O'Neill v. Baker et al

Filing 83

ORDERED that the First Amended Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 13 ) is denied. It is further ordered that Petitioner is granted a certificate of appealability for Ground One Part A and Ground Two. It is further ordered that a certificate of appealability is denied as to Petitioner's remaining grounds. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 1/6/2020. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHRISTOPHER O’NEILL,

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Petitioner,

ORDER

v.

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Case No. 3:11-cv-00901-MMD-CLB

RENEE BAKER, et al.,

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Respondents.

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I.

SUMMARY

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Petitioner Christopher O’Neill’s petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254 is before the Court for adjudication of the merits of his remaining claims.

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As further explained below, the Court denies Petitioner’s habeas petition, but grants him

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a certificate of appealability for Ground One Part A and Ground Two, and directs the Clerk

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of Court to enter judgment accordingly.

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II.

BACKGROUND

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Petitioner’s convictions are the result of events that occurred in Washoe County,

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Nevada on September 22, 2004. (ECF No. 14-6.) In its order affirming Petitioner’s second

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state habeas appeal, the Nevada Supreme Court described the crime, as revealed by the

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evidence at Petitioner’s trial, as follows:

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The jury was presented with evidence that appellant possessed two forged
checks and yellow pages listing check-cashing services and that another
forged check and ten blank checks from the same account were found in
an envelope in his car. [Petitioner] told the police that he received the
checks as collateral for work that he had done, but the account owner
denied writing or authorizing the checks.
(ECF No. 22 at 4.)

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On June 7, 2005, a jury found Petitioner guilty of three counts of possession of a

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forged instrument. (ECF Nos. 14-24, 14-25, 14-26.) On August 25, 2005, Petitioner was

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adjudicated a habitual criminal, and was sentenced to life with the possibility of parole,

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with eligibility for parole after ten years, on all three counts, to be served concurrently.

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(ECF No. 15-2.) Petitioner appealed, and the Nevada Supreme Court affirmed Petitioner’s

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judgment of conviction and the adjudication of habitual criminality but remanded the

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“matter for entry of an amended judgment of conviction vacating the special sentence of

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lifetime supervision.” (ECF No. 15-22 at 17-18.) Remittitur issued on April 3, 2007. (ECF

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No. 15-23.) An amended judgment of conviction was filed on April 5, 2007. (ECF No. 15-

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24.)

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On April 30, 2007, Petitioner filed his first state habeas petition. (ECF No. 15-25.)

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Petitioner filed a counseled, supplemental petition on December 28, 2007. (ECF No. 16.)

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Following an evidentiary hearing, the state district court denied the petition on July 21,

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2010. (ECF Nos. 17-5, 17-17, 18-7, 18-9, 18-13.) The Nevada Supreme Court affirmed

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the denial of the petition on November 17, 2011, and remittitur issued on December 13,

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2011. (ECF Nos. 21-5, 21-7.)

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On June 6, 2007, Petitioner moved for a new trial, which the state district court

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denied. (ECF Nos. 15-29, 15-32.) On November 19, 2008, the Nevada Supreme Court

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affirmed the denial, and remittitur issued on December 16, 2008. (ECF Nos. 22-5, 22-6.)

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On June 25, 2010, Petitioner moved to correct or modify his sentence, which the

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state district court denied on September 1, 2010. (ECF Nos. 18-10, 19-13.) The Nevada

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Supreme Court affirmed the denial on February 9, 2011, and remittitur issued on March

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7, 2011. (ECF Nos. 20-21, 20-26.)

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On August 24, 2010, Petitioner filed his second state habeas petition. (ECF No.

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19-9.) The state district court dismissed the petition on October 19, 2011. (ECF No. 20-

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40.) The Nevada Supreme Court affirmed the dismissal of the petition on June 13, 2012,

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and remittitur issued on July 10, 2012. (ECF Nos. 22, 22-1.)

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Petitioner dispatched this federal habeas petition on or about December 3, 2011.

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(ECF No. 4.) Petitioner filed a counseled, first-amended petition on November 21, 2012.

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(ECF No. 13.) Respondents moved to dismiss the first-amended petition on November 7,

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2013. (ECF No. 44.) The Court determined that Grounds 1(B), 5(A) and 5(B) of the first-

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amended petition were unexhausted and Grounds 1(A), 1(C), and 3 were exhausted.

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(ECF No. 56.) Petitioner moved for a stay and abeyance of the unexhausted grounds—

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Grounds 1(B), 5(A), and 5(B). (ECF No. 57.) The Court granted that request and

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administratively closed this action. (ECF No. 62.)

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Petition filed a third state habeas petition on May 19, 2015. (ECF No. 64-1.) The

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state district court dismissed the petition based on a failure of Petitioner to file a response

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to the motion to dismiss. (ECF No. 64-7.) The Nevada Court of Appeals affirmed the

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denial on July 27, 2016, and remittitur issued on August 22, 2016. (ECF No. 64-16, 64-

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17.)

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On October 3, 2016, Petitioner moved to reopen his federal habeas case. (ECF

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No. 63.) The Court granted the request. (ECF No. 66.) Respondents moved again to

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dismiss the first-amended petition. (ECF No. 68.) The Court dismissed Grounds 5(A) and

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5(B) as procedurally barred, deferred a decision on Ground 1(B), and found Ground 6(A)

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to be exhausted. (ECF No. 74.) Respondents answered the remaining claims in the first-

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amended petition on May 2, 2018. (ECF No. 76.) Petitioner replied on July 30, 2018. (ECF

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No. 78.)

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In the remaining grounds for relief, Petitioner asserts the following violations of his
federal constitutional rights:
1A.
1B.

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1C.
2.

His trial counsel failed to communicate and investigate the
case prior to trial.
His trial counsel failed to challenge the admissibility of the
handwriting expert’s testimony.
His trial counsel failed to timely move to suppress the
evidence seized by his parole officers.
The prosecution failed to disclose exculpatory, material
evidence.

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3.

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6A.

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6B.

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The state district court failed to conduct an appropriate inquiry
into his motion to replace his appointed counsel with new
appointed counsel.
The state district court failed to appropriately canvass him
regarding his request to represent himself.
His habitual criminal sentence was improper because the
state district court did not find the required number of prior
convictions before imposing the enhanced sentence.
His habitual criminal sentence was improper because the
sentencing analysis conducted by the state district court
should have been conducted by a jury.

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(ECF No. 13.)

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III.

LEGAL STANDARD

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

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habeas corpus cases under the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”):

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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

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

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

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set of facts that are materially indistinguishable from a decision of [the Supreme] Court.”

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Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision

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is an unreasonable application of clearly established Supreme Court precedent within

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the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing
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legal principle from [the Supreme] Court’s decisions but unreasonably applies that

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principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413).

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“The ‘unreasonable application’ clause requires the state court decision to be more than

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incorrect or erroneous. The state court’s application of clearly established law must be

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objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation

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omitted).

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

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

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

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

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

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

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

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

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

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quotation marks and citations omitted).

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IV.

DISCUSSION

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A.

Ground One

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In Ground One, which contains three subparts—A, B, and C—Petitioner argues

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that his trial counsel was ineffective. In Strickland v. Washington, the Supreme Court

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propounded a two-prong test for analysis of claims of ineffective assistance of counsel

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requiring the petitioner to demonstrate (1) that the attorney’s “representation fell below

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an objective standard of reasonableness,” and (2) that the attorney’s deficient

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performance prejudiced the defendant such that “there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have been

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

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

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within the wide range of reasonable professional assistance.” Id. at 689. The petitioner’s
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burden is to show “that counsel made errors so serious that counsel was not functioning

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

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establish prejudice under Strickland, it is not enough for the habeas petitioner “to show

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that the errors had some conceivable effect on the outcome of the proceeding.” Id. at

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693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a

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

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Where a state district court previously adjudicated the claim of ineffective

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assistance of counsel, under Strickland, establishing that the decision was

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unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington,

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the United States Supreme Court instructed:
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” [Strickland, 466 U.S. at 689];
Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481
(1997), and when the two apply in tandem, review is “doubly” so, Knowles[
v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556
U.S., at 123, 129 S.Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable. The question is whether
there is any reasonably argument that counsel satisfied Strickland’s
deferential standard.

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Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th

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Cir. 2010) (“When a federal court reviews a state court’s Strickland determination under

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AEDPA, both AEDPA and Strickland’s deferential standards apply; hence, the Supreme

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Court’s description of the standard as ‘doubly deferential.’”).

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The Strickland standard is also utilized to review appellate counsel’s actions: a

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petitioner must show “that [appellate] counsel unreasonably failed to discover

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nonfrivolous issues and to file a merits brief raising them” and then “that, but for his

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[appellate] counsel’s unreasonable failure to file a merits brief, [petitioner] would have

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prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000).
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1. Part A

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In Ground One Part A, Petitioner alleges that his federal constitutional rights were

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violated when his trial counsel failed to communicate with him and present a full defense

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at trial. (ECF No. 13 at 19.) Petitioner elaborates that as a result of his trial counsel’s

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deficiencies, he was unable to present the following defense regarding his possession

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of the forged checks: he ran a landscaping business and Geraldine Mesker, who hired

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him to do landscaping work, gave him the checks, which belonged to her roommate, as

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collateral while she came up with the money to pay him. (Id. at 22.) In addition to failing

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to adequately investigate Mesker and present her as a witness in order to support this

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defense, Petitioner asserts that his trial counsel failed to investigate or question Brent

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Cooper, Petitioner’s parole officer, about his history with Petitioner. (Id. at 24-25.)

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In Petitioner’s first state habeas appeal, the Nevada Supreme Court held:

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[Petitioner] argues that counsel was ineffective for not presenting to the jury
his defense that he was merely holding the forged check as collateral
without the intent to utter it. Specifically, [Petitioner] claimed that the
roommate of the person whose checks were forged gave [Petitioner] one
check to hold as collateral for work he had done at the house and the
roommate must have forged the checks. [Petitioner] further claimed that he
would have been acquitted had counsel presented to the jury fingerprint
evidence that he had only touched the one check, a handwriting expert to
prove the roommate—not [Petitioner]—had forged the checks, and the
roommate to confirm [Petitioner]’s version of events. [Petitioner] failed to
demonstrate prejudice. The district court found that [Petitioner] presented
no credible evidence that he had performed any work. Moreover, [Petitioner]
presented no fingerprint or handwriting experts to support his claims.
Because [Petitioner] did not demonstrate by a preponderance of the
evidence the facts underlying his claim, we conclude that the district court
did not err in denying this claim.

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Third, [Petitioner] argues that counsel was ineffective for failing to
communicate with him and, as a result, counsel failed to file the motion to
suppress or to present the check-as-collateral defense. For the reasons
stated above, [Petitioner] failed to demonstrate prejudice. We therefore
conclude that the district court did not err in denying this claim.

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(ECF No. 21-5 at 4-5.) The Nevada Supreme Court’s rejection of Petitioner’s Strickland

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

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federal law.

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Petitioner testified at the post-conviction evidentiary hearing that Mesker gave

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him the checks as payment for work he did at her residence: painting, cleaning the

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backyard, emptying the garbage, and transporting items to a storage unit. (ECF No. 17-

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5 at 10, 18-21.) Petitioner explained that he “knew it was a crap check when [Mesker]

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gave it to [him]” but he “had no intention of cashing the damn thing.” (Id. at 51.)

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Accordingly, Petitioner’s defense was that he was “a legitimate businessman holding

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property for work done.” (Id. at 99; see also ECF No. 21-18 at 2 (business license issued

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by the City of Sparks to Petitioner on May 21, 2004 for his business specializing in yard

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services).) Petitioner testified that he thought that his trial counsel knew about this

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defense, in part, but did not know whether his trial counsel knew about his business.

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(ECF No. 17-5 at 23-24.)

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Petitioner testified that he had communication issues with his trial counsel: “I

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never talked to [trial counsel]. [Trial counsel] never came to see me, refused all my

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phone calls, wouldn’t answer any letters. I never talked to the guy.” (Id. at 22.) Petitioner

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elaborated that he tried to speak with his trial counsel during three or four pretrial

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hearings, “and every time [he] did [trial counsel] would either shush [him] or a deputy

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would shush [him].” (Id. at 22-23, 92.) Petitioner’s trial counsel would then falsely

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promise to visit him. (Id. at 23.) Petitioner even requested that his mother call his trial

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counsel because his trial counsel’s office “kept hanging up on [him].” (Id. at 27; see also

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ECF No. 17-5 at 148-149 (testimony of Elizabeth Logan, Petitioner’s mother, during the

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post-conviction evidentiary hearing that “[she] tried numerous times to reach

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[Petitioner’s trial counsel]” and the response she received “was only to inform [her] that

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he didn’t need to talk to [Petitioner] before going to trial and he didn’t need to talk to any

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other witnesses or anybody else that he didn’t feel was important to the case”).)

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Petitioner’s trial counsel’s only visit to the jail to meet Petitioner took place three days
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before the trial commenced and lasted for five minutes. (ECF No. 17-5 at 49; see also

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ECF No. 21-27 at 2 (Washoe County Detention Facility visitor report showing

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Petitioner’s trial counsel visited him on June 3, 2005).)

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Petitioner testified that if his trial counsel had spoken to him, he would have told

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his trial counsel about his defense, his business, an employee who could have testified

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as a witness, and his issues with Officer Cooper, who was extorting him for money. (ECF

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No. 17-5 at 30, 48, 51, 118.) Petitioner testified that his trial counsel may have learned

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some of this information when Petitioner tried to discuss things during pretrial hearings,

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but because he kept getting “shushed,” he was not sure what his trial counsel actually

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heard. (Id. at 56.) Petitioner’s trial counsel informed Petitioner that he “didn’t need to talk

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to [him] to represent [him]” and “didn’t need to speak to any witnesses.” (Id. at 64.)

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Petitioner’s trial counsel testified at the post-conviction evidentiary hearing that

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he would sometimes speak to Petitioner when he called and that he believed he spoke

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with Petitioner six or seven times, excluding court appearances, before his visit to the

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jail three days before trial. (ECF No. 17-17 at 136, 150, 153, 162.) Petitioner’s trial

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counsel explained that Petitioner’s story varied slightly each time they spoke and that

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he did not speak to Petitioner every time he called because he thought Petitioner was

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“crazy like a fox.” (Id. at 154, 162.) Petitioner’s trial counsel testified about his theory of

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the case: “I had an issue with the possession of the check, and I had an issue with Ms.

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Mesker not being present.” (Id.) Petitioner’s trial counsel elaborated that he used an

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“empty chair theory,” arguing that the checks were written by somebody else. (Id. at 159-

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60.) Petitioner’s trial counsel testified that he remembered Petitioner “claiming there was

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some work he had done for somebody that had paid him those checks,” but did not

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remember Petitioner saying that he was a landscaper or had a business license. (Id. at

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148-49.)

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Regarding Mesker, Petitioner’s trial counsel did make some effort to try and find

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her, but he never met her and did not subpoena her because there was nothing that led

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him to believe that her testimony would be important. (Id. at 141-43, 160.) Petitioner’s
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trial counsel also explained that although Petitioner mentioned that Mesker was the one

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that gave him the check, “[s]ometimes [he] actually prefer[s] not to have the other person

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there because it gives [him] something to wave around in front of the jury. (Id. at 143.)

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Petitioner’s trial counsel explained that Mesker’s testimony could have been risky if she

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failed to accept responsibility for writing the checks. (Id. at 160.) Petitioner’s trial counsel

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testified that he did not remember a conversation with Petitioner that Mesker was

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present at the trial. (Id. at 152.)

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Regarding Officer Cooper, Petitioner’s trial counsel did not remember Petitioner

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saying that Officer Cooper was extorting money from him. (Id. at 141.) Petitioner’s trial

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counsel made a telephone call to inquire about Officer Cooper’s actions, but he did not

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learn anything about Officer Cooper supporting any allegations that Petitioner made

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against him. (Id. at 153.) Because he did not have any substantiated evidence that

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Officer Cooper was a dirty officer at the time of trial, as Petitioner claimed, Petitioner’s

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trial counsel did not question Officer Cooper about issues with his testing and reporting:

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“if I don’t have some solid evidence, I am not going to go up there and besmirch some

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person’s character without the appropriate backup.” (Id. at 146.)

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Defense counsel has a duty to “consult with the defendant on important decisions

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and to keep the defendant informed of important developments.” Strickland, 466 U.S. at

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688. Defense counsel also has a “duty to make reasonable investigations or to make a

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reasonable decision that makes particular investigations unnecessary.” Id. at 691. And

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“[i]n any ineffectiveness case, a particular decision not to investigate must be directly

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assessed for reasonableness in all the circumstances, applying a heavy measure of

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deference to counsel’s judgments.” Id. This investigatory duty includes investigating the

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defendant’s “most important defense,” Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir.

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1994), and investigating and introducing evidence that demonstrates factual innocence

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or evidence that raises sufficient doubt about the defendant’s innocence. See Hart v.

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Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). When the record demonstrates that trial

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counsel was well-informed, and the defendant fails to provide what additional
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information would have been gained by the investigation he now claims was necessary,

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an ineffective assistance claim fails. See Eggleston v. United States, 798 F.2d 374, 376

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(9th Cir. 1986). “Moreover, ineffective assistance claims based on a duty to investigate

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must be considered in light of the strength of the government’s case.” Id.

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Although there does not appear to be a dispute that Petitioner’s trial counsel only

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visited Petitioner in the jail on one occasion and that discussions during pretrial court

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appearances were stifled, it is unclear how many times Petitioner and Petitioner’s trial

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counsel spoke on the telephone. Petitioner testified that his trial counsel never accepted

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his telephone calls, and Petitioner’s trial counsel testified that he spoke with Petitioner

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approximately six or seven times. However, it is also clear that Petitioner’s trial counsel

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was aware of Petitioner’s defense. Indeed, Petitioner testified that his defense was that

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he was running a legitimate business, that the checks were forged by Mesker, and that

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he was simply holding the checks as collateral. This closely mirrors Petitioner’s trial

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counsel’s defense that Mesker had access to the checks and suspiciously disappeared

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prior to the trial. (ECF No. 14-20 at 7 (Petitioner’s trial counsel’s opening statement: “The

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evidence is also going to show that Geraldine Mesker had a key to Mr. James

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Honeyman’s mailbox. The evidence is also going to show that Geraldine Mesker was

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the owner of a duffel bag that was found in a truck that was parked that was full of some

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of these forged instruments. Interestingly enough, she is on the witness list, but she’s

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not going to testify. We don’t know where she is.”); see also ECF No. 14-22 at 21

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(Petitioner’s trial counsel’s closing statement: “Where is Ms. Mesker? She has the key

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to Mr. Honeyman’s mailbox. Where is she? I don’t know. The State doesn’t know. And I

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would ask you to consider that. She’s not here, and I wonder why?”); see also ECF No.

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17-5 at 93 (acknowledgment by Petitioner that his trial counsel questioned the owner of

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the checks about the fact that Mesker had a key to his mailbox and, thus, access to the

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checks).)

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Petitioner alleges that his trial counsel failed to present the following evidence

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due to his trial counsel’s lack of communication and lack of diligent investigation:
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Petitioner’s business license, Petitioner’s employee, and Officer Cooper’s extortion.

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However, as the Nevada Supreme Court reasonably concluded, Petitioner fails to

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demonstrate prejudice. First, the presence of a business license does not establish that

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Petitioner performed any work for Mesker. Second, the record fails to demonstrate what

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Petitioner’s alleged employee would have testified to at the trial if he had been called.

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See Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland prejudice is not

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established by mere speculation.”). And third, Petitioner’s trial counsel testified that he

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would not “besmirch some person’s character without the appropriate backup.” (ECF

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No. 17-17 at 146.) Because Petitioner lacked support for his allegation that Officer

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Cooper was extorting money from him, it is unlikely that his trial counsel would have

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questioned Officer Cooper about this allegation even if he had known about it.

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Turning finally to Mesker, Petitioner contends that his defense that Mesker forged

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the checks and owed him money for legitimate work he had performed was supported

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by various evidence that his trial counsel failed to discover and present: Mesker was

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originally listed as a subject in the investigation, Mesker paid Petitioner’s retainer fee to

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his initial trial counsel, and Mesker attended portions of the trial. (ECF No. 21-23 at 4

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(Officer Brown’s incident report listing Mesker as a subject); see also ECF No. 17-17 at

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80-82, 97 (testimony by Dennis Cameron, Petitioner’s initial trial counsel, at the post-

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conviction hearing that Mesker paid Petitioner’s retainer fee and that Mesker told

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Cameron that she was fearful of being arrested); see also ECF No. 18-7 at 12 (testimony

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of Officer Joseph Lever that Mesker was present outside the courtroom during the trial).)

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Even if these facts are presumed true, as the Nevada Supreme Court again reasonably

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concluded, Petitioner cannot establish prejudice. Rather than presenting Mesker as a

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witness and running the risk that she would fail to testify in accordance with Petitioner’s

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defense, Petitioner’s trial counsel testified that he preferred to have Mesker absent from

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the trial because her lack of appearance “g[a]ve[ him] something to wave around in front

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of the jury.” (ECF No. 17-17 at 143, 160.) Because Petitioner’s trial counsel was

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convinced that Petitioner would be better served by a defense highlighting the fact that
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Mesker failed to appear—thereby indicating that she was guilty of the offense and

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avoiding prosecution—instead of a defense resting on Mesker’s uncertain testimony, it

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cannot be concluded Petitioner’s trial counsel would have presented any of this

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miscellaneous evidence had he known of its existence. As such, Petitioner fails to

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demonstrate that his trial counsel would have presented a different defense, such that

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the result of his trial would have been different, if he had discovered or been told about

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the foregoing information. See Strickland, 466 U.S. at 694.

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Petitioner is denied habeas relief on Ground One Subpart A.
2. Part B

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In Ground One Part B, Petitioner alleges that his federal constitutional rights were

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violated when his trial counsel failed to challenge the State’s handwriting expert on

12

authentication grounds. (ECF No. 13 at 26.) Specifically, Petitioner alleges that the

13

State’s handwriting expert compared the handwriting on one of the checks to a

14

handwriting sample from Petitioner, but no witness authenticated that sample, making

15

the expert’s comparison inadmissible. (Id. at 26-27.) Respondents argue that Petitioner

16

failed to provide evidence that the samples were not his, so Petitioner fails to

17

demonstrate either deficiency or prejudice. (ECF No. 76 at 11.)

18

The Court previously found Ground One Part B to be unexhausted. (ECF No. 56

19

at 5.) Petitioner moved for a stay and abeyance and filed a third state habeas petition.

20

(ECF Nos. 57, 64-1.) The Nevada Court of Appeals determined that Petitioner’s third state

21

habeas petition was untimely and successive and, as such, it was procedurally barred.

22

(ECF No. 64-16 at 2-3.) Petitioner contends that the procedural default should be excused

23

under Martinez because he received ineffective assistance of post-conviction counsel.

24

(ECF No. 78 at 18, 24.)

25

To demonstrate cause for a procedural default, the petitioner must “show that

26

some objective factor external to the defense impeded” his efforts to comply with the state

27

procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also McCleskey v. Zant,

28

499 U.S. 467, 497 (1991) (“For cause to exist, the external impediment . . . must have
13

1

prevented [the] petitioner from raising the claim.”); White v. Lewis, 874 F.2d 599, 603 (9th

2

Cir. 1989) (“To establish prejudice resulting from a procedural default, a habeas petitioner

3

bears ‘the burden of showing not merely that the errors [complained of] constituted a

4

possibility of prejudice, but that they worked to his actual and substantial disadvantage,

5

infecting his entire [proceeding] with errors of constitutional dimension.”) (citing United

6

States v. Frady, 456 U.S. 152, 170 (1982) (emphases in original). In Martinez, the

7

Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as

8

cause to overcome the procedural default of a claim of ineffective assistance of trial

9

counsel. See 566 U.S. 1 (2012). The Supreme Court noted that it had previously held, in

10

Coleman, that “an attorney’s negligence in a postconviction proceeding does not establish

11

cause” to excuse a procedural default. Id. at 1319. The Martinez Court, however,

12

“qualif[ied] Coleman by recognizing a narrow exception: [i]nadequate assistance of

13

counsel at initial-review collateral proceedings may establish cause for a prisoner’s

14

procedural default of a claim of ineffective assistance at trial.” Id. at 1315. The Court

15

described “initial-review collateral proceedings” as “collateral proceedings which provide

16

the first occasion to raise a claim of ineffective assistance of trial.” Id. Because the

17

Martinez analysis is intertwined with the underlying merits of this ground, the Court

18

deferred ruling on the Martinez issue until the merits of this ground was briefed by the

19

parties. (ECF No. 74 at 8.) The Court now determines that this ground is not substantial

20

and is without merit.

21

Sean Espley, a forensic document examiner, testified at the trial that he

22

“receive[d] a known handwriting sample to be known of [Petitioner].” (ECF No. 14-22 at

23

8-9.) Specifically, Espley received “known writings from [Petitioner:] a [copy of a] two-

24

page letter, . . . a copy of an envelope, and two County of Washoe forms.” (Id. at 9.)

25

Espley determined that Petitioner “probably authored the hand printing on” one of the

26

checks. (Id. at 11.) Espley explained that “by saying this person probably authored

27

something, we’re saying that no one else could have probably authored this in the

28

world.” (Id.) Espley further elaborated his definition of “probably”: “the sun will probably
14

1

rise tomorrow, but there’s a very minimal chance it won’t; you will probably get up

2

tomorrow morning, there’s a minimal chance you won’t.” (Id.) Espley was not able to

3

compare the handwriting on the other two checks because they “contained a handwriting

4

or cursive-style writing, and that was not comparable to the hand printing that was

5

submitted for comparison.” (Id. at 12.) However, Espley did determine that “the maker’s

6

signatures of James Honeyman [on all three checks] were all probably written by the

7

same person.” (Id. at 10.) Later, during the State’s closing argument, it cited Espley’s

8

testimony in arguing that it had proven all the elements of the crime beyond a reasonable

9

doubt:

10
11
12
13
14
15
16
17
18
19

The next element is we have to show that the defendant knew that they
were false or forged documents. Well, ladies and gentlemen, you heard the
testimony of Mr. Espley today. Mr. Espley told you that based on his
comparison of a known handwriting sample of Mr. O’Neill, he can come to
a conclusion, as strong as his conclusion that the sun will rise tomorrow,
that the defendant wrote check number 40827. You saw the exhibit he
brought it. You saw the comparisons from the known writing and writing on
the check. The other thing the expert was able to testify to is that although
he couldn’t clearly show that the defendant wrote check number 40826 and
40825, because it was in cursive and he didn’t have a cursive sample, he
can tell you that again, with the same conviction he knows the sun will rise
tomorrow that the same person did the signature line of each of these
checks. So he can tell you that the defendant wrote one of the checks and
he can tell you that the same person signed all three of them. Ladies and
gentlemen, he forged them. Of course he knew that they were forged
because he’s the one who did it. Ladies and gentlemen, we proved that
element beyond a reasonable doubt.”

20
21

(Id. at 20.)

22

NRS § 52.045 provides that “[c]omparison by the trier of fact or by expert

23

witnesses with specimens which have been authenticated is sufficient for

24

authentication.” Thus, Petitioner’s handwriting samples must have been authenticated

25

in order for them to be used for comparison purposes with the checks. With regard to

26

authenticating Petitioner’s handwriting samples, NRS § 52.025 provides that “[t]he

27

testimony of a witness is sufficient for authentication or identification if the witness has

28

personal knowledge that a matter is what it is claimed to be,” and NRS § 52.015(1)
15

1

provides that “[t]he requirement of authentication or identification as a condition

2

precedent to admissibility is satisfied by evidence or other showing sufficient to support

3

a finding that the matter in question is what its proponent claims.”

4

Although he does not explain where or how he obtained the samples, Espley

5

definitively testified that he “receive[d] a known handwriting sample to be known of

6

[Petitioner].” (ECF No. 14-22 at 8-9.) Indeed, based on this testimony, it could be the

7

case that Espley had personal knowledge that the samples contained Petitioner’s

8

handwriting such that NRS § 52.025 would be satisfied. Further, due to the nature of the

9

samples—a letter, an envelope, and two forms—it is likely that Petitioner’s name and

10

information were contained in the samples “to support a finding that the matter in

11

question is what its proponent claims.” NRS § 52.015(1). This is supported by

12

Petitioner’s trial counsel’s apparent acknowledgment during his cross-examination of

13

Espley that the samples were written by Petitioner. (ECF No. 14-22 at 13 (asking Espley

14

whether he “analyze[d] a two or three-page document written by [Petitioner]”).)

15

Accordingly, because Petitioner cannot demonstrate that the handwriting samples would

16

have been excluded for lack of sufficient authentication—thereby resulting in a different

17

result at trial if his trial counsel had challenged them—Petitioner cannot demonstrate

18

prejudice. See Strickland, 466 U.S. at 694; see also, e.g., Archanian v. State, 145 P.3d

19

1008, 1016-17 (2006) (upholding the admission of a surveillance video, in part, because

20

the defendant failed to demonstrate any evidence bringing the video’s authenticity into

21

question).

22

Because Petitioner has not shown prejudice resulting from his trial counsel’s

23

alleged failure in failing to challenge the State’s handwriting expert on authentication

24

grounds, Ground One Subpart B is not substantial. Therefore, Petitioner has not shown

25

that his post-conviction counsel was ineffective for failing to raise this ground. And

26

because Petitioner’s post-conviction counsel was not ineffective, there is no cause for

27

Petitioner’s procedural default. See Martinez, 566 U.S. at 9 (“Inadequate assistance of

28

counsel at initial-review collateral proceedings may establish cause for a prisoner’s
16

1

procedural default of a claim of ineffective assistance at trial.”). Ground One Part B is

2

denied because it is procedurally defaulted.

3

3. Part C

4

In Ground One Part C, Petitioner alleges that his federal constitutional rights were

5

violated when his trial counsel failed to move to suppress—and later to object to—the

6

admission of the evidence seized during his parole officer’s search of his person and

7

vehicle. (ECF No. 13 at 29.) Petitioner explains that before he had even been given a

8

drug test, he was improperly arrested and searched based solely upon Officer Cooper’s

9

concern about whether he had used controlled substances. (Id.) In addition to there

10

being no probable cause for his arrest, Petitioner contends there was not reasonable

11

suspicion to conduct the search pursuant to his parole agreement. (ECF No. 78 at 32.)

12

Further, Petitioner explains that even if there had been reasonable cause to search him,

13

there was no specific authorization for the search of the closed duffel bag in his vehicle.

14

(ECF No. 13 at 30-31.) Respondents argue that pursuant to Petitioner’s parole

15

agreement, the officers possessed reasonable suspicion to detain and search Petitioner

16

based upon his conduct in the casino before the detention and the fact that he attempted

17

to evade the parole officers. (ECF No. 76 at 13.) Petitioner rebuts that there was nothing

18

in the arrest report indicating that the officers had a separate basis upon which to arrest

19

Petitioner. (ECF No. 78 at 30.)

20

In Petitioner’s first state habeas appeal, the Nevada Supreme Court held:

21

[Petitioner] argues that counsel was ineffective for failing to file a timely
motion to suppress the evidence gathered as a result of the probation
officers’ search of [Petitioner]’s person and vehicle. [Petitioner] failed to
demonstrate prejudice because he failed to show that his suppression claim
was meritorious. Kirksey v. State, 112 Nev. 980, 990, 923 P.2d 1102, 1109
(1996). [Petitioner] did not dispute the terms of his parole included in-person
reporting or warrantless search and seizure upon suspicion of a parole
violation, nor did he challenge the constitutionality of such conditions.
Rather, [Petitioner] contended that his parole officer had [Petitioner] seized
and searched only because [Petitioner] had failed to meet the parole
officer’s extortion demands and that [Petitioner] was otherwise in
compliance with his parole agreement so that no warrantless search and
seizure was justified. The district court found that [Petitioner] failed to

22
23
24
25
26
27
28

17

1
2
3

present credible evidence of extortion, that Officer Summers’ testimony
established that [Petitioner] was in violation of his parole agreement, and
that the officer was more credible than [Petitioner]. Because [Petitioner] did
not prove the facts underlying his claim by a preponderance of the evidence,
we conclude that the district court did not err in denying this claim.

4

(ECF No. 21-5 at 3.) The Nevada Supreme Court’s rejection of Petitioner’s Strickland

5

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

6

federal law.

7

In Officer Joseph Lever’s arrest report, which was prepared the day after

8

Petitioner was arrested on September 23, 2004, he indicated that he observed Petitioner

9

“walking in the area of 5th and Washington” on September 22, 2004, and detained

10

Petitioner based on an “advise[ment] by Officer Cooper with the Nevada Department of

11

Parole and Probation that [Petitioner] was wanted for a Parole Violation.” (ECF No. 21-

12

20 at 3.) Similarly, Officer Cooper’s parole violation report, which was prepared two days

13

after Petitioner’s arrest on September 24, 2004, provided the following:

14
15
16
17
18
19
20

[Petitioner] was scheduled to report in person to the Division of Parole and
Probation on September 9, 2004. The subject did not appear for the
scheduled appointment, but called the undersigned officer’s voice mail and
let a message stating that he would report Friday, September 17, 2004, at
4:30 p.m. [Petitioner] failed to appear for his set appointment of September
17, 2004, at 4:30 p.m. That evening, [Petitioner] called the undersigned
officer’s voice mail and left a message stating that he would report on
Tuesday, September 21, 2004, at 1:00 p.m. However, on Tuesday,
September 21, 2004, prior to his appointment, [Petitioner] called the
Division stating that his vehicle had broken down and he would not be able
to attend his scheduled appointment, and instead, requested to change his
appointment to September 28, 2004, at 1:00 p.m.

21
22
23

Due to the fact that [Petitioner] was believed to be presenting a pattern of
avoiding the Division, the Division became concerned with [Petitioner]’s
activities and whether or not he had relapsed into the use of controlled
substances.

24
25
26
27
28

On Wednesday, September 22, 2004, the Division received information that
[Petitioner] was in the downtown Reno area, and the Division proceeded to
make contact with [Petitioner] in order to obtain a drug test. Officers of the
Division responded to the Silver Legacy Hotel and Casino, which was
[Petitioner]’s reported location. Upon the officers entering the casino,
[Petitioner] was observed getting up and moving rather quickly in the
opposite direction of the officers. The officers followed, but were unable to
18

1

locate [Petitioner]. A short while later [Petitioner] was stopped by the Reno
Police Department near the Gold Dust West Casino in Reno.

2
3

(ECF No. 21-21 at 2-3.)

4

Following opening arguments, Petitioner’s trial counsel made an oral motion to

5

suppress the evidence found on Petitioner’s person and in his vehicle. (ECF No. 14-20

6

at 7.) The state district court then ruled as follows:

7
8
9
10
11
12
13
14
15
16

Well, since this is coming at a late time, but it is, you know, an important
issue when it comes to the admissibility of evidence, or an important feature
of whether the State proves its case, I think – I’m not going to postpone the
trial. You know, I mean I would note that it’s out of time based on 174.165,
which provides that these motions are to be made not less than – with not
less than three days notice to the opposing party unless good cause is
shown.
You know, this is certainly something that you know, has to be considered
with regard to the legality of the search and seizure. And what I’d ask for
you to do is perhaps makes a copy of that case for myself and [the State].
And I would, in essence, deny the motion at this time because it’s out of
time. But should it appear that there would have been an illegal seizure or
search, you know, we can certainly take care of it, you know, as the
evidence comes forward at trial. It’s certainly something that I think we all
ought to know what this authority is and how it might relate to somebody on
probation.

17
18

(Id. at 8.) As the trial progressed, Petitioner’s trial counsel did not object to the admission

19

of the checks that were found in his pocket, the yellow pages that were found in his

20

pocket, or the checks that were found in his vehicle. (See id. at 10-11.)

21

Later, at Petitioner’s post-conviction evidentiary hearing, Parole Officer Adam

22

Summers testified that he and his partner, Officer Cooper, wanted to located Petitioner

23

on September 22, 2004, for various reasons:

24
25
26
27

He had changed his office visit appointment a couple of times. He was being
surveilled by both us and the Repeat Offender Program. He had given us
different stories as to why he couldn’t report to the office, and one of those
was he couldn’t get there because his truck was broken down. And then we
got information that he was actually downtown just a few blocks away from
the office.

28
19

1

(ECF No. 18-7 at 32-33.) Officer Summers testified that based on these facts, Petitioner

2

“could be [in violation of his parole agreement] if [the parole officers] believe that he was

3

trying to avoid coming into our office.” (Id. at 34.) Officer Summers saw Petitioner in a

4

casino playing a slot or video poker machine, and when Petitioner saw the officers, “he

5

got up and headed the opposite direction.” (Id.) After losing Petitioner in the casino,

6

Officer Cooper received a call from a detective “saying that [Petitioner] was running

7

down Fifth Street towards Gold Dust West, which [was where] his car was parked.” (Id.

8

at 34-35.) Officer Summers testified that he believed that Petition was in violation of his

9

parole because he “perceived that [Petitioner] was running from [the officers] and [the

10

officers] had information from the detectives he was actually running towards his car,”

11

which resulted in Officer Summers’ “belie[f] he was attempting to allude [sic] us to avoid

12

supervision.” (Id. at 37.)

13

Although Petitioner’s trial counsel failed to timely move for the suppression of the

14

evidence, see NRS § 174.125(1), (3)(a) (requiring “[a]ll motions in a criminal prosecution

15

to suppress evidence” to be made “in writing not less than 15 days before the date set

16

for trial”), this Court declines to address Petitioner’s trial counsel’s alleged deficiency

17

because the Nevada Supreme Court reasonably denied Petitioner’s claim on the basis

18

that Petitioner failed to demonstrate prejudice. See Strickland, 466 U.S. at 697

19

(explaining that a court may first consider either the question of deficient performance

20

or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the

21

court need not consider the other).

22

Petitioner’s parole agreement provided that he “shall submit to a search of [his]

23

person, automobile, or place of residence, by a Parole Officer, at any time of the day or

24

night without a warrant, upon reasonable cause as ascertained by the Parole Officer.”

25

(ECF No. 22-7 at 2.) Officer Summers testified that he believed Petitioner acted in

26

violation of the parole agreement when he headed in the opposition direction after

27

seeing the parole officers in the casino and then was seen running down the street

28

towards the location of his vehicle. (ECF No. 18-7 at 34-35.) Officer Summers testified
20

1

that this conduct led to his “belie[f that Petitioner] was attempting to allude [sic] [the

2

parole officers] to avoid supervision.” (Id. at 37.) Therefore, even though Petitioner was

3

detained by the detectives based solely on Officer Cooper’s request (ECF No. 21-20 at

4

3), Petitioner was later searched by his parole officer based on his failure to report to

5

the division for almost two weeks and his conduct in evading the parole officers when

6

he saw them in the casino. (ECF No. 21-21 at 2-3; ECF No. 18-7 at 34-35.) This conduct

7

belies Petitioner’s contention that he was searched based solely upon his parole officer’s

8

concern about whether he had used controlled substances. Accordingly, the Nevada

9

Supreme Court’s conclusion that Officer Summers’ testimony demonstrated that

10

Petitioner violated his parole agreement such that a suppression motion would not have

11

been meritorious was reasonable. See Kimmelman v. Morrison, 477 U.S. 365, 375, 385

12

(1986) (“Where defense counsel’s failure to litigate a Fourth Amendment claim

13

competently is the principal allegation of ineffectiveness, the defendant must also prove

14

that his Fourth Amendment claim is meritorious and that there is a reasonably probability

15

that the verdict would have been different absent the excludable evidence in order to

16

demonstrate actual prejudice.”); Strickland, 466 U.S. at 694 (requiring the petitioner to

17

show that “there is a reasonable probability that, but for counsel’s unprofessional errors,

18

the result of the proceeding would have been different”).

19

Petitioner is denied habeas relief on Ground One Subpart C.

20

B.

21

In Ground Two, Petitioner alleges that his federal constitutional rights were

22

violated when the State failed to disclose exculpatory, material evidence. (ECF No. 13

23

at 33.) Specifically, Petitioner explains that the Division of Parole and Probation sent a

24

letter to the Washoe County District Attorney advising that an investigation was being

25

conducted against Officer Cooper. (Id. at 33-34.) The disclosure of this letter and the

26

underlying investigation of Officer Cooper was not revealed to Petitioner until after his

27

direct appeal opening brief was filed. (Id. at 34.) Petitioner contends that this information

28

was material because it was highly compelling and demonstrated that Officer Cooper,

Ground Two

21

1

the State’s primary witness, was not credible. (Id.) Respondents argue that the evidence

2

was not material because other witnesses corroborated Officer Cooper’s search and

3

recovery of the evidence. (ECF No. 76 at 15.)

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

In Petitioner’s appeal of the denial of his motion for a new trial, the Nevada
Supreme Court held:
A Brady violation has three components: “the evidence at issue is favorable
to the accused; the evidence was withheld by the [S]tate, either intentionally
or inadvertently; and prejudice ensued, i.e., the evidence was material.” The
State concedes that the first two prongs establishing a Brady violation have
been met because the evidence is favorable to [Petitioner] as impeachment
evidence and the evidence was withheld from him. The State argues,
however, that [Petitioner]’s claim fails on the third prong—prejudice.
After reviewing the record, we conclude that [Petitioner]’s Brady claim lacks
merit as [Petitioner] has not shown that he was prejudiced by the absence
of the challenged evidence. Although the withheld evidence relates to
Officer Cooper’s credibility, [Petitioner] fails to demonstrate that the
absence of the evidence prejudiced him in light of the other evidence
produced at trial establishing his guilt. In particular, Detective Michael
Brown testified that he observed Officer Cooper recover two of the forged
checks from [Petitioner]’s person. In addition, Officer Adam Summers
testified that he searched O’Neill’s vehicle and found the other forged check.
Based on this evidence, even without Officer Cooper’s testimony,
substantial evidence existed to convict [Petitioner]. Therefore, [Petitioner]
has not shown that the evidence was material.
[Petitioner] also contends that the withheld evidence would have
undermined the basis for the search. [Petitioner] argues that the false report
mentioned in the letter was the basis for the search conducted by Officer
Cooper, which resulted in the recovery of the forged checks. To bolster this
claim, an affidavit from [Petitioner] alleges that Officer Cooper was extorting
money from him. [Petitioner] claims that the only reason Officer Cooper
ordered his detention was because he failed to pay Officer Cooper the
money requested as part of the extortion scheme. However, there is no
indication in the letter or in the record that the reason Officer Cooper
ordered [Petitioner] detained was based on a false report, or when the false
report was made in relation to the search. Moreover, the letter states that
Officer Cooper falsely reported a negative urinalysis test, not a positive test.
A negative test would not provide Officer Cooper with a reason to detain
and search [Petitioner]. In addition, the allegations made by [Petitioner]
regarding the extortion scheme were never presented to the district court
prior to the motion for a new trial. The district court found that these
allegations, in the letter and in the affidavit, would have merely been used
to discredit Officer Cooper and therefore, in light of the substantial evidence
22

2

presented at trial, the evidence would not have altered the jury’s verdict. We
agree and conclude that [Petitioner] has failed to show that the withheld
evidence was material.

3

(ECF No. 22-5 at 4-6 (internal footnote omitted).) The Nevada Supreme Court’s rejection

4

of Petitioner’s Brady claim was neither contrary to nor an unreasonable application of

5

clearly established federal law.

1

6

Detective Michael Brown testified at Petitioner’s trial that he and Detective Lever

7

had been surveilling Petitioner on September 22, 2004 and detained him at the request

8

of Officer Cooper. (ECF No. 14-20 at 9, 11.) Detective Brown notified Officer Cooper

9

about Petitioner’s detainment, and Officers Cooper and Summers arrived at the scene.

10

(Id. at 9.) Detective Brown then observed Officer Cooper search Petitioner’s person. (Id.

11

at 10.) Following that search, Officer Cooper gave Detective Brown “two Capital One

12

bank checks and some phone book pages [of check-cashing businesses within Washoe

13

County] from [Petitioner]’s pocket.” (Id.) James Honeyman was listed on the checks as

14

the owner of the account. (Id.)

15

Similarly, Officer Cooper testified that he notified the Reno Police Department of

16

his interest in locating Petitioner. (Id. at 12.) He was later notified by Detective Brown

17

that Petitioner had been detained in the downtown area, so he went to that location with

18

Officer Summers. (Id. at 12-13.) Officer Cooper searched Petitioner and “found in his

19

pocket, his front left pants pocket, some checks and some pages ripped out of the phone

20

book, yellow pages.” (Id. at 13.) Officer Cooper testified that Petitioner “said he received

21

the checks as payment for work he had done for the individual and that they were his

22

collateral.” (Id. at 14.) Officer Summers testified that he searched Petitioner’s vehicle at

23

the scene and “located an envelope that had two sets of what appeared to be credit card

24

checks” inside of a duffel bag on the floor “in the passenger compartment of the truck.”

25

(Id. at 15-17.)

26

Honeyman testified that Capital One would periodically send him preprinted

27

checks with his monthly statement. (Id. at 19-20.) Honeyman testified that he did not

28

write the checks found in Petitioner’s pockets, did not pay anyone with those checks,
23

1

and, specifically, did not pay Petitioner with those checks for any work he had done. (Id.

2

at 20.)

3

Following the trial and the filing of Petitioner’s direct appeal opening brief (ECF

4

No. 15-29 at 13), Petitioner received a copy of a letter, dated August 8, 2005, from Amy

5

Wright, the Chief of the Division of Parole and Probation, to Richard Gammick, Washoe

6

County District Attorney. (ECF No. 21-29 at 2.) That letter provided the following:

7
8
9
10
11
12
13
14
15
16
17
18
19

[D]uring a recent internal affairs investigation of a Department of Public
Safety, Division of Parole and Probation employee, an allegation of
dishonesty was sustained against the Parole and Probation officer. The
sustained dishonesty allegation involved a report from the officer that a
parolee, being supervised by the officer, provided a urine sample that tested
negative for controlled substances. Through the investigation, it was
determined that the officer did not receive a urine sample from the parolee
for testing as reported by the officer.
The administrative investigation has been completed, therefore, we are
providing you with this information as it may affect the credibility of a witness
in a case being prosecuted by your office. The officer will have the right to
contest the validity of the allegation through an independent hearing officer.
This independent review has not taken place at this point.
I have been informed that this officer was a witness in a criminal trial against
the parolee, which resulted in a conviction. The former parolee’s name is
Christopher O’Neill. The probation officer’s name is Brent Cooper. The
Department has provided this information to your Office in order to permit
you to determine if the information must be disclosed to the defendant under
applicable law.

20

(Id.) This letter formed the basis for Petitioner’s motion for a new trial. (ECF No. 15-29.)

21

Petitioner’s motion for a new trial also alleged that Officer Cooper was extorting money

22

from Petitioner. (Id. at 6.) In support of this allegation, Petitioner attached a declaration

23

to his motion, which provided the following:

24
25
26
27
28

The entire reason for my detention on September 22, 2004, was so that the
parole officer could collect money from me or punish me and fulfill threats
made for my failure to continue payments to him. There was no other reason
or purpose for detaining me. I was not wanted by any law enforcement or
the parole department for any violation of laws or parole conditions.
(Id. at 14.)
24

1

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

2

request violates due process where the evidence is material either to guilt or to

3

punishment irrespective of the good faith or bad faith of the prosecution.” Brady v.

4

Maryland, 373 U.S. 83, 87 (1963). Because a witness’s “‘reliability . . . may well be

5

determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls

6

within [the Brady] rule.” Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue

7

v. Illinois, 360 U.S. 264, 269 (1959)). “There are three components of a true Brady

8

violation: The evidence at issue must be favorable to the accused, either because it is

9

exculpatory, or because it is impeaching; that evidence must have been suppressed by

10

the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v.

11

Greene, 527 U.S. 263, 281-82 (1999). The materiality of the evidence that has been

12

suppressed is assessed to determine whether prejudice exists. See Hovey v. Ayers, 458

13

F.3d 892, 916 (9th Cir. 2006). Evidence is material “if there is a reasonable probability

14

that, had the evidence been disclosed to the defense, the result of the proceeding would

15

have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A ‘reasonable

16

probability’ of a different result [exists] when the government’s evidentiary suppression

17

‘undermines confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434

18

(1995) (quoting Bagley, 473 U.S. at 678).

19

To be sure, the undisclosed letter and investigation of Officer Cooper would have

20

created substantial credibility issues for Officer Cooper at trial. However, as the Nevada

21

Supreme Court reasonably concluded, Petitioner fails to demonstrate prejudice. Officer

22

Cooper’s trial testimony was fairly succinct: he notified the Reno Police Department that

23

he was seeking Petitioner, he searched Petitioner after being notified that he was

24

detained, and he testified that Petitioner said the checks were payment for work he had

25

done. (ECF No. 14-20 at 12-14.) Detective Brown’s testimony corroborated much of

26

Officer’s Cooper testimony and, in fact, he testified that he actually observed Officer

27

Cooper’s search of Petitioner and recovery of the two checks from Petitioner’s pocket.

28

(Id. at 10.) Moreover, Officer Summers testified that he located the third check during
25

1

his search of Petitioner’s vehicle. (Id. at 15-17.) Therefore, even if Officer Cooper’s

2

testimony had been impeached, the jury would have still heard testimony from other

3

witnesses that Petitioner possessed the three checks. Accordingly, as the Nevada

4

Supreme Court reasonably held, substantial evidence was presented to convict

5

Petitioner even if Officer Cooper’s testimony had been fully discredited. Thus, Petitioner

6

cannot demonstrate that the withheld evidence was material because there was not “a

7

reasonable probability that, had the evidence been disclosed to the defense, the result

8

of the proceeding would have been different.” Bagley, 473 U.S. at 682.

9

Petitioner also contends that the undisclosed letter could have been used to

10

move to suppress all the recovered evidence based on the fact that the detention and

11

search of Petitioner and his vehicle was based on Officer Cooper’s justification for the

12

stop, which was suspect due to his credibility issues. (ECF Nos. 13 at 35, 78 at 41-42.)

13

Petitioner elaborates that the extortion scheme evidence could also have been

14

presented in this motion, as the undisclosed letter supported Petitioner’s allegation that

15

Officer Cooper sought Petitioner’s detention that day because Petitioner did not accede

16

to Officer Cooper’s extortion demands. (ECF No. 78 at 36, 40.) The Nevada Supreme

17

Court reasonably denied this argument finding that there was no indication in the record

18

regarding the reason Officer Cooper detained Petitioner on September 22, 2004.

19

Because the record before the Nevada Supreme Court at the time it affirmed the denial

20

of Petitioner’s motion for a new trial failed to demonstrate the basis for the detention of

21

Petitioner, the Nevada Supreme Court reasonably determined that Petitioner failed to

22

demonstrate that the undisclosed evidence was material. Indeed, without a basis for the

23

detention, Petitioner cannot demonstrate “a reasonable probability that, had the” letter

24

and investigation been disclosed, a motion to suppress the evidence based on an

25

argument that the justification for the detention was suspect would have been

26

successful. Bagley, 473 U.S. at 682.

27
28
26

1

Petitioner is denied habeas relief on Ground Two.1

2

C.

3

In Ground Three, Petitioner alleges that his federal constitutional rights were

4

violated when the state district court failed to conduct an appropriate inquiry into his

5

motion to replace existing appointed counsel with new appointed counsel. (ECF No. 13

6

at 36.) Petitioner elaborates that he made a good faith, timely effort to communicate to

7

the state district court that an irreconcilable conflict existed between him and his trial

8

counsel. (Id. at 39.) Respondents argue that the record fails to reflect that there was a

9

total breakdown of Petitioner’s relationship with his trial counsel. (ECF No. 76 at 19.)

Ground Three

10

Petitioner raised this issue in his opening brief of his appeal of the denial of his

11

first state habeas petition. (ECF No. 20-1 at 31-36.) However, the Nevada Supreme

12

Court’s order affirming the denial of Petitioner’s first state habeas petition is silent as to

13

the disposition of this claim.2 (ECF No. 21-5.) 28 U.S.C. § 2254(d) generally applies to

14

unexplained as well as reasoned state-court decisions: “[w]hen a federal claim has been

15

presented to a state court and the state court has denied relief, it may be presumed that

16

the state court adjudicated the claim on the merits in the absence of any indication or

17

state-law procedural principles to the contrary.” Harrington, 562 U.S. at 99. When the

18

state court has denied a federal constitutional claim on the merits without explanation,

19

the federal habeas court “determine[s] what arguments or theories supported

20

or . . . could have supported, the state court’s decision; and then it must ask whether it

21

is possible fairminded jurists could disagree that those arguments or theories are

22
1The

23
24
25
26
27
28

Court is restricted from considering evidence that was not a part of the record
reviewed by the Nevada Supreme Court at the time it ruled on the issue. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.”). Accordingly,
the Court did not consider, as a part of Ground Two, the testimony from the postconviction evidentiary hearing or other evidence cited by Petitioner that occurred after the
Nevada Supreme Court’s affirmation of the denial of Petitioner’s motion for a new trial.
Court previously found Ground Three to be exhausted “in light of the inherent
difficulty in separating a claim of conflict of counsel with a claim of ineffective assistance
of counsel.” (ECF No. 56 at 7.)
2The

27

1

inconsistent with the holding in a prior decision of [the United States Supreme] Court.”

2

Id. at 102; see also Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state court

3

rejects a federal claim without expressly addressing that claim, a federal habeas court

4

must presume that the federal claim was adjudicated on the merits.”).

5

On January 26, 2005, the state district court appointed counsel for Petitioner.

6

(ECF No. 14-10 at 2.) On or about May 5, 2005, Petitioner attempted to move for the

7

withdrawal of his trial counsel and for his trial counsel to transfer his records to Petitioner.

8

(ECF No. 14-15.) Petitioner explained that he “wishe[d] to terminate [his] counsel for”

9

various reasons:

10
11
12
13
14

counsel has refused to accept or talk to [Petitioner] by phone, counsel has
refused to visit with [Petitioner], counsel has refused to answer letters to
[Petitioner], counsel has not filed any motions or done any investigations
per [Petitioner]’s request, counsel informed [Petitioner] in court that he could
not afford to see [Petitioner] or speak to him by phone and stated that he
would not respond to [Petitioner]’s letters because [Petitioner]’s case is not
important.

15

(Id. at 3-4.) The motion does not contain a file stamp, and the envelope included with

16

the motion was addressed to Petitioner’s trial counsel, not the state district court. (See

17

id. at 2, 5.) On the same day, May 5, 2005, Petitioner also mailed a request to his trial

18

counsel terminating his representation. (ECF No. 21-24.) On May 10, 2005, Petitioner’s

19

trial counsel sent Petitioner a letter indicating that he could not “be removed as [he] was

20

appointed by the court” and informing Petitioner that he could “hire a private attorney or

21

[he could] choose to represent” himself. (ECF No. 21-26 at 2.) Petitioner’s trial counsel

22

also advised that “[t]his issue will need to be addressed in court at your Motion to

23

Confirm Hearing set for June 2, 2005.” (Id.)

24

At the Motion to Confirm Trial hearing held on June 2, 2005, four days before the

25

trial commenced, the state district court indicated that “it’s been represented to [it] that

26

[Petitioner] may wish to go through this trial representing” himself.” (ECF No. 14-19 at

27

2, 3.) Petitioner stated that that was inaccurate and explained the following:

28
28

1
2
3

I sent a motion to the Court a month ago for withdrawal of counsel and
requested appointment of new counsel. The reasoning is that I’ve never had
a chance to talk with [trial counsel]. He won’t talk to me about my case, pure
and simple. I’ve seen him in court. He said he would come see me. He
didn’t.

4

(Id. at 3.) Petitioner’s trial counsel then indicated that he was “prepared to proceed to

5

trial.” (Id. at 4.) The state district court clarified that Petitioner “d[id]n’t want to represent

6

[him]self,” to which Petitioner responded:

7
8
9
10
11
12
13
14
15
16

I would like counsel to represent me. I finally was able, after calling his office
about 20 times, I finally had my family call his office and please ask him to
call me. He said no, if you want to make calls to the attorney you would have
to pay. They started the new policy at the prison to pay for phone calls. I
ordered some cards and used 20 or $30 worth talking to the secretary and
asking when he would be in, when he will come to see me, that I had
motions to file on this case and far as I know there hasn’t been any motion
filed, nothing done. Nobody talked to me. I don’t know how it is possible to
be ready for trial Monday without speaking to me. I just don’t understand it.
(Id. at 5.)
Thereafter, the state district court found that Petitioner’s trial counsel would
continue as counsel and Petitioner expressed his dissatisfaction with that finding:
THE COURT:

17
18
19
20
21
22
23
24
25

THE DEFENDANT: I feel then I’m forced to represent myself,
because, as I said, I repeatedly requested
through his office to file motions, to contact
witnesses for my behalf and subpoena those
witnesses. So far he hasn’t done any of that. I
know he never filed the motion unless I never
got a copy of it. I guess I’m forced to represent
myself then.
THE COURT:

26
27
28

. . . Since, [Petitioner], you don’t want to be selfrepresented, we’ll go forward with [trial counsel]
as your counsel. You may not like him that much
but as long as he’s ready to go, he’s a very
astute professional defense counsel and I’m
satisfied that you will be well represented.”

Well, you will not be forced to represent yourself
but we’ll go forward then with the trial on
Monday and [trial counsel], you are still of
counsel.

...
29

1
2

THE DEFENDANT: So I can’t represent myself or have new
counsel?

3

THE COURT:

4
5

Well, you are not willfully going to represent
yourself. [Trial counsel] is your appointed
counsel.

6

THE DEFENDANT: Then I would like to willfully like to represent
myself, willfully because - -

7

THE COURT:

8
9

No, I don’t think we’re going there. [Trial
counsel], you’ll be here Monday morning then.

(Id. at 6-8.)

10

Before the jury selection process commenced on the first day of trial, the state

11

district court revisited the issue: “I didn’t want you to go with [trial counsel] or excuse him

12

and go self-represented after you had told me that – you initially didn’t want to be self-

13

represented, you just wanted another lawyer. And today, what do you want to do?” (ECF

14

No. 14-20 at 5-6.) Petitioner responded that he would “stand by [the] argument [he]

15

made Thursday.” (Id. at 6.) The state district court then indicated, “it sounds like you are

16

well represented by [trial counsel] at this point. So I think we can proceed.” (Id.)

17

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

18

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

19

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

20

relationship’ between an accused and his counsel,” Morris v. Slappy, 461 U.S. 1, 14

21

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

22

assistance of an attorney with whom he has become embroiled in irreconcilable conflict

23

is to deprive him of the effective assistance of any counsel whatsoever.” Brown v.

24

Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). When a state district court denies a

25

request for substitute counsel, this “court must consider: (1) the extent of the conflict; (2)

26

whether the trial judge made an appropriate inquiry into the extent of the conflict; and

27

(3) the timeliness of the motion to substitute counsel.” Daniels v. Woodford, 428 F.3d

28

1181, 1197-98 (9th Cir. 2005). “[T]he ultimate constitutional question,” therefore, asks
30

1

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

2

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

3

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

4

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

5

Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000).

6

Turning first to the extent of the conflict, as was detailed in Ground One Part A,

7

Petitioner testified at the post-conviction hearing that his trial counsel would not accept

8

his telephone calls, failed to answer his letters, only visited him in the jail once three

9

days before the trial commenced, and would “shush” him during pretrial hearings. (ECF

10

No. 17-5 at 22-23, 49, 92.) Contrarily, Petitioner’s trial counsel testified at the post-

11

conviction evidentiary hearing that he believed he spoke with Petitioner six or seven

12

times, excluding court appearances, before his visit to the jail three days before trial.

13

(ECF No. 17-17 at 136, 150, 153, 162.) Although the level of communication between

14

Petitioner and his trial counsel may have been low, Petitioner and his trial counsel were

15

able to converse—albeit in a limited fashion—during the three or four pretrial hearings,

16

once in person, through letters sent by Petitioner, and during an unclear number of times

17

by telephone. Petitioner alleges that these conversations were insufficient to adequately

18

advise his trial counsel of his defense and evidence supporting his defense. However,

19

as was assessed in Ground One Part A, Petitioner’s trial counsel did present a defense

20

deflecting guilt onto Mesker. Because Petitioner and his trial counsel did converse about

21

the case such that they were on the same page with presenting a defense aimed at

22

pointing the finger at Mesker, it cannot be concluded that the extent of the conflict

23

between Petitioner and his trial counsel rose to a level that would cause concern. See

24

Schell, 218 F.3d at 1026 (explaining that a petitioner’s Sixth Amendment right to counsel

25

is violated when a “conflict between [Petitioner] and his attorney . . . result[s] in a total

26

lack of communication”).

27

Turning next to the state district court’s inquiry into Petitioner’s request, Petitioner

28

explained to the state district court that his trial counsel had not spoken to him about his
31

1

case, had not come to visit him, and had not filed any motions. (ECF No. 14-19 at 3, 5.)

2

Although the state district court did not inquire about Petitioner’s alleged conflict,

3

Petitioner volunteered the relevant information underlying the conflict. Because the state

4

district court had adequate information in order to make a determination regarding

5

Petitioner’s request, it cannot be determined that the state district court’s inquiry was

6

unduly troublesome. See United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986)

7

(“While the trial judge might have made a more thorough inquiry into the substance of

8

McClendon’s alleged conflict with counsel, McClendon’s description of the problem and

9

the judge’s own observations provided a sufficient basis for reaching an informed

10

decision. Thus, the district court’s failure to conduct a formal inquiry was not fatal error.”)

11

Turning finally to the timing of Petitioner’s request, it appears that Petitioner

12

attempted to move for the withdrawal of his trial counsel and the appointment of new

13

counsel approximately a month before his trial began. (ECF No. 14-15.) However,

14

importantly, the motion does not contain a file stamp, so it is unclear whether Petitioner

15

filed the motion or simply mailed a copy of the motion to his counsel. It was not until

16

June 2, 2005, four days before the trial commenced, that Petitioner told the state district

17

court that he would like new counsel. (ECF No. 14-19 at 3, 7.) Because Petitioner’s

18

request for new counsel was made so close to the start of the trial, it cannot be

19

concluded that that the state district court abused its discretion in denying the request.

20

See McClendon, 782 F.2d at 789 (determining that if a defendant moves for substitution

21

of counsel, a state district court may exercise its discretion and deny that motion if it

22

would require a continuance of the trial date).

23

After considering the foregoing factors, it cannot be concluded that “the conflict

24

between [Petitioner] and his attorney . . . resulted in turn in an attorney-client relationship

25

that fell short of that required by the Sixth Amendment.” Schell v. Witek, 218 F.3d 1017,

26

1026 (9th Cir. 2000). Because the Court determines that fairminded jurists would agree

27

that this reasoning establishing that Petitioner’s federal constitutional rights were not

28
32

1

violated was not inconsistent with prior decisions of the United States Supreme Court,

2

Harrington, 562 U.S. at 102, Petitioner is not entitled to relief on Ground Three.

3

D.

4

In Ground Four, Petitioner alleges that his federal constitutional rights were

5

violated when the state district court failed to hold a hearing pursuant to Faretta v.

6

California, 422 U.S. 806 (1975) after he requested to represent himself. (ECF No. 13 at

7

39, 42.) Petitioner explains that the totality of the circumstances show that his waiver of

8

counsel would have been voluntary and knowing, that there was no indication that his

9

request was an attempt to delay the trial, and the lateness of his request was his trial

10

Ground Four

counsel’s fault. (ECF No. 78 at 54-55.)

11

In Petitioner’s direct appeal, the Nevada Supreme Court held:

12

[Petitioner] contends that the district court violated his right to selfrepresentation when it refused to permit [Petitioner] to represent himself, or
even canvass [Petitioner] pursuant to Faretta v. California. [Footnote 29:
422 U.S. 806 (1975).] “A criminal defendant has an ‘unqualified right’ to
represent himself at trial so long as his waiver of counsel is intelligent and
voluntary.” [Footnote 30: Tanksley v. State, 113 Nev. 997, 1000, 946 P.2d
148, 150 (1997).] “Denial of that right is per se reversible error.” [Footnote
31: Hymon v. State, 121 Nev. 200, 212, 111 P.3d 1092, 1101 (2005) (citing
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).] “[B]efore allowing a
defendant to waive counsel and represent himself, the trial court must
ensure that the defendant is competent and that the waiver of counsel is
knowing, voluntary, and intelligent.” [Footnote 32: Id.] “The court should
conduct a Faretta canvass to apprise ‘the defendant fully of the risks of selfrepresentation and of the nature of the charged crime so that the
defendant’s decision is made with a “clear comprehension of the attendant
risks.”’” [Footnote 33: Id. (quoting Johnson v. State, 117 Nev. 153, 164, 17
P.3d 1008, 1016 (2001) (citing Tanksley v. State, 113 Nev. 997, 1001, 946
P.2d 148, 150 (1997) (quoting Graves v. State, 112 Nev. 118, 124, 912 P.2d
234, 238 (1996)))).]

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

A district court may, however, deny a defendant’s request for selfrepresentation where the “request is untimely, the request is equivocal, the
request is made solely for the purpose of delay, the defendant abuses his
right by disrupting the judicial process, or the defendant is incompetent to
waive his right to counsel.” [Footnote 34: Tanksley, 113 Nev. at 1001, 946
P.2d at 150.]

28
33

1
2
3
4
5
6
7
8
9

Here, the district court failed to specify its rationale for denying [Petitioner]’s
request outright without conducting a Faretta canvas. Regardless, we
conclude that the district court did not err in failing to perform a Faretta
canvas and denying [Petitioner]’s request because [Petitioner]’s request
was untimely. In this, we note that [Petitioner] made his request only three
judicial days before the trial date. Had the district court granted [Petitioner]’s
request the trial would have been undoubtedly delayed.
The issue remains whether ineffective assistance of counsel forced
[Petitioner] to request self-representation. According to [Petitioner]’s
statements, as of the Thursday before the Monday trial, [trial counsel] had
not yet met with [Petitioner] outside of court proceedings and refused to take
[Petitioner]’s telephone calls. If [Petitioner]’s assertions are correct, then he
may have a valid claim for ineffective assistance of counsel to be addressed
in subsequent habeas proceedings.

10

(ECF No. 15-22 at 14-15.) The Nevada Supreme Court’s rejection of Petitioner’s Faretta

11

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

12

federal law.

13

“[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to

14

proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently elects

15

to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta, 422 U.S. at

16

807) (emphasis in original); see also Iowa v. Tovar, 541 U.S. 77, 87-88 (2004) (“While

17

the Constitution ‘does not force a lawyer upon a defendant,’ . . . it does require that any

18

waiver of the right to counsel be knowing, voluntary, and intelligent.”) (internal citation

19

omitted). In order to invoke this right to proceed without counsel, the defendant’s request

20

must be timely. See United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003); Avila

21

v. Roe, 298 F.3d 750, 753 (9th Cir. 2002). In Faretta, the Supreme Court noted that the

22

defendant’s request to represent himself was made “[w]ell before the date of trial” and

23

“weeks before trial.” 422 U.S. at 807, 835. The Ninth Circuit later explained that

24

“[b]ecause the Supreme Court has not clearly established when a Faretta request is

25

untimely, other courts are free to do so as long as their standards comport with the

26

Supreme Court’s holding that a request ‘weeks before trial’ is timely.” Marshall v. Taylor,

27

395 F.3d 1058, 1061 (9th Cir. 2005). Applying this explanation, the Ninth Circuit affirmed

28

the denial of habeas corpus relief to the petitioner finding that “[b]ecause the timing of
34

1

[his] request fell well inside the ‘weeks before trial’ standard for timeliness established

2

by Faretta, the court of appeal’s finding of untimeliness clearly comports with Supreme

3

Court precedent.” Id.

4

As was discussed in Ground Three, Petitioner made his request to represent

5

himself at the Motion to Confirm Trial hearing, which was held on June 2, 2005, a

6

Thursday, before the commencement of the trial on Monday, June 6, 2005. (ECF Nos.

7

14-19 at 7, 14-20.) The Nevada Supreme Court’s holding that the state district court did

8

not err in failing to conduct a Faretta canvass because Petitioner’s request to represent

9

himself was untimely is not contrary to federal law. A request made four calendar days

10

before trial is significantly less than a request made “weeks before trial,” which the

11

Supreme Court has held is timely. Faretta, 422 U.S. at 807. Because Petitioner’s

12

“request fell well inside the ‘weeks before trial’ standard for timeliness established by

13

Faretta,” the Nevada Supreme Court’s holding that a request made four calendar days

14

before trial is untimely “clearly comports with Supreme Court precedent,” Marshall, 395

15

F.3d at 1061. Petitioner is not entitled to habeas relief for Ground Four.

16

E.

Ground Six
1. Part A

17
18

In Ground Six Part A, Petitioner alleges that his federal constitutional rights were

19

violated due to his improper sentence as a habitual criminal. (ECF No. 13 at 47.)

20

Petitioner elaborates that his six prior non-violent felony convictions should be grouped

21

and found to only constitute two prior convictions, thereby making the larger habitual

22

criminal sentence of life inapplicable. (Id. at 48-49.)

23

This Court previously explained that Petitioner presented this claim in his first

24

state habeas petition but failed to raise it in his appeal of the denial of that petition. (ECF

25

No. 74 at 8 (citing ECF Nos. 15-25 at 7, 15-14).) However, the Court found this claim to

26

be exhausted because Petitioner raised it in his motion to modify or correct his sentence

27

and his appeal of the denial of that motion. (Id.) In that appeal, the Nevada Supreme

28

Court held:
35

1

In his motion filed on June 25, 2010, appellant claimed that . . . his sentence
was based on incorrect assumptions about his criminal record. Appellant
failed to demonstrate that his sentence was facially illegal or that the district
court lacked jurisdiction. See Edwards v. State, 112 Nev. 704, 708, 918
P.2d 321, 324 (1996). Appellant failed to demonstrate that the district court
relied on mistaken assumptions regarding his criminal record that worked
to his extreme detriment. See id. We therefore conclude that the district
court did not err in denying appellant’s motion.

2
3
4
5
6
7

(ECF No. 20-21 at 2-3.) The Nevada Supreme Court’s rejection of this claim was neither

8

contrary to nor an objectively unreasonable application of clearly established federal

9

law.

10

Following the conclusion of Petitioner’s trial, the State filed a notice of intent to

11

seek habitual criminality. (ECF No. 14-27.) The notice outlined Petitioner’s previous six

12

felonies:

13
14
15
16
17
18
19
20
21
22
23
24
25
26

On March 29, 1993, [Petitioner] was convicted in the Third Judicial District
Court of the State of Nevada, of the crime of Attempted Possession of a
Stolen Vehicle, a felony under the laws of the State of Nevada.
On August 2, 1993, [Petitioner] was convicted in the Superior Court of the
State of California, of the crime of Attempted Sale of Marijuana, a felony
under the laws of the situs of the crime or the State of Nevada.
On August 6, 1993, [Petitioner] was convicted in the Second Judicial District
Court of the State of Nevada, of the crime of Being Under the Influence of
a Controlled Substance, a felony under the laws of the State of Nevada.
On October 10, 1993, [Petitioner] was convicted in the First Judicial District
Court of the State of Nevada, of the crime of Escape, a felony under the
laws of the State of Nevada.
On December 6, 1993, [Petitioner] was convicted in the Superior Court of
the State of California, of the crime of Evading Officer and Causing Death
or Serious Bodily Injury, a felony under the laws of the situs of the crime or
the State of Nevada.
On April 21, 1995, [Petitioner] was convicted in the Second Judicial District
Court of the State of Nevada, of the crime of Robbery with the Use of a
Firearm, a felony under the laws of the State of Nevada.

27
28
36

1

(Id. at 3-4.) The state district court admitted certified copies of these prior convictions at

2

Petitioner’s sentencing hearing. (ECF No. 15-1 at 6-9; see also ECF Nos. 21-8, 21-9,

3

21-11, 21-12, 21-13, 21-15.)

4

Petitioner takes issue with his habitual criminal sentence, imposed pursuant to

5

NRS § 207.010(1)(b), which provides that a person who has been convicted of at least

6

three felonies shall be punished “(1) For life without the possibility of parole; (2) For life

7

with the possibility of parole [after] 10 years has been served; or (3) For a definite term

8

of 25 years [after] 10 years has been served.” Cf. NRS § 207.010(1)(a) (providing that

9

a person who has been convicted of two prior felonies “shall be punished . . . by

10

imprisonment in the state prison for . . . 5 [to] . . . 20 years”). As a threshold matter,

11

Petitioner has failed to identify the “clearly established federal law as determined by the

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United States Supreme Court” that the Nevada Supreme Court’s decision allegedly

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either was contrary to or unreasonably applied. When there is no clearly established

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federal law stating a particular standard or rule at the time of the state court decision,

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then, by definition, a petitioner cannot establish that the state court’s decision was either

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contrary to or an unreasonable application of clearly established federal law under

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AEDPA. See, e.g., Carey v. Musladin, 549 U.S. 70, 77 (2006); see also Williams v.

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Taylor, 529 U.S. 362, 390 (2000) (“The threshold question under AEDPA is whether

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[Petitioner] seeks to apply a rule of law that was clearly established at the time his state-

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court conviction became final.”). Accordingly, Petitioner, who has the burden of proof

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and persuasion on habeas review, has not established a basis for relief under AEDPA.

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Moreover, the Nevada Supreme Court is the final arbiter of Nevada state law.

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See Montana v. Wyoming, 563 U.S. 368, 377 n.5 (2011) (“The highest court of each

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State, of course, remains ‘the final arbiter of what is state law.’”) (quoting West v. Am.

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Tel. & Tel. Co., 311 U.S. 223, 236 (1940)). The Nevada Supreme Court’s rejection of

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Petitioner’s contention that NRS § 207.010 should be applied differently is

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unquestionable on federal habeas review.

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Petitioner is denied habeas relief on Ground 6 Part A.
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2. Part B

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In Ground Six Part B, Petitioner alleges that his federal constitutional rights were

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violated when the state district court conducted a sentencing analysis that should have

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been conducted by a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000). (ECF

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No. 13 at 49.) In Petitioner’s direct appeal, the Nevada Supreme Court held:

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[Petitioner] argues that the district court erred in adjudicating him a habitual
criminal pursuant to NRS 207.010 because the district judge rather than a
jury found facts in violation of Apprendi v. New Jersey. In Apprendi, the
United States Supreme Court announced that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Four years later in Blakely v. Washington, the
Court clarified Apprendi, stating that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant.” This
means that the “statutory maximum” is “not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose
without any additional findings.”
The issue before us is whether NRS 207.010 and our holdings respecting
its application violate Apprendi. NRS 207.010(1)(b) provides that a
defendant conviction of a felony who has previously been three times
convicted of a felony shall be punished with a term of life in prison with or
without the possibility of parole or a definite term of 25 years with the
possibility of parole. The statute further provides that “[t]he trial judge may,
at his discretion, dismiss a count under this section which is included in any
indictment or information.”

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The plain language of NRS 207.010(2) grants the district court discretion to
dismiss a count of habitual criminality, not the discretion to impose such an
adjudication based on factors other than prior convictions. Therefore, we
conclude that NRS 207.010 on its face does not violate Apprendi’s
mandate.

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(ECF No. 15-22 at 4-7 (internal footnotes omitted).) The Nevada Supreme Court then

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considered “whether [its] interpretation of the statute has been inconsistent with

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Apprendi and its progeny.” (Id. at 7.) After analyzing and reviewing Kaua v. Frank, 436

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F.3d 1057 (9th Cir. 2006) and its prior habitual criminal cases, the Nevada Supreme

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Court reasoned and concluded as follows:

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In light of Apprendi, we disapprove any interpretation of our prior case law
as suggesting that facts other than prior convictions must be found in order
to adjudicate a defendant a habitual criminal. We stress that the “just and
proper” determination relates solely to the district court’s statutorily granted
discretion to dismiss a count of criminal habituality pursuant to NRS
207.010(2). Thus, a district court may consider facts such as a defendant’s
criminal history, mitigation evidence, victim impact statements and the like
in determining whether to dismiss such a count. Accordingly, such facts do
not operate to increase the punishment beyond the already established
statutory maximum and therefore need not be found by a jury beyond a
reasonable doubt. And the plain language of the statute dictates that should
the district court elect not to dismiss the count, it must impose a sentence
within the range prescribed in NRS 207.010(1). We therefore conclude that
neither NRS 207.010 nor our case law interpreting it violates Apprendi.
Therefore, the district court properly imposed habitual criminal status upon
[Petitioner].

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(Id. at 13-14.) This ruling by the Nevada Supreme Court was not objectively

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unreasonable.

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Before sentencing Petitioner, the state district court commented on Petitioner’s
prior felony convictions:
I also have to consider the five or six - - I guess it’s six felony convictions
that the State has submitted a record of. These crimes were committed in
1992 and 1993. It appears that Mr. O’Neill was in prison from ’93 to 2004,
and it shows a parole in April of 2004, and this offense occurred in
September 2004, so there was less than a year out of custody by the time
this offense occurred, and the defendant was convicted of three felony
counts of possession of a forged instrument.
In reviewing the number of felonies, and I don’t believe they’re remote in
time - - I mean, they are somewhat more than ten years old, but then Mr.
O’Neill has been in custody, not able to commit crimes until - - he was
released in April of ’04, and then he was picked up and charged with these
three additional felonies roughly five months after he was released on
parole.
It does appear that these are, you know, quite serious, substantial felonies.
The nature of some of these, such as robbery with the use of a deadly
weapon, certainly are violent crimes. These aren’t just paper-pushing
matters. This one obviously is more of a paper event, not a violent crime.
I am going to find that the statutory number of prior felonies and their
usefulness due to age is appropriate under the statute, and I also find that
it is just and proper for the defendant to be punished as an habitual criminal
due to his record and the closeness in time of these offenses to the time
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that he was actually released from custody on parole, and he certainly
poses a danger to society of continued criminal conduct.
Now, with regard to how I treat this, you know, even though Mr. O’Neill is
an habitual criminal, these offenses are more of just a monetary theft
attempt rather than a violent crime, and, you know, he’s already done ten
years in prison. I’m reluctant to go as far as the State is requesting to go,
life without the possibility of parole.
I think perhaps over the next period of ten years, Mr. O’Neill might, you
know, find that living in prison his adult life isn’t really what he wants to do
and make a better effort than he did this last time to avoid engagement in
criminal activities.
So where I’m headed would be life with the possibility of parole after ten
years. I think that’s the more appropriate way to go given the nature of the
current offense and the fact that he certainly is a habitual criminal.
(ECF No. 15-1 at 21-23.)

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In Apprendi, the United States Supreme Court held, “[o]ther than the fact of a

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prior conviction, any fact that increases the penalty for a crime beyond the prescribed

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statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

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530 U.S. at 490. Petitioner alleges that the above-quoted language from the state district

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court at his sentencing hearing demonstrates that the state district court made several

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factual findings justifying his enhanced habitual sentence in violation of Apprendi. (ECF

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No. 78 at 56.) However, the state district court was merely sentencing Petitioner

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pursuant to NRS § 207.010, which the Ninth Circuit has already concluded does not

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violate Apprendi. See Tilcock v. Budge, 538 F.3d 1138, 1144 (9th Cir. 2008).

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Petitioner contends that Tilcock was undermined by the recent United States

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Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016). (ECF No. 78 at 56.)

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In Tilcock, the Ninth Circuit concluded that Nevada’s habitual criminal statute does not

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violate Apprendi because “under the terms of the statute, the fact of petitioner’s prior

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convictions alone exposed Petitioner to the statutory maximum of life imprisonment

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without the possibility of parole. The statute does not require or even authorize additional

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judicial factfinding to determine whether a defendant is a habitual criminal.” 538 F.3d at

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1144. In Hurst, the United States Supreme Court determined that the defendant’s
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“sentence violates the Sixth Amendment” because Florida’s sentencing statute did “not

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require the jury to make the critical findings necessary to impose the death penalty.

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Rather, Florida requires a judge to find these facts.” 136 S.Ct. at 622. Petitioner avers

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that, similar to Florida’s statute in Hurst, Nevada’s habitual criminal statute requires an

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exercise of discretion. (ECF No. 78 at 57.)

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NRS § 207.010(1) provides that “a person convicted in this state of . . . [a]ny

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felony, who has previously been three times convicted . . . of any crime . . . amount[ing]

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to a felony . . . is a habitual criminal and shall be punished for a category A felony.”

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Contrary to Petitioner’s contention, NRS § 207.010(1) does not require an exercise of

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discretion regarding a finding that a defendant is a habitual criminal. As the Ninth Circuit

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explained in Tilcock, “[t]he statute does not require or even authorize additional judicial

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factfinding to determine whether a defendant is a habitual criminal.” 538 F.3d at 1144.

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Indeed, NRS § 207.010(2) provides that “[t]he trial judge may, at his or her discretion,

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dismiss a count under this section.” However, as the Ninth Circuit explained in Tilcock,

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NRS § 207.010(2) makes “[t]he opportunity for leniency by the . . . judge . . . a judgment

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call, not a factual finding.” 538 F.3d at 1144. This is contrary to the Florida statute in

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Hurst that “required the judge to hold a separate hearing and determine whether

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sufficient aggravating circumstances existed to justify the death penalty.” 136 S.Ct. at

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619. Accordingly, Petitioner’s argument that Hurst undermined Tilcock is without merit.

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Because the Nevada Supreme Court’s holding that Petitioner’s sentence did not

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violate Apprendi was neither contrary to nor an unreasonable application of clearly

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established federal law, Petitioner is denied habeas relief on Ground 6 Part B.

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V.

CERTIFICATE OF APPEALABILITY

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

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

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

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

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

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“has made a substantial showing of the denial of a constitutional right.” With respect to

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claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would

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find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4

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(1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate:

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(1) whether the petition states a valid claim of the denial of a constitutional right; and (2)

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whether the court’s procedural ruling was correct. See id.

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Applying these standards, the Court finds that a certificate of appealability is

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warranted for Ground One Part A and Ground Two. Regarding Ground One Part A,

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reasonable jurists could debate whether prejudice ensued from Petitioner’s trial counsel’s

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lack of communication with Petitioner and lack of a reasonable investigation. Specifically,

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Petitioner’s trial counsel failed to investigate Petitioner’s business, Petitioner’s alleged

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employee, and Mesker. Petitioner’s defense centered around the fact that he conducted

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business with Mesker, and Mesker, who was the roommate of the owner of the checks,

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gave him the checks as collateral. Evidence that Petitioner had a landscaping business

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license, that Petitioner had an employee who assisted in the work performed for Mesker,

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if true, and that Mesker accepted responsibility for forging the checks, if true, could have

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resulted in a different result at Petitioner’s trial.

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Regarding Ground Two, although the basis for Petitioner’s detention was unknown

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at the time the Nevada Supreme Court affirmed the denial of Petitioner’s motion for a new

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trial, reasonable jurists could debate whether prejudice ensued from the State’s

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suppression of Officer Cooper’s internal investigation. Indeed, because Petitioner was

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detained at the request of Officer Cooper—regardless of the reason for the detention—

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and because Officer Cooper was being investigated for dishonesty, the state district court

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could have granted a request by Petitioner to suppress the evidence found during that

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detention.

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This court declines to issue a certificate of appealability for its resolution of any

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procedural issues or any of Petitioner’s habeas claims on the remaining grounds.

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VI.

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CONCLUSION
It is therefore ordered that the First Amended Petition for Writ of Habeas Corpus

by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (ECF No. 13) is denied.

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It is further ordered that Petitioner is granted a certificate of appealability for

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Ground One Part A and Ground Two. It is further ordered that a certificate of appealability

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is denied as to Petitioner’s remaining grounds.

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The Clerk of Court is directed to enter judgment accordingly and close this case.
DATED THIS 6th day of January 2019.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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