Gus Miller v. Lenard Vare' et al

Filing 57

ORDER: for the reasons assigned: (a) that Grounds 2(a), 2(c),2(d), 3(a)(1) & (2), 3(c)(1) & (2), 6(a), and 7(a) are DISMISSED with prejudice as procedurally defaulted; (b) that Grounds 2(e), 3(b)(1-4), 4(c)(1-2), 5(b)(1-2), 6(b), 6(c), 7(b), 8(a), a nd 8(b)are DISMISSED with prejudice on the merits; and (c) that Grounds 5(c) and 9 areDISMISSED with prejudice, on the merits to the extent that the claims are based upon allegations of ineffective assistance of counsel and on the basis of procedural default to the extent that the claims are not. The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. Signed by Judge Edward C. Reed, Jr on 2/2/2009. (Copies have been distributed pursuant to the NEF - KL)

1 2 3 4 5 6 7 8 GUS MILLER, 9 Petitioner, 10 vs. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the remaining claims. In the claims that remain before the Court, petitioner Gus Miller seeks to set aside his 1997 Nevada state conviction, pursuant to a jury verdict, of conspiracy to commit murder and first degree kidnaping with use of a deadly weapon. Preliminary Matters Jurisdiction over Remaining Portions of Ground 4 Ground 4 presents various legal claims concerning the stop and search of the vehicle in which Miller was a passenger. The Court previously dismissed all claims challenging the petitioner's conviction on Count IV for possession of a controlled substance with intent to sell for lack of jurisdiction over the subject matter. The Court dismissed the claims because the concurrent sentence on that conviction had fully expired seven years prior to the filing of the federal petition. See #34, at 1-6 & 11. In a subsequent order, the Court raised the question as to whether it had jurisdiction over the portions of Ground 4 that remained before the Court, querying whether the search-and-seizure related claims pertained only to the Count IV LENARD VARÉ, et al., Respondents. ORDER 3:05-cv-00703-ECR-RAM

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

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conviction for possession of a controlled substance with intent to sell. See #51, at 3 n.2 & 6. Following review of the parties' responses, it appears that the search-and-seizure related claims also pertain to evidence used in convicting Miller of the charges of conspiracy to commit murder and first degree kidnaping with the use of a dangerous weapon. The Court accordingly concludes that it has jurisdiction over the remaining claims in Ground 4, but only to the extent that the claims are directed to the convictions for conspiracy to commit murder and first degree kidnaping with the use of a dangerous weapon. Procedural Default Respondents contend that Grounds 2(a), 2(c), 2(d), 3(a)(1) & (2), 3(c)(1) & (2), 5(c), 6(a), 7(a), and 9 are barred by procedural default. These grounds, with two exceptions, are claims of trial error that Miller presented for the first time on state post-conviction review. Applying N.R.S. 34.810(1)(b), the state high court rejected all such substantive claims that Miller presented on post-conviction review independently of his ineffective assistance claims, because the claims had not been presented on direct appeal. #19, Ex. 25, at 2 n.2. Under the procedural default doctrine, federal review of a claim may be barred if the state courts rejected the claim on an independent and adequate state law ground due to a procedural default. Review of a defaulted claim will be barred even if the state court also rejected the claim on the merits in the same decision. Federal habeas review will be barred on claims that were rejected on an independent and adequate state law ground unless the petitioner can demonstrate either: (a) cause for the procedural default and actual prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage of justice will result in the absence of review. See,e.g.,Bennet v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). In the reply, petitioner responds only as follows: The State of Nevada previously raised these issues in both of its Motions to Dismiss. #19 and 43. This Honorable Court considered the motions and in fact dismissed certain claims. #42 and 51. This Court has previously found that the remaining claims have been properly exhausted and therefore the Court should consider Petitioner Miller's arguments. #56, at 12. -2-

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Petitioner's reply confuses the exhaustion doctrine and the procedural default doctrine. Even if the Court, arguendo, had made an affirmative holding that the remaining claims in the petition were exhausted,1 any such exhaustion holding would not overcome the procedural default bar raised by the respondents. Quite simply, in the context presented in this case, claims can be exhausted but procedurally defaulted. Miller appears to have exhausted the claims by presenting the claims to the state courts, but the Supreme Court of Nevada held that the claims were procedurally barred under the state law ground in N.R.S. 34.810(1)(b). Petitioner presents no apposite argument to overcome the application of the procedural default doctrine. Accordingly, on the showing and arguments made, the Court holds, with the exceptions noted below, that the listed claims are procedurally defaulted. The cumulative error claims in Ground 5(c) and Ground 9, however, include claims of cumulative error based upon ineffective assistance of counsel. The claims are to that extent, and only that extent, not procedurally defaulted. All claims of cumulative error therein that instead are based upon trial error rather than ineffective assistance of counsel are procedurally defaulted. Merits Review as to Remaining Claims The Court accordingly turns to a review on the merits as to the remaining claims , i.e., on the claims of ineffective assistance of counsel in Grounds 2(e), 3(b)(1-4), 4(c)(1-2), 5(b)(12), 5(c) (part), 6(b), 6(c), 7(b), 8(a), 8(b), and (9) (part). The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 117 S.Ct. 2059, 2066 n.7(1997). Under this deferential standard of review, a federal court may not grant

T h e Court has m a d e no affirm a t iv e blanket holding that all claim s rem a in in g before the Court are e x h a u s te d . The Court has held that certain claim s are unexhausted, and, in rejecting a non-exhaustion a r g u m e n t as to certain specified claim s , it has held that those specified claim s were exhausted. See,e.g., # 3 4 , at 8 (Ground 3(c)(2)). If the respondents do not raise an exhaustion defense to a claim and the Court d o e s not sua sponte raise an exhaustion issue as to the claim , the Court has no occasion to m a k e an a f f ir m a tiv e holding that the claim is exhausted. In short, a holding that specified claim s are not exhausted, w h e n issue is joined as to the exhaustion of those claim s , does not constitute a holding that other claim s are e x h a u s te d .

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habeas relief merely on the basis that a state court decision was incorrect or erroneous. E.g., Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Instead, under 28 U.S.C. § 2254(d), the federal court may grant habeas relief only if the decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. E.g., Mitchell v. Esparza, 540 U.S. 12, 15, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell, 540 U.S. at 15-16, 124 S.Ct. at 10. A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." Mitchell, 540 U.S. at 16, 124 S.Ct. at 11. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law. A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18, 124 S.Ct. at 12; Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003). To the extent that the state court's factual findings are challenged intrinsically based upon evidence in the state court record, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied -4-

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by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, the AEDPA requires substantially more deference: . . . . [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. If the state court factual findings withstand intrinsic review under this deferential standard, they then are clothed in a presumption of correctness under 28 U.S.C. § 2254(e)(1); and they may be overturned based on new evidence offered for the first time in federal court, if other procedural prerequisites are met, only on clear and convincing proof. 393 F.3d at 972. On a claim of ineffective assistance of counsel, the petitioner must satisfy the twopronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from his perspective at the time. The reviewing court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003). W hen evaluating claims of ineffective assistance of appellate counsel, the performance and prejudice prongs of the Strickland standard partially overlap. E.g., Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir. 2001); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Effective appellate advocacy requires weeding out weaker issues with less likelihood of success. The failure to present a weak issue on appeal neither falls below an objective standard of competence nor causes prejudice to the client for the same reason ­ because the omitted issue has little or no likelihood of success on appeal. Id. -5-

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The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Davis, 333 F.3d at 991. Ground 2(e): Failure to Request Limiting Instruction In Ground 2(e), petitioner alleges that he was denied effective assistance of counsel when his trial counsel failed to request a limiting instruction regarding the appropriate use of the prior bad act evidence admitted at his trial. The respondents have not directed the Court to a holding by the Supreme Court of Nevada on this ineffective assistance claim. The Court reviewed the state supreme court's August 24, 2005, order of affirmance on state post-conviction review, and the Court could not find a holding addressing the claim. See #19, Ex. 25. The Court accordingly reviews the claim de novo rather than under the deferential AEDPA standard of review. On direct appeal, the Supreme Court of Nevada summarized the trial evidence as follows: Herbert Little ("Little") was a confidential informant for the Magnet Task Force of the La Paz County Sheriff's Department in Arizona. On two occasions, Little participated in "controlled buys" of narcotics from appellant Gus William Miller ("Miller"). Soon thereafter, Miller and several other suspects were arrested and indicted on drug charges in Arizona. Following the arrests and indictments, La Paz County authorities relocated Little to Laughlin, Nevada, to ensure his safety. In Laughlin, Little was given a trailer in which to live and await the trials of those individuals who were arrested as a result of his participation with the task force. On March 10, 1996, while Little was asleep in his trailer, a truck pulled into his driveway, which awakened him. In the truck were Miller and Wanda Sergi ("Sergi"). While Little was in bed, Miller broke the window next to Little's head, pointed a gun at Little, and ordered Little out of the trailer. Miller threatened to kill Little and informed him that he was taking him back to Arizona. As they were driving away, a police officer stopped them because the rear tire mount on the truck was loose. Before the officer could approach them, Little emerged from the truck and told the officer that Miller and Sergi had guns and were trying to kill him. Miller and Sergi were arrested. A search of the truck uncovered a loaded pistol on the floorboard where Miller was seated and six packages of marijuana in a purse in the glove -6-

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compartment. Officers also found an "owe sheet" and methamphetamines on Sergi, and a .38 caliber bullet in Miller's pocket that matched the bullets in the loaded pistol. #19, Ex. 14, at 1-2. The state high court further described the bad act evidence and the circumstances surrounding the admission of the evidence as follows: At trial, the state filed a motion in limine in an effort to introduce evidence of Miller's pending Arizona drug charges. The state argued that such evidence was a necessary part of the `complete story' regarding Miller's motive to conspire to murder Little. The district court granted the motion and admitted testimonial evidence of the pending drug charges.

Miller raised a claim on direct appeal that the trial court failed to provide a limiting instruction regarding the proper use of the drug charges as prior bad act evidence. The Supreme Court of Nevada concluded that the claim lacked merit. The state high court noted that the district court had a duty in some situations to provide such a limiting instruction sua sponte, but it held that Miller's case did not present such a situation, citing prior Nevada case law. Id., at 3 & 3-4. This Court is not persuaded that the petitioner has established the requisite prejudice under Strickland on the corresponding claim of ineffective assistance of counsel. Petitioner perhaps may have been able to obtain a limiting instruction as to the prior bad act evidence if counsel had requested one. And he perhaps may have been able to obtain a reversal on appeal if his counsel had requested a limiting instruction and the trial court further had failed to honor the request. The pertinent inquiry under the Strickland prejudice analysis, however, is not whether counsel would have obtained the instruction if he had requested it or whether a viable appellate issue would have arisen if the request had been denied. The pertinent inquiry under Strickland instead is whether there is a reasonable probability that the outcome of the trial would have been different if counsel had requested the limiting instruction. Given the strong evidence of the petitioner's guilt ­ in which he essentially was caught "red-handed" abducting -7-

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the informant against him on the drug charges while he was armed with a gun ­ this Court is not persuaded that there is a reasonable probability that the petitioner would have been acquitted if a limiting instruction had been requested and given.2 On de novo review, Ground 2(e) therefore does not provide a basis for habeas relief.3 Ground 3(b)(1): Failure to Request a Fingerprint Examination of the Gun In Ground 3(b)(1), petitioner alleges that he was denied effective assistance of counsel when his trial counsel failed to request an inspection of the handgun for fingerprints. The Supreme Court of Nevada rejected this claim on the following grounds: . . . [A]ppellant claimed that his trial counsel was ineffective for failing . . . to demand that the gun be processed for fingerprints. Appellant failed to demonstrate that his trial

A s discussed further on the next claim , the defense theory presented in opening statem e n ts was th a t Miller brought the gun but that he did not intend to kidnap or kill Little but instead only to bribe or in tim id a te Little into not testifying in the Arizona case. The Court is not persuaded that there is a reasonable p r o b a b ility that, but for trial counsel's failure to request a lim itin g instruction, the jury would have acquitted M ille r based upon this explanation for why he had the prim a r y witness against him in the drug prosecution in h is truck in the predawn hours while arm e d with a gun that he brought with him . P e t itio n e r relies on a statem e n t in Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001), that it is lik e ly that cases involving the absence of a lim itin g instruction will not constitute harm le s s error. 30 P.3d at 1 1 3 3 . Tavares, however, was decided after both the trial and direct appeal in Miller's case. The Suprem e C o u r t of Nevada announced a new rule in Tavares under which the defendant no longer had the burden of r e q u e s tin g a lim itin g instruction and under which the prosecutor "henceforth" had a duty to request the lim itin g in s tr u c tio n . If the prosecutor failed to do so, the district court was obliged to raise the issue sua sponte. The c o u r t further announced a non-constitutional harm le s s error standard applicable to the failure to provide the lim itin g instruction. See 30 P.3d at 1132-33. In the context of these new rules, the state suprem e court m a d e t h e above-referenced statem e n t that it was likely that the absence of a lim it in g instruction would not constitute h a r m le s s error under the state law harm le s s error standard applied. T a v a r e s was decided after Miller's trial. The non-constitutional harm le s s error standard discussed th e r e in applied to the district court's failure to give the instruction sua sponte rather than to a failure to request t h e instruction in the first instance. Tavares did not apply the constitutional Strickland prejudice standard a p p lie d in this case on federal habeas review to the failure to request the instruction in the first instance. It f u r th e r is noteworthy in this regard that the Suprem e Court of Nevada -- applying the precedents in force at th e tim e of Miller's trial and direct appeal ­ held that the failure to give the lim itin g instruction sua sponte in his c a s e was not error. Additionally, in Tavares, the conviction "rested prim a r ily on circum s ta n tia l evidence as there was no c le a r direct evidence showing Tavares's actions." 30 P.3d at 1133. In this case, there was abundant direct e v id e n c e of Miller's guilt. Tavares does not necessitate a conclusion on federal habeas review that there is a r e a s o n a b le probability ­ on the evidence presented at Miller's trial ­ that the outcom e of the trial would have b e e n different if Miller's trial counsel had requested and obtained a lim itin g instruction.
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counsel's performance was deficient or that he was prejudiced. The theory of defense as presented in opening statements was that appellant brought the gun, but that he did not intend to kidnap or kill the victim, but rather, he intended to bribe or intimidate the victim into not testifying in the Arizona case. Appellant was observed by the police reaching down to the floor where the gun was ultimately found. A bullet found in appellant's pocket matched the type of bullets found in the gun itself. Appellant failed to demonstrate that further testing of the gun would have revealed exculpatory evidence that would have had a reasonable probability of altering the outcome of the trial. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 7-8 (eleventh ground of error). The state high court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland. Petitioner makes bald assertions in the reply that "[h]ad Petitioner Miller's attorney requested the fingerprint examination, there would have been ample evidence that the firearm was possessed by one of the two other passengers in the vehicle," and that "[f]urther testing of the firearm would have resulted in exculpatory evidence." #56, at 7. These assertions contradict the factual assertions of the defense made at trial, lack any foundation in the record presented to the state courts, and are based upon nothing more than speculation. Under Nevada state post-conviction practice, a petitioner must attach affidavits, records or other evidence supporting the factual allegations of the petition, and he may not present merely an unsubstantiated claim. See N.R.S. 34.370(4). Moreover, in this case, the state district court held an evidentiary hearing on the state petition and appointed counsel for the petitioner. See #19, Ex. 22. On federal habeas review, petitioner does not point to any evidence in the state post-conviction record in any way establishing that a fingerprint examination of the gun in fact would have produced exculpatory evidence. See also #54, Ex. H, Part 2, at 680-83

(discussing the limitations of fingerprint examination). A claim of ineffective assistance of counsel that is based upon pure speculation as to resulting prejudice fails to present a viable claim under Strickland. The state supreme court's rejection of the claim therefore was neither contrary to nor an unreasonable application of clearly established federal law. Ground 3(b)(1) therefore does not provide a basis for federal habeas relief. -9-

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Ground 3(b)(2): Failure to Conduct a Reasonable Inspection of the Case In Ground 3(b)(2), petitioner alleges that he was denied effective assistance of counsel when his trial counsel failed to conduct a reasonable inspection of the case against him, including, in particular an investigation of the victim. The Supreme Court of Nevada rejected this claim on the following grounds: . . . [A]ppellant claimed that his trial counsel was ineffective for failing to adequately investigate the victim. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Appellant failed to indicate what further investigation should have been performed such that there is a reasonable probability of a different outcome. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 7 (tenth ground of error). The state high court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland. In the reply, petitioner acknowledges that trial counsel filed a motion in the trial court seeking information regarding the confidential informant. He urges, however, that "trial counsel should have conducted an investigation independent of the motions he filed." As noted above under Ground 3(b)(1), a petitioner may not present merely an unsubstantiated claim on Nevada state post-conviction review, and the state district court held an evidentiary hearing and appointed counsel for petitioner. On federal habeas review, petitioner does not point to any evidence in the state post-conviction record in any way establishing either what further investigation would have revealed or how the unspecified investigation results would have affected the outcome at trial. A claim of ineffective assistance of counsel that is based upon pure speculation as to resulting prejudice fails to present a viable claim under Strickland. The state supreme court's rejection of the claim therefore was neither contrary to nor an unreasonable application of clearly established federal law. Ground 3(b)(2) therefore does not provide a basis for federal habeas relief. //// //// -10-

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Ground 3(b)(3): Failure to File Motions Seeking Confidential Informant File In Ground 3(b)(3), petitioner alleges that he was denied effective assistance of counsel when his trial counsel failed to file pretrial discovery motions seeking the confidential informant's file. The Supreme Court of Nevada rejected this claim on the following grounds: . . . [A]ppellant claimed that his trial counsel was ineffective for failing to file crucial pretrial formal discovery motions seeking the confidential informant file. Appellant's trial counsel did seek discovery of the confidential informant file. Appellant failed to indicate what further steps counsel should have taken that would have had a reasonable probability of altering the outcome of the proceedings. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 7 (ninth ground of error). The state high court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland. In the reply, petitioner does not address the fact that ­ as noted by the Supreme Court of Nevada ­ trial counsel did in fact seek discovery of the confidential informant's file but the motion was denied by the state district court. #53, Ex. C. The petitioner's claim that counsel failed to seek the file therefore is completely belied by the record. The petitioner's bald assertion that petitioner "believes" that the file "would have made a significant difference in the outcome of his trial" further is unsupported speculation. As noted above under Ground 3(b)(1), a petitioner may not present merely an unsubstantiated claim on Nevada state post-conviction review, and the state district court held an evidentiary hearing and appointed counsel for petitioner. On federal habeas review, petitioner does not point to any evidence in the state post-conviction record in any way establishing either what the file in fact would have revealed or how the unspecified information would have affected the outcome at trial. A claim of ineffective assistance of counsel that is based upon pure speculation as to resulting prejudice fails to present a viable claim under Strickland. The state supreme court's rejection of the claim therefore was neither contrary to nor an unreasonable application of clearly established federal law ­ both because the allegation -11-

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that trial counsel failed to seek the file is directly belied by the record and further because the petitioner's claim of resulting prejudice is based upon nothing more than speculation. Ground 3(b)(3) therefore does not provide a basis for federal habeas relief. Ground 3(b)(4): Failure to Request Confidential Informant Jury Instruction In Ground 3(b)(4), petitioner alleges that he was denied effective assistance of counsel when his trial counsel failed to request a jury instruction regarding the victim's credibility as a confidential informant. The Supreme Court of Nevada rejected this claim on the following grounds: . . . [A]ppellant claimed that his trial counsel was ineffective for failing to demand a cautionary jury instruction addressing the credibility of confidential informant testimony. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. An instruction addressing the credibility of confidential informant testimony would have been inappropriate as the victim was not testifying as a confidential informant but as the victim of the charged offenses. Moreover, a cautionary jury instruction would not have had a reasonable probability of altering the outcome of the trial where there was testimony that the victim was reliable. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 6 (seventh ground of error)(citation footnote omitted). Petitioner provides no argument regarding this claim in the reply. The state supreme court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland. Ground 3(b)(4) does not provide a basis for federal habeas relief. Grounds 4(c)(1) & (2): Failure to Challenge Search at Trial and On Appeal In Ground 4(c)(1), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to file a motion to suppress the admission of the gun into evidence based upon an allegedly illegal search of the vehicle. In Ground 4(c)(2), petitioner alleges that he was denied effective assistance of appellate counsel when counsel failed to challenge the search on appeal. The Supreme Court of Nevada rejected the claim based upon trial counsel's failure to file a pretrial motion to suppress without assigning detailed reasons. See #19, Ex. 25, at 7. -12-

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The Supreme Court of Nevada did, however, assign detailed reasons with regard to the underlying substantive issue when it rejected the claim of ineffective assistance of appellate counsel: . . . [A]ppellant claimed that his appellate counsel failed to argue that the trial court committed reversible error when it permitted introduction of evidence obtained through an illegal search and seizure. Appellant claimed that the stop of the vehicle, in which he was a passenger, was pretextual and that there was no consent or warrant for a search of the glove compartment in which marijuana packaged for sale was found. Appellant failed to demonstrate that his appellate counsel's performance was deficient or that this issue had a reasonable likelihood of success on appeal. First, appellant had no standing to challenge the search of the vehicle as he was a passenger in the vehicle and he was not an owner of the vehicle, nor had he rented or borrowed the vehicle from the registered owner. Even assuming that appellant had standing to challenge the search of the car, appellant failed to demonstrate that the search was not valid because appellant failed to establish that the stop was pretextual and because the record reveals that the marijuana was discovered in an inventory search of an impounded vehicle. Therefore, we conclude that the district court did not err in determining that this claim lacked merit.

#19, Ex. 25, at 10-11 (citation footnotes omitted).4 In the reply, petitioner does not challenge the proposition that "the officer may have had probable cause to stop the vehicle for the traffic stop," which was based upon, inter alia, the loose rear tire mount. See #56, at 8, lines 8-12; id., at 11, lines at 14-15. He argues, however, that the circumstances did not create probable cause to search the vehicle because it is not illegal to possess a firearm and the information given to the officer was only "that there was a weapon in the vehicle." Id., at 8. Petitioner urges that the fact only that a weapon is in a vehicle does not create probable cause to believe that a crime has been committed. Petitioner misstates the record. According to the officer's testimony, Little told the officer that Miller and Sergi had guns and that they were trying to kill him. #54, Ex. H, Part 1,

T h is Court has assum e d , arguendo, that Grounds 4(c)(1) and (2) were exhausted vis-ŕ-vis the in tr o d u c tio n of the weapon as well as the m a r ij u a n a . As noted previously, the Court does not have jurisdiction o v e r a challenge to the conviction for possession of a controlled substance with intent to sell because the c o n c u r r e n t sentence on that charge fully expired before petitioner sought federal habeas relief. See text, s u p r a , at 1-2. To the extent, if any, that the grounds were not exhausted vis-ŕ-vis the introduction of the gun, th is Court rejects the claim s on de novo review for substantially the reasons assigned in the text.

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at 633, lines 16-18. This statement undeniably created probable cause for the officer to believe that a crime had been committed, was being committed, or was about to be committed. Petitioner's probable cause argument thus is based upon a statement that is directly belied by the record.5 Moreover, petitioner notes, but does not challenge, the Nevada Supreme Court's holding that he did not have standing to challenge the post-stop search because he was only a passenger in the vehicle. If petitioner had no standing, then the remaining issues

concerning the validity of the post-stop search do not matter. Petitioner brings forward no apposite authority or argument in any way suggesting that the state supreme court's holding that he lacked standing was either contrary to or an unreasonable application of clearly established federal law at the time of his trial and direct appeal. On the showing and arguments made, petitioner therefore has failed to establish that the Nevada Supreme Court's rejection of these claims of ineffective assistance of trial and appellate counsel was either contrary to or an unreasonable application of clearly established federal law. Grounds 4(c)(1) and 4(c)(2) do not provide a basis for federal habeas relief. Ground 5(b)(1): Failure to Seek Severance In Ground 5(b)(1), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to request a severance of his trial from that of his co-defendants. The Supreme Court of Nevada rejected the claim presented to that court on the following grounds:

T h e m u ltip le suspicious circum s ta n c e s leading up to and im m e d ia te ly following this statem e n t by L it t le further would tend to give an officer probable cause to search, including, inter alia, Miller's repeatedly r e a c h in g to the floorboard where the gun ultim a t e ly was recovered, despite being repeatedly instructed not to d o so and to exit the vehicle. Miller stopped reaching down and exited the vehicle only after the officer told h im that if he reached down one m o r e tim e the officer would shoot him . The weapon further was recovered o n the floorboard right underneath where Miller had been seated, in a place where the passengers or driver c o u ld reach, not in a separate com p a r t m e n t such as a glove box. See #54, Ex. H, Part 1, at 625-38; id., Part 2 , at 672-75. Any claim that the officer did not have probable cause to conduct the m in im a l search that r e s u lt e d in the loaded gun being found on the floorboard is com p le t e ly without m e r i t.

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1 2 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 #56, at 8-9.

. . . [A]ppellant claimed that his trial counsel was ineffective for failing to file a motion to sever his trial from that of his codefendants. Appellant claimed that his trial counsel's performance was hampered because the district court limited defense counsel from asking questions previously asked by the counsel for co-defendants. He further claimed that he was unable to testify because the trials were joined, and thus, he was unable to have evidence admitted relating to bribery or intimidating of a witness. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Appellant failed to demonstrate that a joint trial was improper. Appellant failed to demonstrate that the ground rules established by the district court were unreasonable or hampered his trial counsel, and he failed to indicate what questions he was prevented from asking as a result of the district court's admonition. Appellant further failed to demonstrate that he was prevented from testifying simply because his co-defendants had testified. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 9-10 (fourteenth ground of error)(citation footnote omitted). In the reply, the represented petitioner argues, in total, only as follows: . . . . Petitioner Miller's trial counsel failed to request a separate trial for Petitioner Miller although the defenses of the codefendants were irreconcilable. The Nevada Supreme Court's denial of Petitioner Miller's claim was an objectively unreasonable application of Strickland. Claim 5(b)(1) should be granted.

Petitioner has the burden on federal habeas review of demonstrating that he is entitled to relief. The petitioner's essentially one-line argument falls far short of demonstrating that the Nevada Supreme Court's rejection of the claim was an objectively unreasonable application of Strickland. On the showing and conclusory argument made, petitioner has failed to establish that the Nevada Supreme Court's decision was either contrary to or an unreasonable application of clearly established federal law. Ground 5(b)(1) does not provide a basis for federal habeas relief. Ground 5(b)(2): Failure to Present Defense and Advice to Not Testify In Ground 5(b)(2), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to present an adequate theory of the defense. Petitioner did not provide any particular allegations seeking to support this claim other than the allegation that -15-

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trial counsel allegedly was ineffective because he advised petitioner to not testify in his own defense, such that petitioner thus allegedly was not able to establish a reasonable doubt as to who possessed the gun and drugs. The Supreme Court of Nevada rejected the claim presented to that court on the following grounds: . . . [A]ppellant claimed that his trial counsel erroneously advised him not to testify on his own behalf. Appellant claimed that his testimony would have established reasonable doubt as to who possessed the gun and drugs. Appellant further indicated his testimony would have cast doubt that he kidnpapped the victim or conspired to commit the victim's murder. Appellant failed to demonstrate that his trial counsel's performance was deficient or that hew was prejudiced. Appellant failed to demonstrate that any testimony would have had a reasonable probability of altering the outcome of the trial given the substantial evidence of guilt presented at trial. Further, it was reasonable to advise appellant not to testify in light of at least one prior felony conviction that could have been used for impeachment purposes. Therefore, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 8 (twelfth ground of error)(citation footnote omitted). The state supreme court's rejection of this claim was neither contrary to nor an unreasonable application of Strickland. In the reply, the petitioner contends that he would have testified that he had no knowledge that a weapon or other contraband was in the vehicle and that, based upon this testimony, the jury "could have" reasonably acquitted him. The Nevada Supreme Court's conclusion that there was not a reasonable probability that any such testimony would have altered the outcome of the trial was not an unreasonable application of Strickland. This Court similarly is not persuaded that there was a reasonable probability that the jury would have rendered a different verdict if only they had been presented with testimony by Miller that he had no knowledge of the gun. The arresting officer testified that Miller repeatedly reached down to where the gun was found on the floorboard despite being told not to do so and to exit the vehicle. Miller stopped and complied only when the officer told him that if he reached down one more time he would be shot. When the gun was recovered from the floorboard right by where Miller had been sitting, the gun was loaded, with a round chambered. A .380 caliber hollow point cartridge matching the cartridges found in -16-

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the pistol was found in Miller's pocket. See #54, Ex. H, Part 1, at 629 & 634-41. There was scant prospect that testimony by Miller that he did not know about the pistol ­ a weapon that was located in precisely the area that he was repeatedly reaching for and for which he carried matching ammunition ­ would have resulted in an acquittal. There would have been even less of a prospect of such an outcome following impeachment with a prior felony conviction. It "could have" happened, but there was not a reasonable probability that it would. The Nevada Supreme Court's rejection of the claim therefore was neither contrary to nor an unreasonable application of clearly established federal law. Ground 5(b)(2) does not provide a basis for federal habeas relief.6 Ground 5(c)(part): Cumulative Error In the portion of Ground 5(c) that remains before the Court, Miller alleges cumulative error based upon the multiple alleged instances of ineffective assistance of counsel. The Supreme Court of Nevada rejected the cumulative error claim presented to that court on the following grounds: . . . [A]ppellant claimed that various constitutional rights were violated due to ineffective assistance of counsel and cumulative errors. Because appellant failed to demonstrate that he received ineffective assistance of counsel, we conclude that the district court did not err in determining that this claim lacked merit. #19, Ex. 25, at 14-15 (final ground of error). The state high court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established federal law. Following review of all of the claims of ineffective assistance of counsel, including those discussed infra, this Court is not persuaded that the meritless claims carry any more force in the aggregate than they do in isolation. Petitioner provides no persuasive, non-conclusory argument to the contrary. The portion of Ground 5(c) that remains thus does not provide a basis for relief.

T h e Court again reiterates, with regard to petitioner's reference to lack of knowledge of other c o n tr a b a n d , that the Court lacks jurisdiction over the subject m a tte r of any challenge to the conviction for p o s s e s s io n of a controlled substance with intent to sell, because the concurrent sentence on that charge fully e x p ir e d before petitioner sought federal habeas relief. See text, supra, at 1-2.

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Grounds 6(b) & (c): Failure to Challenge Alleged Prosecutorial Misconduct In Ground 6(b), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to object to alleged prosecutorial misconduct. In Ground 6(c), he alleges that he was denied effective assistance of appellate counsel when counsel failed to raise the issue of the alleged prosecutorial misconduct on appeal. In this Court, both counsel argue this claim as if petitioner were claiming that the "prosecutorial misconduct" alleged in Ground 6 of the federal petition was the prosecution's introduction of allegedly impermissible other bad acts evidence. That is not what petitioner alleged in Ground 6 of the petition in federal court. Petitioner instead alleged: Petitioner was denied his rights . . . to effective assistance of counsel . . . when the State prosecutor engaged in numerous egregious instances of misconduct during the trial, particularly during his closing argument; when his attorney failed to request and the court failed to give appropriate cautionary instructions to the jury regarding each instance of prosecutorial misconduct; . . . and when his appellate counsel, who was also his trial counsel, failed to raise issues pertaining to the egregious prosecutorial misconduct in his direct appeal. #5, at 13 (emphasis added). Federal habeas claims must be alleged with specificity. See Mayle v. Felix, 545 U.S. 644, 649, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005). The only specific allegation in the foregoing, such as it is, is an allegation that the prosecutor engaged in unspecified misconduct during closing argument. A vague blanket incorporation of all remaining portions of the federal petition and/or of large blocks of state court filings is not effective to state any specific claim. Federal Ground 6 contains no allegation whatsoever that the prosecutor engaged in "misconduct" by introducing other bad acts evidence. No such claim is properly before this Court, and no such claim of a failure by trial and appellate counsel to challenge "prosecutorial misconduct" ­ on this basis ­ was considered in the Nevada Supreme Court's decision on the state post-conviction appeal. See #19, Ex. 25, at 14. In any event, this Court holds, on de novo review, that the claims of ineffective assistance of counsel now being argued in federal court are without merit. -18-

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Petitioner contends in the reply on Ground 6(b) that the prosecution and the trial court failed to comply with Nevada state law procedural requirements for the introduction of other bad act evidence under the Nevada Supreme Court's Petrocelli, Tinch, and related decisions.7 He maintains that he was prejudiced by trial counsel's failure to object to the prosecutor's introduction of the bad act evidence because it was highly probable that, if an objection had been raised, the trial court would have ruled that the evidence was improperly admitted. He further asserts that if the bad act evidence had not been admitted, it is highly probable that the outcome of the trial would have been different. #56, at 9-10. Petitioner contends, in the reply on Ground 6(c), that appellate counsel should have raised the issue on direct appeal and that, if counsel had done so, the outcome of the appeal "could have" been different. #56, at 11. These contentions notwithstanding, appellate counsel did in fact raise an issue on direct appeal that the state trial court had failed to hold a Petrocelli hearing and comply with Nevada state law requirements for the introduction of the other bad act evidence. The Supreme Court of Nevada rejected that challenge on the following grounds: . . . . At trial, the state filed a motion in limine in an effort to introduce evidence of Miller's pending Arizona drug charges. The state argued that such evidence was a necessary part of the "complete story" regarding Miller's motive to conspire to murder Little. The district court granted the motion and admitted testimonial evidence of the pending drug charges. Miller contends on appeal that several errors were committed below in connection with the admission of the Arizona drug charges. First, he contends that the Arizona drug charges were not part of the res gestae of the alleged conspiracy to commit murder. Second, he contends that his drug charges were irrelevant to the conspiracy to commit murder charge. Third, he contends that evidence of his drug charges was more prejudicial than probative. Fourth, he contends that the district court failed to hold a Petrocelli hearing regarding the admissibility of the evidence. . . . . . We concluded Miller's contention lacks merit. While the Arizona drug charges were not necessary to explain the

S e e Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985); Tinch v. State, 113 Nev. 1170, 946 P.2d 1 0 6 1 (1997).

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kidnapping, the trial court did not abuse its discretion in admitting them to establish the "complete story" of the conspiracy. Thus, with respect to the conspiracy count, a weighing of prejudice versus probative value was not necessary. See NRS 48.035(3); State v. Shade, 111 Nev. 887, 894, 900 P.2d 327 . . . (1995). Even if this evidence was not part of the res gestae as to any of the substantive charges, this evidence was clearly admissible to establish a motive for these offenses. In this connection, the district court conducted a hearing on the record regarding the state's motion in limine and concluded that the evidence was admissible. Miller's claim that the trial court failed at this hearing to comply strictly with Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061 (1997), must be rejected as harmless error. This is because the evidence would have been admissible had the Tinch analysis been undertaken. See Qualls v. State, 114 Nev. 900, 903, 961 P.2d 765, 767 (1998). #19, Ex. 14, at 2-3 (emphasis added). Accordingly, when petitioner raised a claim on state post-conviction review that appellate counsel had been ineffective for failing to raise a challenge to the admission of the bad act evidence on direct appeal, the Nevada Supreme Court rejected the claim because the challenge had in fact been raised ­ and rejected ­ on direct appeal: . . . . [A]ppellant claimed that his appellate counsel was ineffective for failing to argue that the district court committed reversible error when it failed to conduct a Petrocelli hearing prior to granting the State leave to present prior bad act evidence. Appellant claimed that the State failed to provide clear and convincing evidence of the prior bad acts. Appellant further claimed that because Arizona later dismissed the drug charges that served as the prior bad acts that the prior bad acts were not credible. Appellant failed to demonstrate that his appellate counsel's performance was deficient or that these issues had a reasonable probability of success on appeal. This court considered appellant's claim that the district court failed to conduct the required Petrocelli hearing and concluded that it was harmless error because the prior bad act evidence would have been admissible had the proper hearing been conducted. Appellant failed to indicate what further argument should have been made that would have had a reasonable probability of altering the outcome of the direct appeal. Appellant further failed to demonstrate that information relating to the subsequent dismissal of the Arizona drug charges would have had a reasonable probability of altering the outcome of the direct appeal. Therefore, we conclude that the district court did not err in determining that these claims lacked merit. #19, Ex. 25, at 11-12 (emphasis added)(citation footnotes omitted). //// -20-

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The Supreme Court of Nevada is the final arbiter of Nevada state law. The state high court's holding that the prior bad act evidence would have been admissible even if the Petrocelli and Tinch Nevada state law procedures had been followed is unassailable on federal habeas review. This state law holding completely undercuts any viable claim of prejudice on petitioner's claims that he was denied effective assistance of counsel because trial and appellate counsel failed to challenge "prosecutorial misconduct" occurring when the State introduced allegedly impermissible other bad acts evidence. The Nevada Supreme Court's holdings on direct appeal and state post-conviction review establish that the evidence in fact was admissible under Nevada state law. Petitioner therefore cannot establish a reasonable probability that the outcome of either the trial or the appeal would have been different if counsel had challenged the alleged "prosecutorial misconduct." demonstrate prejudice under Strickland. Petitioner further cannot establish deficient performance by appellate counsel, because the challenge that he maintains should have been brought in fact was brought by appellate counsel, albeit not as a challenge to "prosecutorial misconduct." Grounds 6(b) and 6(c) therefore do not provide a basis for federal habeas relief. Grounds 7(b) and 8(a): Cumulative Error Grounds 7(b) and 8(a) present redundant claims of cumulative error based upon ineffective assistance of counsel. The claims do not provide a basis for federal habeas relief for the reasons assigned above as to the remaining portion of Ground 5(c). Ground 8(b): Failure of Appellate Counsel to Raise Constitutional Claims In Ground 8(b), petitioner alleges that he was denied effective assistance of counsel because appellate counsel failed "to raise all constitutional grounds for relief, including each and every sub-part of those grounds, . . . in his direct appeal." #5, at 17. The reply similarly is conclusory, asserting only that "[t]he failure of Petition [sic] Miller's appellate counsel to raise all constitutional issues on direct appeal negatively impacted his direct appeal to such a degree as to deny Petitioner Miller effective assistance of counsel." #56, at 12. -21He therefore cannot

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It does not appear that the Supreme Court of Nevada considered any such claim on the state post-conviction appeal. The Court holds, on de novo review, that the claim in any event is completely without merit. As the Court observed on Grounds 6(b) and 6(c), federal habeas claims must be alleged with specificity. Mayle, supra. A vague and nonspecific claim only that counsel failed "to raise all constitutional grounds for relief" fails to present a sufficiently specific and viable claim for federal habeas relief. Ground 8(b) therefore does not provide a basis for federal habeas relief. Ground 9 (part): Cumulative Error The remaining portion of Ground 9 presents another redundant claim of cumulative error based upon ineffective assistance of counsel. The claim does not provide a basis for federal habeas relief for the reasons assigned above as to the remaining portion of Ground 5(c). IT THEREFORE IS ORDERED, for the reasons assigned: (a) that Grounds 2(a), 2(c), 2(d), 3(a)(1) & (2), 3(c)(1) & (2), 6(a), and 7(a) are DISMISSED with prejudice as procedurally defaulted; (b) that Grounds 2(e), 3(b)(1-4), 4(c)(1-2), 5(b)(1-2), 6(b), 6(c), 7(b), 8(a), and 8(b) are DISMISSED with prejudice on the merits; and (c) that Grounds 5(c) and 9 are DISMISSED with prejudice, on the merits to the extent that the claims are based upon allegations of ineffective assistance of counsel and on the basis of procedural default to the extent that the claims are not.8 ////
8

T h e case was decided on the original pro se petition, and a m o tio n for leave to file an am e n d e d p e t it io n never was presented to the Court. P e t itio n e r 's retained counsel appeared in the case after the Court had granted the respondents' m o t io n to dism is s on the basis of lack of com p le t e exhaustion and had given petitioner a period of tim e to s e e k relief in alternative to a com p le te dism is s a l. Following counsel's substitution into the case for the pro se p e t it io n e r , the order regarding the need to m a k e an election as to the unexhausted claim s was disregarded. The Court issued a com p lia n c e order and then an order denying a requested extension. ##37 & 40. In the s e c o n d order, the Court stated that -- after petitioner com p lie d with the then-pending directives regarding the u n e x h a u s te d claim s -- the Court would consider a request for a reasonable period of tim e to prepare an a m e n d e d petition, if affirm a tiv e ly requested by petitioner by separate m o tio n . #40, at 3, lines 15-24. N o such m o tio n was filed. The case accordingly has been decided on the original pro se petition.

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The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. DATED: February 2, 2009

________________________________ EDWARD C. REED United States District Judge

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