Nasby v. McDaniel et al

Filing 218

ORDERED that Petitioner Brendan Nasby's Amended Petition for Writ of Habeas Corpus (ECF No. 176 ) is denied. A certificate of appealability is denied. The Clerk of the Court is directed to substitute Tim Garrett for Respondent E.K. McDaniel, enter judgment accordingly, and close this case. Signed by Judge Larry R. Hicks on 3/30/2022. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

BRENDAN NASBY,

7

Petitioner,

v.

8

Case No. 3:07-cv-00304-LRH-WGC
ORDER

E.K. MCDANIEL, et al.,

9

Respondents.

10
11

Petitioner Brendan Nasby, a Nevada prisoner, 1 filed an Amended Petition for Writ of

12

Habeas Corpus (ECF No. 176) (“Petition”) under 28 U.S.C. § 2254. This matter is before the Court

13

for adjudication on the merits of the remaining grounds in the Petition. For the reasons discussed

14

below, the Court denies the Petition and a Certificate of Appealability.

15

I.

16

Nasby challenges a conviction and sentence imposed by the Eighth Judicial District Court

17

for Clark County, Nevada (“state court”) pursuant to a jury verdict finding him guilty of first-

18

degree murder and conspiracy to commit murder in connection with Michael Beasley’s

19

(“Beasley”) death. ECF No. 119-3. The state court entered a judgment of conviction in December

20

1999. ECF No. 134-4. The state court sentenced Nasby to 48 to 120 months on the conspiracy

21

count and to life with the possibility of parole on the first-degree murder count, plus an equal and

BACKGROUND 2

22
23
24
25
26
27
28

It appears from the state corrections department’s inmate locator page that Petitioner is incarcerated at the Lovelock
Correctional Center (“LCC”). See https://ofdsearch.doc.nv.gov/form.php (retrieved March 2022 under identification
number 63618). The department’s website reflects that Tim Garrett is the warden of that facility. See
https://doc.nv.gov/Facilities/LCC_Facility/ (retrieved February 2022). At the end of this order, the Court directs the
Clerk of the Court to substitute Petitioner’s current immediate physical custodian, Tim Garrett, as Respondent for the
prior Respondent E.K. McDaniel, pursuant to, inter alia, Rule 25(d) of the Federal Rules of Civil Procedure.
2
The Court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or
statements of fact in the state court. The Court summarizes the factual assertions solely as background to the issues
presented in the case, and it does not summarize all such material. No statement of fact made in describing statements,
testimony, or other evidence in the state court constitutes a finding by the Court. Any absence of mention of a specific
piece of evidence or category of evidence does not signify that the Court has overlooked the evidence in considering
Petitioner’s claim.
1

1

1

consecutive term of life with the possibility of parole for the use of a deadly weapon. Id. The State

2

also charged three individuals, Jeremiah Deskin (“Jeremiah”), Tommie Burnside, Jr. (“Tommie”),

3

and Jotee Burnside (“Jotee”), with accessory to murder in connection with Beasley’s death. ECF

4

Nos. 132-1; 136-4; 136-14.

5

Jeremiah testified at Nasby’s trial that he was an acquaintance or friend of the members of

6

the L.A. Crazy Riders gang, which Nasby led, and that Tommie and Jotee are brothers and

7

members of the gang. ECF No. 133-1 at 19–21. He also testified that one month before Beasley’s

8

death, Nasby discussed with Tommie, Jotee, Jeremiah, and another member of the gang whether

9

Beasley should be killed. Id. at 21. Nasby believed Beasley was trying to remove Nasby as the

10

leader of L.A. Crazy Riders. Id. at 22. Jeremiah further testified that he was at Nasby’s house on

11

July 16, 1998, the night of Beasley’s murder. Id. at 22. While in the garage, Nasby and Tommie

12

called Jeremiah into the garage and asked him to pick up Beasley because Nasby wanted to take

13

Beasley to the desert to shoot him. Id. Jeremiah, along with Tommie and Jotee, then drove to

14

Beasley’s house to pick him up. Id. at 23. Beasley agreed to go to the desert to smoke marijuana

15

and shoot firearms. Id. at 23.

16

After picking up Beasley, they returned to Nasby’s house. Id. at 25. Outside of Nasby’s

17

garage, Nasby showed the group his 9mm Browning firearm that he purchased from an individual

18

named David. Id. Jeremiah then drove Nasby, Tommie, Jotee, and Beasley to the desert and

19

stopped his car near a wash that was littered with debris, including refrigerators and tires. Id. at 26.

20

Jeremiah left his car headlights on. Id. The group got out of the car and looked for debris to shoot

21

at. Id. Nasby was in possession of his firearm, which was the only firearm that they took to the

22

desert. Id. at 26–27.

23

Jeremiah further testified that he observed Nasby approach Beasley while Beasley had his

24

back to Nasby and was looking towards the wash. Id. at 27. Nasby shot Beasley in his upper back.

25

Id. at 28. Beasley grabbed his shoulder and fell to one knee. Id. Nasby stepped closer to Beasley

26

and shot Beasley again in his neck or head area. Id. Beasley fell to the ground and rolled onto his

27

back. Id. Jeremiah got back into his car, and Tommie, Jotee, and Nasby ran back to the car. Id.

28

While Jeremiah backed the car up, Nasby hopped back out of the car. Id. Jeremiah stopped the car

2

1

and observed Nasby walk to Beasley, stand above Beasley, and shoot down towards Beasley’s

2

head. Id. Jeremiah testified that when Nasby returned to the car he stated, “try to take me off my

3

own set,” and warned the group that if they ratted Nasby out that they would die. Id. at 29.

4

Jeremiah moved to California soon after that night. Id. at 30. He was arrested and charged

5

with murder and conspiracy to commit murder. Id. Jeremiah testified that he reached an agreement

6

with the State wherein he pled guilty to a lesser charge, accessory to murder, in exchange for his

7

testimony. Id.

8

Tommie testified that he was a member of L.A. Crazy Riders. ECF No. 133-3 at 24. He

9

was at Nasby’s house on July 16, 1998, when he called Beasley. Id. He testified that he went to

10

the mountains with Jotee, Jeremiah, Nasby, and Beasley. Id. at 25. While there, Nasby shot

11

Beasley. Id. Tommie previously gave a statement to detectives that Charles Von Lewis, also known

12

as Sugar Bear, had approached him to discuss whether Beasley should be killed and that Von

13

Lewis was present on the night that Beasley was killed. Id. at 30. However, at trial, Tommie

14

testified that Von Lewis was not present when Beasley was killed and that his previous statements

15

to detectives regarding Von Lewis were not true. Id. Tommie testified that he was charged for

16

Beasley’s murder but pled guilty to accessory to murder. Id at 25. The state court sentenced

17

Tommie to 12 to 36 months, and he was eligible for parole. Id. at 30. If Tommie didn’t testify, he

18

would be held in contempt. Id.

19

Jotee testified that he was an associate or friends with L.A. Crazy Riders. Id. at 32. He went

20

with Tommie and Jeremiah to pick up Beasley. Id. at 32–33. After picking up Beasley, they

21

returned to Nasby’s house before going to the desert. Id. at 33. Jotee testified that he was standing

22

on the side of Beasley when he was shot, and that Nasby was behind them. Id. Nasby shot Beasley.

23

Id. He testified that he had previously told the detectives that Von Lewis killed Beasley because

24

he disliked Von Lewis. Id. The statement he originally provided to the detectives regarding Von

25

Lewis was not true. Id. Jotee testified that he pled guilty to accessory to murder and was sentenced

26

to 12 to 30 months. Id. He was eligible for parole. Id. at 37.

27

Beasley’s aunt, Jomeka Beavers (“Beavers”), testified that she resided in the same house

28

as Beasley on the night of his death. ECF No. 133-1 at 58. She testified that she answered the

3

1

telephone on the night of July 16, 1998, and the caller asked to speak to Beasley. Id. Beasley asked

2

Beavers to watch his newborn baby while he went out, and she agreed. Id. at 59. Beavers testified

3

that she saw Beasley leave with Jeremiah. Id. She did not see Von Lewis that night. Id.

4

An individual named Crystal Bradley (“Bradley”) testified that she was a member of L.A.

5

Crazy Riders and that Nasby led the gang. ECF No. 133-2 at 11. She further testified that in the

6

morning of July 17, 1998, she spoke to Tanesha Banks (“Banks”), the mother of Beasley’s child,

7

on the telephone. Id. at 12. Bradley and Banks discussed a rumor that Beasley planned to leave

8

L.A. Crazy Riders and then conference-called Nasby. Id. at 13. Nasby asked to speak to Bradley

9

without Banks on the line. Id. Bradley testified that Nasby told her that he had shot Beasley three

10

times while they were out in the desert. Id. Bradley then called Banks to tell her what Nasby said.

11

Id. at 14.

12

Banks testified that on July 16, 1998, Beasley picked up their newborn child from her

13

house. Id. at 4. The following morning, Banks spoke to Bradley on the telephone about Beasley.

14

Id. at 4–5. Bradley called Nasby while still on the phone with Banks. Id. at 5. Nasby asked Banks

15

when she last saw Beasley, and she answered that morning. Banks testified that Nasby sounded

16

“panicky,” and asked, “what do you mean this morning?,” to which she clarified that she meant to

17

say last night when he came to get the baby. Id. at 6. Banks testified that when Bradley called her

18

back, she learned that about Beasley’s death. Id. at 7. Banks informed the police about her

19

conversation with Bradley. Id. On August 1, 1998, an individual named Brittney Adams

20

(“Adams”), who also associated with the L.A. Crazy Riders, went to Banks’s home and beat up

21

Banks Id. Banks testified that Adams believed Banks told others that Nasby killed Beasley and

22

that she “need[ed] to keep [her] mouth shut about [Nasby.]” Id. at 7–8. Banks further testified that

23

Nasby called her while he was in custody to threaten her. (Id. at 8.) She testified that he stated he

24

could have her “touched,” meaning killed or beaten, if she testified against him. Id. Nasby told

25

Banks that he did not kill Beasley and that he had her social security number and address. Id.

26

Adams testified that she associated with the L.A. Crazy Riders and that Nasby led the gang.

27

ECF No. 133-3 at 39. On August 1, 1998, Adams went to Nasby’s house and Nasby told her that

28

Von Lewis killed Beasley. Id. at 41. Nasby told her that Von Lewis, Tanesha, and Crystal drove

4

1

Beasley to the desert, Crystal loaded a 9mm gun, and handed the gun to Von Lewis. Id. They

2

forced Beasley out of the car, and Von Lewis shot Beasley twice in the neck and once in the head.

3

Id. Nasby told Adams that Banks told others that Nasby killed Beasley and Nasby wanted Adams

4

to kill Banks. Id. Adams testified that she went to Banks’s home with her cousin and Nasby. Id. at

5

42. While driving to Banks’s home, Nasby offered Adams a hammer to kill Banks. Id.

6

Adams testified that she hit and kicked Banks. Id. at 43. While driving away after beating

7

up Banks, Nasby told Adams that she should have killed Banks. Id. On August 4, 1998, Nasby

8

called Adams while he was in custody. Adams went to the police and provided a statement that

9

Von Lewis killed Beasley. Id. at 44. After the police questioned her about the fight with Banks,

10

Adams told the police that Nasby told her that Von Lewis killed Beasley. Id. Adams testified that

11

she was charged with first degree kidnapping, intimidating a witness, and battery with intent to

12

commit a crime. Id. at 45. Adams agreed to testify and in exchange she would receive a lesser

13

misdemeanor battery charge. Id.

14

An individual name John Holmes (“Holmes”) testified that he was friends with Beasley.

15

Id. at 53. Holmes was in a group called Crazy Young Niggers with Beasley, which ultimately

16

joined with the L.A. Crazy Riders group. Id. Holmes was in custody at the same time as Nasby.

17

Id. at 54. Holmes discussed Beasley’s death with Nasby. Id. Holmes testified that Nasby said that

18

he killed Beasley because Nasby believed Beasley was trying to become the leader of the group.

19

Id. at 55. Holmes also testified that he reported to the police that Nasby confessed that he killed

20

Beasley. Id.

21

Detective James Buczek investigated Beasley’s homicide along with his partner Detective

22

Thomas Thowsen. ECF No. 133-2 at 37–38. Detective Buczek testified that Banks informed him

23

of her phone call with Bradley wherein Bradley relayed that Nasby shot Beasley. Id. After speaking

24

to Bradley, Detective Buczek prepared and executed a search warrant on Nasby’s residence. Id. at

25

39. While executing the warrant, Nasby stated to Detective Buczek that “the nine [was] not there,”

26

before Detective Buczek mentioned that they were searching for a 9mm handgun. Id. at 40. While

27

transporting Nasby to jail, Nasby told Detective Buczek that he would show him where the gun

28

was if he took him back to his house. Id. The gun was located underneath Nasby’s bed in a bag.

5

1

Id. Nasby told Detective Buczek that he purchased the gun from Von Lewis after Beasley’s death.

2

Id. at 41. Nasby also told Detective Buczek that he had touched the weapon, handled the magazine,

3

and touched each individual round of ammunition. Id.

4

Detective Buczek testified that he attempted to locate Von Lewis to no avail. Id. at 41–42.

5

After Jeremiah, Tommie, and Jotee clarified that Von Lewis was not present on the night that

6

Beasley died, Detective Buczek eliminated Von Lewis as a suspect. Id. at 43.

7

Detective Thowsen testified that he observed the crime scene and that Beasley was found

8

lying on his back. ECF No. 133-3 at 60. During his investigation, he observed the phone number

9

from Banks’s caller identification machine when she informed him that Nasby called her. Id. at

10

61. He verified that the number was placed from the Clark County Detention Center, where Nasby

11

was in custody. Id.

12

Multiple crime scene analysts, including a latent print examiner and firearm examiner,

13

testified. Kelly Neil (“Neil”) testified that he responded to the crime scene and observed hundreds

14

of expended cartridge cases lying on the ground because it was a popular area for target practice.

15

ECF No. 133-1 at 8. Four cartridge cases appeared shiny, clean, and like they had not been there

16

for a long period of time because the cartridge cases were not corroded. Id. Three 9mm cartridge

17

cases were near the victim’s head and one .45 caliber cartridge case was towards the victim’s feet.

18

Id. at 9. Neil also recovered Winston brand cigarette butts that were near the victim. Id. at 9.

19

Randy McPhail (“McPhail”) testified that he was present during the execution of the search

20

warrant at Nasby’s house. ECF No. 133-2 at 20. During execution of the search warrant, he located

21

a bag containing a 9mm handgun and two empty magazines. Id. The serial number on the handgun

22

ultimately allowed law enforcement to determine that the handgun was reported stolen from North

23

Las Vegas. Id. at 23. McPhail also located and impounded seven pairs of shoes from Nasby’s

24

bedroom and recovered two brands of cigarette butts, Kool, Benson & Hedges and a generic brand,

25

from the bedroom. Id. at 20–21.

26

Torrey Johnson testified that he examined the four expended cartridge cases that were

27

recovered from the crime scene. ECF No. 133-3 at 7. He determined that three of the four cartridges

28

were the correct caliber to be fired from the 9mm handgun recovered from Nasby’s house, but he

6

1

could not positively conclude that they were fired from the handgun. Id. He testified that based on

2

the information from the medical examiner, it was his opinion that the 9mm handgun was the

3

murder weapon. Id. at 9.

4

Dr. Robert Jordan is a medical examiner who performed the autopsy on Beasley. ECF No.

5

133-1 at 43. Dr. Jordan identified three bullet wounds: an entrance bullet wound above the left eye

6

that had no corresponding exit; an entrance bullet wound on the right back; and an exit bullet

7

wound on the right chest. Id. at 44. He recovered projectile fragments from the skull, but none

8

from the chest wound. Id. Dr. Jordan did not detect any scorching of the skin around the wound.

9

Id. at 48.

10

Fred Boyd, a latent print examiner, reviewed the handgun, magazine, and photographs of

11

footwear impressions. ECF No. 133-2 at 30. Boyd was unable to locate prints on the handgun or

12

magazine. Id. at 31. After comparing the footwear to the impressions, he determined that the seven

13

pairs of shoes recovered from Nasby’s bedroom did not make the two impressions recovered at

14

the crime scene. Id. at 33.

15

Based on this evidence, a jury found Nasby guilty.

16

II.

17

Joseph S. Sciscento, Esq. and Fredrick A. Santacroce, Esq. served as appointed counsel

18

and represented Nasby at trial. After sentencing, Mr. Sciscento informed the state district court of

19

a conflict of interest related to Nasby’s appeal because Mr. Sciscento, prior to trial, accepted and

20

began employment with the Special Public Defender’s Office, an office that represented one of

21

Nasby’s co-defendants who had testified against Nasby at trial. ECF No. 176 at 2. The state district

22

court granted Mr. Sciscento’s motion to withdraw and appointed Mr. Santacroce to represent

23

Nasby on appeal.

PROCEDURAL HISTORY

24

The state court entered a judgment of conviction in December 1999. ECF No. 134-4. Nasby

25

appealed. ECF No. 134-5 at 20–24. The Nevada Supreme Court affirmed Nasby’s conviction. ECF

26

No. 134-6. In January 2002, Nasby filed a state petition for writ of habeas corpus (“state petition”).

27

ECF No. 134-7. Among other pro se claims, Nasby argued his due process rights were violated

28

when the state court gave the jury an erroneous malice instruction combined with a problematic

7

1

reasonable doubt instruction. Id. at 9; ECF No. 138-12 at 44–48. He later filed a counseled

2

supplement repeating the same claim. ECF No. 134-8 at 30–33. Following an evidentiary hearing,

3

the state district court denied Nasby’s claims finding that trial counsel did not have a conflict of

4

interest and that neither trial nor appellate counsel were ineffective. ECF Nos. 134-9; 139-26 at 4.

5

The state court found that Nasby’s claims of prosecutorial misconduct and trial court error were

6

barred by Nev. Rev. Stat. § 34.810(1)(b)(2), 3 and denied all post-conviction relief. ECF No. 139-

7

26 at 3–4, ¶¶ 7–8.

8

Nasby filed a post-conviction appeal. He claimed that the state court erroneously allowed

9

the introduction of prior bad act evidence and failed to properly instruct the jury on multiple critical

10

issues. ECF No. 135-2 at 5, 28. The supporting argument did not discuss any jury instruction. Id.

11

at 28–30. In June 2007, the Nevada Supreme Court affirmed the denial of post-conviction relief.

12

ECF No. 135-3.

13

Nasby dispatched a pro se federal petition to this Court on August 14, 2007. ECF No. 10

14

(“original petition”). Respondents filed a motion to dismiss. ECF No. 20. The Court denied

15

Respondents’ motion to dismiss, granted counsel for Nasby’s motion to withdraw, and granted

16

Nasby leave to file an amended petition. ECF No. 24. Nasby filed a notice of no supplemental

17

petition and Respondents filed another motion to dismiss. ECF Nos. 32, 33. The Court granted

18

Respondents’ motion to dismiss in part finding Grounds 2(B), 5, 6, and 7 unexhausted. ECF No.

19

35.

20

Nasby filed a motion for stay and abeyance to return to state court to exhaust his

21

unexhausted claims. ECF No. 41. The Court denied his motion for stay and abeyance and

22

dismissed his petition with prejudice. ECF No. 42. Nasby filed his second pro se state habeas

23

petition in state district court. ECF No. 141-15. The state district court denied his second state

24

habeas petition as procedurally barred and successive. 4 ECF No. 140-3. The Nevada Supreme

25

3

26
27
28

Nev. Rev. Stat. § 34.810(1)(b)(2) instructs Nevada courts to dismiss a state habeas petition if

The petitioner’s conviction was the result of a trial and the grounds for the petition could have been
… [r]aised in a direct appeal or a prior petition for a writ of habeas corpus or postconviction relief
… unless the court finds both cause for the failure to present the grounds and actual prejudice to the
petitioner.
4
In January 2016, Nasby filed his fourth state habeas petition, wherein the Nevada appellate court affirmed dismissal.

8

1

Court affirmed the denial of his second state habeas petition. ECF No. 135-11.

2

On March 9, 2011, Nasby filed a motion for reconsideration in the instant case. ECF No.

3

51. The Court granted Nasby’s motion, vacated the order denying Nasby’s motion for stay and

4

abeyance, and recalled the judgment dismissing his petition with prejudice. ECF No. 55. Following

5

a stay pending exhaustion of Nasby’s unexhausted claims, the Court granted Nasby’s motion to

6

reopen. ECF No. 62. Respondents answered the remaining grounds of the petition and Nasby

7

replied. ECF Nos. 67, 74. The Court denied the remaining grounds of the petition. ECF No. 81.

8

Nasby filed a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) and the Court

9

denied his motion. ECF Nos. 87, 93. Nasby appealed to the Ninth Circuit. ECF No. 83.

10

The Ninth Circuit vacated the Court’s dismissal of Nasby’s petition, vacated the order

11

denying Nasby’s motion to alter or amend judgment, and remanded for review of the pertinent

12

state record. ECF No. 109. The Court instructed Respondents to file the entire state court record,

13

instructed Respondents to answer, and instructed Nasby to reply. ECF No. 113. In April 2019, the

14

Court granted Nasby leave to amend his original petition “to elaborate on his existing claims to

15

the extent they are bare, conclusory, or insufficiently pled or cited.” ECF No. 173 at 2. Respondents

16

moved to strike, and the Court granted their motion in part finding Ground 2D time-barred and

17

unexhausted. ECF No. 190.

18
19
20
21
22
23
24

III.

LEGAL STANDARD
a. Review under the Antiterrorism and Effective Death Penalty Act

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus
cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):
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–

25
26
27
28

(ECF Nos. 135-12, 147-2.) Nasby filed his fifth state habeas petition, which the Nevada appellate court affirmed
dismissal. (ECF Nos. 143-37, 148-15.) In January 2019, Nasby filed his sixth state habeas petition, wherein the Nevada
appellate court affirmed dismissal. (ECF No. 186-2).

9

1
2
3
4

(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.

5

A state court decision is contrary to clearly established Supreme Court precedent under 28

6

U.S.C. § 2254(d) “‘if the state court applies a rule that contradicts the governing law set forth in

7

[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially

8

indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73

9

(2003) (first quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000), and then citing Bell v. Cone,

10

535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly

11

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

12

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

13

unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.

14

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

15

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the

16

correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing

17

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

18

b. Standard for Evaluating an Ineffective Assistance of Counsel Claim

19

In Strickland, the Supreme Court propounded a two-prong test for the analysis of

20

ineffective-assistance-of-counsel claims requiring Petitioner to demonstrate that: (1) the counsel’s

21

“representation fell below an objective standard of reasonableness[;]” and (2) the counsel’s

22

deficient performance prejudices Petitioner such that “there is a reasonable probability that, but

23

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

24

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts considering an ineffective-

25

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

26

the wide range of reasonable professional assistance.” Id. at 689. It is Petitioner’s burden to show

27

“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . .

28

by the Sixth Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it is
10

1

not enough for Petitioner to “show that the errors had some conceivable effect on the outcome of

2

the proceeding.” Id. at 693. Rather, errors must be “so serious as to deprive [Petitioner] of a fair

3

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

4

Where a state court previously adjudicated the ineffective-assistance-of-counsel claim

5

under Strickland, establishing the court’s decision was unreasonable is especially difficult. See

6

Richter, 562 U.S. at 104–05. In Richter, the Supreme Court clarified that Strickland and § 2254(d)

7

are each highly deferential, and when the two apply in tandem, review is doubly so. See id. at 105;

8

see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks

9

omitted) The Court further clarified, “[w]hen § 2254(d) applies, the question is not whether

10

counsel’s actions were reasonable. The question is whether there is any reasonable argument that

11

counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.
IV.

12

DISCUSSION
A. Grounds 1 and 4 – Prosecutorial Misconduct

13
14

In Ground 1, Nasby alleges the prosecutor committed prosecutorial misconduct by (A)

15

preventing a material witness from testifying; (B) improperly vouching for the credibility of a

16

state’s witness; (C) referring to items not in evidence; (D) misstating the law in closing argument;

17

(E) presenting scripted, false, and conflicting evidence; (F) misleading defense counsel as to the

18

witness list; and (G) committing a Massiah 5 error. ECF No. 176 at 5. Nasby repeats his allegation

19

that the prosecutor presented scripted, false, and conflicting evidence in Ground 4. Id. at 52.
1. Procedural Default

20
21

Respondents argue that the claims alleged in Ground 1 and Ground 4 are procedurally

22

defaulted because Nasby did not present such claims on direct appeal and when presented on

23

appeal of his first state habeas petition, the Nevada Supreme Court found the claims procedurally

24

barred pursuant to Nev. Rev. Stat. § 34.810(1)(b). ECF No. 200 at 36. Nasby argues that his claims

25

alleged in Ground 1 are not procedurally defaulted. Although he acknowledges that the Nevada

26

Supreme Court found his claims procedurally barred pursuant to Nev. Rev. Stat. § 34.810, Nasby

27
28

5

Massiah v. United States, 377 U.S. 201 (1964.)

11

1

asserts that he timely alleged ineffective assistance of trial and appellate counsel as cause and

2

prejudice for not raising the issues earlier. ECF No. 207 at 22. He also argues that Nev. Rev. Stat.

3

§ 34.810 is not an adequate procedural bar. Id. at 23.

4

When a petitioner has procedurally defaulted his claims, federal habeas review occurs only

5

in limited circumstances. A petitioner must show “cause for his state-court default of any federal

6

claim, and prejudice therefrom, before the federal habeas court will consider the merits of that

7

claim.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). The petitioner has the burden of proving

8

both cause and prejudice. Bousley v. United States, 523 U.S. 614, 622 (1998); Coleman, 501 U.S.

9

at 750.

10

Adequate cause for a default must be something external to the petitioner and that cannot

11

fairly be attributed to him. Coleman v. Thompson, 501 U.S. 722, 753 (1991). To show “prejudice,”

12

a petitioner must show not merely that errors in the state trial court created a possibility of prejudice

13

but that they worked to the petitioner’s actual and substantial disadvantage, infecting his or her

14

entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170

15

(1982); Carrier, 477 U.S. at 494. If insufficient cause is shown, the court need not address whether

16

the petitioner has shown prejudice. Smith v. Baldwin, 510 F.3d 1127, 1147 (9th Cir. 2007).

17

In certain circumstances counsel’s ineffectiveness in failing to properly preserve a habeas

18

claim for review in state court will suffice to show cause. Edwards, 529 U.S. at 451 (citing Murray

19

v. Carrier, 477 U.S. 478, 488–89 (1986)). “Not just any deficiency in counsel’s performance will

20

do, however; the assistance must have been so ineffective as to violate the Federal Constitution. In

21

other words, ineffective assistance adequate to establish cause for the procedural default of

22

some other constitutional claim is itself an independent constitutional claim.” Edwards, 529

23

U.S. at 451; see also Carrier, 477 U.S. at 489 (an ineffective assistance claim generally must “be

24

presented to the state courts as an independent claim before it may be used to establish cause for a

25

procedural default”).

26

However, because there is no constitutional right to counsel in state post-conviction

27

proceedings, an attorney’s errors in such proceedings do not establish cause for a procedural

28

default. Coleman, 501 U.S. at 753–54. The Supreme Court has carved a narrow exception to this

12

1

rule and held that “[i]nadequate assistance of counsel at initial review collateral proceedings may

2

establish cause for a prisoner’s procedural default of a claim of ineffective assistance at

3

trial.” Martinez v. Ryan, 566 U.S. 1, 10 (2012). The Martinez exception is limited though and

4

cannot excuse the procedural default of a substantive claim of trial-court error, ineffective

5

assistance of appellate counsel, or “attorney errors in other kinds of proceedings, including appeals

6

from initial-review collateral proceedings, second or successive collateral proceedings, and

7

petitions for discretionary review in a State’s appellate courts.” Martinez, 566 U.S. at 16–17;

8

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

9

Nasby argues that he “timely alleged ineffective assistance of trial and appellate counsel,

10

however, as cause and prejudice for not raising the issues earlier.” ECF No. 207 at 22. On appeal

11

of his first state habeas petition, Nasby asserted a claim that “[c]ounsel on direct appeal was

12

likewise ineffective for failure to raise all meritorious issues contained in this memorandum of

13

law,” wherein Nasby asserted his prosecutorial misconduct claims. ECF No. 135-2 at 37 (emphasis

14

in original).

15
16
17
18
19
20
21
22
23
24
25

The Nevada Supreme Court ruled, as follows, on the claim that Nasby’s appellate counsel
was ineffective:
Nasby also made a general claim that appellate counsel was ineffective “for Failure
to raise all meritorious issues contained in this memorandum of law” (emphasis in
original). Nasby failed to cite to the record or provide cogent argument or legal
authority for how appellate counsel’s performance was deficient and prejudiced
him.
Nasby also cited numerous instances of alleged prosecutorial misconduct and trial
court error. The district court determined that these claims were waived by Nasby’s
failure to raise them on direct appeal. In an attempt to show good cause for his
failure sufficient to overcome this procedural bar, Nasby claimed his trial and
appellate counsel were ineffective. “To establish good cause to excuse a procedural
default, a defendant must demonstrate that some impediment external to the defense
prevented him from complying with the procedural rule that has been violated.”
Nasby failed to demonstrate that an impediment external to the defense caused his
failure to raise these claims earlier.
ECF No. 135-3 at 9.

26

The Court agrees with the ruling of the Nevada Supreme Court. Nasby failed to show that

27

either trial or appellate counsel committed a constitutional violation by providing ineffective

28

assistance of counsel. Nasby has not shown that his allegations of prosecutorial misconduct might

13

1

conceivably have affected the outcome of his trial. Nor is there a showing of a reasonable

2

probability that, but for appellate counsel’s alleged errors, the result of the appeal would have been

3

different. Thus, ineffective assistance of counsel cannot serve as cause for the procedural default

4

of the claims in Ground 1.

5
6
7

The Court denies Nasby habeas corpus relief with respect to Ground 1 as those claims are
barred by the procedural default doctrine.
2. Adequate and Independent

8

The Ninth Circuit has held the application of Nev. Rev. Stat. § 34.726 and Nev. Rev. Stat. §

9

34.800 to be independent and adequate grounds for procedural default. Moran, 80 F.3d at 1268–

10

70; Valerio v. Crawford, 306 F.3d 742, 778 (9th Cir.2002); Ybarra v. McDaniel, 656 F.3d 984,

11

990 (9th Cir. 2011); Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000). The Ninth Circuit

12

also has held that, at least in non-capital cases, application of the procedural bar in Nev. Rev. Stat.

13

§ 34.810 is an independent and adequate state ground. Vang v. Nevada, 329 F.3d 1069, 1073–75

14

(9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th Cir. 1999). Nasby argues, however,

15

that the Nev. Rev. Stat. § 34.810 bar is inadequate in this case because it has not been consistently

16

applied. ECF No. 176 at 25–26.

17

“In order for a state procedural rule to preclude federal review, the rule must be ‘firmly

18

established and regularly followed.’” Collier, 408 F.3d at 1284 (quoting Ford v. Georgia, 498 U.S.

19

411, 423–24 (1991)). “The Ninth Circuit has elaborated that a state rule must be clear, consistently

20

applied, and well-established at the time of the petitioner’s purported default.” Collier, 408 F.3d

21

at 1284 (quotation omitted). “If a state procedural rule is not well-established before a petitioner

22

supposedly breaks the rule, then the rule cannot prevent federal review of the petitioner’s federal

23

claims.” Collier, 408 F.3d at 1284. “Although the state is not required to articulate every

24

permutation of every rule, a rule held generally adequate can be deemed inadequate as applied to

25

particular unique circumstances.” Collier, 408 F.3d at 1284 (quoting Lee v. Kemna, 534 U.S. 362,

26

376 (2002); Bargas v. Burns, 179 F.3d 1207, 1213 (9th Cir. 1999) (internal quotation omitted)).

27

“Once a petitioner has demonstrated the inadequacy of a rule, the state bears the ultimate burden

28

of proving the rule bars federal review.” Collier, 408 F.3d at 1284 (citing Bennett v. Mueller, 322

14

1

F.3d 573, 585–86 (9th Cir. 2003)).

2

Nasby’s arguments do not place the adequacy of Nev. Rev. Stat. § 34.810 at issue so as to

3

shift the burden to Respondents. Accordingly, the Court concludes the provision was a “clear,

4

consistently applied, and well-established” procedural rule at the time of Nasby’s defaults.

5

3. Merits Determination

6

Even if Nasby’s claims were not procedurally defaulted, the Court would nonetheless deny

7

relief in the alternative on de novo review. Prosecutorial misconduct warrants federal habeas relief

8

if the prosecutor’s actions “so infected the trial with unfairness as to make the resulting conviction

9

a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal

10

quotation marks omitted). A defendant’s constitutional right to due process of law is violated if

11

the prosecutor’s misconduct renders a trial “fundamentally unfair.” Id. at 181–83; see also Smith

12

v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis in cases of

13

alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”).

14

A court reviews claims of prosecutorial misconduct “on the merits, examining the entire

15

proceedings to determine whether the prosecutor’s [conduct] so infected the trial with unfairness

16

as to make the resulting conviction a denial of due process.” Johnson v. Sublett, 63 F.3d 926, 929

17

(9th Cir. 1995) (citation omitted); see also Greer v. Miller, 483 U.S. 756, 765 (1987); Turner v.

18

Calderon, 281 F.3d 851, 868 (9th Cir. 2002). If there is constitutional error, a harmless error

19

analysis is applied; the error warrants relief if it “had substantial and injurious effect or influence

20

in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (quotation

21

omitted); Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012).

22

a. Ground 1A – Interference with Material Witness

23

In Ground 1A, Nasby alleges that prosecution interfered with a material witness, Colleen

24

Warner (“Warner”), when the prosecutor showed Warner a letter allegedly written by Nasby that

25

“said some harsh things” about Warner and caused her to refuse to testify for the defense. ECF

26

No. 176 at 5–6. Respondents argue that the allegations do not rise to the level of misconduct and

27

that the state district court did not issue an order or expressly prohibit the prosecutor from showing

28

the letter to Warner. ECF No. 200 at 44.

15

1

The record reflects that prosecution did not harass or intimidate the witness to discourage

2

her from testifying. Further, the prosecution presented strong evidence through testimony of

3

multiple witnesses that Nasby shot Beasley. See Darden, 477 U.S. at 181–82 (analyzing a claim

4

that the prosecutor’s argument violated due process by considering the strength of the evidence

5

against the defendant). Considering witness testimony that Nasby confessed to shooting Beasley

6

as well as testimony corroborating the events of the night of Beasley’s murder, including the

7

manner of how he was shot, the Court cannot conclude that the actions of the prosecutor “so

8

infected the trial with unfairness as to make the resulting conviction a denial of due

9

process.” Darden, 477 U.S. at 181–82.

10

b. Ground 1B – Vouching for Witness Testimony

11

In Ground 1B, Nasby alleges that the prosecutor vouched for the testimony of the other co-

12

defendants by stating “they told the truth and the truth came out.” ECF Nos. 176 at 10; ECF No.

13

119-1 at 19. Respondents argue that the prosecutor’s single reference did not amount to improper

14

vouching because the prosecutor did not interject his opinion of truthfulness and did not invoke

15

the authority of the state. ECF No. 200 at 47.

16

“Vouching consists of placing the prestige of the government behind a witness through

17

personal assurances of the witness’s veracity, or suggesting that information not presented to the

18

jury supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

19

1993). Here, the State contended in closing argument that “the truth coincides with each other,”

20

and argued that the testimony of the detective, crime scene analysts, and the coroner’s office

21

corroborated the witness testimony. ECF No. 119-1 at 19. The State did not personally assure

22

witness veracity or suggest that it had extra-record facts to support the testimony. See Necoechea,

23

986 F.3d at 1279 (“The prosecutor here argued that [the witness] told the truth because, if she were

24

lying, she would have done a better job. This is simply an inference from evidence in the record.

25

It is not . . . a reference to extra-record facts or a personal guarantee of [the witness]’s veracity.

26

The prosecutor merely argued that [the witness] was telling the truth, an argument the prosecutor

27

had to make in order to convict [the defendant]. These statements do not imply that the government

28

is assuring [the witness]’s veracity, and do not reflect the prosecutor’s personal beliefs.”).

16

1

Accordingly, Nasby is denied habeas relief for Ground 1B.
c. Ground 1C – Reference to Facts Not in Evidence

2
3

In Ground 1C, Nasby alleges that the State referred to facts not in evidence when the

4

prosecutor stated during closing argument that Tommie and Jotee did not expressly implicate

5

Nasby because they did not want to be labeled as snitches. ECF Nos. 207 at 28–29; ECF No. 119-

6

1 at 19. Respondents argue that the prosecutor properly urged the jury to use their common sense,

7

made an argument for the jury to consider, and urged the jury to make reasonable inferences

8

regarding the credibility of the witness testimony. ECF No. 200 at 49.
In pertinent part, the State provided in closing argument as follows:

9
10

That’s the motivating thing about these guys, the Burnside brothers. Here are two
guys who are in prison. They pled guilty to accessory to murder just like Deskin
and they were sentenced before him and brought down here for the sole purpose of
trying to dispel this notion that the defendant kept on throwing at you that Sugar
Bear may have been there. Sugar Bear was not there, you know, but that’s why they
were brought down.

11
12
13

And just as that Instruction No. 29 talks about common sense, use your common
sense. These guys didn’t want to flat out in court say, hey, it was the defendant who
did this. I saw him shoot. No, they said I was there, the Burnside brothers were
there, Jerimiah Deskin was there, Michael Beasley was there, and the defendant
and, as to both of those witnesses, did you shoot Michael? No. Did your brother
shoot Michael? No. Did Jerimiah shoot Michael? No. The coroner ruled out suicide.
So obviously Michael didn’t shoot himself. Who is the last person that’s left over
there by the defendant. Use your common sense, deduce from that. Do you think
that those guys, who are in prison, want to come and take the witness stand and just
sing like a bird? No.

14
15
16
17
18
19

ECF No. 119-1 at 19.

20

This, however, does not did not render the trial “fundamentally unfair.” Darden, 477 U.S.

21

at 181–82. The prosecutor did not suggest that he had information not available to the jury, nor did

22

he make an argument based on his opinion. The prosecutor made the argument based on evidence

23

– the testimony of the co-defendants and that they were in custody pursuant to plea agreements –

24

and argued that the jury should use their common sense regarding the Burnside brothers’

25

testimony. The Court finds that Nasby has not identified improper argument that could have so

26

infected his trial with unfairness as to make the resulting conviction a denial of due process. Thus,

27

the Court denies relief with respect to Ground 1C.

28

///

17

d. Ground 1D – Misstating Law

1
2

In Ground 1D, Nasby alleges that the State misstated the law in closing argument regarding

3

the corroboration requirement in Nev. Rev. Stat. § 175.291 and stated that the accomplices

4

corroborated each other. ECF No. 176 at 12. Nasby argues that there no physical evidence tied

5

Nasby to the crime, and the prosecutor repeatedly stated that corroboration came from the

6

accomplices. Id. Respondents argue that the Nevada Supreme Court already rejected Nasby’s

7

related state law claim and that the State argued all the evidence corroborated the accomplice

8

testimony. ECF No. 200 at 52–53.

9

Nasby’s argument is belied by the record. The State presented evidence corroborating the

10

accomplices’ testimony. For example, Bradley testified that Nasby told her that he had shot

11

Beasley three times while out in the desert. ECF No. 133-2 at 13. Holmes testified that Nasby

12

confessed to killing Beasley because Nasby believed Beasley was trying to become the leader of

13

the group. ECF No. 133-3 at 55. And the detectives recovered a 9mm handgun from Nasby’s

14

bedroom and there was expert testimony that the firearm recovered from his bedroom was the

15

murder weapon. ECF Nos. 133-2 at 20; 133-3 at 9.
The Court denies relief with respect to Ground 1D.

16

e. Grounds 1E and 4 – Presenting False, Scripted, or Coerced

17

Testimony

18
19

In Grounds 1E and 4, Nasby alleges that the State presented false, scripted, or coerced

20

testimony. ECF No. 176 at 13, 52. He asserts that the prosecution confused the jury as to the

21

elements of conspiracy to commit murder and attempted to bolster Jeremiah’s credibility by

22

arguing that Jeremiah admitted to culpability of the crime of accessory to murder and “not the

23

actual puller of the trigger.” Id. at 14. He further asserts that the State asked Tommie and Jotee

24

scripted questions in violation of Nev. Rev. Stat. § 174.061 6 to avoid asking them specifically

25

whether Nasby killed Beasley. Id. at 15. Respondents argue that the prosecutor’s statement that

26

6

27
28

Nev. Rev. Stat. § 174.061(2) provides as follows:
A prosecuting attorney shall not enter into an agreement with a defendant which:
(a) Limits the testimony of the defendant to a predetermined formula.
(b) Is contingent on the testimony of the defendant contributing to a specified conclusion.

18

1

Jeremiah “pled guilty to accessory to murder, as an accessory to this case, not the actual puller of

2

the trigger, but an accessory” was not false or misleading. ECF No. 200 at 54. Further, Tommie

3

and Jotee did not enter guilty plea agreements that limited their testimony. Id. at 55.

4

Based on a review of the record, Jeremiah’s testimony and/or the prosecutor’s comments

5

regarding Jeremiah’s guilty plea are not false or misleading. Jeremiah entered into a guilty plea

6

agreement wherein he pled guilty to the crime of accessory to murder. ECF No. 136-8. Further,

7

the state court provided a jury instruction as to the elements of conspiracy. ECF No. 134-2 at 6. In

8

addition, Nasby fails to show that Tommie or Jotee’s testimony was false or scripted such that it

9

rendered the trial “fundamentally unfair.” Defense counsel was permitted to cross-examine and

10

elicit testimony regarding Nasby’s involvement in Beasley’s death as well as the previous

11

statements of the witnesses. To the extent Nasby bases his claims on alleged violations of state

12

law, they are not valid claims for federal habeas relief. See Pully v. Harris, 465 U.S. 37, 41 (1984).

13

The Court denies habeas relief with respect to Ground 1E and 4.

14

f. Ground 1F – Withholding Information

15

In Ground 1F, Nasby alleges that the State lacked candor regarding the witness list and

16

withheld material information in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), because

17

the State listed Von Lewis as a witness and included an ID number to indicate he was incarcerated.

18

ECF No. 176 at 15. The State, however, had no intention of calling Von Lewis as a witness to the

19

detriment of the defense because Von Lewis would have testified that he owned the firearm and

20

about the nature of his relationship with Beasley. Id. Respondents argue that Von Lewis was not a

21

material witness because Detective Buczek testified that Von Lewis was not a suspect and because

22

Jeremiah and Jotee testified that Von Lewis was not present on the night of the shooting. ECF No.

23

200 at 58.

24

Nasby’s allegations do not establish prosecutorial misconduct or a Brady violation because

25

Nasby knew what Von Lewis would have allegedly testified to irrespective of whether the State

26

called him as a witness. See Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (rejecting Brady claim

27

where “[p]etitioner possessed the salient facts regarding the existence of the records that he claims

28

were withheld”). The Court denies habeas relief with respect to Ground 1F.

19

g. Ground 1G – Massiah Error

1
2

In Ground 1G, Nasby alleges that the State committed error in violation of Massiah v.

3

United States, 377 U.S. 201, 207 (1964), because Holmes testified that Nasby confessed to him

4

when Holmes acted at the behest of the State. ECF No. 176 at 16–17. Nasby asserts that in opening

5

statement the prosecution referred to a letter allegedly written by Nasby which requested that

6

Holmes find a witness to memorize the letter and testify on Nasby’s behalf. Id. Nasby claims that

7

Holmes had been working with law enforcement prior to Nasby giving him the letter. Id.

8

Respondents argue that Nasby’s confession to Holmes occurred before Holmes spoke to law

9

enforcement and that his testimony at trial was limited to Nasby’s confession. ECF No. 200 at 60–

10

61.

11

Massiah established that “a criminal defendant’s right to counsel is violated when a state

12

agent deliberately elicits an incriminating statement outside the presence of the defendant’s

13

counsel.” Fairbanks v. Ayers, 632 F.3d 612, 622 (9th Cir. 2011). “To establish a Massiah violation,

14

a defendant must demonstrate both that the informant was acting as a government agent and that

15

the informant deliberately elicited incriminating statements.” Id. (citing United States v. Henry,

16

447 U.S. 264, 270 (1980)). Further, the “defendant must show that he suffered prejudice at trial as

17

a result of evidence obtained from interrogation outside the presence of counsel.” United States v.

18

Bagley, 641 F.2d 1235, 1238 (9th Cir. 1981); see also Payton v. Davis, 906 F.3d 812, 822 (9th Cir.

19

2018).

20

Prior to trial, Holmes testified to the state court that he contacted police after Nasby

21

confessed to killing Beasley. ECF No. 133-3. Accordingly, Holmes’s testimony regarding Nasby’s

22

confession did not violate Massiah.

23

During opening statements, the prosecutor stated as follows:

24

You will find that the defendant eventually gives a three page, handwritten letter to
John Holmes, the guy he just eventually confesses to, and what it is, it says: A
statement to the girl. And what the defendant wanted John Holmes to do is go find
a girl, some girl out there, who will read this story, that he just wrote three pages
of, and to memorize it and come in court and testify in his behalf.

25
26
27
28

ECF No. 132-6 at 50.
At the time of opening statements, the trial court had not ruled on the admissibility of the

20

1

letter. Id. at 53. The trial court later determined that the letter would not be admissible at trial. ECF

2

No. 133-3 at 52. Although prosecution referred to the letter in opening statement, Holmes’s

3

testimony was limited to Nasby’s confession. In light of the substantial evidence supporting

4

Nasby’s conviction, prosecution’s reference to the letter did not “infect the trial with unfairness as

5

to make the resulting conviction a denial of due process.” See Darden, 477 U.S. at 181–82.

6

Accordingly, the Court denies habeas relief with respect to Ground 1G.

7

B. Ground 2A

8

In Ground 2A, Nasby alleges that the trial court erroneously delayed ruling on the letter

9

allegedly written by Nasby that showed evidence of other bad acts in violation of his rights to due

10

process, equal protection, and a constitutionally sound sentence under the Fifth, Sixth, Eighth, and

11

Fourteenth Amendments. ECF No. 176 at 27. Nasby asserts that although the trial court ruled the

12

letter was inadmissible at trial, the damage was already done as the jury heard the prosecutor’s

13

statements during opening statements. Id.

14

Respondents argue that Ground 2A is procedurally defaulted to the extent Nasby raises a

15

due process claim pursuant to the Fifth, Sixth, and Fourteenth Amendments. ECF No. 200 at 64.

16

On direct appeal, Nasby alleged the trial court erred in denying his motion for mistrial based on

17

the State’s reference to the letter, but Nasby did not federalize his claim. Id. Further, in his first

18

state habeas appeal, Respondents argue that Nasby did not federalize his claims based on equal

19

protection, constitutionally sound sentence, or the Eighth Amendment. The Nevada Supreme

20

Court dismissed the claim for failure to raise it on direct appeal pursuant to Nev. Rev. Stat. §

21

34.810. Id. at 65; see also ECF No. 135-3 at 9. Other than his reference to his arguments made

22

regarding procedural default as to Ground 1, Nasby does not make a separate argument for cause

23

and prejudice to overcome procedural default of Ground 2. ECF No. 176 at 65.

24

To “fairly present” a federal claim to the state courts, a petitioner must have alerted the

25

state courts to the fact that he was asserting a claim under the United States Constitution. Duncan

26

v. Henry, 513 U.S. 364, 365–66 (1995); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005)

27

(“[T]o alert the state court, a petitioner must make reference to provisions of the federal

28

Constitution or must cite either federal or state case law that engages in a federal constitutional

21

1

analysis.”) 7; see also Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005) (holding that

2

exhaustion demands more than a citation to a general constitutional provision, detached from any

3

articulation of the underlying federal legal theory). A federal claim is not exhausted by a

4

petitioner’s mention, in passing, of a broad constitutional concept, such as due process. See Hiivala

5

v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (holding that “general appeals to broad constitutional

6

principles, such as due process, equal protection, and the right to a fair trial, are insufficient to

7

establish exhaustion”).

8

The Court agrees with Respondent that the portion of Ground 2A raising a due process

9

claim pursuant to the Fifth, Sixth, and Fourteenth Amendments is procedurally defaulted. The

10

Ninth Circuit has held that, at least in non-capital cases, application of the procedural bar in Nev.

11

Rev. Stat. § 34.810 is an independent and adequate state ground. Vang v. Nevada, 329 F.3d 1069,

12

1073–75 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th Cir.1999). To the extent

13

Nasby argues he can show cause and prejudice, he fails to make a showing of a reasonable

14

probability that, but for appellate counsel’s alleged errors, the result of the appeal would have been

15

different. Although Nasby’s claim on direct appeal was based on state law, the Nevada Supreme

16

Court found no likelihood that the reference to the letter during opening statement was unfairly

17

prejudicial. ECF No. 134-6 at 5–7. There were no other references to the letter at trial and the jury

18

was instructed that counsel’s arguments are not evidence. ECF No. 119-2 at 28. Thus, the Court

19

denies habeas corpus relief with respect to Ground 2A.

20

The Court also agrees with Respondents that the remaining portion of Ground 2A based on

21

equal protection, constitutionally sound sentence, and the Eighth Amendment were not fairly

22

presented to the state appellate court for purposes of exhaustion requirements for federal habeas

23

review. Nasby makes no argument as to this portion of Ground 2A. Accordingly, the remaining

24

portion of Ground 2A based on equal protection, constitutionally sound sentence, and the Eighth

25

Amendment is dismissed as unexhausted.

26

7

27
28

See also Peterson v. Lampert, 319 F.3d 1153, 1157–58 (9th Cir. 2003) (en banc) (holding that a citation to a state
court case that provides a federal analysis can “serve[ ] the same purpose as a federal case analyzing such an
issue”); Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.2000) (noting that “petitioner must have either referenced
specific provisions of the federal constitution or statutes or cited to federal case law”), as modified by 247 F.3d 904
(9th Cir. 2001).

22

C. Ground 2B – Bad Acts Evidence

1
2

In Ground 2B, Nasby alleges that the trial court erroneously allowed the introduction of

3

bad acts evidence when Brittney Adams testified that Nasby offered Adams one of his guns when

4

they were on the way to Tanesha Banks’s house. ECF No. 176 at 28–29. He further asserts that

5

Detective Thowsen testified that Nasby tried to intimidate Banks over the phone but could not

6

prove conclusively that it was Nasby who called. Id. Respondents argue that Ground 2B is

7

procedurally defaulted because Nasby did not raise this claim on direct appeal and the Nevada

8

Supreme Court affirmed dismissal for failure to raise it on direct appeal pursuant to Nev. Rev. Stat.

9

§ 34.810(1)(b). ECF No. 200 at 70. Respondents further argue that Nasby did not federalize his

10

claim as to equal protection, constitutionally sound sentence, or the Eighth Amendment. Id.

11

Ground 2B is procedurally defaulted. To the extent Nasby argues he can show cause and

12

prejudice, he fails to show that his allegation that the trial court erroneously allowed introduction

13

of bad acts evidence might conceivably have affected the outcome of his trial beyond conclusory

14

allegations. Evidence introduced by the prosecution will often raise more than one inference, some

15

permissible, some not; we must rely on the jury to sort them out in light of the court’s instructions.

16

Only if there are no permissible inferences the jury may draw from the evidence can its admission

17

violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair

18

trial.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). Nasby cannot show that he was

19

prejudiced because admission of evidence regarding Adams’s and Banks’s testimony did not

20

render the trial fundamentally unfair. The Court denies habeas corpus relief with respect to Ground

21

2B.

22

The Court further agrees that the remaining portion of Ground 2B based on equal

23

protection, constitutionally sound sentence, and the Eighth Amendment were not fairly presented

24

to the state appellate court for purposes of exhaustion requirements for federal habeas review.

25

Nasby makes no argument as to this portion of Ground 2B. Accordingly, the remaining portion of

26

Ground 2B based on equal protection, constitutionally sound sentence, and the Eighth Amendment

27

is dismissed as unexhausted.

28

///

23

1

D. Ground 2C and Ground 6 – Accomplice Instruction

2

In Grounds 2C and 6, Nasby alleges that the trial court failed to give an accomplice

3

instruction in violation of his constitutional rights. ECF No. 176 at 30. Respondents argue that

4

Nasby failed to federalize his claim on direct appeal. ECF No. 200 at 74. Nasby argues that Ground

5

6 is exhausted because he relied on Sheriff v. Acuna, 819 P.2d 197, 203 (Nev. 1991), which refers

6

to rules prevailing in both state and federal courts and safeguarding a defendant’s right to a fair

7

trial. Citation to state case law that applies federal constitutional principles will suffice for

8

exhaustion purposes. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). The

9

Court concludes that Nasby sufficiently referenced case law to alert the Nevada Appellate Courts

10

that he asserted violations of his federal rights.

11

On direct appeal, the Nevada Supreme Court held as follows:

12

Next, Nasby contends that the standard credibility instruction that was given to the
jury was insufficient. Nasby argues that the jury must be given a cautionary
instruction when the State uses accomplice testimony in its case in chief.

13
14
15
16
17
18

Failure to make a timely objection during trial waives the appellant’s right to raise
the issue on appeal. See Pray v. State, 114 Nev. 455, 959 P.2d 530 (1998). However,
this court “may address plain error and constitutional error sua sponte.” Sterling v.
State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). Appellant Nasby waived this
issue by failing to make a timely objection before the trial court. We conclude that
it was not plain or constitutional error for the trial court to fail to give a cautionary
instruction and therefore reject Nasby’s argument regarding this issue.
ECF No. 119-6 at 5.

19

The Nevada Supreme Court’s rejection of Nasby’s claim was neither contrary to nor an

20

objectively unreasonable application of clearly established law as determined by the United States

21

Supreme Court. The Supreme Court has never held that a state trial court commits federal

22

constitutional error if it fails to provide cautionary instructions regarding accomplice testimony.

23

On the contrary, the Supreme Court has indicated that the Constitution does not require

24

such instructions. Specifically, the Supreme Court has held that the uncorroborated testimony of

25

an accomplice is sufficient to sustain a conviction. See United States v. Augenblick, 393 U.S. 348,

26

352 (1969) (“When we look at the requirements of procedural due process, the use

27

of accomplice testimony is not catalogued with constitutional restrictions.”); see also United

28

States v. Fritts, 505 F.2d 168, 169 (9th Cir. 1974) (holding that a federal trial court’s failure to sua

24

1

sponte give cautionary instruction on accomplice testimony did not warrant reversal). The fact that

2

Nevada law may require accomplice testimony to be corroborated does not mean that Nasby had

3

a federal constitutional right to jury instructions regarding accomplice testimony. See Laboa v.

4

Calderdon, 224 F.3d 972, 979 (9th Cir. 2000).

5

Even assuming that the trial court committed federal constitutional error in failing

6

to instruct the jury regarding accomplice testimony—and this Court concludes that it did not—the

7

error would not warrant habeas corpus relief, because it did not have a substantial and injurious

8

impact on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (The prejudicial

9

impact of a constitutional error is assessed by asking whether the error had “a substantial and

10

injurious effect or influence in determining the jury’s verdict.”). Ample evidence presented at trial

11

corroborated the co-defendants’ testimony. Nasby confessed to two witnesses who were not co-

12

defendants or accomplices. ECF No. 133-2 at 13, 53. Expert witnesses determined that the

13

cartridges recovered from the crime scene were from a 9 mm handgun and detectives recovered a

14

9mm handgun from Nasby’s bedroom. ECF Nos. 133-2 at 20; ECF No. 133-3 at 7. Moreover, the

15

co-defendants’ credibility was explored on both direct and cross-examination. Considering the

16

evidence presented at trial, the Court concludes that the trial court’s refusal to give accomplice

17

testimony instructions did not have a substantial and injurious effect or influence in determining

18

the jury’s verdict.

19

The Nevada Supreme Court’s denial of the claims asserted in Grounds 2C and 6 was not

20

contrary to or an unreasonable application of clearly established federal law as determined by the

21

United States Supreme Court. Therefore, the Court denies habeas relief with respect to these

22

claims.

23

E. Ground 3A – Failure to Call Witnesses

24

In Ground 3A, Nasby alleges that trial counsel rendered ineffective assistance for failure

25

to call any witnesses at trial. ECF No. 176 at 34–36. He asserts that trial counsel did not call alibi

26

witnesses that could have testified to Nasby’s whereabouts during the time the crime occurred. Id.

27

Nasby argues that trial counsel was deficient because they did not call alibi witnesses based on a

28

letter that allegedly contained evidence of witness coaching, which the trial court described as

25

1

“innocuous.” ECF No. 207 at 51.

2

To prevail on the ineffective assistance claim, Nasby must show his trial counsel acted

3

deficiently and “a reasonable probability that, but for counsel’s [deficiencies], the result of the

4

proceeding would have been different.” Strickland, 466 U.S. at 694. However, the Court need not

5

“address both components of the inquiry” if Petitioner “makes an insufficient showing on one.”

6

Id. at 697.

7

The Nevada Supreme Court held:

8

Nasby claimed that trial counsel, Joseph Sciscento and Frederick Santacroce, were
ineffective for failing to call three witnesses whom Nasby claimed would have
given him an alibi. [fn 6] At the evidentiary hearing, counsel testified that they were
prepared to call these witnesses at trial, but before trial they were given a letter
Nasby had written from jail that suggested Nasby was concocting an alibi. Counsel
testified that they suspected the witnesses might give false testimony if called, and
they could not ethically call them. Nasby also claimed counsel were ineffective for
failing to re-interview these witnesses to investigate whether he in fact concocted
the alibi. Nasby failed to demonstrate that counsel’s re-interview of the alibi
witnesses, whom Mr. Sciscento testified he had previously interviewed, would have
negated counsel’s concerns. We conclude the district court did not err in denying
this claim.

9
10
11
12
13
14
15
16

[fn6] We note that an affidavit submitted by one of the witnesses, Colleen
Warner, indicates that she was present on the first day of trial and told
counsel she would not testify on Nasby’s behalf.

17

ECF No. 120-4 at 4. The Nevada Supreme Court’s rejection of Nasby’s ineffective assistance

18

claim was neither contrary to nor an objectively unreasonable application of Strickland.

19

The court reasonably determined that Nasby failed to demonstrate that his counsel was

20

deficient for failing to call alibi witnesses at trial. As noted by the Nevada Supreme Court, trial

21

counsel testified that they became aware of a letter that indicated the alibi was concocted. Counsel

22

would not put on perjured testimony. ECF No. 134-9 at 8. Counsel further testified that, “[h]ad we

23

put those witnesses on and then the State would have come back and impeached the whole

24

credibility of Mr. Nasby through intercepted communications, we wouldn’t have had a chance to

25

offer any other defense. It would be game over.” Id. at 10–11. Counsel further testified that the

26

most plausible defense was suggesting to the jury that another individual committed the murder.

27

Id. at 11. Counsel’s decision not to call witnesses at trial does not fall “outside the wide range of

28

professionally competent assistance.” Strickland, 466 U.S. at 690.

26

1

Although the Nevada Supreme Court held Petitioner failed to demonstrate both deficiency

2

and resulting prejudice, Petitioner has not sufficiently demonstrated here his counsel’s

3

“representation fell below an objective standard of reasonableness.” Id. Therefore, the Strickland

4

inquiry need not continue, and the Court denies federal habeas relief for Ground 3A.

5

F. Ground 3B – Failure to Call Key Witness

6

In Ground 3B, Nasby alleges that trial counsel rendered ineffective assistance for failure

7

to call a key witness, Porsche Nichols (“Nichols”), who would have testified that no witness

8

intimidation occurred to rebut Adams’s testimony. ECF No. 176 at 36–37. He asserts that Adams’s

9

testimony was highly prejudicial and if Nichols testified, the testimony would have likely changed

10

the outcome of the proceedings. Id. Nasby also asserts that counsel failed to locate Madison Jones

11

and Michelle McKinnon who would have testified that they saw Von Lewis put a 9mm handgun

12

to Beasley’s head and threatened to kill him. Id.

13

The Nevada Supreme Court held:

14

Nasby also claimed that trial counsel were ineffective for failing to call Porsche
Nichols to contradict Brittney Adams’ testimony. Adams testified that Nasby
wanted her to kill Tanesha Banks, who apparently was blaming Nasby for the
murder. Our review of the record, including a transcript of a police interview of
Nichols, reveals that Nichols’ statement, while not as thorough as Adams’
testimony, did not contradict it. Nasby also claimed counsel should have located
and called Madison Jones and Michelle McKinrion to testify that Charles Von
Lewis threaten [sic] the victim with a gun. Nasby’s defense was that Von Lewis,
not Nasby was the killer. Nasby’s assertion that these witnesses were available to
trial counsel and would have so testified has no factual support in the record. [fn7]
We conclude that the district court did not err in rejecting these claims.

15
16
17
18
19
20
21

[fn7] See Sparks v. State, 96 Nev. 26, 29, 604 P.2d 802, 804 (1980) (noting
that facts stated in a party’s brief will not compensate for a deficiency in the
record.)

22

ECF No. 120-4 at 5. The Nevada Supreme Court’s rejection of Nasby’s ineffective assistance

23

claim was neither contrary to nor an objectively unreasonable application of clearly established

24

law as determined by the United States Supreme Court.

25

Nasby failed to demonstrate a basis for objectively reasonable counsel to call Nichols to

26

testify for the purpose of rebutting Adams’s testimony. The Nevada Supreme Court noted that its

27

review of the record, including Nichols’s police interview, reveals that Nichols’ statement did not

28

contradict Adams’s testimony. See ECF No. 135-7. During her police interview, Nichols stated

27

1

that she went to a girl’s house with Adams and Nasby. Id. at 5–6. Adams hit the girl while Nasby

2

stayed in the car, then Nasby moved to the driver’s seat, and they drove away. Id. During the fight,

3

Nichols heard Adams mention the name of the friend who got killed. Id. at 9. Further, Nasby did

4

not demonstrate that Madison Jones or Michelle McKinnon were available or that they would have

5

testified. At the evidentiary hearing, counsel testified that he interviewed the women Nasby

6

provided as potential alibi witnesses. ECF No. 134-9 at 26. As noted by the Nevada Supreme

7

Court, there is no evidence in the record which establishes that Jones or McKinnon would testify

8

in Nasby’s trial. It was reasonable to find Nasby had not shown his counsel was deficient.

9

Accordingly, the Court denies federal habeas relief for Ground 3B.
G. Ground 3C – Conflict of Interest

10
11

In Ground 3C, Nasby alleges that trial counsel rendered ineffective assistance due to a

12

conflict of interest. ECF No. 176 at 43. Trial counsel, Mr. Sciscento, accepted employment with

13

the Special Public Defender’s office, who represented co-defendants Tommie and Jotee. Mr.

14

Sciscento did not disclose that he accepted employment with the Special Public Defendant’s Office

15

to the trial court until after trial and sentencing, and he did not disclose his employment to Nasby.

16

Id.

17

The Nevada Supreme Court held:

18

23

Nasby also claimed that trial counsel Joseph Sciscento was ineffective for
representing him despite an alleged conflict of interest. Specifically, Nasby argued
that a conflict arose when Sciscento accepted a position with the Special Public
Defender, who represented one of Nasby’s alleged coconspirators. Evidentiary
hearing testimony established that Mr. Sciscento’s agreement with the Special
Public Defender allowed him to finish his existing cases. Mr. Sciscento testified
that his files on this matter were kept in his private office, not at the Special Public
Defender’s office, that he performed his work on this case in his private office, and
that he did not discuss this case with anyone at the Special Public Defender’s office.
The district court concluded that Mr. Sciscento did not have a conflict of interest.
We conclude the district court did not err in rejecting this claim.

24

ECF No. 120-4 at 5–6. The Nevada Supreme Court’s ruling was neither contrary to nor an

25

objectively unreasonable application of clearly established law as determined by the United States

26

Supreme Court.

19
20
21
22

27

Effective assistance of counsel “includes a right to conflict-free counsel.” United States v.

28

Mett, 65 F.3d 1531, 1534 (9th Cir. 1995). To establish a violation of the Sixth Amendment, a

28

1

defendant

who

raised

no

objection

at

trial

must

demonstrate

that

an

2

actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446

3

U.S. 335, 348 (1980). However, until a defendant shows that his counsel actively represented

4

conflicting interests, he has not established the constitutional predicate for his claim

5

of ineffective assistance. Id. If counsel actively represents multiple defendants with conflicting

6

interests, such that an actual conflict adversely affects counsel’s performance, prejudice is

7

presumed. See Cuyler, 446 U.S. at 349–50. However, the Supreme Court has instructed

8

that Cuyler “does not clearly establish, or indeed even support . . . expansive application” of that

9

rule to cases outside the context of multiple concurrent representation. Mickens v. Taylor, 535 U.S.

10

162, 175 (2002). The presumption of prejudice only applies in the context of representation of

11

multiple clients because of the “high probability of prejudice arising from multiple concurrent

12

representation, and the difficulty of proving that prejudice.” Id.

13

The Nevada Supreme Court’s determination that an actual conflict of interest did not exist

14

was reasonable. At the evidentiary hearing, counsel testified to the following facts. Mr. Sciscento

15

sought Mr. Santacroce’s assistance in part to allow for maintenance of separate files in his private

16

practice office while he transitioned to practice for the Special Public Defender’s Office. ECF No.

17

134-9 at 23–24. Mr. Sciscento maintained a “Chinese wall” or screened the work he was doing for

18

his private practice and his work for the Special Public Defender’s Office. Id. He further testified

19

that he never saw the files of co-defendants who were represented by the Special Public Defender’s

20

Office. Id. at 24. If he spoke to the attorney representing a co-defendant, it was regarding what the

21

co-defendant was going to testify to. Id. Mr. Sciscento testified that he did not represent the co-

22

defendants, and they were not his clients. Id.

23

There is no evidence that counsel’s performance was adversely affected by his agreement

24

to work for the Special Public Defender’s Office while maintaining an ethical wall between his

25

private practice. Nor does evidence demonstrate, or even suggest, some plausible alternative

26

defense strategy or tactic that trial counsel might have pursued but did not or that the alternative

27

defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or

28

interests. See United States v. Wells, 394 F.3d 725, 733 (9th Cir. 2005). As Nasby has not

29

1

demonstrated the existence of an actual conflict, the Court finds the Nevada Supreme Court’s

2

denial of this claim was objectively reasonable.

3
4

H. Ground 3D – Failure to Investigate and Dissuading Witness From
Testifying

5

In Ground 3D, Nasby alleges that trial counsel rendered ineffective assistance for failure

6

to investigate and present evidence, including failure to object to the prosecutor dissuading a key

7

defense witness, Colleen Warner, from testifying. ECF No. 176 at 38. Nasby claims that Colleen

8

Warner could have testified as an alibi witness and as to how Nasby came into possession of the

9

gun. Id. at 39. In addition, Nasby alleges that the trial counsel failed to introduce evidence of a

10

videotape depicting Von Lewis threatening Beasley with a gun. Id.

11

The Nevada Supreme Court held:

12

16

Nasby next claimed that trial counsel were ineffective for failing to show the jury
a videotape of Charles Von Lewis threatening the victim with a gun. At the
evidentiary hearing, counsel testified that the videotape also contained images
damaging to Nasby, including Nasby waving a gun around and “making
comments.” The record makes clear that counsel made a tactical decision not to
show the videotape in order to avoid potential prejudice to their client. Counsel’s
tactical decisions are “‘virtually unchallengeable absent extraordinary
circumstances,’” which are not present here. We conclude the district court did not
err in rejecting this claim.

17

ECF No. 120-4 at 6. The Nevada Supreme Court’s rejection of Nasby’s claim that trial counsel

18

rendered ineffective assistance for failure to show the videotape of Von Lewis was neither contrary

19

to nor an objectively unreasonable application of Strickland.

13
14
15

20

The Nevada Supreme Court reasonably determined that Nasby failed to demonstrate his

21

trial counsel’s investigative decisions and failure to present a videotape of Von Lewis threatening

22

Beasley in support of his defense that Von Lewis killed Beasley was objectively unreasonable.

23

At the evidentiary hearing, counsel testified that the videotape was damaging to Nasby as he was

24

waving around a firearm, rapping, and talking about the gang. Counsel also believed it was

25

preferable to get information about the fight between Von Lewis and Beasley from testimony at

26

trial as opposed to showing the video that had damaging images of Nasby. ECF No. 134-9 at 15–

27

16, 42–43. Defense counsel has a “duty to make reasonable investigations or to make a reasonable

28

decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel

30

1

made the determination that the videotape was more damaging to Nasby based on their review of

2

the tape. Counsel’s decision not to introduce the videotape does not fall “outside the wide range

3

of professionally competent assistance.” Id. “[S]trategic choices made after thorough investigation

4

of law and facts relevant to plausible options are virtually unchallengeable.” Id.

5

The Nevada Supreme Court also held:

6

12

Nasby further claimed that trial counsel were ineffective for not advising the district
court that the prosecutor had shown Colleen Warner, one of his alibi witnesses, a
letter from Nasby to Crystal Sobrian, in which Nasby disparaged and threatened
Warner. Nasby claimed the prosecutor showed Warner the letter in an effort to
convince her not to testify on Nasby’s behalf. Nasby’s claim that the State’s action
was in violation of a district court order is not supported by the record; the record
reveals that before trial the prosecutor suggested he might use the letter in his case
in chief. The court said that if he did so, Nasby’s comments about Warner should
be redacted. The prosecutor said he wanted to present “that information to [Warner]
and see how she feels about him at this point,” to which the district court responded,
“I don’t know about that.” There was no order from the district court that the
information not be disclosed outside the jury’s presence. We conclude the district
court did not err in rejecting this claim.

13

ECF No. 120-4 at 7. The Nevada Supreme Court’s rejection of Nasby’s ineffective assistance

14

claim was neither contrary to nor an objectively unreasonable application of clearly established

15

law as determined by the United States Supreme Court.

7
8
9
10
11

16

As noted by the Nevada Supreme Court, any assertion that prosecution showed Warner the

17

letter in violation of a district court order is belied by the record. Further, the record does not

18

indicate that trial counsel intended to call Warner as a witness considering counsel’s testimony at

19

the evidentiary hearing that they became aware of a letter that indicated the alibi was concocted

20

and counsel would not put on perjured testimony. ECF No. 134-9 at 8. Accordingly, the Nevada

21

Supreme Court reasonably determined that Nasby failed to demonstrate that his counsel was

22

deficient or a reasonable probability that, but for counsel’s errors, the outcome of the trial would

23

have been different. Nasby is therefore denied federal habeas relief on Ground 3D.

24

I. Ground 3E – Failure to Object to Lack of Accomplice Jury Instruction

25

In Ground 3E, Nasby alleges trial counsel rendered ineffective assistance for failure to

26

object to the lack of a cautionary accomplice jury instruction. ECF No. 176 at 40. Nasby asserts

27

that the case against Nasby was based on testimony from his co-defendants and the lack of a

28

cautionary accomplice instruction violates due process. Id.

31

1

The Nevada Supreme Court held:

2

6

Nasby next claimed that trial counsel were ineffective for failing to request an
accomplice-testimony instruction and failing to object to the district court's failure
to give such an instruction. He failed to support this claim with any citation to the
record or relevant legal authority. “It is appellant’s responsibility to present relevant
authority and cogent argument; issues not so presented need not be addressed by
this court.” Even if counsel were deficient in this regard, Nasby failed to
demonstrate prejudice in light of the fact that two witnesses testified that Nasby
confessed to killing the victim and the murder weapon was found in his bedroom.
We conclude the district court did not err in rejecting this claim.

7

ECF No. 120-4 at 7–8. The Nevada Supreme Court’s ruling was neither contrary to nor an

8

unreasonable application of clearly established law as determined by the Supreme Court of the

9

United States.

3
4
5

10

Nasby failed to demonstrate that, but for counsel’s failure to object to the trial court’s

11

failure to include an accomplice jury instruction, there is a reasonable probability that the outcome

12

of the trial would have been different. As noted by the Nevada Supreme Court, the State presented

13

two witnesses who testified that Nasby confessed to killing Beasley, and the murder weapon was

14

recovered in his bedroom. Further, the co-defendants were subject to cross-examination and their

15

participation in the murder was subject to both direct and cross-examination. Accordingly, the

16

Nevada Supreme Court reasonably determined that Petitioner failed to demonstrate prejudice

17

under Strickland. Nasby is therefore denied federal habeas relief on Ground 3E.

18

J. Ground 3F – Testifying on Own Behalf

19

In Ground 3F, Nasby alleges that trial counsel rendered ineffective assistance for failing to

20

allow Nasby to testify on his own behalf. ECF No. 176 at 42. Nasby was not able to rebut the

21

State’s case, present his alibi, or explain how he came to possess the murder weapon, and he asserts

22

that the prosecution “trampled his character during trial and closing arguments, without object by

23

defense counsel.” Id.

24

The Nevada Supreme Court held:

25

Nasby also claimed that trial counsel were ineffective for refusing to allow him to
testify. He fails to cite anything in the record indicating he wanted to testify and
counsel prevented him from doing so. We conclude the district court did not err in
rejecting this claim.

26
27
28

ECF No. 120-4 at 8. The Nevada Supreme Court’s rejection of Nasby’s ineffective assistance

32

1

claim was neither contrary to nor an objectively unreasonable application of Strickland.

2

A defendant’s silence on the record when his attorney rests without calling him as a witness

3

waives his right to testify. That waiver also forecloses a claim of ineffective assistance of counsel

4

based upon counsel purportedly “not allowing” the defendant to testify. See, e.g., United States v.

5

Pino-Noriega, 189 F.3d 1089, 1094–95 (9th Cir. 1999); United States v. Joelson, 7 F.3d 174, 177–

6

78 (9th Cir. 1993); United States v. Nohara, 3 F.3d 1239, 1244 (9th Cir. 1993). At trial, Nasby

7

remained silent and did not claim on the record that he wished to testify.

8

Moreover, Nasby cannot demonstrate either deficient performance or resulting prejudice

9

from counsel’s advice that he not testify. At the evidentiary hearing, counsel testified that they

10

recommended to Nasby that he should not testify because the State would destroy his credibility

11

by introducing the intercepted material to impeach him. ECF No. 134-9 at 20, 45. There was not a

12

reasonable probability of a different verdict had Nasby self-servingly testified regarding an alibi

13

or how he came into possession of the gun that would have opened the door to potential

14

impeachment evidence. Trial counsel did not fall below the wide range of professional assistance

15

in advising Nasby to not take the stand considering the concomitant risks of exposing him to cross-

16

examination to present ineffectual testimony. Accordingly, Nasby is denied federal habeas relief

17

on Ground 3F.

18

K. Ground 3G – Failure to Raise Grounds

19

In Ground 3G, Nasby alleges that appellate counsel rendered ineffective assistance for

20

failure to raise Grounds 1 and 2 of the amended petition. ECF No. 176 at 48–49. He asserts that

21

Grounds 1, 2, and 3 were raised in his first state habeas petition, including a claim that appellate

22

counsel was ineffective. Id.

23

The Nevada Supreme Court ruled that Grounds 1 and 2 were procedurally defaulted

24

because Nasby should have raised them on direct appeal, and he failed to show cause and prejudice.

25

The Nevada Supreme Court held:

26
27
28

Nasby also made a general claim that appellate counsel was ineffective “for Failure
to raise all the meritorious issues contained in this memorandum of law” (emphasis
in original). Nasby failed to cite to the record or provide cogent argument or legal
authority for how appellate counsel’s performance was deficient and prejudiced
him.

33

1

ECF No. 120-4 at 9. The Nevada Supreme Court’s rejection of Nasby’s ineffective assistance

2

claim was neither contrary to nor an objectively unreasonable application of Strickland.

3

The Nevada Supreme Court ruled that Nasby failed to present anything more than bare

4

allegations that did not show ineffective assistance. The Court agrees. Nasby failed to demonstrate

5

how, but for appellate counsel’s failure to raise claims on direct appeal, the outcome of the appeal

6

would

7

defense counsel assigned to appeal a criminal conviction is not constitutionally required

8

to raise every issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 753 (1983).

9

There is no basis for any conclusion that Nasby’s counsel acted unreasonably in the manners

10

alleged herein, or that he was prejudiced. The Nevada Supreme Court’s ruling on this claim was

11

reasonable. Nasby is therefore denied federal habeas relief on Ground 3G.

have

been

different. 8

Moreover,

the

Supreme

Court

has

held

that

the

L. Ground 5 – Lack of Sufficient Corroborating Evidence

12
13

In Ground 5, Nasby alleges that there was not sufficient corroborating evidence to sustain

14

his conviction. ECF No. 176 at 52–53. He asserts that the State’s case relied on testimony of three

15

accomplices who were enticed by plea bargains. Id. Respondents argue that Ground 5 is

16

procedurally defaulted to the extent Nasby asserts a due process claim pursuant to the Fifth, Sixth,

17

and Fourteenth Amendments. ECF No. 200 at 106. Nasby failed to assert his claim on direct appeal

18

based on a violation of federal constitutional rights and he failed to cite to any federal case in

19

support of his claims. Id. When granted leave to return to state court to exhaust his claims, the

20

Nevada Supreme Court affirmed denial of this claim as untimely, abuse of writ, and successive.

21

Id.

22

The Court finds that Ground 5 was procedurally defaulted on independent and adequate

23

state law grounds. 9 Other than his reference to his arguments made regarding procedural default

24

as to Ground 1, Nasby does not make a separate argument for cause and prejudice to overcome the

25

procedural default of Ground 5. ECF No. 176 at 65. Nasby failed to demonstrate cause and

26

8

27
28

The Court has already determined under a de novo standard, in the alternative, that Nasby’s claims asserted in Ground
1 are denied habeas relief.
9
The Ninth Circuit Court of Appeals has held that the application of the procedural bars at issue in this case constitute
independent and adequate state law grounds. See Moran v. McDaniel, 80 F.3d 1261, 1268–70 (9th Cir. 1996); see also
Vang v. Nevada, 329 F.3d 1069, 1073–75 (9 Cir. 2003); Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th Cir. 1999).

34

1

prejudice to overcome procedural default. A claim of constitutionally ineffective assistance of

2

counsel can be cause to excuse a procedural default. Murray, 477 U.S. at 488–89. However, that

3

claim must be raised and exhausted as a separate ground in State court. Id. at 489. Also, the claim

4

of ineffective assistance of counsel must itself not be procedurally defaulted. Edwards v.

5

Carpenter, 529 U.S. 446, 452–53 (2000). Nasby did not exhaust Ground 5 in his first state habeas

6

petition. Further, he did not argue that appellate counsel was ineffective for failing to raise the

7

issue. See ECF No. 135-2. Because he did not present ineffective-assistance argument to the state

8

courts, the argument cannot constitute good cause to excuse the procedural default of Ground 5.

9

Accordingly, Ground 5 is barred by the procedural default doctrine.

10

The Court also agrees that the remaining portion of Ground 5 based on equal protection

11

and the Eighth Amendment were not fairly presented to the state appellate court for purposes of

12

exhaustion requirements for federal habeas review. Nasby makes no argument as to this portion of

13

Ground 5. Accordingly, the remaining portion of Ground 5 based on equal protection, and the

14

Eighth Amendment is dismissed as unexhausted.

15

In the alternative, the Court would deny relief as to Ground 5 on de novo review. When a

16

habeas petitioner challenges the sufficiency of evidence to support his conviction, the court

17

reviews the record to determine “whether, after viewing the evidence in the light most favorable

18

to the prosecution, any rational trier of fact could have found the essential elements of the crime

19

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. Wood, 207

20

F.3d 557, 563 (9th Cir. 2000).

21

Sufficiency claims are limited to a review of the record evidence submitted at trial. Herrera

22

v. Collins, 506 U.S. 390, 402 (1993). Such claims are judged by the elements defined by state law.

23

Jackson, 443 U.S. at 324 n.16. The reviewing court must respect the exclusive province of the

24

fact-finder to determine the credibility of witnesses, to resolve evidentiary conflicts, and to draw

25

reasonable inferences from proven facts. United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir.

26

1996). The district court must assume the trier of fact resolved any evidentiary conflicts in favor

27

of the prosecution, even if the determination does not appear on the record and must defer to that

28

resolution.

35

1

At trial, Nasby’s accomplices, Jeremiah, Tommie, and Jotee, testified about the events

2

surrounding Beasley’s death. Jeremiah testified that one month prior to the night Beasley was

3

killed, Nasby discussed with Jeremiah, Tommie, Jotee, and another member of the gang whether

4

Beasley should be killed. ECF No. 133-1 at 21. Then, on the night of Beasley’s death, Nasby

5

showed Jeremiah, Tommie, Jotee, and Beasley his 9mm Browning firearm before they went to the

6

desert under the auspices that they were going for target practice. Id. at 25, 27–28. Once in the

7

desert, Nasby shot Beasley. Id. at 27–28. Tommie and Jotee both testified that Beasley was shot

8

while they were in the desert and that neither Tommie, Jotee, nor Jeremiah shot Beasley. ECF No.

9

133-3 at 25, 34. Jeremiah, Tommie, and Jotee also testified that they were charged with the murder

10

of Beasley and entered into plea agreements wherein they received lesser charges. ECF Nos. 133-

11

1 at 31, 133-3 at 25, 133-3 at 34.

12

Witnesses that were not accomplices also testified at trial. Bradley testified that Nasby

13

confessed to her that he shot Beasley three times while they were in the desert. ECF No. 133-2 at

14

13. Holmes testified that Nasby confessed to him while they were both in custody that Nasby shot

15

Beasley because Nasby believed Beasley was trying to become the leader of the gang. ECF No.

16

133-3 at 55. Banks testified that Nasby threatened her because he believed she was telling others

17

that he killed Beasley. ECF No. 133-2 at 8. She also testified that Adams beat her up because

18

Adams believed Banks was telling others that Nasby killed Beasley and that she “need[ed] to keep

19

[her] mouth shut about [Nasby.]” Id. at 7–8. Adams testified that Nasby offered her a hammer to

20

kill Banks and that he told Adams that she should have killed Banks. ECF No. 133-3 at 41.

21

Detectives and multiple crime scene analysts, including a latent print examiner and firearm

22

examiner, testified. The detectives executed a search warrant on Nasby’s house and recovered a 9

23

mm handgun from Nasby’s bedroom. ECF No. 133-2 at 20. Torrey Johnson testified that three of

24

the four cartridges were the correct caliber to be fired from the 9mm handgun recovered from

25

Nasby’s house. ECF No. 133-3 at 7. Although Johnson could not positively conclude that they

26

were fired from the handgun, he testified that based on the information from the coroner, it was

27

his opinion that the 9mm handgun was the murder weapon. Id. at 9.

28

Viewing the evidence in the light most favorable to prosecution, any rational trier of fact

36

1

would have found the essential elements of murder and conspiracy to commit murder, beyond a

2

reasonable doubt. There was sufficient evidence of an agreement or mutual understanding between

3

two or more people to commit the crime of murder. See ECF No. 134-2 at 6. There was sufficient

4

evidence of an unlawful killing of a human being with malice aforethought. Id. at 10. Based on a

5

review of the record of evidence submitted at trial, the Court concludes that a rational jury could

6

have found the essential elements of the crimes beyond a reasonable doubt.
M. Ground 7 – Erroneous Jury Instructions

7
8

In Ground 7, Nasby alleges that the trial court erroneously instructed the jury as to the

9

elements of first-degree murder, specifically as to willfulness, premeditation, and deliberation in

10

violation of Nasby’s rights to due process, equal protection, and a constitutionally sound sentence.

11

ECF No. 176 at 54. Nasby asserts that the trial court used the Kazalyn10 instruction, which defined

12

premeditation but did not separately define willful, deliberate, or premeditated. ECF No. 207 at

13

75. While Nasby’s appeal was pending, the Nevada Supreme Court invalidated the Kazalyn

14

instruction in its decision in Byford v. State, 994 P.2d 700 (Nev. 2000). Id. Nasby argues that

15

because his conviction was still pending on direct appeal and, therefore, not final, at the time the

16

Nevada Supreme Court decided Byford, his case must be reversed for a due process violation. ECF

17

No. 176 at 56.

18

Respondents argue that Ground 7 is procedurally defaulted. ECF No. 200 at 112. They

19

argue that Nasby failed to federalize his claim on direct appeal because he challenged the Kazalyn

20

instruction based entirely on state law, and the Nevada Supreme Court rejected his claim on state

21

law on direct appeal. Id. Nasby raised claims regarding the jury instruction in his second, fourth,

22

sixth, and seventh state habeas appeals based on due process under the Fourteenth Amendment

23

and that the State must prove every element of a crime beyond a reasonable doubt pursuant to the

24

Fifth and Sixth Amendments. The Nevada Supreme Court affirmed dismissal of the petition as

25

untimely, second and successive, and abuse of writ. 11
Ground 7 is procedurally defaulted on independent and adequate state grounds and Nasby

26
27
28

10
11

Kazalyn v. State, 825 P.2d 578, 583 (Nev. 1992).
Nasby’s seventh state habeas petition is still pending before the Nevada appellate courts.

37

1

fails to demonstrate cause and prejudice to overcome procedural default. Nasby failed to present

2

Ground 7 to the state court based on federal constitutional violations and his opening brief on

3

appeal as to this claim cites to Nevada state law almost exclusively. See ECF No. 119-5 at 21–22.

4

When presented in state habeas petitions, the Nevada Supreme Court rejected the claim as untimely

5

under Nev. Rev. Stat. § 34.726, second and successive under Nev. Rev. Stat. § 34.810(2), and

6

abuse of writ under Nev. Rev. Stat. § 34.810(1)(b)(2). See ECF Nos. 135-6 and 147-2. Because

7

Nasby did not argue that appellate counsel was ineffective for failing to raise the Kazalyn issue,

8

he cannot present ineffective assistance of appellate counsel as good cause to excuse procedural

9

default of Ground 7. See Murray, 477 U.S. at 488–89; Edwards, 529 U.S. 452–53. Accordingly,

10

Ground 7 is barred by the procedural default doctrine.

11

The Court further agrees that the remaining portion of Ground 7 based on equal protection,

12

constitutionally sound sentence, and the Eighth Amendment were not fairly presented to the state

13

appellate court for purposes of exhaustion requirements for federal habeas review. Nasby makes

14

no argument as to this portion of Ground 7. Accordingly, the remaining portion of Ground 7 based

15

on equal protection, constitutionally sound sentence, and the Eighth Amendment is dismissed as

16

unexhausted.

17

The Court, nonetheless, would deny relief as to Ground 5 on de novo review. Following its

18

ruling in Garner 12 and the Ninth Circuit’s ruling in Polk, the Nevada Supreme Court held in Nika

19

v. State that Byford was a change or new law concerning distinctiveness of intent elements for

20

first-degree murder and applied prospectively only. 124 Nev. 1272, 1301, 198 P.3d 839, 859

21

(2008). Nasby argues that Byford applies because Nika held that Byford applies to cases that were

22

pending on direct appeal when Byford was decided. ECF No. 176 at 56.

23

In Babb, a habeas petitioner was convicted of first-degree murder under the Kazalyn

24

instruction. Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013). The Ninth Circuit concluded that

25

because the petitioner’s conviction had yet to become final when the Nevada Supreme Court issued

26

a decision invalidating the Kazalyn instruction, “it was an unreasonable application of established

27
28

12

Garner v. State, 6 P.3d 1013 (Nev. 2000).

38

1

federal law and violation of Babb’s due process rights for the Nevada court not to apply the change

2

in Byford.” Babb, 719 F.3d at 1032.

3

In Moore v. Helling, the Ninth Circuit held that due to the Supreme Court’s intervening

4

decision in White v. Woodall, 572 U.S. 415 (2014), Babb is no longer good law with respect to

5

defendants whose convictions became final prior to Bunkley v. Florida, 538 U.S. 835 (2003).

6

Moore v. Helling, 763 F.3d 1011, 1021 (9th Cir. 2014). The Ninth Circuit concluded in Moore that

7

Babb could not survive Woodall. Id. Babb used Bunkley to conclude that the Nevada Supreme

8

Court unreasonably applied clearly established federal law even though Bunkley had yet to be

9

decided when the state court issued its relevant decision. Id.

10

Respondents argue and the Court agrees that Moore controls. In Moore, the petitioner was

11

convicted prior to Byford, his appeal was pending after Byford issued, and his conviction was final

12

before Bunkley was issued and the Ninth Circuit determined that the Nevada Supreme Court did

13

not unreasonably apply clearly established Supreme Court law when it declined to apply the Byford

14

instruction in Moore’s case. Moore, 763 F.3d at 1021–22. Like Moore, Nasby was convicted prior

15

to Byford and his appeal was pending after Byford issued. In addition, Nasby’s conviction was

16

final prior to Bunkley. Therefore, Nasby failed to show that the trial court’s use of the Kazalyn

17

instruction violated his due process rights. Based on the foregoing, the Court is precluded from

18

granting habeas relief on Ground 7. 13

19

V.

CERTIFICATE OF APPEALABILITY

20

This is a final order adverse to Nasby. Rule 11 of the Rules Governing Section 2254 Cases

21

requires the Court to issue or deny a certificate of appealability (“COA”). Therefore, the Court has

22

sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See

23

28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864–65 (9th Cir. 2002). Pursuant to 28

24

U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing

25

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

26

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

27
28

Because the Court finds Nasby is not entitled to habeas relief as to Ground 7, the Court need not address the parties’
arguments regarding harmless error.
13

39

1

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

2

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

3

only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of

4

a constitutional right and (2) whether this Court’s procedural ruling was correct. Id.

5

Applying these standards, this Court finds that a certificate of appealability is unwarranted.

6

VI.

7

It is therefore ordered that Petitioner Brendan Nasby’s Amended Petition for Writ of

8
9
10
11
12

CONCLUSION

Habeas Corpus (ECF No. 176) is denied.
It is further ordered that a certificate of appealability is denied.
The Clerk of the Court is directed to substitute Tim Garrett for Respondent E.K. McDaniel,
enter judgment accordingly, and close this case.
DATED this 30th day of March 2022.

13
14

LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

40