Harsh v. Gentry et al

Filing 70

ORDERED that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 22 ) is granted as to Ground 3. Harsh will be released from parole within 60 days unless the Respondents file in this action, within that 60- day period, a written notice of election to retry Harsh, and the State thereafter, within 180 days after the filing of that notice, commences proceedings toward the retrial. Any party may request a reasonable modification of the time limits set for th in this paragraph. The judgment in this action will be stayed pending the conclusion of any appellate or certiorari review in the Ninth Circuit Court of Appeals or the United States Supreme Court, or the expiration of the time for seeking s uch appellate or certiorari review, whichever occurs later. A certificate of appealability is denied as to Harshs remaining grounds. The Clerk of Court is directed to enter judgment accordingly. Signed by Chief Judge Miranda M. Du on 7/29/2021. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THOMAS HARSH,

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Case No. 2:17-cv-02069-MMD-NJK
Petitioner,

ORDER

v.
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JO GENTRY, et al.,
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Respondents.
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I.

SUMMARY

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Petitioner Thomas Harsh filed a petition for writ of habeas corpus under 28 U.S.C.

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§ 2254. This matter is before this Court for adjudication of the merits of Harsh’s second

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amended petition. (ECF No. 22 (“Petition”).) For the reasons discussed below, the Court

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grants Harsh relief on Ground 3 but denies Harsh relief on his remaining grounds.

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II.

BACKGROUND

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Harsh’s convictions are the result of events that occurred in Clark County,

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Nevada on or about July 28, 2010. (ECF No. 32-5.) Marissa Sobrejuanite reported her

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1994 Toyota Tercel stolen on July 26, 2010. (ECF No. 11-2 at 208-210.) Two days later,

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on July 28, 2010, around 1:00 a.m., law enforcement observed the Toyota Tercel being

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operated without its headlights activated. (ECF No. 23-3 at 6-7.) During a traffic stop of

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the vehicle, the officers were notified that the vehicle had been stolen, so they arrested

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Harsh, the driver of the vehicle. (Id. at 10-12.) A shaved Hyundai key was found in the

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ignition and numerous keys, a screwdriver, and a Leatherman multi-tool were located

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on the front passenger seat during an inventory search of the vehicle. (Id. at 13, 19.)

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Following a jury trial, Harsh was convicted of possession of a stolen vehicle and

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possession of burglary tools. (ECF No. 11-7.) The state district court adjudged him guilty

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under the large habitual criminal statute and sentenced him to life in prison with parole

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eligibility after 120 months for the possession of a stolen vehicle conviction and 12

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months for the possession of burglary tools conviction. (Id.) Harsh appealed, and the

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Nevada Supreme Court affirmed on March 14, 2013. (ECF No. 11-15.) Remittitur issued

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on April 10, 2013. (ECF No. 11-16.)

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Harsh’s counseled state habeas petition and supplemental petition were filed on

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February 3, 2014, and December 14, 2015, respectively. (ECF Nos. 12-4, 34-1.) The

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state district court denied the petition on August 3, 2016. (ECF No. 34-7.) Harsh

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appealed, and the Nevada Court of Appeals affirmed on June 14, 2017. (ECF No. 13-

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8.) Remittitur issued on July 10, 2017. (ECF No. 13-9.)

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Harsh’s pro se federal habeas petition was filed on October 4, 2017. (ECF No.

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6.) Following the appointment of counsel, Harsh filed a first and second amended

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petition on November 16, 2017, and March 9, 2018, respectively. (ECF Nos. 16, 22.)

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Respondents moved to dismiss on August 2, 2018. (ECF No. 31.) This Court granted

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the motion, in part, determining that Ground 2 was unexhausted and Grounds 6(3), 6(8),

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6(9), 6(10), 6(11), 6(12), and 6(13)1 were technically exhausted but procedurally

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defaulted. (ECF No. 44.) In response to the Court’s order, Harsh moved to dismiss

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Ground 2. (ECF No. 46.) The Court granted the motion. (ECF No. 47.) Respondents

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answered the remaining claims in Harsh’s second amended petition on November 27,

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2019, and Harsh replied on February 25, 2020. (ECF Nos. 62, 66.)

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In his remaining claims for relief, Harsh alleges the following violations of his
federal constitutional rights:

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1.

His life sentence is cruel and unusual punishment.

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3.

His right to conflict-free counsel was violated when the state
district court did not allow his trial counsel to withdraw.

4.

There was insufficient evidence to convict him.

5.

The state district court failed to give an instruction on his
theory of the case.

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Court erroneously omitted Ground 6(13) in the conclusion of its previous
order. (See ECF No. 44 at 10.)
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6(1). His trial counsel failed to investigate Sobrejuanite’s
bankruptcy filings and present the bankruptcy documentation.

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6(2). His trial counsel failed to call Christine Owen to demonstrate
that the State’s case was founded on perjured testimony.

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6(3). His trial counsel failed to call Owen to establish Sobrejuanite’s
perjury and failed to move for a mistrial.

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6(4). His trial counsel failed to argue that Sobrejuanite’s
noncompliance with registration requirements demonstrated
that she was not the owner of the vehicle.

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6(5). His trial counsel failed to call a custodian of records to admit
exculpatory evidence.

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6(6). His trial counsel failed to adequately investigate the existence
of Sobrejuanite’s registered certificate of title.

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6(7). His trial counsel failed to object to expert testimony.

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6(8). His trial counsel failed to move for a new trial or resentencing
based on judicial bias.

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6(9). His trial counsel failed to object to Jury Instruction No. 7.

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6(10). His trial counsel failed to move to strike several jurors and to
move for a new trial due to the lack of an impartial jury.

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6(11). His trial counsel failed to challenge the possession of burglary
tools statute as unconstitutionally vague.

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6(12). His trial counsel failed to object to the State’s argument
regarding the elements of possession of burglary tools.

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6(13). His trial counsel failed to move for a judgment of acquittal.

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(ECF No. 22.)

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III.

LEGAL STANDARD

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28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in

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habeas corpus cases under the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”):

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

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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A state court decision is contrary to clearly established United States Supreme Court

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precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that

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contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state

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court confronts a set of facts that are materially indistinguishable from a decision of [the

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Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v.

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Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

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

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Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies

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the correct governing legal principle from [the Supreme] Court’s decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting

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Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state

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court decision to be more than incorrect or erroneous. The state court’s application of

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clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529

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U.S. at 409-10) (internal citation omitted).

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The Supreme Court has instructed that “[a] state court’s determination that a

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claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

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disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

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U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

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Supreme Court has stated “that even a strong case for relief does not mean the state

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court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at

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75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as

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a “difficult to meet” and “highly deferential standard for evaluating state-court rulings,

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which demands that state-court decisions be given the benefit of the doubt” (internal

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quotation marks and citations omitted)).
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IV.

DISCUSSION
A. Ground 1

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In Ground 1, Harsh alleges that his federal constitutional rights were violated

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because his life sentence amounts to cruel and unusual punishment, especially because

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his prior offenses were nonviolent and because the instant criminal offense was the

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result of his untreated bipolar disorder, the death of his mother, and his relapse into drug

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use. (ECF No. 22 at 12-13.) In affirming Harsh’s judgment of conviction, the Nevada

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Supreme Court held:

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Harsh contends that his sentence of life imprisonment with the possibility of
parole after ten years constitutes cruel and unusual punishment because
the sentencing statute is unconstitutional, the sentence does not serve the
interest of justice, and he needs treatment for his mental illness. We review
a district court’s sentencing decision for abuse of discretion, Chavez v.
State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009), and the
constitutionality of a statute de novo, Silvar v. Dist. Ct., 122 Nev. 289, 292,
129 P.3d 682, 684 (2006). “Statutes are presumed to be valid, and the
challenger bears the burden of showing that a statute is unconstitutional. In
order to meet that burden, the challenger must make a clear showing of
invalidity.” Id. (footnote omitted). Harsh appears to claim that NRS
207.010(1)(b) is unconstitutional because the legislative history indicates
that habitual criminal punishment should be reserved for repeat offenders
who have committed violent crimes. However, NRS 207,010(1)(b) is clear
on its face and plainly applies to all felonies and not just those involving
violent crimes. See State v. Lucero, 127 Nev. ___, ____, 249 P.3d 1226,
1228 (2011) (“[W]hen a statute is clear on its face, a court cannot go beyond
the statute in determine legislative intent.” (internal quotation marks
omitted)). Because Harsh has not demonstrated that the habitual-criminalpunishment statute is unconstitutional, his sentence falls within the
parameters of that statute, see NRS 207.010(1)(b)(2) and we are not
convinced that the sentence is so grossly disproportionate to the gravity of
the offense and Harsh’s history of recidivism as to shock the conscience,
we conclude that the sentence does not violate the constitutional
proscriptions against cruel and unusual punishment. Ewing v. California,
538 U.S. 11, 29 (2003) (plurality opinion); Harmelin v. Michigan, 501 U.S.
957, 1000-01 (1991) (plurality opinion); Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284 (1996); Glegola v. State, 110 Nev. 344, 348, 871 P.2d
950, 953 (1994); see also Arajakis, 108 Nev. at 983, 843 P.2d at 805.

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(ECF No. 11-15 at 5-6.) The Nevada Supreme Court’s rejection of Harsh’s claim was

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neither contrary to nor an unreasonable application of clearly established law as
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determined by the United States Supreme Court and was not based on an unreasonable

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determination of the facts.

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The Eight Amendment provides that “cruel and unusual punishments [shall not

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be] inflicted.” U.S. Const. amend. VIII. “[B]arbaric punishments” and “sentences that are

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disproportionate to the crime” are cruel and unusual punishments. Solem v. Helm, 463

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U.S. 277, 284 (1983) (concluding that a habitual offender’s sentence for a seventh

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nonviolent felony for life without the possibility of parole is disproportionate). The Eighth

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Amendment does not, however, mandate strict proportionality between the defendant’s

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sentence and the crime. See Ewing v. California, 538 U.S. 11, 23 (2003). Rather, “only

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extreme sentences that are ‘grossly disproportionate’ to the crime” are forbidden.

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Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). “In assessing the compliance of a

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non-capital sentence with the proportionality principle, [this Court] consider[s] ‘objective

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factors’” such as “the severity of the penalty imposed and the gravity of the offense.”

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Taylor v. Lewis, 460 F.3d 1093, 1098 (9th Cir. 2006). “[S]uccessful challenges based on

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proportionality are ‘exceedingly rare,’ and deference is due legislative judgments on

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such matters.” Id. (citing Solem, 463 U.S. at 289-90).

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Harsh was adjudged guilty under Nevada’s “Large Habitual Criminal Statute.”

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(ECF No. 11-7 at 3.) That statute, NRS § 207.010(1)(b), provides that a habitual criminal

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is “a person convicted in [Nevada] of . . . [a]ny felony, who has previously been three

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times convicted . . . of any crime which under the laws of the situs of the crime or of this

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State would amount to a felony.”2 NRS § 207.010(1)(b)(1)-(3) further provides that a

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person found to be a large habitual criminal “shall be punished for a category A felony

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by imprisonment in the state prison” for life without the possibility of parole, life with the

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possibility of parole after 10 years, or a definite term of 25 years with parole eligibility

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after 10 years. Harsh was sentenced to life in prison with parole eligibility after 10 years

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for his possession of a stolen vehicle conviction. (ECF No. 11-7 at 3.)

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Nevada Supreme Court, the final arbiter of Nevada law, has stated that “NRS
207.010 makes no special allowance for non-violent crimes or for the remoteness of
convictions.” Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992).

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2The

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Although the state district court sentenced Harsh to the second harshest

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punishment allowed by NRS § 207.010(1)(b), the Nevada Supreme Court reasonably

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concluded that Harsh’s sentence was not “‘grossly disproportionate’ to the crime.”

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Harmelin, 501 U.S. at 1001; see, e.g., United States v. Parker, 241 F.3d 1114, 1117 (9th

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Cir. 2001) (“Generally, as long as the sentence imposed on a defendant does not exceed

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statutory limits, this court will not overturn it on Eighth Amendment grounds.”). As the

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state district court reasoned, Harsh has “been in prison before and . . . been revoked on

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parole, with seven prior felony convictions. [Harsh has] had an opportunity to prove

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[him]self and [he has not] taken that opportunity.” (ECF No. 11-6 at 9.) Indeed, Harsh’s

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presentence investigation report provided that his criminal record consisted of seven

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felonies, one gross misdemeanor, 15 misdemeanors, five prison terms, and 11 jail

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terms. (ECF No. 61-1 at 4.)

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Although Harsh’s sentence of life with the possibility of parole after 10 years for

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possession of a stolen vehicle may appear disproportionate, Harsh’s sentence is based

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on the fact that he was adjudged to be a habitual criminal with at least three prior

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felonies. See NRS § 207.010(1)(b); see Solem, 463 U.S. at 297 (“[A] State is justified in

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punishing a recidivist more severely than it punishes a first offender.”). Harsh’s extensive

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criminal record demonstrates that the aggregate gravity of his offenses was severe,

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such that his sentence does not violate the Eight Amendment. See Taylor, 460 F.3d at

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1098. It is also worth noting that Harsh was granted parole in 2020. See Rummel v.

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Estelle, 445 U.S. 263, (1980) (“[B]ecause parole is ‘an established variation on

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imprisonment of convicted criminals,’ . . . a proper assessment of [a state’s] treatment

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of [a habeas petitioner] could hardly ignore the possibility that he will not actually be

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imprisoned for the rest of his life.”). Therefore, the Nevada Supreme Court reasonably

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concluded that Harsh’s sentence did not violate the proscription against cruel and

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unusual punishment, and, as such, he is denied relief on Ground 1.3

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Court would have reached the same conclusion even reviewing this claim de
novo as Harsh alleges it should. (See ECF No. 66 at 24.)
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B. Ground 3

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In Ground 3, Harsh alleges that his federal constitutional rights were violated

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because the state district court did not allow his trial counsel to withdraw. (ECF No. 22

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at 17.) Harsh elaborates that he was forced to choose between waiving his right to take

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the stand and taking the stand without effective guidance from his trial counsel. (Id. at

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19.) In affirming Harsh’s judgment of conviction, the Nevada Supreme Court held:

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Harsh contends that the district court abused its discretion by denying
defense counsel’s motion to withdraw because there was a breakdown in
communications and defense counsel indicated that a conflict of interest
might exist if he testified on his own behalf. [Footnote 1: Defense counsel’s
motion was made on the first day of trial and did not purport to be a motion
to substitute counsel. See generally Young v. State, 120 Nev. 963, 968-69,
102 P.3d 572, 576 (2004).] A criminal defendant has a Sixth Amendment
right to counsel who is reasonably competent and conflict-free. Daniels v.
Woodford, 428 F.3d 1181, 1196 (9th Cir. 2005). To overcome the
presumption that defense counsel is reasonably competent, a defendant
must show that counsel’s representation was unreasonable under the
prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 68788 (1984). To establish a violation of the right to conflict-free counsel, a
defendant “must show that an actual conflict of interest adversely affected
his lawyer’s performance.” U.S. v. Moore, 159 F.3d 1154, 1157 (9th Cir.
1998) (internal quotation marks omitted). Here, the record reveals that the
district court made inquiries about defense counsel’s motion and there was
no showing that her representation was unreasonable or conflicted.
Accordingly, we conclude that Harsh has failed to demonstrate that the
district court erred by denying defense counsel’s motion to withdraw as
attorney of record.

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(ECF No. 11-15 at 3-4.)4
argues that this Court should review this ground de novo because “the
Nevada Supreme Court failed to address the claim as raised.” (ECF No. 66 at 31.) Harsh
expounds that his original claim was that “the trial court violated his constitutional rights
by not permitting counsel to withdraw,” which was supported by a legal framework “for
claims of irreconcilable conflicts with counsel,” but the Nevada Supreme Court “instead
classified it as a challenge to an actual conflict of interest.” (Id.) While this Court
acknowledges that a claim of irreconcilable conflict with one’s trial counsel and a claim of
a conflict of interest on the part of one’s trial counsel are distinct, this Court disagrees that
the Nevada Supreme Court failed to adjudicate this claim on the merits. Rather, the
Nevada Supreme Court appears to have considered both issues. (See ECF No. 11-15 at
3 (emphasis added) (explaining that “Harsh contends that the district court abused its
discretion by denying defense counsel’s motion to withdraw because there was a
4Harsh

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On the first morning of trial, Harsh’s trial counsel explained that she was having

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“communication issues” with Harsh in that he would not “speak with [her], ask to leave

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and not speak with [her].” (ECF No. 11-2 at 5.) Harsh addressed the state district court,

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explaining that he had “been trying to communicate with [his trial counsel] for over two

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months” and before his meeting with his trial counsel the day before trial, he had “seen

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her one time for five minutes” two months previously. (Id. at 6.) Harsh then informed the

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court that his communication with his trial counsel was “broken” and that his family was

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“getting an attorney for” him. (Id. at 6-7.) Harsh’s trial counsel was then given an

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opportunity to expound on the “communication issues” with Harsh: “I do come with case

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law for him to look at and read, he won’t take it. Explain why something won’t be filed or

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why something won’t be done. And he says, no, I’m not reading that. And he just

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screams at me when I try to explain it to him.” (Id. at 7.) The court refused to allow Harsh

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to substitute private counsel for his current counsel unless his private counsel was

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prepared to go to trial that day. (Id. at 7.) The court also determined that Harsh’s current

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trial counsel would remain his counsel, as she was “a good lawyer” who was “ready to

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go to trial.” (Id. at 7, 9.) A little while later, prior to the court bringing the prospective

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jurors into the courtroom, Harsh’s trial counsel spoke with him and then informed the

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court, “[h]e wants to testify. I’m trying to specify what he’s testify [sic] to. Based on his

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representations, I have a conflict and we need to withdraw.” (Id. at 11.) The court denied

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the request, explaining, “if it’s that he is going to commit perjury, you can tell him - - all

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you can do is ask questions [about] what happened.” (Id.)

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The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused

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shall enjoy the right . . . to have the Assistance of Counsel for his [or her] defense.” U.S.

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Const. amend. VI. Although the Sixth Amendment does not “guarantee[ ] a ‘meaningful

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relationship’ between an accused and his [or her] counsel,” Morris v. Slappy, 461 U.S.

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1, 14 (1983), “compel[ling] one charged with [a] grievous crime to undergo a trial with

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breakdown in communication and defense counsel indicated that a conflict of interest
might exist if he testified on his own behalf.”)
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the assistance of an attorney with whom he [or she] has become embroiled in

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irreconcilable conflict is to deprive him [or her] of the effective assistance of any counsel

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whatsoever.” Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970); see also United

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States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998) (explaining that a defendant “has

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a right to conflict free representation under the Sixth Amendment”). A reviewing court

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must consider the following factors in “determining whether an irreconcilable conflict

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exist[s] . . . (1) the extent of the conflict; (2) whether the trial judge made an appropriate

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inquiry into the extent of the conflict; and (3) the timeliness of the motion to substitute

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counsel.” Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005); see also Schell

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v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000) (“[T]he ultimate constitutional question”

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asks whether the state district court “violated [Petitioner’s] constitutional rights in that

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the conflict between [Petitioner] and his attorney had become so great that it resulted in

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a total lack of communication or other significant impediment that resulted in turn in an

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attorney-client relationship that fell short of that required by the Sixth Amendment.”).

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Turning first to the extent of the conflict, it was evident that the breakdown in

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communication between Harsh and his trial counsel had risen to a concerning level at

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the time of his trial. In addition to Harsh’s statements that his communication with his

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trial counsel was broken, his trial counsel also reported that Harsh refused to take or

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read the caselaw she provided him, screamed at her when she tried to explain

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something, and asked her to leave when she tried to speak with him. (See ECF No. 11-

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2 at 5-7.) And although Harsh and his trial counsel may have had a short discussion

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during a break in the proceedings on the morning of the first day of trial (see ECF No.

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11-2 at 11), this discussion took place after the state district court denied Harsh’s implicit

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request for a continuance to obtain private counsel. At this point—moments before the

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trial was set to begin and after the state district court had indicated that any substituted

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counsel would have to be prepared to proceed to trial as scheduled—Harsh was forced

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with making do with his trial counsel. As such, this brief discussion, which was

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apparently the only discussion between Harsh and his trial counsel for several months
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leading up to the trial, did not minimize the fact that their relationship was alarmingly

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strained. See, e.g., United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (“There

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is no question in this case that there was a complete breakdown in the attorney-client

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relationship. By the time of trial, the defense attorney had acknowledged to the Court

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that Nguyen ‘just won’t talk to me anymore.’”); Stenson v. Lambert, 504 F.3d 873, 886

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(9th Cir. 2007) (“An irreconcilable conflict in violation of the Sixth Amendment occurs

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only where there is a complete breakdown in communication between the attorney and

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client.”).

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Turning next to the state district court’s inquiry into the extent of the conflict,

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“[w]hen a trial court is informed of a conflict between trial counsel and a defendant, the

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trial court should question the attorney or defendant privately and in depth, and examine

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available witnesses.” Daniels, 428 F.3d at 1200 (internal quotation marks omitted). The

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records reflect that the state district court performed only a perfunctory inquiry into

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Harsh’s conflict with his trial counsel. Harsh and his trial counsel were not questioned

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privately, and, in fact, the state district court appeared to be reluctant to hear anything

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Harsh had to say about the conflict, telling Harsh “you can sit and be quiet, you don’t

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have to talk to your attorney, but you’re going to trial today.” (ECF No. 11-2 at 6.) Further,

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the state district court’s apparent focus on Harsh’s trial counsel’s competence as its

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basis for dismissing Harsh’s concerns is troubling and further underscores the lack of

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meaningful probing into the extent of the conflict. See United States v. Nguyen, 262 F.3d

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at 1003 (9th Cir. 2001) (determining that “the District Judge focused exclusively on the

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attorney’s competence and refused to consider the relationship between Nguyen and

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his attorney. Even if present counsel is competent, a serious breakdown in

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communications can result in an inadequate defense”).

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Turning finally to the timeliness factor, Harsh failed to raise his concerns about his

26

conflict with his trial counsel until the last moment. Because Harsh had been having

27

communication issues with his trial counsel for two months and had commissioned his

28

family into obtaining private counsel, it is readily apparent that he could have brought his
11

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1

conflict concerns to the state district court’s attention at an earlier date. See, e.g., United

2

States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986) (determining that a state district

3

court may exercise its discretion to deny a motion for substitution of counsel if it would

4

require a continuance of the trial date). That being said, the Ninth Circuit has stated that

5

“[e]ven if the trial court becomes aware of a conflict on the eve of trial, a motion to

6

substitute counsel is timely if the conflict is serious enough to justify the delay.” Daniels,

7

428 F.3d at 1200.

8

After considering the foregoing factors, especially the complete breakdown in

9

Harsh’s relationship with his trial counsel and the state district court’s insufficient inquiry

10

into the conflict, it can be concluded that “the conflict between [Harsh] and his attorney

11

. . . resulted in turn in an attorney-client relationship that fell short of that required by the

12

Sixth Amendment.” Schell, 218 F.3d at 1026. Accordingly, because the Nevada

13

Supreme Court’s determination that Harsh failed to demonstrate that the district court

14

erred was objectively unreasonable, 28 U.S.C. § 2254(d), the Court grants Harsh

15

habeas corpus relief with respect to Ground 3.

16

C. Ground 4

17

In Ground 4, Harsh alleges that his federal constitutional rights were violated

18

because there was insufficient evidence to convict him of possession of a stolen vehicle.

19

(ECF No. 22 at 19.) Specifically, Harsh argues that the State provided insufficient

20

evidence that the vehicle was stolen or that he knew or should have known that it was

21

stolen. (Id. at 20.) In affirming Harsh’s judgment of conviction, the Nevada Supreme

22

Court held:

23
24
25
26
27
28

Harsh contends that insufficient evidence supports his conviction for
possession of a stolen vehicle because there was no damage to the vehicle,
the insurer and registrant of the vehicle did not testify, and the State did not
demonstrate that he knew or should have known that the vehicle was stolen.
We review the evidence in the light most favorable to the prosecution and
determine whether any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. McNair v. State, 108
Nev. 53, 56, 825 P.2d 571, 573 (1992). Here, the jury heard testimony that
the victim reported the theft of her Toyota to the police. The police verified
12

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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

the victim’s ownership of the Toyota—her former boyfriend had given her
the Toyota and signed the motor vehicle title over to her. The police
subsequently spotted and stopped the Toyota, discovered that Harsh was
the driver, and found a shaved Hyundai key in the ignition switch. The police
also found other shaved keys, a flathead screwdriver, and a Leatherman
multi-tool in the Toyota. Harsh told the police that the car was not his and
that he “borrowed it form a guy,” but he was unable to provide the guy’s
name or contact information. We conclude that a rational juror could
reasonably infer from this evidence that Harsh committed the offense of
possession of a stolen vehicle. See NRS 205.273(1)(b). It is for the jury to
determine the weight and credibility to give conflicting testimony, and the
jury’s verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981); see also Buchanan v. State, 119 Nev. 201, 217, 69 P.3d
694, 705 (2003) (circumstantial evidence alone may sustain a conviction).
(ECF No. 11-15 at 2-3.)5 The Nevada Supreme Court’s rejection of Harsh’s claim was
neither contrary to nor an unreasonable application of clearly established law as
determined by the United States Supreme Court and was not based on an unreasonable
determination of the facts.
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with

16

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). A federal habeas

17

petitioner “faces a heavy burden when challenging the sufficiency of the evidence used

18

to obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d

19

1262, 1274 (9th Cir. 2005). On direct review of a sufficiency of the evidence claim, a

20

state court must determine whether “any rational trier of fact could have found the

21

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

22

U.S. 307, 319 (1979). The evidence is to be viewed “in the light most favorable to the

23

prosecution.” See id. Federal habeas relief is available only if the state-court

24
25
5Harsh

26
27
28

argues that this Court can conduct a de novo review of this ground because
the Nevada Supreme Court’s determination was based on an unreasonable factual
determination that the police “verified the victim’s ownership of the Toyota.” (ECF No. 66
at 36 (quoting ECF No. 11-15 at 2).) This Court disagrees, as this factual determination
was reasonable. (See ECF No. 11-2 at 204-05 (testimony of Sobrejuanite that she was
given the Toyota Tercel’s title).)
13

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1

determination that the evidence was sufficient to support a conviction was an

2

“objectively unreasonable” application of Jackson. See Juan H., 408 F.3d at 1275 n.13.

3

i. Relevant Evidence

4

Marissa Sobrejuanite testified that her ex-boyfriend, Pedro Co, gave her a 1994

5

Toyota Tercel around December 2009 or January 2010. (ECF No. 11-2 at 203, 216.) Co

6

gave Sobrejuanite the Toyota Tercel’s title, and Sobrejuanite signed it. (Id. at 204-05.)

7

Sobrejuanite, however, did not change the vehicle’s registration until the fall of 2010

8

“[b]ecause [she] ha[d] to file a bankruptcy and [her] attorney said [she could] not put it

9

in [her] name yet until the bankruptcy [was] done.” (Id.)

10

On July 26, 2010, around 10:30 p.m., Sobrejuanite left her apartment and entered

11

a parking garage to retrieve the Toyota Tercel in order to go to 7-Eleven, but it was

12

missing. (ECF No. 11-2 at 208.) Sobrejuanite reported the theft after “five, ten minutes”

13

of looking around for the vehicle. (Id. at 210.) Sobrejuanite did not know Harsh and did

14

not grant him permission to drive the vehicle. (Id. at 215.)

15

Officer Shaun Ditmar testified that on July 28, 2010, around 1:00 a.m., he

16

observed a Toyota Tercel being operated without its headlight activated, so he and his

17

partner effectuated a traffic stop of the vehicle. (ECF No. 23-3 at 6-7.) As the officers

18

were “getting out of the[ir] vehicle, Dispatch . . . let[ them] know over the radio that the

19

vehicle was reported stolen.” (Id. at 10.) The officers placed the driver of the vehicle,

20

Harsh, in handcuffs. (Id. at 11-12.) Meanwhile, Harsh informed the officers that “the car

21

was not his and that a guy let him borrow it.” (Id. at 12.) Ditmar asked Harsh about the

22

individual, including the person’s name and contact information, but Harsh “just kept

23

saying that it was a guy.” (Id. at 12, 29.)

24

Officer Ditmar conducted an inventory of the vehicle, which revealed a shaved

25

“Hyundai key in the ignition,” numerous keys on the passenger front seat, “a long,

26

flathead screwdriver,” and a Leatherman multi-tool. (ECF No. 23-3 at 13, 18.) Ditmar

27

explained the importance of these items: “people [who] steal cars will often take the

28

screwdriver and they’ll jam it into the ignition and force start it. . . . At that point, . . . they’ll
14

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1

use a key that’s shaved to go ahead and stick in there and turn the car on.” (Id. at 14.)

2

Dispatch then informed Sobrejuanite about the recovery of the Toyota Tercel, and she

3

came down to the traffic stop location to collect the vehicle. (Id. at 12-13.)

4

ii. Sufficiency of the Evidence

5

Sufficiency of the evidence claims are judged by the elements defined by state

6

law. See Jackson, 443 U.S. at 324 n.16. And Nevada law provides that “[a] person

7

commits an offense involving a stolen vehicle if the person . . . [h]as in his or her

8

possession a motor vehicle which the person knows or has reason to believe has been

9

stolen.” NRS § 205.273(1)(b).

10

Harsh argues that the State needed to either call Co to testify that he did not give

11

Harsh permission to use the vehicle or prove that Sobrejuanite had an exclusive

12

possessory interest in the vehicle. (ECF No. 22 at 21.) Instead, Harsh argues that the

13

totality of the evidence did not disprove that Co had the right to—and did—lend him the

14

vehicle. (Id.) However, viewing the evidence “in the light most favorable to the

15

prosecution,” see Jackson, 443 U.S. at 319, the Nevada Supreme Court reasonably

16

determined that a rational trier of fact could have found beyond a reasonable doubt that

17

Sobrejuanite had exclusive possessory interest of the Toyota Tercel such that Harsh—

18

who did not know Sobrejuanite—knew or should have known that the vehicle was stolen.

19

In re Winship, 397 U.S. at 364; Juan H., 408 F.3d at 1274; NRS § 205.273(1)(b). Indeed,

20

Sobrejuanite was given the vehicle months before the theft, had the vehicle’s title in her

21

possession, was the exclusive driver of the vehicle, and registered the vehicle following

22

the theft. (See ECF No. 11-2 at 203-05.) Because the Nevada Supreme Court

23

reasonably denied this claim, Harsh is denied federal habeas relief for Ground 4.

24

D. Ground 5

25

In Ground 5, Harsh alleges that his federal constitutional rights were violated

26

because the state district court failed to give an instruction on his theory of the case.

27

(ECF No. 22 at 22.) Specifically, Harsh contends that the state district court erred by not

28

instructing the jury that he could be found guilty of the lesser offense of unlawful taking
15

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1

of a vehicle. (Id. at 23.) In affirming Harsh’s judgment of conviction, the Nevada Supreme

2

Court held:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Harsh contends that the district court erred by refusing to instruct the jury
on the offense of unlawful taking of a vehicle. Although a defendant is
entitled to a jury instruction on his theory of the case if some evidence
supports it, Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06
(1990), a defendant is not entitled to instructions that are “misleading,
inaccurate or duplicitous,” Carter v. State, 121 Nev. 759, 765, 121 P.3d 592,
596 (2005). An instruction on the offense of unlawful taking of a vehicle
would be misleading and inaccurate because unlawful taking of a vehicle is
not a lesser-included offense of possession of a stolen vehicle, Harsh was
not charged with unlawful taking of a vehicle, and the instruction would
incorrectly suggest that the jury could find Harsh guilty of unlawful taking of
a vehicle. See NRS 205.2715(1); NRS 205.273(1); Smith v. State, 120 Nev.
944, 946, 102 P.3d 569, 571 (2004) (defining lesser-included offense); Peck
v. State, 116 Nev. 840, 845, 7 P.3d 470, 473 (2000) (a defendant is not
entitled to an instruction on a lesser-related offense), overruled on other
grounds by Rosas v. State, 122 Nev. 1258, 1269, 147 P.3d 1101, 1109
(2006). Accordingly, we conclude that the district court did not abuse its
discretion by refusing to give this instruction.
(ECF No. 11-15 at 4-5.) The Nevada Supreme Court’s rejection of Harsh’s claim was
neither contrary to, nor an unreasonable application of, clearly established law as
determined by the United States Supreme Court and was not based on an unreasonable
determination of the facts.
“The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi,
410 U.S. 284, 294 (1973). “[T]he Constitution [also] guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S.
683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). The heart
of Harsh’s argument is that the state district court prevented him from establishing his
defense theory by denying his proposed instruction. See Mathews v. United States, 485
U.S. 58, 63 (1988) (“As a general proposition a defendant is entitled to an instruction as
to any recognized defense for which there exists evidence sufficient for a reasonable
jury to find in his favor.”); see also Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir.

16

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1

2002) (“[T]he state court’s failure to correctly instruct the jury on the defense may deprive

2

the defendant of his due process right to a present a defense.”). “[A] claim that a court

3

violated a petitioner’s due process rights by omitting an instruction requires a showing

4

that the error ‘so infected the entire trial that the resulting conviction violate[d] due

5

process.’” Menendez v. Terhune, 422 F.3d 1012, 1029 (2005) (quoting Henderson v.

6

Kibbe, 431 U.S. 145, 154 (1977)).

7

Harsh’s proposed jury instruction provided, in pertinent part, that “[t]he offense of

8

[p]ossession of a [s]tolen [v]ehicle, with which the defendant is charged in the

9

Information, necessarily includes the lesser offense of [u]nlawful [t]aking of [v]ehicle,”

10

and “[i]f the vehicle was taken without the intent to permanently deprive the owner of the

11

vehicle[,] then the offense is [u]nlawful [t]aking of [v]ehicle.” (ECF No. 23-1 at 4.) Harsh’s

12

trial counsel explained the basis for the instruction: “the car was taken from

13

[Sobrejuanite’s] residence and so . . . the lesser included is appropriate . . . . If he’s in

14

possession of a vehicle that he does not intend to deprive the owner of and that’s what

15

the unlawful taking of the vehicle goes to.” (ECF No. 23-3 at 59.) The state district court

16

refused to give the instruction, reasoning that the instruction has “to go with stealing the

17

car and that isn’t the charge, the charge is possession of a stolen vehicle.” (Id.)

18

“[D]ue process requires that a lesser included offense instruction be given only

19

when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611

20

(1982) (emphasis in original). Here, the Nevada Supreme Court, the final arbiter of

21

Nevada law, reasonably determined that unlawful taking of a vehicle is not a lesser-

22

included offense of possession of a stolen vehicle pursuant to Nevada law. See, e.g.,

23

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal

24

habeas court to reexamine state-court determinations on state-law questions.”). Indeed,

25

although somewhat related, taking is a separate—not a lesser-included—offense of

26

possession.6 Compare NRS § 205.2715 with NRS §205.273. Accordingly, because the

27
28

6Harsh

requests that this Court review this claim de novo because the Nevada
Supreme Court unreasonably applied federal law in determining that the unlawful taking
17

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1

Nevada Supreme Court reasonably denied this claim, Harsh is denied federal habeas

2

relief for Ground 5.

3

E. Ground 6

4

In Ground 6, Harsh alleges that his federal constitutional rights were violated due

5

to numerous instances of ineffectiveness on the part of his trial counsel. (ECF No. 22 at

6

26.) In Strickland, the United States Supreme Court propounded a two-prong test for

7

analysis of claims of ineffective assistance of counsel requiring the petitioner to

8

demonstrate (1) that the attorney’s “representation fell below an objective standard of

9

reasonableness,” and (2) that the attorney’s deficient performance prejudiced the

10

defendant such that “there is a reasonable probability that, but for counsel’s

11

unprofessional errors, the result of the proceeding would have been different.” Strickland

12

v. Washington, 466 U.S. 668, 688, 694 (1984). A court considering a claim of ineffective

13

assistance of counsel must apply a “strong presumption that counsel’s conduct falls

14

within the wide range of reasonable professional assistance.” Id. at 689. The petitioner’s

15

burden is to show “that counsel made errors so serious that counsel was not functioning

16

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

17

Additionally, to establish prejudice under Strickland, it is not enough for the habeas

18

petitioner “to show that the errors had some conceivable effect on the outcome of the

19

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

20

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

21
22
23
24
25
26
27
28

of a vehicle is not a lesser-included offense of possession of a stolen vehicle. (See ECF
No. 66 at 41-42.) To prove his point, Harsh argues that “possession of a stolen vehicle
cannot be proven without also proving unlawful taking of a vehicle.” (Id. at 41.) This Court
disagrees. The elements of the offense of unlawful taking of a vehicle are not a subset of
the elements of the crime of possession of a stolen vehicle. Unlawful taking requires a
taking, which is not a subset of any element of possession of a stolen vehicle. And
although it may be inferred that Harsh unlawfully took Sobrejuanite’s vehicle, he was not
charged with this offense. See, e.g., Schmuck v. United States, 489 U.S. 705, 717 (1989)
(“It is ancient doctrine of both the common law and our Constitution that a defendant
cannot be held to answer a charge not contained in the indictment brought against him.”).
18

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1

Where a state district court previously adjudicated the claim of ineffective assistance of

2

counsel under Strickland, establishing that the decision was unreasonable is especially

3

difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United States Supreme

4

Court clarified that Strickland and § 2254(d) are each highly deferential, and when the

5

two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. Washington,

6

614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal

7

court reviews a state court’s Strickland determination under AEDPA, both AEDPA and

8

Strickland’s deferential standards apply; hence, the Supreme Court’s description of the

9

standard as doubly deferential.”). The Supreme Court further clarified that, “[w]hen §

10

2254(d) applies, the question is not whether counsel’s actions were reasonable. The

11

question is whether there is any reasonable argument that counsel satisfied Strickland’s

12

deferential standard.” Harrington, 562 U.S. at 105.

13

i. Ground 6(1)

14

In Ground 6(1), Harsh alleges that his trial counsel failed to investigate

15

Sobrejuanite’s bankruptcy filings and present the bankruptcy documentation as

16

evidence. (ECF No. 22 at 26.) Harsh elaborates that if his trial counsel had done minimal

17

research, she would have been able to effectively cross-examine Sobrejuanite about

18

her ownership of the vehicle. (ECF No. 66 at 45.) In affirming the state district court’s

19

denial of Harsh’s state habeas petition, the Nevada Court of Appeals held:

20
21
22
23
24
25
26
27
28

Harsh claims counsel was ineffective for failing to investigate and produce
documents regarding the victim’s bankruptcy and the fact she did not list
the vehicle as an asset during the bankruptcy proceedings. Harsh claims
the victim could have been impeached with this evidence and counsel could
have argued she committed perjury by failing to list the vehicle in her
bankruptcy documents by testifying at trial her bankruptcy attorney told her
not to list the vehicle as an asset.
The district court found counsel was not deficient for failing to investigate
because the victim testified at trial she did not list the vehicle in her
bankruptcy documents, the bankruptcy documents would not have been
admissible under NRS 50.085(3), and counsel thoroughly cross-examined
the victim about her ownership of the vehicle and the fact she did not re-title
the vehicle until October, 10 months after receiving the vehicle from the
previous owner. Further, the district court found Harsh failed to demonstrate
19

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1
2
3
4
5
6

a reasonable probability of a different outcome at trial because the jury was
aware of the victim’s dishonesty in her bankruptcy proceeding and received
extensive testimony attacking her veracity. The district court also found this
claim failed on the prejudice prong because the Nevada Supreme Court
already concluded Harsh failed to demonstrate a reasonable probability of
a different outcome at trial had this evidence been presented at trial. The
district court found the prejudice claim was barred by the doctrine of law of
the case and could not be avoided by a more detailed and precisely focused
argument.

11

We agree with Harsh that neither the doctrine of law of the case nor res
judicata barred this claim. However, we conclude Harsh failed to
demonstrate prejudice such that there was a reasonable probability of a
different outcome at trial had counsel investigated and produced documents
from the victim’s bankruptcy proceedings. Therefore, while the district court
erred by finding the claim was barred by the doctrine of law of the case and
res judicata, we nevertheless affirm the denial of this claim. See Wyatt v.
State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (holding a correct result
will not be reversed simply because it is based on the wrong reason).

12

(ECF No. 13-8 at 3-4.) The Nevada Court of Appeals’ rejection of Harsh’s claim was

13

neither contrary to, nor an unreasonable application of, clearly established law as

14

determined by the United States Supreme Court and was not based on an unreasonable

15

determination of the facts.

7
8
9
10

16

Harsh moved for a new trial two years after his trial based on newly discovered

17

evidence. (See ECF No. 11-18 at 2.) That newly discovered evidence was a schedule

18

of personal property that Sobrejuanite submitted in her bankruptcy proceeding “under

19

penalty of perjury” on September 7, 2010, several months after the theft. (Id. at 6.) In

20

that document, Sobrejuanite indicated that she did not own any “[a]utomobiles, trucks,

21

trailers, [or] other vehicles and accessories.” (Id.)

22

Defense counsel has a “duty to make reasonable investigations or to make a

23

reasonable decision that makes particular investigations unnecessary.” Strickland, 466

24

U.S. at 691. Although Harsh’s trial counsel may have been deficient for not fulfilling these

25

investigative duties and researching Sobrejuanite’s bankruptcy proceeding documents,

26

the Nevada Court of Appeals reasonably determined that Harsh failed to demonstrate

27

prejudice. Id. at 694. To be sure, questioning Sobrejuanite about her statement to the

28

bankruptcy court that she did not own a vehicle would have impeached her testimony that
20

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1

she owned the Toyota Tercel. However, the jury was already aware of Sobrejuanite’s

2

deceit regarding her bankruptcy proceedings as it related to the Toyota Tercel. As

3

discussed in Ground 4, Sobrejuanite testified that she did not change the vehicle’s

4

registration until the fall of 2010 “[b]ecause [she] ha[d] to file a bankruptcy and [her]

5

attorney said [she could] not put it in [her] name yet until the bankruptcy [was] done.”

6

(ECF No. 11-2 at 205.) Therefore, because Sobrejuanite’s credibility was already

7

questioned, Harsh fails to demonstrate the further impeachment would have resulted in

8

a different result at trial. Strickland, 466 U.S. at 694; see also Doe v. Ayers, 782 F.3d 425,

9

431 (9th Cir. 2015) (concluding that the defendant’s trial counsel “could have done a much

10

better job of impeaching [the witness], . . . but the failures regarding impeachment of [the

11

witness] are of comparatively little consequence”); Djerf v. Ryan, 931 F.3d 870, 881 (9th

12

Cir. 2019) (“Strickland prejudice is not established by mere speculation.”). Thus, because

13

the Nevada Court of Appeal reasonably affirmed the state district court’s denial of this

14

claim, Harsh is denied federal habeas relief for Ground 6(1).

15

ii. Ground 6(2)

16

In Ground 6(2), Harsh alleges that his trial counsel failed to call Sobrejuanite’s

17

bankruptcy attorney, Christine Owen, to demonstrate that the State’s case was founded

18

on perjured testimony. (ECF No. 22 at 28.) Harsh raised this claim in his appeal of the

19

denial of his state habeas petition. (See ECF No. 13-3 at 31-32.) However, the Nevada

20

Court of Appeals did not address this claim in its order denying Harsh relief. (See ECF

21

No. 13-8.) As such, this Court “‘look[s] through’ the unexplained decision to the last

22

related state-court decision that does provide a relevant rationale.” Wilson v. Sellers,

23

138 S.Ct. 1188, 1192 (2018). This Court “then presume[s] that the unexplained decision

24

adopted the same reasoning.” Id. Here, the state district court held:

25
26
27
28

Harsh again complains that counsel was ineffective for failing to investigate
Sobrejuanite’s bankruptcy proceedings. In support of his claim, Harsh
provides an affidavit from Sobrejuanite’s bankruptcy attorney, Christine
Owen, in which she indicates that she would have never advised
Sobrejuanite to omit any assets from her bankruptcy petition. However,
again this Court finds Harsh cannot establish prejudice. Additional
21

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impeachment by way of Sobrejuanite’s bankruptcy attorney would not have
changed the outcome, because, as discussed above, Sobrejuanite’s
veracity was extensively attacked by counsel during trial. Further, Owen’s
testimony would have been inadmissible under the attorney-client privilege.
See NRS 49.055. As such, Harsh’s claim is denied.

1
2
3
4

(ECF No. 34-7 at 13.) The state district court’s rejection of Harsh’s claim was neither

5

contrary to, nor an unreasonable application of, clearly established law as determined

6

by the United States Supreme Court and was not based on an unreasonable

7

determination of the facts.

8

During Harsh’s state habeas proceedings, Harsh submitted an affidavit of

9

Christine Owen, the attorney who “assisted Marissa Sobrejuanite in filing her bankruptcy

10

petition.” (ECF No. 13-1 at 29.) Owen declared that, “pursuant to [her] oath as an officer

11

of the court, . . . [she] would never advise Marissa Sobrejuanite, or any other client, to

12

omit any assets from their bankruptcy petition.” (Id.) Owen also declared that, “pursuant

13

to [her] oath as an officer of the court, . . . [she] would never advise Marissa Sobrejuanite,

14

or any other client, not to register their vehicle with the Department of Motor Vehicles in

15

an effort to omit the vehicle from a bankruptcy proceeding.” (Id.)

16

The state district court reasonably determined that Harsh fails to demonstrate

17

prejudice. See Strickland, 466 U.S. at 694. Similar to Ground 6(1), establishing that

18

Sobrejuanite misrepresented—or alternatively, merely misinterpreted—her bankruptcy

19

attorney’s advice during her testimony at Harsh’s trial may have cast doubt on her

20

credibility. However, again, the jury was already aware of Sobrejuanite’s dishonesty

21

regarding her bankruptcy proceedings. As such, the state district court reasonably

22

determined that additional impeachment evidence would not have changed the result of

23

Harsh’s trial. See Strickland, 466 U.S. at 694. Because the state district court reasonably

24

denied Harsh’s claim, he is denied federal habeas relief for Ground 6(2). 7

25

///

26

///

27
28

7Ground

6(3) will be discussed with Grounds 6(8) through 6(13), the other
procedurally defaulted Grounds.
22

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 23 of 38

iii. Grounds 6(4) and 6(5)

1
2

In Ground 6(4), Harsh alleges that his trial counsel failed to argue that

3

Sobrejuanite’s noncompliance with Nevada’s vehicle registration requirements further

4

demonstrated that she was not the owner of the vehicle. (ECF No. 22 at 30.) And in

5

Ground 6(5), Harsh alleges that his trial counsel failed to call the Department of Motor

6

Vehicle’s custodian of records in order to introduce records showing that Co—not

7

Sobrejuanite—was the registered owner of the Toyota Tercel on the date of the theft.

8

(Id. at 32.) In affirming the state district court’s denial of Harsh’s state habeas petition,

9

the Nevada Court of Appeals addressed these two claims together:

10

Harsh claims counsel was ineffective for failing to argue the victim failed to
retitle the vehicle within 10 days of the title being signed over to her and for
failing to subpoena the custodian of records from the DMV in order to admit
documents demonstrating someone other than the victim was the legal
owner of the vehicle. The district court found counsel was not deficient and
there was no resulting prejudice because the fact the vehicle was titled in

11
12
13
14

someone else’s name at the time the vehicle was stolen was not disputed
at trial. Substantial evidence supports the decision of the district court and
we conclude the district court did not err by denying this claim.

15
16
17

(ECF No. 13-8 at 4.) The Nevada Court of Appeals’ rejection of Harsh’s claims was

18

neither contrary to, nor an unreasonable application of, clearly established law as

19

determined by the United States Supreme Court and was not based on an unreasonable

20

determination of the facts.

21

Following the conclusion of the presentation of evidence, Harsh’s trial counsel

22

attempted to admit an exhibit, which was “in response to a subpoena of the custodian

23

of records” from the Department of Motor Vehicles. (ECF No. 23-3 at 63-64.) Harsh’s

24

trial counsel requested that she be allowed to publish the exhibit without a witness

25

present to authenticate it because it amounted to a business record, explaining that “the

26

State did notice the custody [sic] of records for the Department of Motor Vehicles and

27

chose not to call them.” (Id. at 64.) The state district court disallowed the request,

28

///
23

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1

reasoning that “you have to have someone come in and say this is what it is, you can’t

2

just admit a document like that.” (Id.)

3

While it may have been prudent to have subpoenaed the Department of Motor

4

Vehicle’s custodian of records in order to admit the Toyota Tercel’s registration

5

documentation into evidence, instead of relying on the State’s representation that it

6

would be calling the custodian as its witness, the Nevada Court of Appeals reasonably

7

determined that Harsh failed to demonstrate prejudice. See Strickland, 466 U.S. at 688.

8

Indeed, as the Nevada Court of Appeals noted, there was no dispute that Sobrejuanite’s

9

name was not on the Toyota Tercel’s title at the time of the theft. Sobrejuanite testified

10

that Co gave her the Toyota Tercel around December 2009 or January 2010. (ECF No.

11

11-2 at 203, 216.) And although Co gave Sobrejuanite the Toyota Tercel’s title,

12

Sobrejuanite did not change the vehicle’s registration until the fall of 2010. (Id. at 204-

13

05.) As such, the registration document would have been superfluous.

14

Turning to the lack of argument by his trial counsel on this point, it is true that

15

NRS § 482.426(1)(a) provides that “[w]hen a used . . . vehicle is sold . . . by a person

16

who is not a dealer . . . , the seller or buyer . . . shall, within 10 days after the sale . . .

17

[s]ubmit . . . the certificate properly endorsed.” However, Sobrejuanite’s failure to follow

18

this 10-day registration requirement was unnoteworthy. Nevada law does not define the

19

owner of a motor vehicle based on the vehicle’s registration. Rather, NRS § 205.271

20

provides that the owner of a vehicle is “a person having the lawful use or control or the

21

right to the use and control of a vehicle under a lease or otherwise for a period of 10 or

22

more successive days.” Accordingly, because it was undisputed that Sobrejuanite failed

23

to change the Toyota Tercel’s registration at the time of the theft, as the Nevada Court

24

of Appeals aptly noted, and because that failure did not affect her ownership status, that

25

court reasonably determined that Harsh’s trial counsel was not deficient for not making

26

the dispensable argument about the 10-day registration requirement. See Strickland,

27

466 U.S. at 694. Because the Nevada Court of Appeals reasonably denied Harsh relief

28

on these two claims, Harsh is denied federal habeas relief for Grounds 6(4) and 6(5).
24

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 25 of 38

1

iv. Ground 6(6)

2

In Ground 6(6), Harsh alleges that his trial counsel failed to adequately

3

investigate the existence of Sobrejuanite’s registered certificate of title and provide this

4

information to him for the purposes of his plea negotiations. (ECF No. 22 at 32.) Harsh

5

claims that if he had known of the existence of the title, he would have accepted the

6

State’s plea offer. (Id. at 33.) In affirming the state district court’s denial of Harsh’s state

7

habeas petition, the Nevada Court of Appeals held:

8

14

Harsh claims counsel was ineffective for failing to obtain the title that was
presented at trial and had counsel obtained this title, he would have
accepted negotiations, and not gone to trial. The district court found counsel
did subpoena the DMV records, and therefore, counsel was not deficient.
The district court also found Harsh’s claim he would have accepted the plea
negotiations was a bare and naked claim and Harsh failed to explain how
having the title in the victim’s name would have changed his decision with
respect to the negotiations where the victim always had a possessory
interest in the vehicle. Substantial evidence supports the decision of the
district court, and we conclude the district court did not err by denying this
claim.

15

(ECF No. 13-8 at 5.) The Nevada Court of Appeals’ rejection of Harsh’s claim was

16

neither contrary to, nor an unreasonable application of, clearly established law as

17

determined by the United States Supreme Court and was not based on an unreasonable

18

determination of the facts.

9
10
11
12
13

19

At Harsh’s preliminary hearing, the State introduced “a copy of the title that Mr.

20

Co gave [Sobrejuanite] when he gave [her] the vehicle.” (ECF No. 11-1 at 4-5.) That title

21

listed Pedro Co as the owner of the vehicle and listed Sobrejuanite as the transferee.

22

(See ECF No. 13-1 at 34.) Following the preliminary hearing, Harsh’s trial counsel

23

subpoenaed the following from the Department of Motor Vehicles: “[a]ny and all records

24

pertaining to a 1994 White 4-door Toyota Tercel, . . . [r]egistered in the State of Nevada

25

in the name of Pedro Co.” (ECF No. 13-1 at 37.) Several months later, at the trial, the

26

State sought to introduce the Toyota Tercel’s new title showing Sobrejuanite as the

27

owner of the vehicle. (See ECF No. 11-2 at 199, 206-07; see also ECF No. 13-1 at 32.)

28

The State received this new title the morning of the first day of trial from Sobrejuanite.
25

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 26 of 38

1

(ECF No. 11-2 at 199.) Harsh’s trial counsel objected because she had not been given

2

this new title during discovery and had not personally obtained it from the Department

3

of Motor Vehicles. (Id.) The state district court admitted the title. (Id.)

4

Although Harsh’s trial counsel may have been deficient in failing to make an

5

accurate subpoena request—requesting records regarding Sobrejuanite’s registration

6

of the vehicle and not just Pedro Co’s registration—the Nevada Court of Appeals

7

reasonably concluded that Harsh failed to demonstrate prejudice. See Strickland, 466

8

U.S. at 694. When an ineffective-assistance-of-counsel claim is based “[i]n the context

9

of pleas[,] a defendant must show the outcome of the plea process would have been

10

different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012). As the

11

Nevada Court of Appeals reasonably concluded, Harsh’s claim that he would have

12

accepted the plea negotiations if he had seen the new title prior to trial lacks supports.

13

Before calling in the prospective jurors, the state district court asked Harsh if he wanted

14

to discuss a negotiation with his trial counsel. (ECF No. 11-2 at 17.) Harsh responded,

15

“[n]o, they’re just giving m[e] . . . [s]ix to fifteen, I might as well just give you my life”

16

because “I’ve got two little . . . baby boys at home. I can’t be doing no 6 to 15 years.”

17

(Id. at 17-18.) A little while later, the State indicated that it dropped the lower end of its

18

plea offer to five years, and Harsh told the state district court that he could not “make a

19

decision on my own on anything” because he had “a wife and two kids [he would have]

20

to talk to.” (Id. at 21-22.) Because this record demonstrates that Harsh was not

21

amenable to any negotiation and because Harsh relies entirely on his self-serving

22

statement that he would have taken a plea deal, Harsh fails to demonstrate that the

23

outcome of the plea-bargaining process would have been different had his trial counsel

24

obtained the Toyota Tercel’s new title prior to trial. See Lafler, 566 U.S. at 163.

25

Accordingly, because the Nevada Court of Appeals reasonably denied Harsh’s claim,

26

Harsh is denied federal habeas relief for Ground 6(6).

27

///

28

///
26

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1

v. Ground 6(7)

2

In Ground 6(7), Harsh alleges that his trial counsel failed to object to Officer

3

Ditmar’s testimony regarding shaved keys because the State did not qualify him as an

4

expert witness. (ECF No. 22 at 33.) In affirming the state district court’s denial of Harsh’s

5

state habeas petition, the Nevada Court of Appeals held:

6
7
8
9
10
11
12
13
14
15

Harsh claims counsel was ineffective for failing to object to the use of expert
testimony by a witness who was not noticed as an expert. Specifically,
Harsh claims counsel should have objected to the testimony by a police
officer regarding shaved keys. Harsh failed to demonstrate he was
prejudiced because Harsh failed to demonstrate the State would not have
been permitted to present the officer’s testimony. See Sampson v. State,
121 Nev. 820, 827, 122 P.3d 1255, 1259-60 (2005) (discussing the range
of possible remedies for failure to make appropriate expert witness
disclosure). Further, the district court found Harsh could not demonstrate a
reasonable probability of a different outcome at trial had the officer not
testified about the shaved keys. The victim testified the vehicle was hers
and it was stolen. Harsh was found in the vehicle, a Toyota, and the key
being used for the vehicle was a Hyundai key. Further, Harsh told the
officers the vehicle was not his and he “borrowed it from a guy” but he was
unable to provide the person’s name or contact information. Substantial
evidence supports the decision of the district court, see NRS 205.273(1)(b),
and we conclude the district court did not err by deny [sic] this claim.

16
17

(ECF No. 13-8 at 5-6.) The Nevada Court of Appeals’ rejection of Harsh’s claim was

18

neither contrary to, nor an unreasonable application of, clearly established law as

19

determined by the United States Supreme Court and was not based on an unreasonable

20

determination of the facts.

21

As was explained more fully in Ground 4, Officer Ditmar testified that he pulled

22

over the Toyota Tercel on July 28, 2010, and arrested the driver, Harsh, because the

23

vehicle had been reported as being stolen. (ECF No. 23-3 at 6-7, 10-12.) During his

24

inventory search, Ditmar recovered a shaved “Hyundai key in the ignition.” (ECF No. 23-

25

3 at 13.) Ditmar then explained that “people [who] steal cars will often take the

26

screwdriver and they’ll jam it into the ignition and force start it. . . . At that point, . . . they’ll

27

use a key that’s shaved to go ahead and stick in there and turn the car on and off.” (Id.

28

at 14.) A shaved key is one in which a person has “shave[d] off a lot of the fine points
27

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 28 of 38

1

and tips.” (Id.) During cross-examination, Harsh’s trial counsel questioned Ditmar about

2

shaved keys, asking whether he was an expert on shaved keys, what training he had

3

received on identifying shaved keys, the difference between a worn-down key and a

4

shaved key, whether he followed “specific standard[s] or guideline[s]” to determine the

5

key’s shaved status, and whether he sought a second opinion from anyone about the

6

shaved key. (ECF No. 23-3 at 32-33.)

7

It is true that the State did not attempt to qualify Officer Ditmar as an expert on

8

shaved keys, but it is not clear that an expert is needed to identify a shaved key. NRS §

9

50.275 provides that, “[i]f scientific, technical or other specialized knowledge will assist

10

the trier of fact to understand the evidence or to determine a fact in issue, a witness

11

qualified as an expert by special knowledge, skill, experience, training or education may

12

testify to matters within the scope of such knowledge.” Here, Ditmar’s identification of

13

the shaved key was simply based on his “training and experience,” rather than any

14

formal specialized knowledge. (See ECF No. 23-3 at 32-33.) Moreover, Harsh’s trial

15

counsel attempted to highlight any deficiencies in Ditmar’s testimony regarding the

16

shaved key during her cross-examination. (See id.)

17

However, even if Harsh’s trial counsel was deficient, the Nevada Court of Appeals

18

reasonably determined that Harsh failed to demonstrate prejudice. See Strickland, 466

19

U.S. at 694. As that court reasonably noted, Harsh fails to demonstrate that Officer

20

Ditmar’s testimony on shaved keys would have been excluded has his trial counsel

21

objected. The Nevada Supreme Court has held that “if a witness fails to qualify as an

22

expert, the court should not permit the witness to testify unless the witness may

23

otherwise be considered a lay witness.” Mulder v. State, 116 Nev. 1, 14, 992 P.2d 845,

24

853 (2000). As Ditmar was one of the officers who pulled Harsh over and inventoried

25

the Toyota Tercel, he would not have been excluded as a witness. And because Ditmar’s

26

conclusion that the key was shaved was based on his experience as a law enforcement

27

officer—indeed, Ditmar testified that he did not consider himself an expert on shaved

28

keys (see ECF No. 23-3 at 32-33)—there would not have been a basis to limit his lay28

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 29 of 38

1

witness testimony on shaved keys. Rather, it was the merely “function of the jury . . . to

2

determine the weight and credibility to give [his] testimony” on shaved keys given his

3

lack of formal expertise on the matter. Mulder, 116 Nev. at 13, 992 P.2d at 852. Because

4

the Nevada Court of Appeals reasonably denied his claim, Harsh is denied federal

5

habeas relief for Ground 6(7).

6

vi. Grounds 6(3) and 6(8) through 6(12)

7

This Court previously determined that Grounds 6(3) and 6(8) through 6(12) were

8

technically exhausted but procedurally defaulted. (ECF No. 44 at 10.) Harsh previously

9

argued that he could demonstrate cause and prejudice under Martinez v. Ryan, 566

10

U.S. 1 (2012) to excuse the default because his post-conviction counsel was ineffective.

11

(See ECF No. 36.) This Court deferred consideration of Harsh’s cause and prejudice

12

argument under Martinez until the time of merits consideration. (ECF No. 44 at 10.)

13

In Martinez, the United States Supreme Court ruled that “when a State requires

14

a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral

15

proceeding, a prisoner may establish cause for a default of an ineffective-assistance

16

claim” if “the state courts did not appoint counsel in the initial-review collateral

17

proceeding” or “where appointed counsel in the initial-review collateral proceeding . . .

18

was ineffective.” 566 U.S. at 14. “To overcome the default, a prisoner must also

19

demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a

20

substantial one, which is to say that the prisoner must demonstrate that the claim has

21

some merit.” Id. This Court will now determine whether Harsh’s underlying ineffective-

22

assistance-of-trial-counsel claims are substantial.

23

1. Ground 6(3)

24

In Ground 6(3), Harsh alleges that his trial counsel failed to call Christine Owen

25

to establish the perjury of Sobrejuanite, which would have established a basis for a

26

mistrial pursuant to Napue v. Illinois. (ECF No. 22 at 29-30.) “[A] conviction obtained

27

through use of false evidence, known to be such by representatives of the State, must

28

fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959); see
29

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1

also Maxwell v. Roe, 628 F.3d 486, 507 (9th Cir. 2010) (explaining that “to permit the

2

petitioner’s conviction to stand on the basis of . . . false material evidence violated his

3

constitutional rights”).

4

This claim is based on a single response made by Sobrejuanite: she did not

5

change the vehicle’s registration until the fall of 2010 “[b]ecause [she] ha[d] to file a

6

bankruptcy and [her] attorney said [she could] not put it in [her] name yet until the

7

bankruptcy [was] done.” (ECF No. 11-2 at 204-05.) Although Christine Owen declared

8

that she did not advise Sobrejuanite to wait to transfer the title, it is not clear that

9

Sobrejuanite’s foregoing testimony was actually false in violation of Napue. Rather,

10

Sobrejuanite may have simply misunderstood her bankruptcy attorney’s advice.

11

Moreover, Harsh fails to demonstrate that this single testimonial statement was material.

12

See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (explaining that a Napue

13

violation claim will succeed when “(1) the testimony (or evidence) was actually false, (2)

14

the prosecution knew or should have known that the testimony was actually false, and

15

(3) the false testimony was material” (internal quotation marks and alternation omitted).).

16

Sobrejuanite testified consistently that she owned the Toyota Tercel, and the basis of

17

her postponement in changing the vehicle’s registration did not alter that ownership

18

status at the time of the theft. Ground 6(3) is not substantial and is denied as being

19

procedurally defaulted. See Martinez, 566 U.S. at 14.

20

2. Ground 6(8)

21

In Ground 6(8), Harsh alleges that his trial counsel failed to move for a new trial

22

or resentencing based on judicial bias. (ECF No. 22 at 37.) Harsh elaborates that the

23

state district court judge improperly intervened in the plea-bargaining process,

24

attempted to coerce Harsh into pleading guilty, threatened a life sentence, punished him

25

for going to trial, and failed to consider mitigating factors at sentencing. (ECF No. 66 at

26

70.) Harsh explains that the judge had a reputation at the time of Harsh’s trial for

27

improperly participating in plea negotiations, which should have alerted Harsh’s trial

28

counsel of the judge’s improper actions. (Id. at 70-71 (citing Burton v. State, 56639, 2012
30

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 31 of 38

1

WL 988053 (Nev. 2012); Perez v. State, Case No. 60743, 2013 WL 597790 (Nev. 2013);

2

Black v. State, Case No. 63880, 2014 WL 1424587 (Nev. 2014).)

3

Before the prospective jury panel was brought into the courtroom on the first

4

morning of trial, Harsh’s trial counsel informed the state district court that Harsh had

5

rejected the State’s plea offer. (ECF No. 11-2 at 5.) The state district court judge

6

responded, in part, that “[h]e told him how tough of a sentencer I was.” (Id.) Later, the

7

judge asked Harsh if he wanted to speak with his trial counsel again about any plea

8

negotiation, informing Harsh that he was “looking at life” and that he “should listen to

9

[his] attorney. [His] attorney practices in this department a lot. She’s a good lawyer and

10

[he] probably should listen to her. She knows that [the judge is] a hard sentencer.” (Id.

11

at 17-18.) Following a pause in the proceedings, the judge then informed Harsh of the

12

following: “[your trial counsel] will probably tell you that I will follow the recommendation

13

that she and the DA work out. But she’ll probably also tell you that there’s a substantial

14

likelihood if you’re convicted that you’re going to go to prison for life.” (Id. at 19.)

15

Following another pause in the proceedings, the judge stated that if Harsh took a “five-

16

year [plea deal], [he would] probably do three, four [years],” but if he did not take the

17

plea deal, he was “going probably [to] do life without.” (Id. at 22.) When Harsh failed to

18

respond, the judge brought the jury in to start the trial. (Id.) At Harsh’s sentencing

19

hearing, the State requested that the state district court “sentence [Harsh] under the

20

maximum amount under th[e small habitual] statute.” (ECF No. 11-6 at 6.) The court

21

sentenced Harsh “to 120 months to life on a large habitual criminal.” (Id. at 13.)

22

The Nevada Supreme Court has adopted “a bright-line rule prohibiting any

23

judicial participation in the plea negotiation process with one exception: the judge may

24

indicate whether he or she is inclined to accept a sentencing recommendation of the

25

parties.” Cripps v. State, 122 Nev. 764, 772-73, 137 P.3d 1187, 1192-93 (2006). The

26

state district court’s comments prior to the commencement of Harsh’s trial treaded on

27

the line of crossing into improper territory based on Cripps. However, it appears that the

28

court was merely warning Harsh of its sentencing practices and of the reality Harsh
31

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1

faced: a possible life sentence if he was convicted. Moreover, there was no indication

2

at Harsh’s sentencing hearing that the court sentenced Harsh to life in prison based on

3

his refusal to plead guilty. Contrarily, the court implied that the basis of its sentence was

4

that Harsh “planned [his crime] out very much, this wasn’t a crime of convenience.” (ECF

5

No. 11-6 at 13 (explaining it “was waiting for an explanation about the . . . credit card

6

scanner that was found in his car when he was pulled over in a stolen vehicle”).)

7

Accordingly, Harsh fails to demonstrate that his trial counsel was deficient for not moving

8

for a new trial or new sentencing judge due to judicial bias. See Strickland, 466 U.S. at

9

688. Ground 6(8) is not substantial and is denied as being procedurally defaulted. See

10
11

Martinez, 566 U.S. at 14.
3. Ground 6(9)

12

In Ground 6(9), Harsh alleges that his trial counsel failed to object to Jury

13

Instruction No. 7 because it improperly relieved the State of its burden to prove that

14

Harsh knew or had reason to know the stolen nature of the car. (ECF No. 22 at 39.) Jury

15

Instruction No. 7 provided, “[a] person may be found guilty of [p]ossession of [s]tolen

16

[v]ehicle where the circumstances are such as to put a reasonable person on notice as

17

to the stolen nature of the vehicle he possessed.” (ECF No. 11-3 at 8.)

18

While Jury Instruction No. 7’s language does not match the language from the

19

possession of a stolen vehicle statute, see NRS § 205.273(1)(b) (“A person commits an

20

offense involving a stolen vehicle if the person . . . [h]as in his or her possession a motor

21

vehicle which the person knows or has reason to believe has been stolen.”), the

22

language in Jury Instruction No. 7 appears to have come from Nevada’s caselaw on

23

possession of stolen property generally. See Gray v. State, 100 Nev. 556, 558, 688 P.2d

24

313, 314 (1984) (holding “that a person may be found guilty of possession of stolen

25

property in Nevada where the circumstances are such as to put a reasonable person on

26

notice as to the stolen nature of the goods he possessed”). Moreover, Jury Instruction

27

No. 5 mirrors the statutory language of NRS § 205.273(1)(b). (See ECF No. 11-3 at 6

28

(providing that “[a]ny person who has in his possession any motor vehicle which he
32

Case 2:17-cv-02069-MMD-NJK Document 70 Filed 07/29/21 Page 33 of 38

1

knows or has reason to believe has been stolen is guilty of [p]ossession of [s]tolen

2

[v]ehicle”).) For these reasons, Harsh fails to demonstrate that his trial counsel was

3

deficient for not objecting to Jury Instruction No. 7 or that the state district court would

4

have granted a request to remove it. See Strickland, 466 U.S. at 688, 694. Ground 6(9)

5

is not substantial and is denied as being procedurally defaulted. See Martinez, 566 U.S.

6

at 14.

7

4. Ground 6(10)

8

In Ground 6(10), Harsh alleges that his trial counsel failed to move to strike seven

9

jurors—namely, Paul Robinson, Sandra Pizano, Rachel Hoer, Michael Hale, Amy

10

Spero, Diane Estrada, and Chrystal Harry—and failed to move for a new trial due to the

11

lack of an impartial jury. (ECF No. 22 at 41.) This Court will address each of these jurors

12

and their voir dire comments in turn.

13

First, Paul Robinson stated that he was both a victim of, and accused of a crime,

14

explaining that he was “[s]tuck up at gunpoint back East about seven years ago” and

15

had “a DUI charge that’s pending.” (ECF No. 11-2 at 44.) Robinson stated that those

16

experiences “[s]omewhat” prejudiced him because, “in [his] opinion, most people that

17

are accused of a crime are usually guilty.” (Id. at 45.) When the state district court asked,

18

“if the State doesn’t prove the elements of the crime, you would find him not guilty,”

19

Robinson responded, “[y]eah, that’s correct.” (Id.) Robinson also stated that he would

20

be fair to both sides. (Id.) When questioned by the State, Robinson stated that he

21

believed law enforcement officers “could be very belligerent, they could be very

22

disrespectful, not answer your questions, not want to know, not want to give you the

23

time of day.” (Id. at 47.) However, “despite . . . some of [his] feelings towards the officers,”

24

Robinson stated that he “could look at all the evidence in this case and be fair to both

25

the Defendant and the State.” (Id. at 48.)

26

Second, Sandra Pizano stated that her husband, with whom she had separated,

27

“[b]roke in [her] house, [and] stole [her] car.” (ECF No. 11-2 at 57, 60.) Pizano

28

understood that “the State would have to present evidence beyond a reasonable doubt
33

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1

to find [Harsh] guilty” and stated that she would not have “any problems returning a not

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guilty verdict” if “the State fail[ed] to present enough evidence to find him guilty.” (Id. at

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66.) Similarly, Amy Spero and Diane Estrada also both reported that they had a vehicle

4

stolen from them. (Id. at 74-75, 102-03.) Spero stated that there was nothing about that

5

experience that she would hold against either party and reported that she could be a fair

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and impartial juror. (Id. at 75, 78.) And Estrada maintained that she would not hold her

7

experience against Harsh and would be fair and impartial. (Id. at 102-03.)

8

Next, Rachel Hoer explained that her house had “been robbed three times” and

9

her car had “been broken into.” (ECF No. 11-2 at 187-88.) Hoer stated that there was

10

no reason she would not be unfair and impartial to both parties. (Id. at 188.) When

11

Harsh’s trial counsel asked Hoer if she would “give more weight to the testimony of a

12

police officer than a lay witness,” she said, “I don’t think I’d give more weight, but I would

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- - like I’d respect their - - what they’d have to say.” (Id. at 189.) Harsh’s trial counsel

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questioned Hoer further, asking if she believed a police officer’s testimony was “more

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credible than another person’s testimony.” (Id.) Hoer responded in the negative. (Id.)

16

Likewise, Chrystal Harry also had her vehicle broken into and reported that she could

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be fair and impartial to both parties. (Id. at 147-48.)

18

Finally, Michael Hale stated that he “had several cars broken into and [his] wife’s

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had [sic] a car broken into and stolen.” (ECF No. 11-2 at 190-91.) Hale thought he “would

20

be fair and impartial,” but he acknowledged that Harsh’s case “hit [him] close . . .

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because it was something that happened in [his] life.” (Id. at 191.) When he was

22

questioned further by Harsh’s trial counsel, Hale explained that he was upset at how the

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police responded to the theft of his wife’s car, not that the car was stolen. (Id. at 194.)

24

Harsh fails to demonstrate that his trial counsel acted deficiently in not moving to

25

strike these jurors and not moving for a new trial based on the alleged impartial jury.

26

See Strickland, 466 U.S. at 688. Although these jurors were the victims of crimes—and

27

in fact, most of them were victims of crimes regarding their vehicles—all the jurors

28

reported that they would be fair and impartial. As such, Harsh fails to demonstrate that
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his trial counsel had a reasonable basis to challenge them for cause. See Irvin v. Dowd,

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366 U.S. 717, 722 (1961) (“[T]he right to jury trial guarantees to the criminally accused

3

a fair trial by a panel of impartial, ‘indifferent’ jurors.”); Smith v. Phillips, 455 U.S. 209,

4

217 (1982) (“Due process means a jury capable and willing to decide the case solely on

5

the evidence before it.”). Moreover, two of the jurors—Robinson and Hale—

6

acknowledged negative feelings towards law enforcement. These feelings may have

7

been beneficial to Harsh such that attempting to challenge them for cause may have

8

been detrimental to Harsh. Accordingly, Ground 6(10) is not substantial and is denied

9

as being procedurally defaulted. See Martinez, 566 U.S. at 14.
5. Grounds 6(11) and 6(12)

10
11

In Ground 6(11), Harsh alleges that his trial counsel failed to challenge the

12

possession of Nevada’s burglary tools statute as unconstitutionally vague where, as in

13

his case, a person can be convicted for possessing common work tools. (ECF No. 22 at

14

44-46.) And in Ground 6(12), Harsh alleges that his trial counsel failed to object to the

15

State’s closing argument regarding the elements of the crime of possession of burglary

16

tools. (Id. at 46.) Respondents argue that this Court lacks jurisdiction to consider these

17

two grounds because Harsh completed his sentence for his possession of burglary tools

18

conviction before filing his instant federal petition. (ECF No. 62 at 30-31.) The Court

19

agrees.

20

The federal habeas statute gives this Court jurisdiction to entertain petitions for

21

habeas relief only from persons who are “in custody pursuant to the judgment of a State

22

court only on the ground that he [or she] is in custody in violation of the Constitution or

23

laws or treaties of the United States.” 28 U.S.C. § 2254(a). The United States Supreme

24

Court has “interpreted th[is] statutory language as requiring that the habeas petitioner

25

be ‘in custody’ under the conviction or sentence under attack at the time his petition is

26

filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). And, the Supreme Court has “never

27

held . . . that a habeas petitioner may be ‘in custody’ under a conviction when the

28

sentence imposed for that conviction has fully expired at the time his petition is filed.” Id.
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at 491 (emphasis in original) (explaining that “[w]hile [it has] very liberally construed the

2

‘in custody’ requirement for purposes of federal habeas, [it has] never extended it to the

3

situation where a habeas petitioner suffers no present restraint from a conviction”).

4

On September 27, 2011, Harsh was sentenced to 12 months in the Clark County

5

Detention Center for his possession of burglary tools conviction, a gross misdemeanor.

6

(ECF No. 11-7 at 3.) This sentence was ordered to run concurrently with his felony

7

conviction for possession of a stolen vehicle, which was adjudged under Nevada’s large

8

habitual criminal statute. (Id.) Harsh’s federal habeas corpus petition was not filed until

9

nearly six years later in 2017 (see ECF No. 6), after his 12-month sentence for his

10

possession of burglary tools had fully expired. Thus, the Court dismisses Grounds 6(11)

11

and 6(12) based on a lack of jurisdiction. See Maleng, 490 U.S. 488, 490-91.8

12

///

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27
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if this Court had jurisdiction, Harsh fails to demonstrate that Nevada’s statute
on possession of burglary tools was unconstitutionally vague or that the State’s closing
argument regarding the elements of the crime of possession of burglary tools was
improper. Therefore, Grounds 6(11) and 6(12) are not substantial and are alternatively
denied as being procedurally defaulted. See Martinez, 566 U.S. at 14.
8Even

First, NRS § 205.080 provides that “[e]very person who . . . has in his or her
possession . . . any . . . tool, . . . designed or commonly used for the commission of
burglary, . . . shall be guilty of a gross misdemeanor.” Harsh fails to demonstrate that this
statute failed to give “fair notice of the conduct it punishes” or invited “arbitrary
enforcement.” Johnson v. United States, 135 S.Ct. 2551, 2556 (2015); see also Giaccio
v. Pennsylvania, 382 U.S. 399, 402-03 (1966) (“It is established that a law fails to meet
the requirements of the Due Process Clause if it is so vague and standardless that it
leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free
to decide, without any legal fixed standards, what is prohibited and what is not in each
particular case.”). As such, Harsh fails to demonstrate that his trial counsel was deficient
for not challenging the statute. See Strickland, 466 U.S. at 688.
Second, Harsh takes issue with the State’s closing argument that “[i]n terms of the
burglary tools,” the jury did not need to agree that Harsh “used [the tools] in a criminal
nature,” but, instead, just needed to agree “whether or not based upon the circumstances
and the testimony in evidence that these items are commonly used in commission of a
crime.” (ECF No. 23-3 at 83.) Even if Harsh’s trial counsel was deficient for not objecting
to this comment, which is far from clear, Harsh fails to demonstrate prejudice, see
Strickland, 466 U.S. at 694, because the jury was accurately instructed regarding NRS §
205.080. (See ECF No. 11-3 at 10.)
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6. Ground 6(13)

1
2

In Ground 6(13), Harsh alleges that his trial counsel failed to move for a judgment

3

of acquittal on both counts—possession of a stolen vehicle and possession of burglary

4

tools—pursuant to NRS § 175.381. (ECF No. 22 at 47.) NRS § 175.381(2) provides that

5

“[t]he court may, on a motion of a defendant[,] . . . set aside the verdict and enter a

6

judgment of acquittal if the evidence is insufficient to sustain a conviction.” Because a

7

motion filed under NRS § 175.381(2) would have been unfruitful, Harsh fails to

8

demonstrate deficiency or prejudice. See Strickland, 466 U.S. at 688, 694. Indeed, as

9

was discussed in Ground 4, the State presented sufficient evidence to support Harsh’s

10

conviction for possession of a stolen vehicle. And, regarding the possession of burglary

11

tools conviction, Officer Ditmar testified that he found the following items in the Toyota

12

Tercel after Harsh exited the vehicle: a shaved “Hyundai key in the ignition,” numerous

13

keys on the passenger front seat, a flathead screwdriver, and a Leatherman multi-tool,

14

which, according to Ditmar, is “another tool that’s often used by car thieves.” (ECF No.

15

23-3 at 13, 19.) This evidence was sufficient to support Harsh’s possession of burglary

16

tools conviction. See NRS § 205.080. Ground 6(13) is not substantial and is denied as

17

being procedurally defaulted. See Martinez, 566 U.S. at 14.9

18

V.

CERTIFICATE OF APPEALABILITY

19

This is a final order adverse to Petitioner Thomas Harsh. Rule 11 of the Rules

20

Governing Section 2254 Cases requires the Court to issue or deny a certificate of

21

appealability (“COA”). Therefore, the Court has sua sponte evaluated the claims within

22

the Petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.

23

Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a

24
25
26
27
28

requests that this Court “[c]onduct an evidentiary hearing at which proof
may be offered concerning the allegations in [his] amended petition and any defenses
that may be raised by respondents.” (ECF No. 22 at 51.) Harsh fails to explain what
evidence would be presented at an evidentiary hearing. Moreover, this Court has already
determined that Harsh is not entitled to relief, and neither further factual development nor
any evidence that may be proffered at an evidentiary hearing would affect this Court’s
reasons for denying relief. As such, Harsh’s request for an evidentiary hearing is denied.
9Harsh

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

2

of a constitutional right.” With respect to claims rejected on the merits, a petitioner “must

3

demonstrate that reasonable jurists would find the district court’s assessment of the

4

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

5

(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA

6

will issue only if reasonable jurists could debate (1) whether the petition states a valid

7

claim of the denial of a constitutional right and (2) whether the court's procedural ruling

8

was correct. Id. Applying these standards, the Court finds that a certificate of appealability

9

is unwarranted.

10

VI.

CONCLUSION

11

It is therefore ordered that the petition for a writ of habeas corpus pursuant to 28

12

U.S.C. § 2254 (ECF No. 22) is granted as to Ground 3. Harsh will be released from parole

13

within 60 days unless the Respondents file in this action, within that 60-day period, a

14

written notice of election to retry Harsh, and the State thereafter, within 180 days after the

15

filing of that notice, commences proceedings toward the retrial. Any party may request a

16

reasonable modification of the time limits set forth in this paragraph.

17

The judgment in this action will be stayed pending the conclusion of any appellate

18

or certiorari review in the Ninth Circuit Court of Appeals or the United States Supreme

19

Court, or the expiration of the time for seeking such appellate or certiorari review,

20

whichever occurs later.

21
22

It is further ordered that a certificate of appealability is denied as to Harsh’s
remaining grounds.

23

The Clerk of Court is directed to enter judgment accordingly.

24

DATED THIS 29th Day of July 2021.

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26
27
28

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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