Ragland v. Williams et al

Filing 62

ORDER that the 6 Petition is DENIED and a certificate of appealability is DENIED. Petitioner's 57 Motion for a Status Ceck is DENIED as moot. The Clerk shall enter judgment and close this case. Signed by Judge Andrew P. Gordon on 8/23/2019. (Copies have been distributed pursuant to the NEF - SLD)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 BRANDON CHRISTOPHER RAGLAND,
4

Case No.: 2:15-cv-02104-APG-EJY

Petitioner
ORDER

5 v.
6 BRIAN WILLIAMS, et al.,
7

Respondents

8
9

This pro se 28 U.S.C. § 2254 habeas petition filed by Brandon Christopher Ragland is

10 before me for final disposition on the merits.
11

I.

12

As set forth in my order on the respondents’ motion to dismiss, on April 30, 2013, a jury

Procedural History and Background

13 convicted Ragland of possession of a firearm by an ex-felon. Exhibit 35.1 The state district
14 court adjudicated Ragland a habitual criminal under the small habitual criminal statute and
15 sentenced him to 60-150 months, with 182 days credit for time served. Exh. 42. The judgment
16 of conviction was filed on November 12, 2013. Id. The Supreme Court of Nevada affirmed
17 Ragland’s conviction on April 10, 2014, and remittitur issued on May 5, 2014. Exhs. 48, 49.
18

On May 12, 2014, Ragland filed a proper person state postconviction habeas corpus

19 petition. Exhs. 50, 54. The state district court denied the petition on September 22, 2014. Exh.
20 56. The Nevada Court of Appeals affirmed the denial of the petition on February 4, 2015.
21
22
23

1

Unless otherwise noted, exhibits referenced in this order are exhibits to respondents’ motion to
dismiss, ECF No. 14, and are found at ECF Nos. 15-22, 24-45, 53.

1 Nevada Court of Appeals Case No. 66646. Remittitur issued on October 14, 2015. Exh. 68. On
2 October 28, 2015, Ragland dispatched his federal habeas petition for filing. ECF No. 6.
3

II. Legal Standards

4

a.

5

The legal standards for my consideration of the petition are set forth in 28 U.S.C.

AEDPA

6 § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA).
7
8

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim ―

9
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

10
11
12
13

The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
14
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions
15
are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002).
16
My ability to grant a writ is limited to cases where “there is no possibility fair-minded jurists
17
could disagree that the state court’s decision conflicts with [Supreme Court] precedents.”
18
Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized “that even
19
a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
20
Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S.
21
170, 181 (2011) (describing the AEDPA standard as “a difficult to meet and highly deferential
22
standard for evaluating state-court rulings, which demands that state-court decisions be given the
23
benefit of the doubt”) (internal quotation marks and citations omitted).
2

1

A state court decision is contrary to clearly established Supreme Court precedent, within

2 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing
3 law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are
4 materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a
5 result different from [the Supreme Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting
6 Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 694.
7

A state court decision is an unreasonable application of clearly established Supreme

8 Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the
9 correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies
10 that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. at 74 (quoting Williams, 529
11 U.S. at 413). The “unreasonable application” clause requires the state court decision to be more
12 than incorrect or erroneous; the state court’s application of clearly established law must be
13 objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
14

To the extent that the state court’s factual findings are challenged, the “unreasonable

15 determination of fact” clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v.
16 Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts “must be
17 particularly deferential” to state court factual determinations. Id. The governing standard is not
18 satisfied by a showing merely that the state court finding was “clearly erroneous.” 393 F.3d at
19 973. Rather, AEDPA requires substantially more deference:
20
21
22

[I]n concluding that a state-court finding is unsupported by substantial
evidence in the state-court record, it is not enough that we would reverse in
similar circumstances if this were an appeal from a district court decision. Rather,
we must be convinced that an appellate panel, applying the normal standards of
appellate review, could not reasonably conclude that the finding is supported by
the record.

23
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
3

1

Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct

2 unless rebutted by clear and convincing evidence. The petitioner bears the burden of proving by
3 a preponderance of the evidence that he is entitled to habeas relief. Cullen, 563 U.S. at 181.
4

b.

5

Six claims of ineffective assistance (IAC) of trial counsel remain in this case. IAC claims

Ineffective Assistance of Counsel

6 are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984).
7 In Strickland, the Supreme Court held that a petitioner claiming IAC has the burden of
8 demonstrating that (1) the attorney made errors so serious that he or she was not functioning as
9 the “counsel” guaranteed by the Sixth Amendment, and (2) that the deficient performance
10 prejudiced the defense. Williams, 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To
11 establish ineffectiveness, the defendant must show that counsel’s representation fell below an
12 objective standard of reasonableness. To establish prejudice, the defendant must show that there
13 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
14 proceeding would have been different. A reasonable probability is “probability sufficient to
15 undermine confidence in the outcome.” Id. Additionally, any review of the attorney’s
16 performance must be “highly deferential” and must adopt counsel’s perspective at the time of the
17 challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at
18 689. It is the petitioner’s burden to overcome the presumption that counsel’s actions might be
19 considered sound trial strategy. Id.
20

IAC under Strickland requires a showing of deficient performance of counsel resulting in

21 prejudice, “with performance being measured against an objective standard of reasonableness, . .
22 . under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal
23 quotations and citations omitted). When the IAC claim is based on a challenge to a guilty plea,

4

1 the Strickland prejudice prong requires a petitioner to demonstrate “that there is a reasonable
2 probability that, but for counsel’s errors, he would not have pleaded guilty and would have
3 insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
4

If the state court has already rejected an IAC claim, a federal habeas court may only grant

5 relief if that decision was contrary to, or an unreasonable application of, the Strickland standard.
6 See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). There is a strong presumption that counsel’s
7 conduct falls within the wide range of reasonable professional assistance. Id.
8

The Supreme Court of the United States has described federal review of a state supreme

9 court’s decision on an IAC claim as “doubly deferential.” Cullen, 563 U.S. at 190 (quoting
10 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). The Supreme Court emphasized that: “We
11 take a ‘highly deferential’ look at counsel’s performance . . . through the ‘deferential lens of
12 § 2254(d).’” Id. at 1403 (internal citations omitted). Moreover, federal habeas review of an IAC
13 claim is limited to the record before the state court that adjudicated the claim on the merits.
14 Cullen, 563 U.S. at 181-84. The Supreme Court has specifically reaffirmed the extensive
15 deference owed to a state court’s decision regarding IAC claims:
16
17
18
19
20

Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” . . . and when the two apply in tandem,
review is “doubly” so . . . . The Strickland standard is a general one, so the range
of reasonable applications is substantial . . . . Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is
whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard.

21 Harrington, 562 U.S. at 105 (citations omitted). “A court considering a claim of ineffective
22 assistance of counsel must apply a ‘strong presumption’ that counsel’s representation was within
23 the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 U.S.

5

1 at 689). “The question is whether an attorney’s representation amounted to incompetence under
2 prevailing professional norms, not whether it deviated from best practices or most common
3 custom.” Id. (internal quotations and citations omitted).
4

As discussed below, Ragland has failed to show that the Supreme Court of Nevada’s

5 decision on any of his IAC claims was contrary to or involved an unreasonable application of
6 Strickland. 28 U.S.C. § 2254(d).
7
8
9

III. State-court Record and Instant Petition
a. Trial Testimony
Several Las Vegas Metropolitan Police Department officers and forensic experts testified

10 on behalf of the State. Exh. 22. Officer Peter Kruse testified that at about 7:30 a.m. he responded
11 to a domestic disturbance call by a woman who called about her boyfriend or ex-boyfriend
12 Ragland. Id. at 5-25. Ragland was no longer at her residence, and the woman gave a description
13 of two vehicles—a black Chevy Tahoe and a blue Mercury Sable—that Ragland might have
14 been driving. Kruse returned to the woman’s apartment at about 10:30 a.m. in response to her
15 calling again to say that she had seen Ragland walking around in the vicinity. Kruse saw a
16 vehicle that matched the description of the Mercury in a church parking lot across from the
17 apartment complex. Kruse ran the plates, and the vehicle was registered to Ragland. Records
18 also indicated that Ragland was an ex-felon. Kruse approached the parked vehicle, which was
19 empty. Through the windshield he saw a black firearm and a cell phone on the floorboard.
20 Because Ragland was an ex-felon, Kruse contacted the firearms sergeant and asked for detectives
21 to respond to the scene so that they could seek a telephonic search warrant on the vehicle.
22

On cross-examination, Kruse stated that he never opened the car door or touched the gun

23 and that he never saw Ragland in the vicinity of the vehicle. Id. at 16-22. On re-cross, defense

6

1 counsel elicited testimony that the report of another responding officer, Detective Maholick,
2 contradicted Kruse because Maholick had stated that they learned about the Mercury not the first
3 time they responded but only after the woman’s second call. Id. at 23-25.
4

Detective Maholick testified that he went to the scene when Kruse called for detectives.

5 Id. at 26-44, 51-63. He reconfirmed that Ragland was an ex-felon and that the vehicle was
6 registered to him. He also saw the firearm through the windshield; another detective took
7 photographs. Maholick obtained a telephonic search warrant, and he removed the firearm from
8 the unlocked vehicle. It was a semi-automatic pistol; it was loaded and had a magazine and
9 ammunition inside the magazine. It also had one round in the chamber and the hammer was in
10 the cocked position. They impounded the pistol and some paperwork in Ragland’s name. The
11 State directed Maholick to open the sealed evidence box and show the pistol and magazine to the
12 jury. Maholick later arrested Ragland, and, pursuant to a search warrant, Maholick obtained a
13 buccal swab saliva sample for DNA analysis.
14

A forensic scientist who was a DNA analyst with Metro testified. Id. at 75-98. She

15 explained that she visually examined the gun, did not see any fluids on it, and then swabbed the
16 gun for “touch DNA” on the trigger, grip and rough areas on the slide. The DNA profile she
17 obtained was consistent with a mixture, which meant more than one individual. The major
18 contributor was Ragland.2
19

A forensic scientist who works with latent prints for Metro also testified. Id. at 99-117.

20 He stated that he identified Ragland’s left thumb print from the magazine.
21 / / / /
22
2

23

The DNA analyst testified that Ragland was a major contributor. She specified that there was a
large amount of DNA and the profile was so rare that she could actually identify that it came
from Ragland. Exh. 22, pp. 83-84
7

1

b. Instant Petition

2

Ground 3(A)

3

Ragland asserts that trial counsel was ineffective for failing to investigate the scene

4 where law enforcement seized the firearm, specifically to ascertain information related to police
5 misconduct and vehicle damage. ECF No. 6, p. 9.
6

The state district court denied this claim in Ragland’s state postconviction petition,

7 finding that he failed to show what an investigation would have revealed or how the findings
8 would have resulted in a different outcome. Exh. 56, p. 4.
9

Affirming, the Nevada Court of Appeals held that Ragland failed to demonstrate

10 counsel’s deficiency or any prejudice:
11

Appellant did not demonstrate that his counsel could have uncovered
favorable evidence through reasonably diligent investigation. See Molina v. State,
87 P.3d 533, 538 (Nev. 2004). In addition, the evidence demonstrating
appellant’s guilt was overwhelming, as appellant’s fingerprint and DNA were
discovered on the firearm and the firearm was found in appellant’s vehicle. Given
the strong evidence of appellant’s guilt, he failed to demonstrate that any evidence
appellant’s counsel could have uncovered would have had a reasonable
probability of producing a different outcome at trial.

12
13
14
15

Exh. 97, p. 3.3 Ragland simply has presented no evidence of police misconduct or vehicle
16
damage by police. He has not demonstrated that the Nevada Court of Appeal’s decision was
17
contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d). Ground
18
3(A), therefore, is denied.
19
Ground 3(B)
20
Ragland argues trial counsel was ineffective for failing to file a pretrial state habeas
21
corpus petition to challenge unethical actions by the State during the grand jury proceedings.
22
23
3

Exh. 97 is found at ECF No. 53-1.
8

1 ECF No. 6, pp. 11-12. Specifically, Ragland alleges that the State improperly presented prior
2 convictions and improper evidence about “touch DNA,” and failed to instruct the grand jury on
3 the element of knowledge. He also argues that his counsel failed to challenge the charge of
4 possession of stolen property.
5

A jury’s subsequent guilty verdict renders an error in the grand jury proceedings

6 harmless. U.S. v. Mechanik, 475 U.S. 66, 70 (1986). The Nevada Court of Appeals rejected
7 Ragland’s claim on appeal of his state postconviction petition, holding:
8

[A]ppellant claimed that his trial counsel was ineffective for failing to
attend the grand jury proceedings, inform appellant of his right to attend the grand
jury proceedings, or argue there was insufficient evidence presented to the grand
jury. Appellant failed to demonstrate that he was prejudiced. Appellant was
ultimately convicted of the charged offense beyond a reasonable doubt, and thus,
could not demonstrate a reasonable probability of a different outcome had he or
counsel attended the grand jury proceedings. See United States v. Mechanik, 475
U.S. 66, 70 (1986) (holding that any error in the grand jury proceedings was
harmless where the defendants were found guilty beyond a reasonable doubt at
trial); Lisle v. State, 114 Nev. 221, 224-25, 954 P.2d 744, 746-47 (1998).

9
10
11
12
13

Appellant also failed to demonstrate a reasonable probability of a different
outcome had counsel argued that there was insufficient evidence presented to the
grand jury. A review of the record reveals that the State presented sufficient
evidence to the grand jury to support a probable cause finding for the charge
against appellant. See, Sheriff, Washoe Cnty. v. Hodes, 96 Nev. 184, 186, 606
P.2d 178, 180 (1980). Therefore, the district court did not err in denying this
claim.

14
15
16
17

Exh. 97, pp. 2-3. Especially in light of the subsequent jury verdict, Ragland has failed to show
18
that the Nevada Court of Appeal’s decision regarding the grand jury claim was contrary to or
19
involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d). Habeas relief is
20
denied as to ground 3(B).
21
////
22
////
23

9

1

Ground 5(A)(1)

2

Ragland contends trial counsel was ineffective for failing to challenge the factual basis of

3 the DNA evidence through “peer review” in order to be able to cross examine the analyst on the
4 methods she used. ECF No. 6, p. 17. The state district court rejected this claim and held that
5 Ragland failed to demonstrate how hiring an independent expert would have resulted in a more
6 favorable outcome, and further found that any objection to exclude the State’s expert testimony
7 based on the unreliability of “touch DNA” would have been futile. Exh. 56, p. 5.
8

Affirming the denial of this claim, the Nevada Court of Appeals stated that Ragland

9 failed to demonstrate that any expert would have testified differently than the State’s expert
10 witnesses who testified at trial. Exh. 97, p. 5. The court reasoned that in light of the
11 “overwhelming evidence” of Ragland’s guilt presented at trial, he failed to demonstrate a
12 reasonable probability of a different outcome if his counsel had hired an independent DNA
13 expert. Id.
14

The Metro DNA analyst’s trial testimony was credible. Moreover, multiple Metro

15 officers testified that Ragland’s girlfriend told them Ragland had recently been in the area, the
16 gun was taken from Ragland’s car pursuant to a search warrant, and Ragland’s thumb print was
17 recovered from the magazine. He has not demonstrated that the Nevada Court of Appeal’s
18 decision was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. §
19 2254(d). Federal ground 5(A)(1) is denied.
20

Ground 5(A)(2)

21

Ragland asserts trial counsel was ineffective for failing to question law enforcement

22 about alleged inconsistencies between the testimony and reports of Officer Kruse and Detective
23

10

1 Maholick. ECF No. 6, p. 17. Concluding that Ragland failed to demonstrate deficiency or
2 prejudice, the Nevada Court of Appeals held:
3
4
5

Counsel cross-examined the officers regarding the discovery of the
firearm in the vehicle and challenged their version of events. Appellant failed to
demonstrate that there was a reasonable probability of a different outcome at trial
had counsel posed further questions to the officers regarding the discovery of the
firearm.

6 Exh. 97, pp. 5-6. The trial transcript reflects a possible inconsistency between Kruse and
7 Maholick regarding whether Ragland’s girlfriend told them that Ragland could be driving a blue
8 Mercury Sable when officers responded to her first or second call. Defense counsel did raise this
9 issue with both officers on the stand. Moreover, any discrepancy is not material, and further
10 questioning on cross examination would not have led to a reasonable probability of a different
11 outcome at trial. As the Nevada Court of Appeals stated, defense counsel thoroughly questioned
12 the officers as to their version of events. Ragland has not demonstrated that the Nevada Court of
13 Appeal’s decision was contrary to or involved an unreasonable application of Strickland. 28
14 U.S.C. § 2254(d). Habeas relief is denied as to ground 5(A)(2).
15

Ground 5(B)(1)

16

Ragland argues trial counsel was ineffective for failing to submit a jury instruction for

17 attempt. ECF No. 6, p. 19. Ragland alleges prejudice because “the State failed to prove the
18 primary element of knowledge by this petitioner of the location and contents” of the vehicle. Id.
19

The state district rejected this claim and found that no evidence was presented at trial that

20 would warrant an instruction for attempt to possess a firearm by an ex-felon and any request by
21 counsel would have been denied. Exh. 56, p. 5. Affirming the denial of this claim, the Nevada
22 Court of Appeals explained:
23

[A]ppellant claimed that his trial counsel was ineffective for failing to
seek instructions regarding a lesser-included offense of attempted felon in
11

1
2
3
4
5
6

possession of a firearm. Appellant failed to demonstrate that his trial counsel’s
performance was deficient or that he was prejudiced. “In Nevada, the statutory
definition of an attempt crime is ‘[a]n act done with intent to commit a crime and
tending but failing to accomplish it.’” Crawford v. State, 811 P.2d 67, 71 (Nev.
1991) (quoting NRS 193.330). “Because an element of the crime of attempt is the
failure to accomplish it, an attempt crime may not be a [lesser] included offense
of the completed crime.” Id. Therefore, appellant was not entitled to a lesserincluded-offense instruction for attempted felon in possession of a firearm.
Appellant failed to demonstrate that there was a reasonable probability of a
different outcome at trial had counsel sought an attempt instruction. Therefore,
the district court did not err in denying this claim.

7 Exh. 97, p. 6. Ragland points to nothing whatsoever to support his contention that a jury
8 instruction for attempt was warranted. He has not shown that the Nevada Court of Appeal’s
9 decision was contrary to or involved an unreasonable application of Strickland. 28 U.S.C. §
10 2254(d). Therefore, ground 5(B)(1) is denied.
11

Ground 5(B)(2)

12

Ragland contends trial counsel was ineffective for failing to present a jury instruction on

13 the defense theory that possession of or contact with the magazine only is not illegal. ECF No. 6,
14 p. 15. Denying this claim, the state district court found that Ragland presented no authority that
15 a jury instruction stating that “contact or possession of only the magazine/cartridge is not
16 described as illegal in any state or federal definition of firearm” is a proper statement of the law.
17 Exh. 56, p. 5.
18

The Nevada Court of Appeals rejected this claim because Ragland’s DNA was obtained

19 from the pistol, and the entire firearm—the pistol and the magazine—was discovered in his
20 vehicle. Exh. 97, p. 7. Ragland has presented nothing to demonstrate that that decision was
21 contrary to or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d). Habeas
22 relief is denied as to ground 5(B)(2).
23

Accordingly, Ragland’s federal petition is denied in its entirety.

12

1

IV.

2

This is a final order adverse to Ragland. As such, Rule 11 of the Rules Governing

Certificate of Appealability

3 Section 2254 Cases requires me to issue or deny a certificate of appealability (COA). I have sua
4 sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28
5 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
6

A COA may issue only when the petitioner “has made a substantial showing of the denial

7 of a constitutional right.” 28 U.S.C. § 2253(c)(2). With respect to claims rejected on the merits,
8 a petitioner “must demonstrate that reasonable jurists would find the district court’s assessment
9 of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
10 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will
11 issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the
12 denial of a constitutional right and (2) whether the court’s procedural ruling was correct. Id.
13

None of my determinations and rulings in this case meets the Slack standard. I therefore

14 decline to issue a certificate of appealability for my resolution of Ragland’s claims.
15

V.

16

IT IS THEREFORE ORDERED that the petition (ECF No. 6) is DENIED.

17

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

18

IT IS FURTHER ORDERED that Ragland’s motion for status check (ECF No. 57) is

Conclusion

19 DENIED as moot.
20

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case.

21

Dated: August 23, 2019.

22
_________________________________
Andrew P. Gordon
United States District Judge

23

13