Martin v. Williams

Filing 27

ORDER denying 7 Petition for Writ of Habeas Corpus and declining a certificate of appealability, Case terminated. Signed by Judge Jennifer A. Dorsey on 11/7/2016. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Orlando Scott Martin,
2:14-cv-01167-JAD-VCF

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Petitioner

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v.

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Brian E. Williams, et al.,

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Order Denying Petition, Denying
Certificate of Appealability, and
Closing Case

Respondents

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Nevada state-prison inmate Orlando Scott Martin brings this § 2254 petition to challenge his

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Nevada state conviction for battery with a deadly weapon and related charges. Having reviewed the

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petition and respondents’ answer, I find that Martin is not entitled to federal habeas relief, so I deny

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his petition, decline to issue a certificate of appealability, and close this case.

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Background

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In January 2011, a jury in Nevada’s Second Judicial District Court convicted Martin of

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battery with a deadly weapon causing substantial bodily harm (one count), battery with a deadly

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weapon (one count), assault with a deadly weapon (five counts), discharging a firearm in a public

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place (one count), being a felon in possession of a firearm (one count), and carrying a concealed

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weapon (one count),1 all stemming from a bar shooting. On appeal, the Nevada Supreme Court

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found that there was insufficient evidence to support one of the five assault counts; it otherwise

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affirmed the conviction.2
Martin then filed his first post-conviction habeas petition in state district court.3 The state

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ECF No. 14-5.

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ECF No. 15-5.

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ECF No. 15-15.

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district court denied the petition;4 the Nevada Supreme Court affirmed.5 Martin filed a second

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habeas petition in the state district court,6 which the court dismissed as untimely and successive

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under NRS § 34.726 and successive under NRS § 34.810,7 and the Nevada Supreme Court affirmed.8

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Martin commenced this action while his second post-conviction petition was still pending in

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the state courts. I dismissed ground seven of Martin’s petition and directed respondents to answer

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the remaining six grounds for ineffective assistance of counsel.9

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Discussion
A.

Standard for habeas relief under 28 U.S.C. § 2254(d)

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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.10 In making this determination, federal courts look to the last reasoned

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state-court decision.11 “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.”12 To the extent no reasoned opinion exists, courts must independently review the record to

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ECF No. 15-24.

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ECF No. 16-9.

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ECF No. 16-7. It appears that Martin filed the second petition while his appeal of the denial of his
first petition was still pending in front of the Nevada Supreme Court.
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ECF No. 16-10.

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ECF No. 16-21.

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ECF No. 6.

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28 U.S.C. § 2254(d).

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

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

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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.13

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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.14 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.”15 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.”16 Martin has not met this burden for any of his remaining claims.

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1. Ground one: failure to investigate, locate, and interview two witnesses.

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In ground one, Martin claims that his trial counsel was ineffective for failing to interview two

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witnesses: Ryan Kempf, a bouncer at the bar where the shooting occurred, and Melanie Dobbs, the

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girlfriend of Martin’s co-defendant Demetrie Wilson.17 Martin argues that counsel should have

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introduced evidence that Kempf was paid by a gang and that he let minors, drugs, and weapons into

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the bar and that Dobbs had evidence of these misdeeds, which counsel failed to elicit.

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

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Id. at 694.

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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).

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Martin and Wilson were to be tried jointly, but Wilson’s attorney was hospitalized shortly before
the trial started, so the trial court severed the trials.
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The Nevada Supreme Court rejected this claim in Martin’s first post-conviction appeal,

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finding that Martin failed to show that his counsel’s performance was deficient or that he was

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prejudiced.18 The Court reasoned that Martin’s counsel sought to impeach Kempf’s character but

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that the district court ruled that other witnesses could not provide specific instances of Kempf’s

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misconduct. Martin’s counsel did ask—and Kempf denied—whether Kempf was paid by a gang or

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allowed minors or contraband into the bar. Despite the district court’s ruling, Dobbs did testify that

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Kempf was known to allow minors, drugs, and guns into the bar and that Kempf was not a “good

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guy.” Therefore, the Court held, Martin failed to demonstrate that his counsel’s performance was

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deficient. Martin also failed to show prejudice because he did not demonstrate that further

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investigation and interviews would have elicited admissible evidence that would have altered the

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outcome at trial—especially in light of the video and other evidence against him.19

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There is a reasonable argument that Martin’s counsel satisfied Strickland and the Nevada

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Supreme Court’s ruling is reasonable, so Martin is not entitled to federal habeas relief on ground

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one.

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2. Ground two: failure to adequately cross-examine

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Martin next claims that counsel was constitutionally ineffective because he did not

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adequately cross examine Kempf about possible death threats. The Nevada Supreme Court also

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denied this claim, finding that Martin failed to show that his counsel’s performance was deficient or

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to show prejudice: Dobbs testified that Kempf had told her that he was receiving death threats, and

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Martin failed to show that asking Kempf himself if he had received death threats would have altered

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the outcome at trial given the video of the incident and the witnesses’ testimony. 20 There is a

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reasonable argument that Martin’s counsel satisfied Strickland and the Nevada Supreme Court’s

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ruling is reasonable, so Martin is not entitled to federal habeas relief on ground one.

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ECF No. 16-9.

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Id. at 3.

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Id. at 4.

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3. Grounds three, four, and five: failure to retain expert witnesses; ground six: cumulative
error

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Martin claims that counsel was ineffective for (1) failing to hire an expert witness to

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determine whether the testimony of the investigators who located shell casings and bullet-impact

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points and determined that three guns were used in the shooting was accurate and (2) failing to hire a

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gunshot-residue expert witness. The Nevada Supreme Court considered these claims together and

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rejected them, finding that Martin failed to show a reasonable probability that the outcome at trial

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would have been different had his counsel retained these experts because the video evidence

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combined with the witness testimony at trial strongly suggested his guilt.21

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There is a reasonable argument that Martin’s counsel satisfied Strickland, and the Nevada

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Supreme Court correctly applied Strickland to these claims. The evidence against Martin was

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strong: multiple witnesses testified that they saw him brandishing and firing a gun, and the security-

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camera recording shows Martin holding a gun. Martin’s co-defendant Demetrie Wilson was also

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shooting into the crowd, and Martin is equally responsible for Wilson’s actions under Nevada

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principles of accomplice liability.22 I agree with the Nevada Supreme Court that Martin fails to

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demonstrate prejudice, so I deny claims three, four, and five. And because Martin has not

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demonstrated that his counsel was ineffective on any of these grounds, the Nevada Supreme Court’s

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determination that Martin failed to show cumulative error is also reasonable, so I deny Martin’s six

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ground for relief for cumulative error.

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Id.

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NEV. REV. STAT. § 195.020.
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C.

I decline to issue a certificate of appealability.

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To obtain a certificate of appealability, a petitioner must make “a substantial showing of a

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denial of a constitutional right”23 by showing that “reasonable jurists would find the district court’s

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assessment of the constitutional claim debatable or wrong.”24 To meet this threshold, the petitioner

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

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issues differently, or that the questions are adequate to deserve encouragement to proceed further.25

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Because no reasonable jurist would find my conclusion that Martin has failed to show that his

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counsel was constitutionally ineffective debatable or wrong, I decline to issue Martin a certificate of

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appealability.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Martin’s petition for a writ of habeas corpus
[ECF No. 7] is DENIED, and I decline to issue a certificate of appealability.

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The Clerk of Court is directed to enter judgment for respondents and against Martin and to
CLOSE this case.

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Dated this 7th day of November, 2016.

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_________________________________
____________________
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__ _________ _
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Jennifer A. Dorsey
nnifer A Dorsey
fe
fe
orse
United States District Judge
nited States District Judge
d ate
ic u

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

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Slack, 529 U.S. at 484.

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Id.

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