullivan

19

testified that he did not request from the prosecution, or otherwise obtain or view, any

20

court filings in the Limongello case. Sullivan understood that he could have obtained such

21

material and that it was highly relevant to his representation of Bradford but he chose not

22

to obtain and review this crucial information. This information was crucial because at the

23

time, two defendants had been charged in the Limongello case: Aaron Daniels and

24

Natasha Barker. See Tr. of Prelim. Hearing, Ex. 203, ECF No. 148-2; see also Justice

25

Court Records, Ex. 204, ECF No. 148-3. Also at the time, the file in the Limongello case

26

included a notice of the State’s intention to seek the death penalty against Daniels. See

27

Notice of Intent to Seek Death Penalty, Ex. 205, ECF No. 148-4; see also Notice of

28

Evidence in Support of Aggravating Circumstances, Ex. 207, ECF No. 148-6. There was
14

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1

also at the time, in the Limongello case file, material indicating that it was Daniels’ position

2

that Bradford was involved in the Limongello murder, that witnesses would provide

3

evidence that Bradford shot Limongello, and that video evidence showed Bradford using

4

Limongello’s ATM card shortly after his murder. See Motion for Additional Discovery, Ex.

5

208, ECF No. 148-7; Motion to Admit Evid. of Murder Committed by Julius Bradford and

6

Others, Ex. 209, ECF No. 148-8; Transcript of Proceedings, December 30, 2003, Ex. 212,

7

ECF No. 148-11. In short, it is plain from the record that even a cursory look at the court

8

file in the Limongello case, at the time when the State extended the plea offer to Bradford,

9

would have revealed that there was a significant possibility that Bradford would be

10

charged with the Limongello murder, that there was significant evidence against Bradford

11

for this murder and that the death penalty would be sought against him, but Sullivan did

12

not take the simple investigatory step of obtaining and viewing the Limongello case court

13

file before advising Bradford regarding the plea offer.

14

Sullivan admitted that he was, at the time, focused on trying his first murder trial.

15

Sullivan did speak with Bradford a few times about the prosecution’s offer. He admitted,

16

however, that, while he did advise Bradford nominally to accept the prosecution’s offer

17

because of the unpredictability of trial, he emphasized to a greater degree with Bradford

18

his confidence that Bradford would prevail at trial in the Zambrano-Lopez case. He

19

therefore did not review substantively and carefully the details of the prosecution’s offer

20

and the consequences for Bradford if Bradford declined the offer. Significantly, when

21

Sullivan spoke with Bradford about the plea offer he did not discuss with Bradford the

22

possibility that he could face the death penalty in the Limongello case. Given his

23

inexperience at the time, Sullivan himself did not fully appreciate or understand that, if

24

Bradford did not enter the plea deal and was convicted of murder in the Zambrano-Lopez

25

case, that conviction could be used as an aggravating circumstance and the State could

26

seek the death penalty against Bradford in the Limongello case.

27

Bradford took the stand at the evidentiary hearing and testified that before the first

28

trial in the Zambrano-Lopez case, in March of 2004, the prosecution made the plea offer
15

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1

to settle both the Zambrano-Lopez and Limongello cases. Bradford confirmed that the

2

offer was for him to plead guilty to second-degree murder in both cases, and for the State

3

to recommend sentences with parole possible after twenty years. At the time, he had just

4

turned 19 years old, and had a 9th or 10th grade education. Bradford liked Sullivan and

5

trusted him. Sullivan seemed confident about his chances in the Zambrano-Lopez case.

6

Sullivan did not talk to him about the Limongello case at all. Sullivan did not review the

7

possible charges, the evidence, or other consequences in the Limongello case for

8

Bradford if he declined the offer. Rather, Sullivan suggested that Bradford did not have

9

much to worry about with the Limongello case.

10

Sullivan advised Bradford to accept the prosecution’s offer only because he was

11

young and, under the offered plea agreement, he could get out of prison while still young.

12

Sullivan did not, however, tell him what the maximum possible sentences would be if he

13

was convicted of first-degree murder in both the Zambrano-Lopez and Limongello cases.

14

Sullivan did not tell him that he could face the death penalty in the Limongello case.

15

Sullivan did not explain that a murder conviction in the Zambrano-Lopez case could be

16

used as an aggravating factor supporting imposition of the death penalty in the Limongello

17

case. In fact, Sullivan did not mention the death penalty at all in their discussions about

18

the plea offer.

19

Bradford testified credibly that if he had known that, if convicted in the Zambrano-

20

Lopez case, the State could charge him in the Limongello case and seek the death

21

penalty against him, he would have accepted the prosecution’s plea offer without

22

hesitation. The Court finds Bradford’s testimony to be credible.

23

Pesci was the only witness presented by the Respondents; Pesci’s testimony did

24

not contradict the testimony of Bradford or Sullivan regarding the plea offer made to

25

Bradford before the first trial in the Zambrano-Lopez case. Pesci did not recall whether or

26

not Sullivan asked for materials regarding the Limongello case when the plea offer was

27

under consideration, but Pesci testified that if Sullivan had asked, he would have provided

28

him with those materials.
16

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1

Bradford has made a compelling showing—and the Court finds—that Sullivan

2

performed unreasonably as Bradford’s counsel, because he did not sufficiently

3

investigate the Limongello case before advising Bradford regarding the State’s offer of a

4

plea agreement, and because Sullivan did not advise Bradford that the State could seek

5

the death penalty against him in the Limongello case. Sullivan did not understand, and

6

did not advise Bradford, that a conviction in the Zambrano-Lopez case could be used as

7

an aggravating circumstance in support of imposition of the death penalty in the

8

Limongello case. Sullivan did not advise Bradford about the maximum prison sentences

9

in each case, that he could face a death sentence in the Limongello case, and that

10

entering the offered plea agreement could eliminate that possibility.

11

Bradford also made a compelling showing—and the Court finds—that Bradford

12

was prejudiced by Sullivan’s unreasonable performance in that there is a reasonable

13

probability—a near certainty—that had he been advised that the State could seek the

14

death penalty against him in the Limongello case, he would have accepted the State’s

15

offer and pleaded guilty under the resulting plea agreement, the plea agreement would

16

have been presented to the court, and the court would have accepted its terms, resulting

17

in convictions of second-degree murder instead of first-degree murder, resulting in less

18

severe prison sentences, and removing the possibility of the death penalty in the

19

Limongello case. The Court finds that Bradford was unaware of the possibility of a

20

sentence of death in the Limongello case and how his conviction in the Zambrano-Lopez

21

case could make that more likely.

22

Furthermore, the Court finds that Bradford’s counsel in his state post-conviction

23

habeas action was ineffective for not asserting this claim. The plea offer was on the record

24

in this case. See Tr. of Proceedings, Ex. 49, at 13–15, ECF No. 25-6. It was unreasonable

25

for Bradford’s post-conviction counsel not to investigate the circumstances surrounding

26

the plea offer and the advice that Bradford received from Sullivan regarding it. Sullivan

27

testified that Bradford’s post-conviction counsel did not contact him to inquire about the

28

plea offer or any other aspect of the case. The Court finds that Bradford overcomes the
17

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1

procedural default of this claim, under Martinez, allowing this Court to resolve the claim

2

de novo. The Court will grant Bradford habeas corpus relief on Ground 2.

3
4
5
6
7
8
9
10

The writ of habeas corpus is “at its core, an equitable remedy.” Schlup, 513 U.S.
at 319. The Supreme Court has instructed:
The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action.
Its pre-eminent role is recognized by the admonition in the Constitution that:
“The Privilege of the Writ of Habeas Corpus shall not be suspended * * *.”
U.S.Const., Art. I, § 9, cl. 2. The scope and flexibility of the writ—its capacity
to reach all manner of illegal detention—its ability to cut through barriers of
form and procedural mazes—have always been emphasized and jealously
guarded by courts and lawmakers. The very nature of the writ demands that
it be administered with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and corrected.

11

Harris v. Nelson, 394 U.S. 286, 291 (1969). The equitable and flexible nature of habeas

12

corpus relief is reflected in 28 U.S.C. § 2243, which authorizes federal courts to resolve

13

habeas matters “as law and justice require.” See Hilton v. Braunskill, 481 U.S. 770, 775

14

(1987). Federal courts thus have broad authority, in the context of the unique facts and

15

circumstances of each case, to fashion a remedy tailored to the injury suffered from the

16

constitutional violation. See Braunskill, 481 U.S. at 775; Nunes v. Mueller, 350 F.3d 1045,

17

1056–57 (9th Cir. 2003). “[A]ny habeas remedy should put the defendant back in the

18

position he would have been if the Sixth Amendment violation never occurred.” Nunes,

19

350 F.3d at 1057 (quoting United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)).

20

Here, the Court’s intention is to grant Bradford relief that will put him in the position

21

he would be in had his counsel reasonably advised him regarding the plea offer made by

22

the State prior to the first trial in the Zambrano-Lopez case, had he accepted that offer,

23

and had the trial court approved it. This Court finds that, had he not received ineffective

24

assistance of counsel, Bradford would now be convicted, upon guilty pleas, of second-

25

degree murder with use of a deadly weapon and conspiracy to commit robbery in both

26

the Zambrano-Lopez case and the Limongello case, and he would be serving concurrent

27

prison sentences with parole possible after twenty years. Bradford seeks to have the

28

Court issue a writ of habeas corpus “directing the State to reoffer him the global plea
18

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1

deal.” Pet’s Prehearing Brief, ECF No. 150, at 28. The Court determines that the remedy

2

requested by Bradford is appropriate, and that it should be adequate, and the Court will

3

grant such relief. See Lafler, 566 U.S. at 162–75. If this relief proves to be inadequate to

4

put Bradford in the position he would be in had he not received ineffective assistance of

5

counsel, Bradford may make an appropriate motion to modify the judgment.

6

D.

Bradford’s Other Claims

7

The Court determines that granting Bradford relief on Ground 2 renders moot his

8

other claims in Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The Court

9

further determines that addressing those claims at this time is unnecessary and would

10

only delay the grant of habeas relief to Bradford. Therefore, the Court will deny the

11

remainder of Bradford’s claims—the claims in Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

12

13, 14, 15, 16, and 17—without prejudice, as moot.

13

E.

Certificate of Appealability

14

The standard for the issuance of a certificate of appealability requires a

15

“substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The

16

Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

17
18
19
20
21
22
23

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where, as here, the district
court dismisses the petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.

24

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

25

1077–79 (9th Cir. 2000).

26

The Court finds that, with respect to the claims on which the Court denies

27

Bradford relief (without prejudice, as moot), applying the standard articulated in Slack, a

28
19

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1

certificate of appealability is unwarranted. The Court will deny Bradford a certificate of

2

appealability relative to those claims.

3
4

IV.

Conclusion

5

IT IS THEREFORE ORDERED that Petitioner’s Second Amended Petition for Writ

6

of Habeas Corpus (ECF No. 67) is GRANTED IN PART AND DENIED IN PART.

7

Petitioner is granted relief on his claim in Ground 2 of his second amended habeas

8

petition. The Court denies relief, without prejudice, on all other claims in Petitioner’s

9

second amended habeas petition, as those claims are rendered moot by the grant of relief

10

on the claim in Ground 2.

11

IT IS FURTHER ORDERED that Respondents shall, within 7 days from the date

12

of this order, extend to Petitioner the same plea offer that he received before his first trial

13

in the Zambrano-Lopez case and allow Petitioner at least 7 days to either accept or

14

decline that offer.

15
16
17
18

IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability
with respect to all claims on which the Court denies relief.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter
judgment accordingly.

19

IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure

20

25(d), Calvin Johnson is substituted for William Gittere, as the respondent warden. The

21

Clerk of the Court is directed to update the docket to reflect this change.

22
23

DATED: July 20, 2021.

24
25
26

RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

27
28
20