Orth v. Warden et al

Filing 89

ORDER Granting 86 Motion to Strike 85 MOTION to file supplemental argument and Denying 57 Amended Petition for Writ of Habeas Corpus. A certificate of appealability is Denied. The Clerk of Court is directed to SUBSTITUTE Calvin Johnson for Respondent Warden High Desert State Prison, ENTER JUDGMENT accordingly, and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 9/1/2022. (Copies have been distributed pursuant to the NEF - TRW)

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 1 of 42

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
Sean Rodney Orth,

4

Case No. 2:17-cv-02047-JAD-BNW

Petitioner

5
6

v.

7

Calvin Johnson, 1 et al.,

Order Denying Petition for
Habeas Relief, Granting Motion to Strike
Pro Se Motion, and Closing Case
[ECF Nos. 57, 85, 86]

Respondents

8
9

Petitioner Sean Rodney Orth brings this counseled amended habeas corpus petition under

10 28 U.S.C. § 2254 to challenge his 2007 Nevada state-court convictions for robbery with the use
11 of a deadly weapon, conspiracy to commit robbery with the use of a deadly weapon, and eluding
12 a police officer. 2 Orth was sentenced as a habitual criminal to three concurrent terms of life with
13 the possibility of parole after ten years. 3 In his amended petition, Orth alleges that the State
14 suppressed evidence that a witness was an informant for the Federal Drug Enforcement Agency
15 and evidence of a meeting between a witness and law enforcement; his appellate counsel failed
16 to raise a claim of a violation of his right to present a defense and compulsory process of a
17 witness, a claim that the state district court erred in restricting cross-examination, Brady claims,
18 a claim that Nev. Rev. Stat. § 484.348 is unconstitutionally vague, and a claim that the state
19 district court erred in failing to compel disclosure of police department policies; there was
20 insufficient evidence to support his conviction for eluding; and the state district court erred in
21 refusing to allow him to call witnesses to testify. 4 Having evaluated the merits of those claims, I
22
23

1

The state corrections department’s inmate-locator page states that Orth is incarcerated at High
Desert
Prison. Calvin Johnson is the current warden for that facility. At the end of this
24 order, IState
direct the clerk to substitute Calvin Johnson as a respondent for Respondent Warden
25 High Desert State Prison under Federal Rule of Civil Procedure 25(d).
2
26 ECF No. 27-9.
27
28

3

Id.

4

ECF No. 57.
1

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 2 of 42

1 find that habeas relief is not warranted, so I deny Orth’s petition, deny him a certificate of
2 appealability, and close this case.
Background

3
4 A.

The facts underlying Orth’s convictions 5

5

On May 1, 2005, Orth told Shaelynn Lester, an acquaintance who was visiting a friend at

6 the time, that his computer had been stolen and sold to Zach Zafranovich. Orth did not know
7 Zafranovich, so he asked Lester, who knew where Zafranovich resided, to go to Zafranovich’s
8 residence to get the computer back. Lester agreed, and Orth gave Lester money to pay
9 Zafranovich in return for the computer.
10

Lester went to Zafranovich’s residence in Sparks, Nevada, around 10:00 p.m.

11 Zafranovich let Lester into his residence and told Lester that Lonnie White had sold him a
12 computer. Suspicious of the circumstances of Lester’s late visit, Zafranovich exited his
13 residence and observed a red Jeep parked on his street. Zafranovich and Lester, who had briefly
14 stepped outside as well, returned to the inside of the residence. A few seconds later, the front
15 door of the residence was kicked in and three masked men wearing sweatshirts and hats and
16 wielding guns entered the residence. One of the men pointed a gun at Lester and told her to
17 leave. Lester complied. The two other men pointed guns at Zafranovich.
18

Kristy Reynolds, Zafranovich’s girlfriend who had seen Zafranovich speaking to Lester

19 but had returned to a bedroom, ran to the entrance of the residence. Zafranovich fought the men,
20 and while fighting with one of the men, Zafranovich knocked the man’s mask partially off. That
21 man, identified as Orth, grabbed the mask and stuck it in his back pocket. At one point, Orth
22 punched Zafranovich and then grabbed him and threw him backwards into a hot tub.
23 Zafranovich, who had been struck with the butt of a gun on his head, was bleeding badly and had
24 large gashes on his head from the fight.
25
5
These facts are taken from the trial transcripts. ECF Nos. 22-2, 22-3, 23-1, 23-2, 24-1, 24-2,
26 25-1,
25-2, 26-1, 26-2, 27-1. For simplicity’s sake, I cite to these exhibits generally for this
entire
section. I make no credibility findings or other factual findings regarding the truth or
27 falsityfact
of this summary of the evidence from the state court. My summary is merely a backdrop
28 to my consideration of the issues.

2

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 3 of 42

1

At Orth’s direction, Zafranovich and Reynolds took Orth to a bedroom closet where a

2 safe was located. Orth ordered Zafranovich to open the safe. That safe contained, inter alia, a
3 gold ring with diamonds in it, two wedding rings, some marijuana, and a diamond necklace.
4 Orth pulled out the diamond necklace, but Reynolds knocked it out of his hand. Orth then exited
5 the home with the safe and Zafranovich’s and Reynolds’s cellular telephones.
6

Following the robbery, Lester returned to her friend’s residence, and Orth and George

7 Kelly showed up about 10 to 15 minutes later with a tan safe, indicating that “they got him.” A
8 few days later, Orth left Lester a voicemail saying that she “better not have told the police
9 anything.”
10

Zafranovich and Reynolds identified Orth from photographic lineups. And Kerry

11 McKenzie, Orth’s girlfriend at the time, testified that Orth told her that he committed the robbery
12 with George Kelly and Bobby Dortch. McKenzie also found a gold ring in Orth’s belongings,
13 but she flushed it down the toilet.
14

Four days after the robbery, a sergeant with the Reno Police Department observed Orth

15 driving a white Jeep. The sergeant followed Orth, intending to arrest him for the armed robbery,
16 and notified detectives. The sergeant used a police radio to request the assistance of two marked
17 units. At that point, Orth rapidly accelerated away from the sergeant. Orth attempted to evade
18 the sergeant and several other law enforcement officers by crossing a train track when the train
19 crossing arms were down, speeding, making evasive maneuvers, and entering a casino parking
20 garage. Law enforcement eventually abandoned their pursuit for safety reasons and later found
21 Orth’s vehicle abandoned.
22

Law enforcement surveilled Orth and determined that he was staying with McKenzie at

23 the City Center Motel. On May 11, 2005, at 8:30 p.m., law enforcement officers were watching
24 the motel and saw Orth (who had dyed his hair) leave the hotel room and enter McKenzie’s
25 vehicle. Orth pulled out of the motel, and law enforcement officers, who had stopped in the
26 middle of the street with their weapons drawn and their lights activated, ordered Orth to stop the
27 vehicle. Orth drove on the sidewalk and appeared to get stuck between a streetlight and a
28 building. Orth opened the driver’s door and puts his hands up. However, Orth then shut the
3

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 4 of 42

1 door, revved the engine, and broke free of the streetlight and building. Orth continued driving
2 while several law enforcement vehicles chased him. During the pursuit, Orth ran a red light,
3 sped, and drove on the wrong side of the road. After a law enforcement officer shot one of the
4 tires in Orth’s vehicle, Orth hit an electrical box. Orth exited the vehicle and started to run.
5 Officers pursued Orth on foot, eventually catching and arresting him.
6 B.

Procedural history

7

After a jury trial in which Orth represented himself with stand-by counsel, the state

8 district court convicted Orth of robbery with the use of a deadly weapon, conspiracy to commit
9 robbery with the use of a deadly weapon, and eluding a police officer. 6 The state district court
10 sentenced Orth as a habitual criminal to three concurrent terms of life with the possibility of
11 parole after ten years. 7 Orth appealed, and the Nevada Supreme Court affirmed. 8 Orth then filed
12 a state habeas petition, which was denied by the state district court and affirmed on appeal by the
13 Nevada Supreme Court. 9
Orth filed a pro se federal habeas petition and a counseled amended petition. 10 The

14

15 respondents moved to dismiss Orth’s amended petition, and I denied the motion. 11 The
16 respondents answered the amended petition, and Orth replied. 12
17 //
18 //
19 //
20 //
21
22
23
24
25
26
27
28

6

ECF No. 27-9.

7

Id.

8

ECF No. 28-4.

9

ECF Nos. 32-2, 32-8.

10

ECF Nos. 6, 57.

11

ECF Nos. 65, 73.

12

ECF Nos. 83, 84.
4

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 5 of 42

Discussion

1
2 A.

Legal standards

3

1.

4

If a state court has adjudicated a habeas corpus claim on its merits, a federal district court

Review under the Antiterrorism and Effective Death Penalty Act (AEDPA)

5 may only grant habeas relief with respect to that claim if the state court’s adjudication “resulted
6 in a decision that was contrary to, or involved an unreasonable application of, clearly established
7 Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision
8 that was based on an unreasonable determination of the facts in light of the evidence presented in
9 the State court proceeding.” 13 A state court acts contrary to clearly established federal law if it
10 applies a rule contradicting the relevant holdings or reaches a different conclusion on materially
11 indistinguishable facts. 14 And a state court unreasonably applies clearly established federal law
12 if it engages in an objectively unreasonable application of the correct governing legal rule to the
13 facts at hand. 15 Section 2254 does not, however, “require state courts to extend” Supreme Court
14 precedent “to a new context where it should apply” or “license federal courts to treat the failure
15 to do so as error.” 16 The “objectively unreasonable” standard is difficult to satisfy; 17 “even
16 ‘clear error’ will not suffice.” 18
Habeas relief may only be granted if “there is no possibility [that] fairminded jurists

17

18 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” 19
19 As “a condition for obtaining habeas relief,” a petitioner must show that the state-court decision
20

13

28 U.S.C. § 2254(d).

21

14

Price v. Vincent, 538 U.S. 634, 640 (2003).

22

15

White v. Woodall, 134 S. Ct. 1697, 1705–07 (2014).

23

16

Id. at 1705–06 (emphasis in original).

24

17

Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013).

25

18

Wood v. McDonald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (citation omitted); see also
Schriro
Landrigan, 550 U.S. 465, 473 (2007) (“The question . . . is not whether a federal court
26 believesv.the
state court’s determination was incorrect but whether that determination was
unreasonable—a
substantially higher threshold.”).
27
19
Harrington v. Richter, 562 U.S. 86, 102 (2011).
28
5

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 6 of 42

1 “was so lacking in justification that there was an error well understood and comprehended in
2 existing law beyond any possibility of fairminded disagreement.” 20 “[S]o long as ‘fairminded
3 jurists could disagree’ on the correctness of the state court’s decision,” habeas relief under
4 Section 2254(d) is precluded. 21 AEDPA “thus imposes a ‘highly deferential standard for
5 evaluating state-court ruling,’ . . . and ‘demands that state-court decisions be given the benefit of
6 the doubt.’” 22
If a federal district court finds that the state court committed an error under § 2254, the

7

8 district court must then review the claim de novo. 23 The petitioner bears the burden of proving
9 by a preponderance of the evidence that he is entitled to habeas relief, 24 but state-court factual
10 findings are presumed correct unless rebutted by clear and convincing evidence. 25
11

2.

Standard for federal habeas review of an ineffective-assistance claim

12

The right to counsel embodied in the Sixth Amendment provides “the right to the

13 effective assistance of counsel.” 26 Counsel can “deprive a defendant of the right to effective
14 assistance[] simply by failing to render ‘adequate legal assistance[.]’” 27 In Strickland v.
15 Washington, the United States Supreme Court held that an ineffective-assistance claim requires a
16 petitioner to show that: (1) his counsel’s representation fell below an objective standard of
17 reasonableness under prevailing professional norms in light of all of the circumstances of the
18
19

20

Id. at 103.

20

21

Id. at 101.

21

22

Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted).

22

23

25

25

26

26

Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we
may
not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error,
23 we must
decide the habeas petition by considering de novo the constitutional issues raised.”).
24 24 Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
28 U.S.C. § 2254(e)(1).

Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397
U.S.
759, 771 n.14 (1970)).
27
27
Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 335–36 (1980)).
28
6

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 7 of 42

1 particular case; 28 and (2) it is reasonably probable that, but for counsel’s errors, the result of the
2 proceeding would have been different. 29
“A reasonable probability is a probability sufficient to undermine confidence in the

3

4 outcome.” 30 Any review of the attorney’s performance must be “highly deferential” and must
5 adopt counsel’s perspective at the time of the challenged conduct so as to avoid the distorting
6 effects of hindsight. 31 “The question is whether an attorney’s representation amounted to
7 incompetence under prevailing professional norms, not whether it deviated from best practice or
8 most common custom.” 32 The burden is on the petitioner to overcome the presumption that
9 counsel made sound trial-strategy decisions. 33
When the ineffective-assistance-of-counsel claim is based on appellate counsel’s actions,

10

11 a petitioner must show “that [appellate] counsel unreasonably failed to discover nonfrivolous
12 issues and to file a merits brief raising them” and then “that, but for his [appellate] counsel’s
13 unreasonable failure to file a merits brief, [petitioner] would have prevailed on his appeal.” 34
14 “[T]o determine whether appellate counsel’s failure to raise [certain] claims was objectively
15 unreasonable and prejudicial, [the court] must first assess the merits of the underlying claims.” 35
If a state district court previously adjudicated the claim of ineffective assistance of

16

17 counsel under Strickland, establishing that the decision was unreasonable is especially difficult. 36
18 Strickland and § 2254(d) are highly deferential, and when the two apply in tandem, review is
19
20
21
22
23
24
25
26
27
28

28

Strickland, 466 U.S. at 690.

29

Id. at 694.

30

Williams v. Taylor, 529 U.S. 362, 390–91 (2000).

31

Strickland, 466 U.S. at 689.

32

Richter, 562 U.S. at 104.

33

Id.

34

Smith v. Robbins, 528 U.S. 259, 285 (2000).

35

Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010).

36

See Richter, 562 U.S. at 104–05
7

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1 doubly so. 37 “When § 2254(d) applies, the question is not whether counsel’s actions were
2 reasonable [but] . . . whether there is any reasonable argument that counsel satisfied Strickland’s
3 deferential standard.” 38
4 B.

Evaluating Orth’s claims

5

1.

6

In ground 1 of his amended petition, Orth alleges that his rights to due process and a fair

Ground 1—suppression of evidence

7 trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the State suppressed
8 exculpatory and material evidence (1) that Zafranovich was an informant for the Federal Drug
9 Enforcement Agency (“DEA”) and (2) of a May 24, 2005, meeting between Zafranovich and
10 police officers. 39
a.

11

Background information
i.

12

DEA informant

During his trial, which took place in January 2007, Orth cross-examined Zafranovich

13

14 about his previous convictions. 40 Zafranovich testified that he had two convictions for controlled
15 substances. 41 Orth asked Zafranovich if he recalled telling the police that he had worked for the
16 district attorney’s office before. 42 The prosecutor objected, and an unreported sidebar was
17 held. 43 Orth asked Zafranovich if he had any relationships with the district attorney’s office, and
18 Zafranovich responded in the negative. 44 Orth then asked Zafranovich about any relationships
19

37

Id. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal
quotation
marks omitted) (“When a federal court reviews a state court’s Strickland determination
20 under AEDPA,
both AEDPA and Strickland’s deferential standards apply; hence, the Supreme
Court’s
description
of the standard as doubly deferential.”).
21
38
Richter, 562 U.S. at 105.
22
23
24
25
26
27
28

39

Id. at 7–13.

40

ECF No. 23-1 at 87–88.

41

Id. at 88.

42

Id.

43

Id.

44

Id.
8

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1 he had with the police, and Zafranovich responded, “[y]eah, some, yeah.” 45 Orth asked, “what
2 are they,” but the prosecutor objected, resulting in another unreported sidebar. 46 Later during
3 redirect examination, the prosecutor asked Zafranovich if he had “any agreement with [the
4 prosecutor] or any other district attorney to testify in this or any other case,” and Zafranovich
5 responded, “[n]o, no.” 47
At Orth’s state post-conviction evidentiary hearing, Patrol Officer Daniel Larason with

6

7 the Sparks Police Department testified that he had an encounter with Zafranovich on November
8 12, 2006, in which he observed Zafranovich engaging in a possible drug transaction. 48 Officer
9 Larason ended up seizing “somewhere in the neighborhood of four pounds of marijuana” and
10 “approximately a quarter pound of methamphetamine” from Zafranovich. 49 It was Officer
11 Larason’s “understanding” that “Zafranovich ended up working with - - it might have been the
12 DEA task force or someone like that, to turn a bigger deal in order to help himself out with the
13 prosecution.” 50 In addition to this 2006 case, Detective Sergeant Aaron Leary testified that
14 Zafranovich cooperated with law enforcement in January 2003, after he was found in possession
15 of some methamphetamine. 51 In that case, there were no charges filed due to Zafranovich’s
16 cooperation. 52
The prosecutor in Zafranovich’s 2006 case, Megan Rachow, was unavailable at the time

17

18 of Orth’s state post-conviction evidentiary hearing. 53 However, Michael Mahaffey, a Washoe
19
20
21
22
23
24
25
26
27
28

45

Id.

46

Id. at 88–89.

47

ECF No. 23-2 at 32.

48

ECF No. 58-1 at 15–17.

49

Id. at 17, 25.

50

Id. at 27.

51

ECF No. 58-3 at 6, 15–17.

52

Id. at 21.

53

ECF No. 58-2 at 24.
9

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1 County Deputy District Attorney, testified that he covered for Rachow in hearings on April 25,
2 2007, and July 13, 2007. 54 Mahaffey testified that he took notes at those hearings, and one of
3 those notes indicated that Zafranovich was going to testify in a federal case and that “the District
4 Attorney’s Office was going to consider it as being substantial assistance.” 55 Similarly, Cheryl
5 Wilson, a Washoe County Deputy District Attorney, testified that she also covered for Rachow at
6 a preliminary hearing on January 25, 2007. 56 Wilson testified that she took some notes at that
7 hearing that stated that, “[a]s a result of receiving information that [Zafranovich] appeared to be
8 cooperating with law enforcement,” which was confirmed by Zafranovich’s defense attorney, “I
9 agreed to continue the case against [Zafranovich] for a substantial period of time to . . . let him
10 continue to work with and cooperate with law enforcement.” 57 Tammy Riggs, the prosecutor in
11 Orth’s case, testified that she did not offer Zafranovich any deals of leniency and that she was not
12 “aware of any agreement between any police or government agency and Zafranovich at the time
13 of Orth’s trial.” 58
Orth testified at the state post-conviction evidentiary hearing that he and his stand-by trial

14

15 counsel learned that Zafranovich had been arrested prior to Orth’s trial. 59 Orth requested
16 disclosure of the details of Zafranovich’s arrest, and the State filed a motion in limine to preclude
17 him from impeaching Zafranovich with the arrest. 60 A state district court judge “ordered for
18
19
20
21
22
23
24
25
26
27
28

54

Id. at 6, 7.

55

Id. at 8.

56

Id. at 13, 16.

57

Id. at 13, 20–21.

58

Id. at 39–41.

59

ECF No. 58-1 at 119, 122.

60

Id. at 123.
10

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1 [Orth] not to go into [Zafranovich’s] arrest,” and disclosure of the details of the arrest never
2 occurred. 61 Orth later learned that Zafranovich “received a $2,000 fine and no jail time.” 62
Regarding timing, Orth testified that his trial commenced on January 8, 2007. 63 While

3

4 the criminal complaint against Zafranovich in his 2006 case had been filed by the time Orth’s
5 trial started, Zafranovich’s criminal information, amended criminal information, and judgment of
6 conviction were filed after Orth’s trial concluded. 64 Following Orth’s trial but before his
7 sentencing, Orth learned from a man named Francisco Buitrago, who was also housed at the
8 county jail, that “Zafranovich had also set him up to some local agency and he was being
9 indicted in federal court because of Zafranovich’s cooperation.” 65 Buitrago had been indicted
10 prior to Orth’s trial. 66
ii.

11

May 24, 2005, meeting

At Orth’s trial, Detective Michael Brown with the Sparks Police Department testified that

12

13 he met with Zafranovich on May 4, 2005. 67 Detective Brown also testified about a second
14 meeting with Zafranovich in which Zafranovich presented various items “he’d received . . . from
15 an unknown person who he refused to identify.” 68 Detective Brown did not take the items
16 presented to him by Zafranovich at that second meeting because “[t]here’s no way [he] would be
17 able to use it against the defendant, not being able to explain its origin or if it was even the
18 legitimate stolen property from the initial report.” 69
19
20
21
22
23
24
25
26
27
28

61

Id.

62

Id. at 129.

63

Id. at 131.

64

Id.

65

Id. at 132.

66

Id. at 133.

67

ECF No. 24-1 at 3.

68

Id. at 17.

69

Id.
11

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Orth testified at his state post-conviction evidentiary hearing that he first learned of

1

2 Detective Brown’s second meeting with Zafranovich—the May 24, 2005, meeting—during
3 Brown’s testimony at his trial. 70 If he had known about this meeting prior to trial, Orth testified,
4 he “would have asked Mr. Zafranovich about it . . . through [his] cross-examination.” 71
5 However, because Detective Brown testified after Zafranovich and Zafranovich refused to return
6 during Orth’s case-in-chief, Orth was unable to ask Zafranovich about the May 24, 2005,
7 meeting. 72
Similar to his trial testimony, Detective Brown testified at the post-conviction evidentiary

8

9 hearing that he had two meetings with Zafranovich: one on May 4, 2005, and one on May 24,
10 2005. 73 The May 24, 2005, meeting, which was short, was at the request of Zafranovich “[t]o
11 release some property.” 74 Zafranovich offered Detective Brown the property, saying “he got it
12 from the person that he refused to name.” 75 Detective Brown did not take this property into
13 evidence because he did not “deem[ ] it to be worthy of booking into evidence at that time.” 76
b.

14

Standard for a Brady claim

“[T]he suppression by the prosecutor of evidence favorable to an accused upon request

15

16 violates due process where the evidence is material either to guilt or to punishment irrespective
17 of the good faith or bad faith of the prosecution.” 77 “There are three components of a true Brady
18 violation: The evidence at issue must be favorable to the accused, either because it is
19 exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
20
21
22
23
24
25
26
27
28

70

ECF No. 58-1 at 136.

71

Id. at 142.

72

Id.

73

ECF No. 58-1 at 31, 46–47.

74

Id. at 47, 54, 68.

75

Id. at 52.

76

Id.

77

Brady v. Maryland, 373 U.S. 83, 87 (1963).
12

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1 either willfully or inadvertently; and prejudice must have ensued.” 78 The materiality of the
2 evidence that has been suppressed is assessed to determine whether prejudice exists. 79 Evidence
3 is material “if there is a reasonable probability that, had the evidence been disclosed to the
4 defense, the result of the proceeding would have been different.” 80 “The question is not whether
5 the defendant would more likely than not have received a different verdict with the evidence, but
6 whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy
7 of confidence.” 81 Accordingly, “[a] ‘reasonable probability’ of a different result is . . . shown
8 when the government’s evidentiary suppression ‘undermines confidence in the outcome of the
9 trial.’” 82
c.

10

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court held

11

12 that the trial court properly found that there was no Brady violation because the evidence Orth
13 pointed to was not favorable:
14

The record . . . shows that Z.Z. cooperated with law enforcement in an
unrelated proceeding after Orth’s trial concluded and that the cooperation had no
connection with Orth’s prosecution—such that Z.Z.’s cooperation could not have
been disclosed prior to trial and could not have been used to impeach him. . . . [T]his
Brady claim lacks merit, see Mazzan v. Warden, 116 Nev. 48, 66-67, 993 P.2d 25,
36-37 (2000) (applying Brady and explaining that the State must disclose material,
favorable evidence to the defense, including evidence providing grounds to
impeach the State’s witnesses)[.]

15
16
17
18

. . . After considering Detective Brown’s testimony during the
postconviction evidentiary hearing, the district court found that the evidence
regarding the meeting [between Z.Z. and Detective Brown at a Scooper’s
restaurant] was not favorable because it did not impeach any witness and was not

19
20
21
22
23
24
25
26
27
28

78

Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

79

Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006).

80

United States v. Bagley, 473 U.S. 667, 682 (1985).

81

Kyles v. Whitley, 514 U.S. 419, 434 (1995).

82

Id. (quoting Bagley, 473 U.S. at 678).
13

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probative to any material issue. Those findings are entitled to deference. As the
evidence was not favorable, this Brady claim lacks merit. 83

1
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5
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9
10
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13
14
15

Orth argues that the following facts found by the Nevada Supreme Court were
unreasonable: “Z.Z. cooperated with law enforcement in an unrelated proceeding after Orth’s
trial concluded and that the cooperation had no connection with Orth’s prosecution—such that
Z.Z.’s cooperation could not have been disclosed prior to trial and could not have been used to
impeach him.” 84 This factual finding that Zafranovich cooperated with law enforcement after
Orth’s trial concluded was an unreasonable determination of fact. Although the criminal
information, amended criminal information, and judgment of judgment were filed in
Zafranovich’s 2006 case after Orth’s trial concluded, Detective Leary testified that Zafranovich
also cooperated with law enforcement in January 2003, resulting in no charges being filed
against Zafranovich. Orth also testified that he learned from a fellow inmate that Zafranovich
had testified about his cooperation with a law enforcement agency at that fellow inmate’s
indictment before Orth’s trial. Because the Nevada Supreme Court’s decision was based on an
unreasonable determination of the facts, I review this claim de novo. 85
d.

16
17
18
19
20
21
22
23

Analysis

Addressing the first Brady prong, I find that Zafranovich’s cooperation with law
enforcement and second meeting with police were potentially favorable to Orth as impeachment
evidence. Zafranovich’s cooperation with law enforcement in order to lessen his criminal
charges in an unrelated matter could tend to undermine his credibility and reliability. 86
Similarly, Zafranovich’s second meeting with police could also have tended to undermine
83

ECF No. 32-8 at 4.

84

ECF No. 84 at 19.

85
Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (“As a result of [the state court’s] error,
24 ourSee
review of petitioner’s underlying . . . claim is unencumbered by the deference AEDPA
normally requires”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
25 considering
only the evidence before the state court, that . . . the state court’s decision was based
on
an
unreasonable
determination of the facts, we evaluate the claim de novo.”).
26
86
See Banks v. Dretke, 540 U.S. 668, 691 (2004) (“As to the first Brady component (evidence
27 favorable
to the accused), beyond genuine debate, the suppressed evidence relevant here, Farr’s
paid
informant
status, qualifies as evidence advantageous to Banks.”).
28

14

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 15 of 42

1 Zafranovich’s credibility and reliability given the fact that Zafranovich set up the meeting in
2 order to hand over evidence but then refused to tell the officers where the evidence had come
3 from.
Turning to the second Brady prong, I find that Zafranovich’s cooperation with law

4

5 enforcement was suppressed by the prosecution. The prosecution did not provide Orth with any
6 information regarding Zafranovich’s prior cooperation with law enforcement and objected when
7 Orth sought to cross examine Zafranovich about his relationship with law enforcement.
8 However, because Detective Brown, a prosecution witness, testified about Zafranovich’s second
9 meeting with police at Orth’s trial, I do not find that Zafranovich’s second meeting with police
10 was necessarily suppressed. 87 And because evidence of this second meeting was not presented
11 until after Zafranovich testified and because Zafranovich was unavailable when recalled such
12 that he could not be asked about this second meeting, I assess whether prejudice ensured from
13 this late disclosure.
Turning to the final Brady prong, I do not find that the suppression of Zafranovich’s

14

15 cooperation with law enforcement in unrelated matters or Zafranovich’s second meeting with
16 law enforcement prejudiced Orth. Although this evidence may have undermined Zafranovich’s
17 credibility and reliability, Zafranovich’s credibility and reliability were already thoroughly
18 challenged at Orth’s trial. In fact, the state district court noted during the trial that “there’s a
19 number of other things that affect - - seriously affect [Zafranovich’s] credibility, and I think that
20 the jury has had an opportunity to see those.” 88 And importantly, Zafranovich was not especially
21 critical to the prosecution’s case. 89 Zafranovich’s girlfriend, who was also present when the
22

87

25

89

See, e.g., United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988) (“No violation
occurs
if the evidence is disclosed to the defendant at a time when the disclosure remains of
23 value.”).
24 88 ECF No. 27-1 at 20.
See Smith v. Cain, 565 U.S. 73, 76 (2012) (“[O]bserv[ing] that evidence impeaching an
eyewitness
may not be material if the State’s other evidence is strong enough to sustain
26 confidence in
the verdict.”); cf. Banks v. Dretke, 540 U.S. 668, 700–01 (2004) (holding that
impeachment
evidence
material because it pertained to a witness whose testimony, which
27 was “uncorroborated bywas
any other witness,” was “crucial to the prosecution”); cf. Wearry v.
136 S. Ct. 1002, 1006–1007 (2016) (determining that there was a lack of confidence in the
28 Cain,
jury’s verdict due to the suppression of evidence related to two witnesses’ motivations for
15

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 16 of 42

1 robbery occurred, identified Orth following the robbery and testified about Orth’s participation
2 in the robbery. Lester, who had gone to Zafranovich’s residence at Orth’s insistence, testified
3 that Orth returned 10 to 15 minutes after the robbery with a tan safe and said, “they got him.”
4 And McKenzie, Orth’s girlfriend at the time of the robbery, testified that Orth confessed to her
5 that he committed the robbery. Because Zafranovich’s testimony was not critical to the
6 prosecution’s case, confidence in the outcome of Orth’s trial was not undermined by the
7 suppression of Zafranovich’s cooperation with law enforcement and the State’s late disclosure of
8 Zafranovich’s second meeting with law enforcement. 90 Accordingly, it cannot be concluded that
9 “there [was] a reasonable probability that, had the evidence [of Zafranovich’s cooperation with
10 law enforcement and second meeting with law enforcement] been [timely] disclosed to the
11 defense, the result of the proceeding would have been different.” 91 Orth is denied federal habeas
12 relief for ground 1.
13

2.

Ground 2—effective assistance of appellate counsel

14

In ground 2, Orth alleges that his appellate counsel provided ineffective assistance of

15 counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights 92 by failing (a) to raise
16 the claim of a violation of his constitutional right to present a defense and compulsory process,
17 (b) to raise a claim that the state district court erred in restricting cross-examination of
18 Zafranovich in violation of the Confrontation Clause, (c) to raise Brady claims, (d) to raise a
19
20
21
because “the only evidence directly tying [the defendant] to th[e] crime was [one
22 testifying
witness’s] dubious testimony, corroborated by the similarly suspect testimony of [the other
cf. Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (finding suppressed evidence
23 witness]”);
material where tainted witness’s testimony “was the centerpiece of the prosecution’s case” and
all of the other evidence against Hayes was circumstantial”); cf. Silva v. Brown, 416
24 “[n]early
F.3d 980, 987 (2005) (“Impeachment evidence is especially likely to be material when it
25 impugns the testimony of a witness who is critical to the prosecution’s case.”).
90
See Kyles, 514 U.S. at 434.
26
27
28

91

Bagley, 473 U.S. at 682.

92

ECF No. 57 at 13.
16

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 17 of 42

1 claim that Nev. Rev. Stat. § 484.348 was unconstitutionally vague, and (e) to raise a claim that
2 the state district court erred in failing to compel disclosure of Reno Police Department policies. 93
a.

3

Ground 2(a)—right to present a defense and compulsory process

In ground 2(a), Orth alleges that appellate counsel was ineffective for failing to raise a

4

5 claim regarding a violation of his constitutional rights to present a defense and compulsory
6 process of Zafranovich. 94 Orth argues that he was not able to impeach Zafranovich with DNA
7 evidence, with evidence of a second meeting with police officers, and with his untruthful
8 testimony about winning money at a casino. 95 Orth also argues the state district court refused to
9 allow him to compel a police officer to testify and to read statements Zafranovich made to
10 police. 96
i.

11

Background information

On May 4, 2004, Zafranovich was interviewed by the Sparks Police Department

12

13 regarding the robbery. 97 During that interview, Zafranovich told police that he had Orth’s watch
14 and it “[p]robably [has] his blood,” meaning “[s]ome DNA.” 98
Zafranovich testified at Orth’s trial on January 9 and 10, 2007, but he was not asked

15

16 about the watch. 99 During cross-examination, Zafranovich testified that he “told police that one
17 of the motives to th[e] supposed robbery might be money that [he] won at the Atlantis
18
19
20
21
22
23
24
25
26
27
28

93

Id. at 14–29.

94

Id. at 14.

95

Id.

96

Id.

97

ECF No. 29-3 at 1.

98

Id. at 6.

99

ECF Nos. 22-3 at 2; 23-1 at 46; 23-2 at 2.
17

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 18 of 42

1 Casino.” 100 Zafranovich testified that he won approximately $14,000 to $17,000 “around” May
2 1, 2005. 101
Following his testimony, the state district court excused Zafranovich but informed him

3

4 that he was “still under subpoena” and “may be re-called.” 102 Two days later Jeffrey Rolands, a
5 DNA analyst for Washoe County Sheriff’s Office Crime Laboratory, testified that he performed
6 a DNA analysis on the watch that Zafranovich had given to the police. 103 That DNA analysis
7 showed that “Zafranovich [was] consistent with being the source of th[e] DNA profile.” 104
8 Further, “George Kelly and Sean Orth [were] excluded as sources of the mixed DNA profile
9 obtained from the watch swab.” 105
As was discussed in ground 1, following Zafranovich’s testimony, Detective Brown

10

11 testified about a second meeting he had with Zafranovich on May 24, 2005, in which
12 Zafranovich presented various items “he’d received . . . from an unknown person who he refused
13 to identify.” 106 Detective Brown did not take the items presented to him by Zafranovich at that
14 second meeting because “[t]here’s no way [he] would be able to use it against the defendant, not
15 being able to explain its origin or if it was even the legitimate stolen property from the initial
16 report.” 107 As was also discussed in ground 1, Orth did not learn about this second meeting until
17 his trial. Detective Brown also testified that he had a meeting with Zafranovich on May 4, 2005,
18 and at that meeting, Zafranovich gave him a watch. 108
19
20
21
22
23
24
25
26
27
28

100

ECF No. 23-1 at 98.

101

Id. at 98–99.

102

ECF No. 23-2 at 51.

103

ECF No. 26-1 at 95, 96, 106.

104

Id. at 106.

105

Id.

106

ECF No. 24-1 at 17.

107

Id.

108

Id. at 3, 33.
18

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 19 of 42

Orth called Sean Douglas Simpson, the director of security and risk management for the

1

2 Atlantis Casino. 109 Simpson testified that Zafranovich won $1,500 on May 1, 2005, at 2:53
3 a.m. 110
On January 16, 2007, Orth called Zafranovich during his case-in-chief, but, following

4

5 some discussion off the record, it was stated that “Zafranovich had a surgery yesterday” and was
6 not present. 111 The trial court instructed Orth to get “as much information as possible with
7 regard to where he is, what his circumstances are, so the Court can decide what, if anything,
8 needs to be done about his unavailability, if it turns out that he is unavailable.” 112 The district
9 court also asked for (1) “input from both sides from the standpoint of any citation to legal
10 authority, statutory, regulatory, or case law that might deal with an issue where a defense witness
11 has been subpoenaed and, for some reason, cannot appear,” and (2) “an offer of proof from the
12 defense as to what it’s believed the areas of questioning of Mr. Zafranovich would have
13 been.” 113 In preparation for Zafranovich’s potential absence the following day, the state district
14 court noted that it was “still not understanding what remedy [Orth] would be asking for” and
15 instructed Orth to “be thinking about what remedy [he] might request and what the authority for
16 that remedy would be.” 114
The next day—the final day of the trial—the prosecutor informed the trial judge that

17

18 Zafranovich informed a detective that “he [was] in too much pain” to come to court and
19 “understands that he is subject to a warrant for his arrest.” 115 The prosecutor noted that Orth
20 “was informed that the surgery was going to happen” and then argued that Orth’s remedy in this
21
22
23
24
25
26
27
28

109

ECF No. 26-2 at 119.

110

Id. at 119–120.

111

Id. at 92.

112

Id. at 90.

113

Id.

114

Id. at 136.

115

ECF No. 27-1 at 14.
19

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 20 of 42

1 situation, which the prosecutor argued was unnecessary because there was no prejudice, was to
2 “ask for a material witness warrant and a continuance.” 116 In response, Orth simply rebutted the
3 prosecutor’s prejudice argument by noting, inter alia, that he was not able to impeach
4 Zafranovich with the DNA evidence from the watch because Rolands had not yet testified. 117
5 Orth then stated, “I need to confront Mr. Zafranovich. . . . I think that in a case like this where a
6 person changes his story all the time, that it is very relevant for me to be able to look at Mr.
7 Zafranovich in front of the jury and point all the other things that I have found that will just
8 completely make him discredited in front of the jury.” 118
The state district court noted, inter alia, that (1) the Atlantis winnings were not material

9

10 because they occurred the day prior to the robbery, (2) “the testimony of the people from the
11 crime lab . . . impeach[es] what Mr. Zafranovich may have said,” (3) Zafranovich had already
12 been impeached by “a number of other things that . . . seriously affect his credibility,” (4) it is
13 not material to the defense to recall Zafranovich, and (5) “there is a certain risk in not cross14 examining when the opportunity is there.” 119 Orth requested that he be able to “read some points
15 out of Mr. Zafranovich’s recorded statement to police and a few pieces out of the transcripts.” 120
16 The state district court allowed Orth to read portions of Zafranovich’s prior testimony, but it
17 refused to allow Orth to read portions of Zafranovich’s police interview on hearsay grounds. 121
18 Zafranovich asked if he could recall a police officer from Zafranovich’s police interview to ask
19 about Zafranovich’s statements regarding the watch. 122 The state district court indicated that (1)
20 it was “not going to hold this jury up to try to get witnesses here,” (2) if Orth could “get them
21
22
23
24
25
26
27
28

116

Id. at 16.

117

Id. at 19.

118

Id. at 19–20.

119

Id. at 20.

120

Id. at 21.

121

Id. at 25–26.

122

Id. at 26.
20

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 21 of 42

1 here, [he could] go ahead and read the testimony,” (3) “this was a problem that should have been
2 anticipated on the basis of the problem . . . yesterday,” and (4) Orth could argue the
3 inconsistencies in closing argument. 123 Orth responded, “[o]kay,” and the state district court
4 asked Orth if he was “ready for the jury.” 124 Orth responded in the affirmative. 125
After the jury was brought into the courtroom, Orth informed them that Zafranovich was

5

6 again not present and, “instead of continuing this any further, we’ve decided to allow me to read
7 some pieces out of his prior testimony in place of his absence.” 126 Orth then read Zafranovich’s
8 previous testimony, which provided, inter alia, that he had won the money at the Atlantis “[t]he
9 day before” the robbery, “[a]nd then the following night is when it happened.” 127 When asked if
10 Orth had “any other evidence [he] want[ed] to offer,” Orth responded, “we don’t want to delay
11 the proceedings any further. We have no further evidence, Your Honor. We’ll argue it in
12 closing.” 128

At the post-conviction evidentiary hearing, Orth’s appellate counsel testified that

13 “it would have been proper to raise the issue of Mr. Zafranovich’s unavailability to testify or his
14 unwillingness to testify under a compulsory process” claim. 129
ii.

15

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court found

16

17 Orth’s compulsory-process claim and related denial-of-defense claim without merit:
18

Orth argued that appellate counsel should have asserted a compulsory
process violation when Z.Z. did not return to testify when recalled. As Orth crossexamined Z.Z. extensively, had notice of Z.Z.’s scheduled medical procedure that
brought about his unavailability, and did not move to compel Z.Z.’s appearance or

19
20
21
22
23
24
25
26
27
28

123

Id. at 27.

124

Id. at 28.

125

Id.

126

Id. at 29.

127

Id. at 31.

128

Id. at 38.

129

ECF No. 58-1 at 202.
21

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 22 of 42

to obtain a continuance to arrange his appearance, Orth’s compulsory process claim
lacks merit.

1
2

[FN3] The trial court permitted Orth to read into the record Z.Z.’s prior
statements, and Orth only sought to return to matters already addressed in Z.Z.’s
prior testimony.

3
4

See Palmer v. State, 112 Nev. 763, 766, 920 P.2d 112, 113 (1996) (explaining that
defendant’s right to compel production of witnesses is not absolute); Collins v.
State, 88 Nev. 9, 13-14, 492 P.2d 991, 993 (1972) (concluding that trial court did
not abuse its discretion in disallowing recross-examination where defendant had
already thoroughly questioned the witness). As appellate counsel is not required to
raise meritless issues and the omitted issue would not have had a reasonable
probability of success on appeal, we conclude that Orth has not shown that appellate
counsel was ineffective. The district court therefore did not err in denying this
claim. 130

5
6
7
8
9

iii.

10
11
12
13
14
15
16
17
18
19
20

Analysis

The Compulsory Process Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor.” 131 A criminal defendant cannot establish a violation of his compulsory
process right unless he “make[s] some plausible showing” of how the potential witness’s
“testimony would have been both material and favorable to his defense.” 132 So “when
determining whether a violation of a criminal defendant’s right to compulsory process has
occurred, we ask ‘two questions: (1) whether the trial court’s refusal to allow [the defendant] to
call [witnesses in his favor] was an arbitrary denial and (2) whether [those witnesses] . . . could
have presented testimony that would have been relevant and material to the defense.” 133
Evidence is material “only if there is a reasonable likelihood that the testimony could have

21
22
23
24

130

ECF No. 32-8 at 6–7.

25

131

U.S. Const. amend VI.

26

132

United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

27

133

Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 949, 952 (9th Cir. 1998) (emphasis in
original).
28
22

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 23 of 42

1 affected the judgment of the trier of fact.” 134 Evidence that is merely cumulative to the
2 testimony of other available witnesses is not material. 135
Relatedly, the Constitution also “guarantees criminal defendants ‘a meaningful

3

4 opportunity to present a complete defense.’” 136 And “[t]he right to offer the testimony of
5 witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a
6 defense, the right to present the defendant’s version of the facts as well as the prosecution’s to
7 the jury so it may decide where the truth lies.” 137
The Nevada Supreme Court reasonably determined that Orth’s compulsory-process claim

8

9 and related denial-of-defense claim lacked merit because Orth never acted to compel
10 Zafranovich’s or any police officer’s appearances or to obtain a continuance to arrange for those
11 appearances. Indeed, the state district court instructed Orth to explain the remedy he desired
12 following Zafranovich’s lack of appearance, the state district court told Orth that he could read
13 Zafranovich’s police interview statement if he could get the officers there, and the prosecution
14 noted that Orth’s remedy would be to ask for a material-witness warrant and a continuance. But
15 Orth never asked for a material witness warrant for Zafranovich, did not contact any police
16 officers in advance of the final day of trial even though it was anticipated that Zafranovich was
17 not likely to appear on recall, never asked the state district court for the opportunity to contact
18 any police officers on the final day of trial to see if they were available to testify on short notice,
19 and never requested a continuance. Instead, it appears that Orth abandoned seeking the further
20 testimonies of Zafranovich or a police officer. After reading Zafranovich’s prior testimony to
21 the jury, and when asked by the state district court whether he had “any other evidence [he]
22 want[ed] to offer,” Orth said that he did not “want to delay the proceedings any further,” he had
23 “no further evidence” to offer, and he would argue it—meaning the remaining inconsistencies in
24

134

Valenzuela-Bernal, 458 U.S. at 874.

25

135

Id. at 873.

26

136

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479,
485
(1984)).
27
137
Washington v. Texas, 388 U.S. 14, 19 (1967).
28
23

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 24 of 42

1 Zafranovich’s testimony—during closing arguments. Thus, Orth did not take the affirmative
2 steps necessary to invoke his right to compulsory process of Zafranovich or any police officer, 138
3 so there was no refusal by the state district court to allow Orth to call these witnesses.
Further, Orth fails to demonstrate that recalling Zafranovich or a police officer to

4

5 introduce Zafranovich’s police-interview statement would have been material to his defense.
6 Rather, these testimonies would have been cumulative because Zafranovich had already been
7 impeached by the inconsistencies that Orth sought to highlight: (1) Detective Brown testified that
8 Zafranovich had given him a watch at their first meeting but evidence showed that Orth was
9 excluded as the source of DNA on that watch; (2) Detective Brown testified that he met with
10 Zafranovich a second time and, during that meeting, Zafranovich presented various items “from
11 an unknown person who he refused to identify,” and Detective Brown declined to take the items
12 because he could not determine whether the property was even legitimately stolen; and (3)
13 Zafranovich testified that he won approximately $14,000 to $17,000 at the Atlantis Casino on
14 May 1, 2005, but the director of security and risk management for the Atlantis Casino testified
15 that Zafranovich won just $1,500 that day. 139
Accordingly, the Nevada Supreme Court reasonably determined that Orth’s underlying

16

17 compulsory-process and denial-of-defense claims lacked merit. Orth thus fails to demonstrate
18 that he would have prevailed on appeal had his appellate counsel included these same underlying
19 claims in his direct appeal. 140 Because the Nevada Supreme Court’s determination constituted
20
138
See, e.g., Taylor v. Illinois, 484 U.S. 400, 410 (1988) (explaining that the availability of the
21 right
to compulsory process “is dependent entirely on the defendant’s initiative,” which “requires
that
its
effective use be preceded by deliberate planning and affirmative conduct”); Osborne v.
22 Johnston,
120 F.2d 947, 949 (9th Cir. 1941) (concluding that there was “no basis for the
conclusion
that [the appellant] was deprived of his right to [compulsory] process” because
23 “appellant did
not, by his motion or otherwise, request compulsory process for obtaining
witnesses”).
24
139
Orth appears to argue that he would have been able to impeach Zafranovich regarding the
25 timing
of winning the money at the Atlantis Casino. However, the director of security and risk
management
for Atlantis testified that Zafranovich won the money at 2:53 a.m. on May 1, 2005,
26 which is consistent
with Zafranovich’s testimony that he won the money prior to the robbery,
which
took
place
around
10:00 p.m. that day.
27

28

140

Smith, 528 U.S. at 285.
24

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 25 of 42

1 an objectively reasonable applicable of federal law and was not based on an unreasonable
2 determination of the facts, 141 Orth is not entitled to federal habeas relief for ground 2(a).
b.

3

Ground 2(b)—restricting cross-examination

In ground 2(b), Orth alleges that appellate counsel was ineffective for failing to raise a

4

5 claim that the state district court violated the Confrontation Clause by restricting his opportunity
6 to question Zafranovich about his relationships with law enforcement. Orth argues that, had he
7 been given that chance, Zafranovich may have revealed that he was cooperating with law
8 enforcement during the time of the trial. 142
i.

9

Background information

As was discussed in ground 1, Orth asked Zafranovich on cross-examination if he

10

11 recalled telling the police that he had worked for the district attorney’s office before. 143 The
12 prosecutor objected, and an unreported sidebar was held. 144 Orth asked Zafranovich if he had
13 any relationships with the district attorney’s office, and Zafranovich responded in the
14 negative. 145 Orth then asked Zafranovich about any relationships he had with the police, and
15 Zafranovich responded, “[y]eah, some, yeah.” 146 Orth asked, “what are they,” but the prosecutor
16 objected, resulting in another unreported sidebar. 147 Orth moved on in his line of questioning. 148
At Orth’s post-conviction evidentiary hearing, Orth’s appellate counsel testified that she

17

18 did not bring any issue on appeal “regarding any restriction of Mr. Orth’s ability to cross19
20
21
22
23
24
25
26
27
28

141

Strickland, 466 U.S. at 690, 694; Smith, 528 U.S. at 285.

142

Id. at 19.

143

ECF No. 23-1 at 88.

144

Id.

145

Id.

146

Id.

147

Id. at 88–89.

148

Id. at 89.
25

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 26 of 42

1 examine Mr. Zafranovich.” 149 Orth’s appellate counsel testified that “if there was an issue, . . .
2 it’s not clear in the record,” 150 And counsel clarified that, “[i]f there was no . . . record outside
3 the presence of the jury revealing the contents of the sidebar, . . . that [would] affect [her]
4 decision to claim that there was some error at the sidebar” because she needs to support “every
5 claim with references to the record.” 151
ii.

6

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court found

7

8 that Orth did not meet his burden:
9

Orth argued that appellate counsel should have asserted that the district
court erred in restricting Orth’s cross-examination of Z.Z. when it limited Orth’s
inquiry into Z.Z.’s arrest and relationships with police and the district attorney.
While Z.Z.’s prior felony convictions were addressed at trial, his arrest shortly
before trial was not a proper ground of impeachment. See Bushnell v. State, 95 Nev.
570, 572, 599 P.2d 1038, 1039-40 (1979). Orth also did not identify facts that might
have colored Z.Z.’s testimony that he was prevented from eliciting and thus did not
identify an abuse of discretion by the trial court that appellate counsel should have
challenged. See id. at 572, 599 P.3d at 1040. Accordingly, we conclude that Orth
failed to show that appellate counsel was deficient in omitting this claim or that he
suffered prejudice. The district court therefore did not err in denying this claim. 152

10
11
12
13
14
15

Orth argues that the Nevada Supreme Court’s determination that he “did not identify

16

17 facts that might have colored Z.Z.’s testimony that he was prevented from eliciting” was an
153
It appears that the
18 unreasonable determination of fact, so I should review this ground de novo.
19 Nevada Supreme Court’s finding that Orth did not identify specific facts that would have
20 distorted Zafranovich’s testimony is linked to its earlier determination—discussed in ground 1—
21 that Zafranovich only cooperated with law enforcement in an unrelated proceeding after Orth’s
22 trial concluded. I have already found this determination of fact to be unreasonable. So, for the
23
24
25
26
27
28

149

ECF No. 31-1 at 35.

150

Id.

151

Id. at 79.

152

ECF No. 32-8 at 9.

153

ECF No. 84 at 36.
26

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1 reasons discussed in ground 1, I find that the Nevada Supreme Court’s decision on this ground
2 was also based on an unreasonable determination of the facts, and I thus review this ground de
3 novo. 154
iii.

4

Analysis

But a de novo review fails to result in habeas relief for Orth. The Sixth Amendment’s

5

6 Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right . .
7 . to be confronted with the witnesses against him.” 155 “[A] primary interest secured by [the
8 Confrontation Clause] is the right of cross-examination.” 156 While “the Confrontation Clause
9 guarantees an opportunity for effective cross-examination,” it does not guarantee “cross10 examination that is effective in whatever way, and to whatever extent, the defense might
11 wish.” 157 “A criminal defendant states a violation of the Confrontation Clause by showing that
12 he was prohibited from engaging in otherwise appropriate cross-examination designed to show a
13 prototypical form of bias on the part of the witness.” 158
Orth fails to state a violation of the Confrontation Clause because he has not shown that

14

15 he was prohibited from engaging in cross-examination of Zafranovich. Indeed, the record is not
16 clear what was said at the sidebars. This was the basis of Orth’s appellate counsel’s decision not
17 to include a Confrontation Clause claim in Orth’s appeal. This decision was reasonable, so Orth
18
19
20

154

See Panetti, 551 U.S. at 948; Hurles, 752 F.3d at 778.

155

U.S. Const. amend. VI.

156
v. Alabama, 380 U.S. 415, 418 (1965); see also Maryland v. Craig, 497 U.S. 836,
21 845Douglas
(1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the
against a criminal defendant by subjecting it to rigorous testing in the context of an
22 evidence
adversary proceeding before the trier of fact.”); Delaware v. Fensterer, 474 U.S. 15, 22 (1985)
Confrontation Clause is generally satisfied when the defense is given a full and fair
23 (“[T]he
opportunity to probe and expose . . . infirmities through cross-examination, thereby calling to the
of the factfinder the reasons for giving scant weight to the witness’ testimony.”); Davis
24 attention
v. Alaska, 415 U.S. 308, 316 (1974) (“Cross-examination is the principal means by which the
25 believability of a witness and the truth of his testimony are tested.”).
157
v. Van Arsdall, 475 U.S. 673, 679 (1986) (internal quotation marks omitted); see
26 alsoDelaware
Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (“[T]he Confrontation Clause’s functional
27 purpose i[s] ensuring a defendant an opportunity for cross-examination.”).
158
Van Arsdall, 475 U.S. at 680.
28

27

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1 fails to demonstrate that his appellate counsel acted deficiently. 159 Orth is therefore not entitled
2 to federal habeas relief for ground 2(b).
c.

3

Ground 2(c)—Brady

In ground 2(c), Orth alleges that appellate counsel was ineffective for failing to raise two

4

5 Brady claims: (1) the State suppressed evidence that Zafranovich was an informant for the DEA,
6 and (2) the State suppressed evidence of the May 24, 2005, meeting between Zafranovich and
7 police officers. 160
i.

8

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court held:

9
10

Second, Orth argued that appellate counsel should have asserted that the
State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding
impeachment information regarding . . . Z.Z.’s cooperation with law enforcement.
The record . . . shows that Z.Z. cooperated with law enforcement in an unrelated
proceeding after Orth’s trial concluded and that the cooperation had no connection
with Orth’s prosecution—such that Z.Z.’s cooperation could not have been
disclosed prior to trial and could not have been used to impeach him. Because this
Brady claim lacks merit, see Mazzan v. Warden, 116 Nev. 48, 66-67, 993 P.2d 25,
36-37 (2000) (applying Brady and explaining that the State must disclose material,
favorable evidence to the defense, including evidence providing grounds to
impeach the State’s witnesses), we conclude that Orth failed to show that appellate
counsel’s omission of this claim was deficient or that he suffered prejudice. The
district court therefore did not err in denying this claim.

11
12
13
14
15
16
17

Third, Orth argued that appellate counsel should have asserted that the State
violated Brady by withholding evidence of a meeting between Z.Z. and Detective
Brown at a Scooper’s restaurant. After considering Detective Brown’s testimony
during the postconviction evidentiary hearing, the district court found that the
evidence regarding the meeting was not favorable because it did not impeach any
witness and was not probative to any material issue. Those findings are entitled to
deference. As the evidence was not favorable, this Brady claim lacks merit.
Accordingly, we conclude that Orth did not show that appellate counsel’s failure to
raise this meritless claim was deficient or that he suffered prejudice. The district
court therefore did not err in denying this claim. 161

18
19
20
21
22
23
24

159

Strickland, 466 U.S. at 690; Smith, 528 U.S. at 285; see also Dunn v. Reeves, 141 S. Ct. 2405,
2410
(2021) (explaining that the burden of rebutting the presumption that trial counsel acted
25 reasonably
rests on the defendant); Jones v. Barnes, 463 U.S. 745, 753 (1983) (“A brief that
raises
every
colorable issue runs the risk of burying good arguments.”).
26
160
ECF No. 57 at 21, 25.
27
28

161

ECF No. 32-8 at 3–4.
28

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ii.

1

Analysis

For the same reasons addressed in ground 1, I review this ground de novo. And for the

2

3 same reasons addressed in ground 1, I find that Orth’s underlying Brady claims lack merit.
4 Therefore, Orth’s appellate counsel was not deficient for excluding them from Orth’s appeal. 162
5 Orth is denied federal habeas relief for ground 2(c).
d.

6

Ground 2(d)—unconstitutionally vague statute

In ground 2(d), Orth alleges that appellate counsel was ineffective for failing to raise a

7

8 claim that Nev. Rev. Stat. § 484.348 was unconstitutionally vague. because the statute does not
9 define what a “readily identifiable police vehicle” means. 163 As is discussed further in ground 3,
10 at the time of Orth’s trial, Nev. Rev. Stat. § 484.348(1) defined eluding as “willfully fail[ing] or
11 refus[ing] to bring the vehicle to a stop, or . . . flee[ing] or attempt[ing] to elude a peace officer in
12 a readily identifiable vehicle of any police department or regulatory agency, when given a signal
13 to bring the vehicle to a stop.” 164
i.

14

Background information

During his trial, outside the presence of the jury, Orth discussed the vagueness of

15

16 Nevada’s eluding statute. 165 The state district court disagreed with his characterization:
17

The statute, I think - - the statute does not define readily identifiable. And I
think that whether a vehicle is readily identifiable as a police vehicle depends upon
all the facts and circumstances of the situation. And I do not think that the
Legislature intended that only a marked police vehicle could institute a pursuit.

18
19

I think the question is whether or not a reasonable person would have been
able to determine that this was a police vehicle. I think red lights and sirens are a
pretty good indication that it was a police vehicle, and I think that’s sufficient.

20
21

I don’t think there is any other requirement specifically or any other part of
the statute that says red light and siren is not enough to make it readily identifiable.
If the Legislature had intended that, I think they would have said it, and they didn’t.

22
23
24
25
26
27
28

162

Smith, 528 U.S. at 285.

163

ECF No. 57 at 26.

164

Nev. Rev. Stat. § 484.348(1) has been substituted by Nev. Rev. Stat. § 484B.550(1).

165

ECF No. 24-2 at 11.
29

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So I interpret the statute to mean that if the jury decides that this vehicle was
readily identifiable as a police vehicle, then that’s what they decide.

1
2

And I don’t think that the police are restricted to only pursue folks in black
and white marked vehicles, but I think it’s well known the police use plain
undercover vehicles. And the fact that they’re equipped with red lights and siren, I
think - - and those are on, I think that’s sufficient to satisfy the statute.

3
4

. . . I don’t think the statute is ambiguous at all. I think the statute leaves the
issue of what is readily identifiable, because I think you can imagine a number of
scenarios where a vehicle would be readily identifiable as a police vehicle, yet not
be a marked vehicle. 166

5
6
7

Later, after researching the legislative history of the statute, the state district court

8

9 explained:
I see nothing in that legislative history that requires that a vehicle be a
marked vehicle before it’s a readily identifiable vehicle - - a readily identifiable
emergency vehicle.

10
11

I would also note that in the same section the Legislature, the Legislature
dealt with NRS 484.787, which authorizes a number of types of vehicles to operate
as emergency vehicles. And some of those include privately owned vehicles which
are obviously unmarked, and they may be used in the pursuit of actual or suspected
violators of the law.

12
13
14
15

And in order to do that, to be able to be operated as an authorized emergency
vehicle, it must display a flashing red light and sound an automobile siren.

16

It’s the Court’s conclusion that the Legislature enacted these two statutes at
the same time during the same legislative session, that if they had any intent to
require that the vehicle have the kind of marking that is being claimed that is
required, the Legislature would have included that in the statute.

17
18
19

So I feel confident in the interpretation that the readily identifiable vehicle
depends upon all the facts and circumstances of the case, including the demeanor,
the appearance, the uniforms, the equipment, all the other things that the occupants
of that vehicle may have, the facts and circumstances and what the person who
would be observing the vehicle would have reasonably had in his or her mind based
upon all the facts and circumstances, including knowledge that the police may or
may not be interested in that particular person. 167

20
21
22
23

At Orth’s post-conviction evidentiary hearing, his appellate counsel testified that she did

24

25 not raise a claim regarding the vagueness of Nev. Rev. Stat. § 484.348; she “just raised the issue
26
27
28

166

Id. at 12–13.

167

Id. at 153–54.
30

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1 of whether there was sufficient evidence for the charge of eluding.” 168 Orth’s appellate counsel
2 testified that she “probably didn’t think that [the statute] was unconstitutionally vague,” so it was
3 a tactical decision to focus on the sufficiency claim rather than a vagueness claim. 169
ii.

4

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court held

5

6 that the statute is not vague:
7

Fourteenth, Orth argued that appellate counsel should have argued that NRS
484.348 (now codified as NRS 484B.550) was vague because it did not define
“readily identifiable vehicle.” Having considered the two tests for vagueness, see
State v. Castaneda, 126 Nev. 478, 481-82, 245 P.3d 550, 553 (2010), we conclude
that the statute is not vague. Because this challenge lacks merit, Orth failed to show
that appellate counsel was deficient in omitting this claim or that he suffered
prejudice. The district court therefore did not err in denying this claim. 170

8
9
10
11

iii.

12

Analysis

“[T]he Government violates [due process of law] by taking away someone’s life, liberty,

13 or property under a criminal law so vague that it fails to give ordinary people fair notice of the
14 conduct it punishes, or so standardless that it invites arbitrary enforcement.” 171 The Nevada
15 Supreme Court reasonably determined that Nev. Rev. Stat. § 484.348 is not unconstitutionally
16 vague under this standard. 172 So the Nevada Supreme Court reasonably determined that Orth’s
17 underlying claim lacked merit. Due to this determination, Orth fails to demonstrate that he
18
19
20
21
22

168

ECF No. 31-1 at 46.

169

Id. at 47, 51.

170

ECF No. 32-8 at 10.

171
Johnson v. United States, 135 S.Ct. 2551, 2556 (2015); see also Giaccio v. Pennsylvania, 382
23 U.S.
399, 402–03 (1966) (“It is established that a law fails to meet the requirements of the Due
Process
if it is so vague and standardless that it leaves the public uncertain as to the
24 conduct Clause
it prohibits or leaves judges and jurors free to decide, without any legal fixed standards,
25 what is prohibited and what is not in each particular case.”).
172
See ECF No. 32-8 at 10 (citing State v. Castaneda, 245 P.3d 550, 553 (2010) (explaining that
26 “‘[v]agueness
may invalidate a criminal law for either of two independent reasons’: (1) if it ‘fails
to
provide
a
person
of ordinary intelligence fair notice of what is prohibited’; or (2) if it ‘is so
27 standardless that it authorizes
or encourages seriously discriminatory enforcement.’” (internal
citation
omitted))).
28

31

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 32 of 42

1 would have prevailed on appeal had his appellate counsel included this same underlying claim in
2 his direct appeal. 173
Furthermore, Orth’s appellate counsel testified that it was a tactical decision to focus on a

3

4 sufficiency-of-the-evidence claim regarding Orth’s eluding conviction instead of a vagueness
5 challenge to the eluding statute. This strategic decision is “virtually unchallengeable.” 174
Thus, the Nevada Supreme Court’s determination constituted an objectively reasonable

6

7 applicable of Strickland’s performance and prejudice prongs and was not based on an
8 unreasonable determination of the facts. 175 Orth is not entitled to federal habeas relief for ground
9 2(d).
e.

10

Ground 2(e)—disclosure of policies

In ground 2(e), Orth alleges that appellate counsel was ineffective for failing to raise a

11

12 claim that the state district court erred in failing to compel disclosure of Reno Police Department
13 policies. 176 Orth explains that he could have used these policies to show that the officers’
14 testimonies at trial were tailored to conform to the Reno Police Department policies rather than
15 to the actual events that took place when he was pursued by officers in unmarked vehicles. 177
i.

16

Background information

Prior to trial, Orth subpoenaed the Reno Police Department’s policy regarding vehicle

17

18 pursuits. 178 During a pre-trial motions hearing, in an attempt to quash Orth’s subpoena, the
19 prosecution provided the state district court “a copy of the Reno Police Department’s Policy and
20
21

173

22

174

Smith, 528 U.S. at 285.

See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law
and
relevant to plausible options are virtually unchallengeable.”); see also Correll v. Ryan,
23 539 facts
F.3d 938, 948 (9th Cir. 2008) (“[U]nder Strickland, we must defer to trial counsel’s strategic
24 decisions.”).
175
Strickland, 466 U.S. at 690, 694; Smith, 528 U.S. at 285.
25
26
27
28

176

ECF No. 57 at 28.

177

Id.

178

ECF No. 31-1 at 58.
32

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 33 of 42

1 Procedures Manual for the Court’s en camera review.” 179 The state district court granted the
2 prosecution’s motion to quash Orth’s subpoena after “balanc[ing] the interests of the defendant
3 against the need to avoid public knowledge of the preferred method of conducting pursuits.” 180
At Orth’s post-conviction evidentiary hearing, his appellate counsel testified that she did

4

5 not include the quashing of the subpoena for the Reno Police Department’s policy in Orth’s
6 appeal because an objection to the quashing of the subpoena was not renewed at trial, so she
7 “assume[d] that that’s a tactical reason by counsel not to pursue” the issue further. 181 There was
8 testimony at the post-conviction evidentiary hearing that the Reno Police Department’s policy, as
9 applicable here, “outlines how [officers] should conduct themselves in relation to vehicle
10 pursuits.” 182 If officers do not follow the policy, then they “may be subject to an Internal Affairs
11 review to see if [they] acted outside the scope of that general order.” 183
In denying Orth’s state habeas petition, the state district court explained that the written

12

13 policies would only have supported—rather than contradicted—pre-trial testimony that it was the
14 policy of the Reno Police Department to turn over pursuits to marked vehicles, so Orth’s
15 contention that the written policy “would somehow have altered the outcome of the trial[ ] is
16 ridiculous.” 184 Indeed, at Orth’s trial, Officer Reed Thomas testified that he “had briefly
17 checked [his] rearview mirror to see if we had marked units with us, and I wasn’t sure that we
18 had any close enough that could take over the pursuit.” 185
19
20
21
22
23
24
25
26
27
28

179

ECF No. 21-20 at 4.

180

ECF No. 32-2 at 11.

181

ECF No. 31-1 at 58–59.

182

Id. at 116.

183

Id. at 117.

184

ECF No. 32-2 at 11.

185

ECF No. 25-2 at 70.
33

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ii.

1

State court determination

In affirming the denial of Orth’s state habeas petition, the Nevada Supreme Court held

2

3 that this claim lacked merit:
4

Sixteenth, Orth argued that appellate counsel should have argued that the
trial court erred in rejecting his motion to compel disclosure of Reno Police
Department policies on vehicular pursuits. As the balance of interests in this case
weighs heavily against disclosure, see Donrey of Nev., Inc. v. Bradshaw, 106 Nev.
630, 635-36, 798 P.2d 144, 147-48 (1990) (explaining that when a defendant moves
for production of a public record, the court must balance the law enforcement
interest in nondisclosure with the general policy in favor of open access to
government records), we conclude that the underlying claim lacks merit.
Accordingly, Orth did not show that appellate counsel was deficient in omitting this
claim or that he suffered prejudice. The district court did not err in denying this
claim. 186

5
6
7
8
9
10

iii.

11

Analysis

As the Nevada Supreme Court, the final arbiter of Nevada law, reasonably concluded,

12 Nevada law, which requires a balancing of interests, weighed against disclosure of the Reno
13 Police Department policies. So the Nevada Supreme Court reasonably determined that Orth’s
14 underlying claim attacking the lack of disclosure of the policy lacked merit. Due to this
15 determination, Orth fails to demonstrate that he would have prevailed on appeal had his appellate
16 counsel included this same underlying claim in his direct appeal. 187
17
Orth also fails to demonstrate that, even if his underlying claim regarding the lack of
18 disclosure of the policy had merit, he would have prevailed on appeal. The disclosure of the
19 police policy, which would have confirmed that unmarked police vehicles should give way to
20 marked police vehicles during a pursuit, corresponded with Officer Thomas’s trial testimony that
21 he did not give way to marked police vehicles during his pursuit of Orth because he did not see
22 any close enough. Consequently, the policy would not have impeached any testimony.
23 Accordingly, the Nevada Supreme Court’s determination constituted an objectively reasonable
24
25
26
27
28

186

ECF No. 32-8 at 10–11.

187

Smith, 528 U.S. at 285.
34

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1 applicable of Strickland’s prejudice prong and was not based on an unreasonable determination
2 of the facts. 188 Orth is not entitled to federal habeas relief for ground 2(e).
3

3.

Ground 3—sufficiency of the evidence

4

In ground 3, Orth alleges that the State failed to present sufficient evidence for felony

5 eluding, violating his Fifth and Fourteenth Amendment rights. 189 He bases this theory on the
6 absence of marked police vehicles in the area when the order to arrest him was made, and he
7 argues that he did not know that the unmarked vehicles were police vehicles. 190
Orth asserts that this ground should be reviewed de novo because the Nevada Supreme

8

9 Court did not specifically address it. 191 But the United States Supreme Court held in Harrington
10 v. Richter that, “[w]hen a federal claim has been presented to a state court and the state court has
11 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
12 absence of any indication or state-law procedural principles to the contrary.” 192 This is precisely
13 what happened here. The Nevada Supreme Court indicated that it had “also considered Orth’s
14 remaining arguments” and “conclude[d] that Orth’s arguments on appeal lack merit.” 193 So I
15 presume under Richter that the Nevada Supreme Court adjudicated Orth’s instant claim on the
16 merits. And because Orth fails to adequately rebut that presumption, de novo review is not
17 appropriate. Instead I “determine what arguments or theories supported or . . . could have
18 supported, the state court’s decision.” 194
19
20
21
22
23

188

Strickland, 466 U.S. at 694; Smith, 528 U.S. at 285.

189

ECF No. 57 at 29.

190

Id.

191

ECF No. 84 at 44.

192
Richter, 562 U.S. at 99 (emphasis added)); see also Johnson v. Williams, 568 U.S. 289,
24 293See
(2013) (“[W]hen a state court issues an order that summarily rejects without discussion all
claims raised by a defendant, including a federal claim that the defendant subsequently
25 the
presses in a federal habeas proceeding, the federal habeas court must presume (subject to
26 rebuttal) that the federal claim was adjudicated on the merits.” (emphasis in original)).

27
28

193

ECF No. 28-4 at 18–19.

194

Richter, 562 U.S. at 102; Carter v. Davis, 946 F.3d 489, 502 (9th Cir. 2019).
35

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 36 of 42

a.

1

Legal standard

“[T]he Due Process Clause protects the accused against conviction except upon proof

2

3 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
4 charged.” 195 A federal habeas petitioner “faces a heavy burden when challenging the sufficiency
5 of the evidence used to obtain a state conviction on federal due process grounds.” 196 On direct
6 review of a sufficiency-of-the-evidence claim, a state court must determine whether “any rational
7 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 197
8 The evidence is to be viewed “in the light most favorable to the prosecution.” 198 Federal habeas
9 relief is available only if the state-court determination that the evidence was sufficient to support
10 a conviction was an “objectively unreasonable” application of the law. 199
b.

11

State law

Sufficiency of the evidence claims are judged by the elements defined by state law. 200

12

13 Nevada law defines eluding as “willfully fail[ing] or refus[ing] to bring the vehicle to a stop, or .
14 . . flee[ing] or attempt[ing] to elude a peace officer in a readily identifiable vehicle of any police
15 department or regulatory agency, when given a signal to bring the vehicle to a stop.” 201 Eluding
16 becomes a felony if the driver “[i]s the proximate cause of damage to the property of any other
17 person” or “[o]perates the motor vehicle in a manner which endangers or is likely to endanger
18 any other person or the property of any other person.” 202
19
20
21
22
23
24
25
26
27
28

195

In re Winship, 397 U.S. 358, 364 (1970).

196

Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

197

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

198

Id.

199

See Juan H., 408 F.3d at 1275 n.13.

200

Jackson, 443 U.S. at 324 n.16.

201

Nev. Rev. Stat. § 484.348(1).

202

Nev. Rev. Stat. § 484.348(3).
36

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c.

1

Background information

Detective Ken Harmon with the Reno Police Department testified that, on May 11, 2005,

2

3 at approximately 8:00 p.m., police were surveilling the City Center Motel on West Street. 203
4 Detectives Harmon and Lever observed Orth come down the motel stairs, so they “dr[o]ve down
5 the alley and then pull[ed] into the West Street” with “visor lights on, red and blue.” 204 The
6 detectives parked their vehicle on West Street “kind of blocking the south of the driveway” and
7 exited their vehicle, both wearing their “police raid vests,” and Detective Harmon wearing a hat
8 that said “police.” 205 Orth drove his vehicle out of the motel parking lot onto a sidewalk and got
9 “wedged between the light standard and the building of the City Center Motel itself.” 206 The
10 detectives had their “weapons drawn and were ordering Mr. Orth to stop the car.” 207 Detective
11 Harmon testified that he made eye contact with Orth and it was his impression that Orth saw
12 him. 208 Orth opened the vehicle’s door, turned, and looked at the detectives with his hands up. 209
13 Orth then shut the vehicle door, scraped by the light pole until he broke free, and continued
14 driving on the sidewalk. 210 Other police units pursued Orth with lights and sirens through
15 several downtown streets. 211 Orth eventually crashed into an electric box, exited his vehicle, and
16 started to run. 212
17
18
19
20
21
22
23
24
25
26
27
28

203

Id. at 148–49.

204

Id. at 150.

205

Id. at 150–151.

206

Id. at 151.

207

Id.

208

ECF No. 25-1 at 3.

209

Id. at 5.

210

Id. at 6.

211

Id. at 86–87; see also ECF No. 25-2 at 43–46.

212

ECF No. 25-2 at 54.
37

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d.

1

Analysis

Orth argues that there were no marked police vehicles in the area when the order to arrest

2

3 him was made. While this may have been true, his follow-up argument that he did not know that
4 the unmarked vehicles contained police officers is belied by the record. Detectives Harmon and
5 Lever had their red and blue visor lights activated at the time Orth exited the motel. And when
6 Orth got stuck between the light pole and the building, the detectives, who had exited their
7 vehicle, were wearing police vests, had their weapons drawn, and were ordering Orth to stop his
8 vehicle. Orth made eye contact with the detectives and put his hands up as if to surrender before
9 driving away at a high rate of speed. At that point, other police units pursued Orth with their
10 lights and sirens activated. Viewing this evidence “in the light most favorable to the
11 prosecution,” 213 any rational trier of fact could have found that the police vehicles were “readily
12 identifiable vehicle[s] of a[ ] police department” 214 such that there was sufficient evidence
13 supporting Orth’s eluding conviction. So the Nevada Supreme Court’s denial of relief
14 constitutes an objectively reasonable application of clearly established federal law and was not
15 based on an unreasonable determination of the facts. 215 Orth is not entitled to federal habeas
16 relief for ground 3.
17

4.

Ground 4—Confrontation Clause

18

In ground 4, Orth alleges that his Sixth Amendment right under the Confrontation Clause

19 was violated when the trial court refused to allow him to call witnesses to testify. 216 Related to
20 ground 2(a), Orth argues that he was denied the right to confront Zafranovich by recalling him to
21 impeach him with (1) DNA evidence, (2) evidence of a second meeting with police officers, and
22 (3) his untruthful testimony about winning money at a casino. 217
23
24
25
26
27
28

213

Jackson, 443 U.S. at 319.

214

Nev. Rev. Stat. § 484.348(1).

215

In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274; Nev. Rev. Stat. § 484.348(1).

216

ECF No. 57 at 30.

217

Id. at 31.
38

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a.

1

State court determination

In affirming Orth’s judgment of conviction, the Nevada Supreme Court held that Orth’s

2

3 confrontation right was satisfied by his extensive in-court cross examination of Zafranovich:
4

Orth argues that he should have been able to cross-examine Zafranovich
after his accident. In this, Orth claims that he was prejudiced by his inability to
question Zafranovich about the fact that the watch Zafranovich claims was stolen
did not actually have Orth’s DNA on it, and a recent trip that Zafranovich made to
the Atlantis Casino. Orth claims that he had a constitutional right to have
Zafranovich testify because Zafranovich was still under subpoena and Orth had
discovered new evidence during trial. Orth further maintains that the evidence
about which he wanted to examine Zafranovich would have proven that
Zafranovich lied about Orth beating him and that Zafranovich never won money at
the Atlantis Casino. As a result, Orth asserts that he was deprived of his Sixth
Amendment right to confront Zafranovich about the events in question and about
an alleged motive for the robbery.

5
6
7
8
9
10

The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”

11
12

[FN30] U.S. Const. amend. VI.

13
15

The Confrontation Clause generally guarantees a defendant a face-to-face
confrontation with witnesses testifying against him at trial and “ensures the
reliability of the evidence by allowing the trier of fact to observe the demeanor,
nervousness, expressions, and other body language of the witness.”

16

[FN31] United States v. Hamilton, 107 F.3d 499, 503 (7th Cir. 1997).

17

We conclude Orth’s contention that he was denied his Confrontation Clause
rights lacks merit. Orth was permitted to confront Zafranovich face-to-face in court
by way of extensive cross-examination. We accordingly conclude that Orth’s basic
Confrontation Clause rights were satisfied. In addition, we conclude that Orth’s
claims that he should have been able to recall Zafranovich lack merit because (1)
Orth previously asked witnesses about the watch and the trip to the Atlantis Casino,
(2) testimony about the watch and Atlantis Casino winnings were not material to
Orth’s defense, and (3) the district court permitted Orth to read Zafranovich’s
testimony into evidence in order to impeach him. 218

14

18
19
20
21
22

b.

23

Analysis

“The Sixth Amendment guarantees a defendant the right ‘to be confronted with the

24

219
As the Nevada Supreme Court reasonably determined, Orth was able
25 witnesses against him.’”

26
27
28

218

ECF No. 28-4 at 15–16.

219

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 (2009) (emphasis in original).
39

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 40 of 42

1 to confront Zafranovich by way of extensive cross-examination. 220 Orth argues that this cross2 examination was insufficient to confront Zafranovich because he was not able to recall
3 Zafranovich during his case-in-chief. The Nevada Supreme Court rejected this argument.
It is not clear that such a situation implicates the Confrontation Clause. “The main and

4

5 essential purpose of confrontation is to secure for the opponent the opportunity of cross6 examination.” 221 Here, Orth would not have been the opponent and would not have been cross
7 examining Zafranovich; rather, he would have been presenting Zafranovich’s testimony during
8 his case-in-chief and asking questions on direct examination. Additionally, Zafranovich would
9 not necessarily been a witness against Orth at that point in the trial, rather than one in his favor.
10 And while the text of the Sixth Amendment provides that witness against the defendant must be
11 produced by the prosecution, it only provides that “the defendant may call” witnesses in his
12 favor. 222 Finally, to the extent that recalling Zafranovich could be considered further cross13 examination, it cannot be concluded that the additional questioning of Zafranovich—about the
14 watch, the second meeting with law enforcement, and the casino winnings—would have
15 materially enhanced the effectiveness of Orth’s prior impeachment of Zafranovich. 223 Indeed, as
16 was discussed in ground 1, the state district court noted that Zafranovich had already been
17 extensively impeached 224 and, as was discussed in ground 2(a), Zafranovich was already further
18 impeached by these new inconsistencies through other evidence and testimony. So the Nevada
19 Supreme Court’s denial of Orth’s Confrontation Clause claim constitutes an objectively
20
21
22
23

220

ECF Nos. 23-1 at 87–137; 23-2 at 8–31, 42–44, 46–49.

221

Davis v. Alaska, 415 U.S. 308, 315–16 (1974).

222

Melendez-Diaz, 557 U.S. at 314 (emphasis in original).

223
See Gibbs v. Covello, 996 F.3d 596, 605–06 (9th Cir. 2021) (concluding that “fair-minded
24 jurists
could come to the conclusion reached by the California Court of Appeals, . . . that [the
petitioner]
an adequate opportunity to cross-examine [the witness]’” because further
25 questioning‘had
of the witness “would not have materially enhanced the effectiveness of the cross26 examination”).
224
state district court noted during the trial, “I also think there’s a number of other things
27 thatThe
affect - - seriously affect [Zafranovich’s] credibility, and I think that the jury has had an
28 opportunity to see those.” ECF No. 27-1 at 20.

40

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 41 of 42

1 reasonable application of clearly established federal law and was not based on an unreasonable
2 determination of the facts. Orth is not entitled to federal habeas relief on ground 4.
3 C.

Petitioner’s pro se motion to supplement

4

Orth, acting pro se, moved to supplement his counseled reply brief. 225 “It is well

5 established that district courts have inherent power to control their docket,” including the power
6 to strike improperly filed items from the docket. 226 Petitioner filed his pro se motion in violation
7 of LR IA 11-6, which provides that
8

A party who has appeared by attorney cannot while so represented appear or act in
the case. This means that once an attorney makes an appearance on behalf of a
party, that party may not personally file a document with the court; all filings must
thereafter be made by the attorney. 227

9
10

11 This rule further states that an “attorney who has appeared for a party must be recognized by the
12 court and all the parties as having control of the client’s case.” 228 Because counsel has been
13 appointed to represent Orth, he may not file motions with the court. So I strike his pro se motion
14 to supplement and do not consider its merits.
15 D.

Certificate of Appealability

16

The right to appeal from the district court’s denial of a federal habeas petition requires a

17 certificate of appealability. To obtain that certificate, the petitioner must make a “substantial
18 showing of the denial of a constitutional right.” 229 “Where a district court has rejected the
19 constitutional claims on the merits,” that showing “is straightforward: The petitioner must
20 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
21
22
23
24
25
26
27
28

225

ECF No. 85.

226

Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010).

227

LR IA 11-6(a).

228

Id.

229

28 U.S.C. § 2253(c).
41

Case 2:17-cv-02047-JAD-BNW Document 89 Filed 09/01/22 Page 42 of 42

1 claims debatable or wrong.” 230 Because I have rejected Orth’s constitutional claims on their
2 merits, and he has not shown that this assessment of these claims is debatable or wrong, I find
3 that a certificate of appealability is unwarranted for this case and I decline to issue one.
Conclusion 231

4

IT IS THEREFORE ORDERED that the petition [ECF No. 57] is DENIED, and because

5

6 reasonably jurists would not find my decision to deny this petition to be debatable or wrong, a
7 certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the respondents’ motion to strike [ECF No. 86] is

8

9 GRANTED. Orth’s pro se motion [ECF No. 85] is STRUCK.
The Clerk of Court is directed to SUBSTITUTE Calvin Johnson for Respondent Warden

10

11 High Desert State Prison, ENTER JUDGMENT accordingly, and CLOSE THIS CASE.
Dated: September 1, 2022

12

_______________________________
U.S. District Judge Jennifer A. Dorsey

13
14
15
16
17
18
19
20
21
22
23

230

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077–
79
(9th
Cir. 2000).
24
231
Orth requests that I conduct an evidentiary hearing. ECF No. 57 at 34. But Orth fails to
25 explain
what evidence would be presented at an evidentiary hearing. Furthermore, I have
already
determined
that Orth is not entitled to relief, and neither further factual development nor
26 any evidence that may
be proffered at an evidentiary hearing would affect my reasons for
denying
relief.
See
Schriro
v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the
27 applicant’s factual allegations
or otherwise precludes habeas relief, a district court is not required
to
hold
an
evidentiary
hearing.”).
Thus, Orth’s request for an evidentiary hearing is denied.
28
42