Stewart v. LeGrand et al

Filing 37

ORDER denying ECF No. 18 Second Amended Petition for Writ of Habeas Corpus. It is Further Ordered that a certificate of appealability is DENIED. The Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Robert C. Jones on 12/12/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DEMETRIOUS STEWART,

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Case No. 3:13-cv-00210-RCJ-VPC
Plaintiff,

ORDER

v.
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ROBERT LEGRAND, et al.,
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Defendants.
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This counseled second-amended petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 by state prisoner Demetrious Stewart is before the court for final

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disposition on the merits of the remaining grounds (ECF No. 18). Respondents have

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answered the petition (ECF No. 30), and Stewart replied (ECF No. 35).

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I.

Procedural History and Background

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On September 11, 2006, a jury convicted Stewart of 11 counts of sexual assault with

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a minor under fourteen years of age and 13 counts of lewdness with a child under

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fourteen years of age and acquitted him of three counts (exhibit 29 to first-amended

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petition).1
Petitioner was present at sentencing on December 4, 2006, and the State moved

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the district court to strike counts 2, 4, 6, 8, 11, 13, 15, 17, 19, and 21. Exh. 31. The

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court imposed the following sentence: counts 1, 3, 5, 7, 9, 10: life with the possibility of

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parole after twenty years, to run concurrently; counts 12, 14, 16: life with the possibility

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Exhibits 1-68 were filed with petitioner’s first-amended petition (ECF No. 6) and may be found at ECF
Nos. 7-10.
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of parole after twenty years, to run concurrently with each other but consecutive to
counts 1, 3, 5, 7, 9, 10; counts 18, and 20: life with the possibility of parole after twenty
years, to run concurrently with each other but consecutive to counts 12, 14, 16; and
counts 24-26 (the remaining lewdness counts): two to twenty years, to run concurrently
with each other but consecutive to all other counts. Id. at 17-19. Judgment of
conviction was filed on December 19, 2006. Exh. 32.
The Nevada Supreme Court affirmed Stewart’s convictions on March 31, 2009.
Exhs. 34, 41. The Nevada Supreme Court affirmed the denial of his counseled, state
postconviction petition on November 15, 2012, and remittitur issued on February 1,
2013. Exhs. 63, 68.
Petitioner dispatched his federal habeas petition on March 19, 2013 (ECF No. 2).
On March 3, 2014, petitioner filed a counseled, second amended petition (ECF No.18).
On February 11, 2015, this court granted respondents’ motion to dismiss, concluding
that ground 3 was unexhausted and that ground 7 was procedurally barred (ECF No.
28). Stewart filed a counseled declaration of formal abandonment of ground 3 (ECF No.
29).
II.

Legal Standards

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a. AEDPA
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty
Act (AEDPA), provides the legal standards for this court’s consideration of the petition in
this case:
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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The AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there
is no possibility fair-minded jurists could disagree that the state court’s decision conflicts
with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing
the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt”) (internal quotation marks and citations omitted).
A state court decision is contrary to clearly established Supreme Court precedent,
within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts
the governing law set forth in [the Supreme Court’s] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,
405-06 (2000), and citing Bell, 535 U.S. at 694.
A state court decision is an unreasonable application of clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538
U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause
requires the state court decision to be more than incorrect or erroneous; the state
court’s application of clearly established law must be objectively unreasonable. Id.
(quoting Williams, 529 U.S. at 409).

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To the extent that the state court’s factual findings are challenged, the
“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas
review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
requires that the federal courts “must be particularly deferential” to state court factual
determinations. Id. The governing standard is not satisfied by a showing merely that the
state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:

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.... [I]n concluding that a state-court finding is unsupported by
substantial evidence in the state-court record, it is not enough that we
would reverse in similar circumstances if this were an appeal from a
district court decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004); see also Lambert, 393
F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be
correct unless rebutted by clear and convincing evidence. The petitioner bears the
burden of proving by a preponderance of the evidence that he is entitled to habeas
relief. Cullen, 563 U.S. at 181.
b. Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are governed by the two-part test
announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the
Supreme Court held that a petitioner claiming ineffective assistance of counsel has the
burden of demonstrating that (1) the attorney made errors so serious that he or she was
not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the
deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness. Id. To
establish prejudice, the defendant must show 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
different. Id. A reasonable probability is “probability sufficient to undermine confidence in
the outcome.” Id. Additionally, any review of the attorney’s performance must be “highly
deferential” and must adopt counsel’s perspective at the time of the challenged conduct,
in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the
petitioner’s burden to overcome the presumption that counsel’s actions might be
considered sound trial strategy. Id.
Ineffective assistance of counsel under Strickland requires a showing of deficient
performance of counsel resulting in prejudice, “with performance being measured
against an objective standard of reasonableness, . . . under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations
omitted). When the ineffective assistance of counsel claim is based on a challenge to a
guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that
there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
If the state court has already rejected an ineffective assistance claim, a federal
habeas court may only grant relief if that decision was contrary to, or an unreasonable
application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id.
The United States Supreme Court has described federal review of a state
supreme court’s decision on a claim of ineffective assistance of counsel as “doubly
deferential.” Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 129 S.Ct. 1411,
1413 (2009)). The Supreme Court emphasized that: “We take a ‘highly deferential’ look
at counsel’s performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403
(internal citations omitted). Moreover, federal habeas review of an ineffective assistance

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of counsel claim is limited to the record before the state court that adjudicated the claim
on the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has
specifically reaffirmed the extensive deference owed to a state court's decision
regarding claims of ineffective assistance of counsel:

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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,” id. at
689, 104 S.Ct. 2052; 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, 556 U.S. at ––––, 129 S.Ct. at 1420. The
Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at ––––, 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 whether there is any
reasonable argument that counsel satisfied Strickland's deferential
standard.

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Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance
of counsel must apply a ‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland,
466 U.S. at 689). “The question is whether an attorney’s representation amounted to

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incompetence under prevailing professional norms, not whether it deviated from best
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practices or most common custom.” Id. (internal quotations and citations omitted).
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III.

The Instant Petition

Ground 1
Stewart alleges that the trial court violated his Sixth and Fourteenth Amendment
rights when it unduly limited the defense’s impeachment cross-examination of the
State’s principal witness against Stewart (ECF No. 18, pp. 10-12). Stewart sought to
cross-examine the victim about a comment that she posted on her MySpace webpage.
Id. at 11.
The Sixth Amendment Confrontation Clause guarantees the right of the accused in a
criminal prosecution to be confronted with the witnesses against him. See, e.g.,
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Nonetheless, trial courts retain

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wide latitude with respect to the Confrontation Clause to impose reasonable limits on
cross-examination based on concerns that include prejudice, confusion of the issues
and relevance. Van Arsdall, 475 U.S. at 679. “The Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware
v. Fensterer, 474 U.S. 15, 20 (1985). In Van Arsdall, the defense sought to impeach a
State witness by asking about the fact that the State dismissed a criminal charge
against him of being drunk on a highway after he agreed to speak with the prosecutor
about the murder at issue in the trial. Id. at 676. The Supreme Court concurred that the
trial court erred in prohibiting any cross-examination at all regarding the possibility that
the witness would be biased as the result of the State’s dismissal of his pending public
drunkenness charge. Id. The Court explained: “By cutting off all questioning about an
event that the State conceded had taken place and that a jury might reasonably have
found furnished the witness a motive for favoring the prosecution in his testimony, the
court’s ruling violated respondents’ rights secured by the Confrontation Clause.” Id.
The Nevada Supreme Court denied this claim on direct appeal and stated:

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[Stewart] argues that C.T. presented herself at trial as a young girl
uncomfortable with discussing sexual matters. But according to [Stewart],
C.T. had previously used sexually explicit language while communicating
on MySpace with her mother, Melanie. [Stewart] argues that the district
court’s denial of the MySpace evidence was error because the evidence
was proper impeachment material, which the jury could have used in
evaluating C.T.’s credibility. We disagree because the evidence does not
suggest any knowledge of sexual conduct before the molesting started.
“‘Trial courts have considerable discretion in determining the relevance
and admissibility of evidence. An appellate court should not disturb the
trial court’s ruling absent a clear abuse of that discretion.’” Crowley v.
State, 120 Nev. 30, 34, 83 P.3d 282, 286 (2004) (quoting Atkins v. State,
112 Nev. 1122, 1127, 923 P.2d 1119, 1123 (1996), overruled on other
grounds by McConnell v. State, 120 Nev. 1043, 1069, 102 P.3d 606, 624
(2004)). When determining whether evidence is relevant, the district court
must consider NRS 48.015, which defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of
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consequence to the determination of the action more or less probable that
it would be without the evidence.”

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[Stewart] sought to introduce a statement made by C.T. on her
MySpace webpage to Melanie. The statement said something regarding
“bust[ing] her [Melanie’s] comment cherry.” The district court prohibited
the evidence because it did not suggest “any prior knowledge of a sexual
conduct, sexual discussions [sic]” and it was potentially impermissible
character evidence. In addition, a party can only introduce specificinstance evidence on cross-examination, “subject to the general limitations
upon relevant evidence.” NRS 50.085(3) (emphasis added). Thus, a
district court can properly prohibit evidence that is unrelated to the
witness’ trial demeanor. See Sterling v. State, 108 Nev. 391, 395, 834
P.2d 400, 402-03 (1992) (holding that the district court did not abuse its
discretion when it found evidence of a victim’s daily routine, which was
offered to show that victim was fabricating the allegations, was irrelevant).

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We conclude that the district court did not abuse its discretion when it
prohibited the statement. C.T. made the statement after the alleged acts
occurred, and the sexual overtone in the statement does not rise to the
same level of sexual content elicited in C.T.’s trial testimony. Further, C.T.
made the statement to Melanie, a person she trusted, in a different context
than discussing her own molestation in a public courtroom.

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Exh. 41, at 3-4.

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Stewart argues that, as in Van Arsdall, the trial court improperly prohibited him from

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questioning C.T. at all about her MySpace post and that the jury might reasonably have
found that the post furnished C.T. with a motive for favoring the prosecution in her
testimony (ECF No. 35). However, Van Arsdall is readily distinguishable. Clearly, as
was the situation in Van Arsdall, a jury might reasonably find that a State’s agreement
with its witness to dismiss other criminal charges might give the witness a motive to
favor the prosecution in his testimony. However, in this case, Stewart sought to
introduce one MySpace posting by C.T. that invoked one phrase of sexual slang in
order to cast doubt on C.T.’s sexual innocence and thus her credibility. The court notes
that it was a single comment, C.T. posted the comment after the alleged acts had
occurred, and—as the Nevada Supreme Court pointed out—the context is completely
different than her testimony about her own molestation.2
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The court also notes that testimony was elicited from C.T. that reflected that she used some slang terms
for sexual acts when she first went to the police, thus the defense was not entirely prevented from its

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Stewart has failed to show that the Nevada Supreme Court’s decision on federal
ground 1 is contrary to, or involves an unreasonable application of, clearly established
federal law, as determined by the U.S. Supreme Court, or was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. 28 U.S.C. § 2254(d). Accordingly, ground 1 is denied.
Ground 2
Stewart contends that the trial court committed plain error and violated his Sixth and
Fourteenth Amendment rights when it allowed the State to engage in prosecutorial
misconduct by appealing to the jury’s sympathy during closing arguments (ECF No. 18,
pp. 13-14).
In reviewing prosecutorial misconduct claims, the narrow issue the federal habeas
court may consider is whether there was a violation of due process, not whether there
was misconduct under the court’s broad exercise of supervisorial power. Darden v.
Wainwright, 477 U.S. 168, 181 (1986). It is “not enough that the prosecutors’ remarks
were undesirable or even universally condemned[,] [t]he relevant question is whether
the prosecutor’s comments so ‘infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.
2005) (quoting Darden, 477 U.S. at 181). The ultimate question before the court is not
whether misconduct denied a fair trial, but whether the state court’s resolution of the
claim was an unreasonable application of clearly established federal law under 28
U.S.C. § 2254(d)(1). Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999).
The prosecutor's closing argument included the following:

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The defendant entered [C.T’s] life when she was about 1 year old.
Think of all the milestones that he participated in with her. It probably
wasn't walking or just started walking when he came into her life. He was
part of that. Her becoming toilet trained, playing with her, going to bed at
night, the bedtime routine, the first day of school that C.T. would have had,

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attempts to discredit C.T.’s sexual innocence and discomfort when testifying. See, e.g., Exh. 22, pp. 56,
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all of the - the birthdays, the many birthdays she had during those years,
he was a part of that. The only real dad she ever had. Clearly, clearly
coming in here and testifying was not easy for her. That trust was
violated, not just the physical acts that were done to C.T. that are part of
the reasons that these are crimes, but it's the violation of the trust that
happened, and the fact that she is a 15-year-old because of what
happened to her back when she was 12 and 13, because of those things,
she's had to harden herself. Make no mistake, her mother is not without
blame for not believing in her when she reached out and tried to reveal
these things. As we now know, if mom perhaps had believed her and
done some things, the abuse would have stopped far earlier. It would not
have continued up until March of '05.

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But keep all of that in mind as you assess the testimony of C.T. We
have some jury instructions that you heard from the Judge. One of them
addresses the credibility and believability of a witness and talks about the
witness' demeanor on the stand, the consistency or inconsistencies in
testimony, and those types of things, this jury instruction 16 touches upon
that. Keep all of that in mind as you assess C.T.’s testimony.
Exh. 26, p. 43.
The Nevada Supreme Court denied the claim, stating:

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The prosecutor, in her closing argument, repeatedly referred to the
trust that [Stewart], as a father, violated. The prosecutor referenced
various childhood milestones, such as walking, toilet training, bedtime
routines, and school, to illustrate the severity of [Stewart’s] violation of
trust. According to [Stewart], the prosecutor’s comments that [Stewart]
violated his parental trust amounted to prosecutorial misconduct that
deprived him of his Sixth and Fourteenth Amendment rights to an impartial
jury. In addition, [Stewart] argues that the comments had nothing to do
with the statutory elements of the crime because the references to the
early childhood milestones preceded the alleged criminal conduct.
[Stewart] did not object to the closing statements at trial. We conclude
that [Stewart’s] arguments lack merit because the statements went to an
element of the crime of sexual assault with a minor under 14 years of age.
Generally, failure to object at trial bars appellate review of a trial issue.
McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). If,
however, the issue is a constitutional question, then his court has the
discretion to review the issue for plain error. Somee v. State, 124 Nev.
___, ___, 187 P.3d 152, 159 (2008). Plain error review requires this court
to consider whether an error clearly exists and, if so, whether it prejudiced
the defendant’s substantial rights. Anderson v. State, 121 Nev. 511, 516,
118 P.3d 184, 187 (2005).

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If during closing argument, a prosecutor asserts his own personal
opinion, urges the jury to convict a defendant on a basis other than the
evidence, or appeals to the jurors’ sympathies then the prosecutor has
committed misconduct. See Pantano v. State, 122 Nev. 782, 793, 138
P.3d 477, 484 (2006). Prosecutorial misconduct is prejudicial when it “so
infect[s] the proceedings with unfairness as to result in a denial of due
process.” Anderson, 121 Nev. at 516, 118 P.3d at 187. But a
prosecutor’s comments, standing alone, should not generally overturn a
criminal conviction. Id.
In the present case, the State charged [Stewart] with sexual assault
with a minor under 14 years of age. NRS 200.366 provides in pertinent
part: “A person who subjects another person to sexual penetration, . . .
[and] the perpetrator knows or should know that the victim is mentally or
physical incapable of resisting or understanding the nature of his conduct,
is guilty of sexual assault.” (Emphasis added). Based on the elements of
the crime, the State argues that it was necessary to show how C.T.’s trust
in her father made her mentally incapable of resisting his conduct. We
agree and conclude that the State’s argument was proper.
Exh. 41, pp. 5-7.
Stewart has not shown that this decision is contrary to or an unreasonable
application of federal law. The prosecutor’s comments about violating parent-child trust
were properly directed to the issue of whether C.T. was mentally capable of resisting. It
may be that a comment that C.T. has had to harden herself subsequent to the sexual
assaults is fairly characterized as only an appeal to the jury’s sympathy. However, the
jury heard C.T. testify extensively and heard a conversation between C.T. and Stewart
that C.T. had secretly recorded (see, e.g., discussion of ground 5A, below). Stewart
has not demonstrated that the prosecutor’s comment during closing so infected the trial
with unfairness as to make his conviction a denial of due process. As Stewart has failed
to show that the Nevada Supreme Court’s decision on federal ground 2 is contrary to, or
involves an unreasonable application of, clearly established federal law, as determined
by the U.S. Supreme Court, or was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding, ground 2 is
denied. 28 U.S.C. § 2254(d).

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Ground 4
Stewart argues that the trial court violated his Fifth, Sixth, Eighth and Fourteenth
Amendment rights because it vindictively sentenced him and punished him for
exercising his right to trial (ECF No. 18, pp. 15-17).
Penalizing defendants for the exercise of their constitutional rights is patently
unconstitutional. See e.g., U.S. v. Goodwin, 457 U.S. 368, 372 (1982); U.S. v. Jackson,
390 U.S. 570, 581 (1968).
At sentencing, the trial judge made the following comments, among others:

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You, Mr. Stewart, you're very fortunate to have someone like Ms.
Roundtree advocating on your behalf because during the course of the
trial, she had a very difficult task. She had to cross-exam at least your two
victims in this case and she did it with the respect and professionalism,
but, you know what we put C.T. through as a kid by going to this trial, is
something that I have to apologize to C.T. for because the justice system
shouldn't put a kid through that. She had to sit up here in front of a room
full of strangers and not only talk about subjects that are horrible frankly
for us to talk about, let alone for us adults - we adults, to talk about in
public, but we even - we understand the physical or intimate or sexual
relationships. You know, C.T. didn't and she was victimized again over
and over again and she - I think mom is correct. She is a shining example
and a light to all who will have the benefit of being a part of her life.
Mr. Stewart, you're not going to have that benefit. I don't think you
deserve it in any way. The suggestion that somehow you had input into
the young woman that she is today, maybe somebody who knows way
more than me can find some legitimacy in that, but I believe that we teach
by example and your example, regardless of any other things that you
tried to do as a father, was hideous and thank goodness, despite their
surroundings, despite their abuse, there are some people who are strong
and they are survivors, but interesting, C.T. talked about the exact same
thing that another mother of a victim talked about today, and I think the
greatest lost (sic) is not one's virginity or sexual innocence - I mean that is
horrible loss - but I think the greater lost (sic) is that lost (sic) of trust and
the sense that there are people that you can give yourself to in this life to
whom you will be safe, and your job as a dad, your job as a man, your job
as an adult was to keep that child safe and instead you went right squarely
down the wrong path and you not only victimized her - is it different
because you victimized someone who loved you; someone who looked at
you as a father; some who should have been teaching C.T. how to protect
herself out in the world from young men who might try to take advantage
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of her innocence or her sexuality, or her beauty, because she's a beautiful
child. You didn't do that and I sat through this trial day after day listening
to what we had to put her and her mom through, and it deserves serious
sanction and that's what I'm going to do here today.
Exh. 31, pp. 14-15.
The Nevada Supreme Court denied the claim, explaining:
[Stewart] argues that the district court engaged in vindictive
sentencing because he exercised his right to a jury trial. According to
[Stewart], the district court judge was angry about the repeated victimizing
of C.T. Further, [Stewart] argues that the district court considered Melanie
a victim because of [Stewart’s] alleged sexual assault against her. We
disagree because the district court’s sentences were within the statutory
guidelines and supported by evidence.
“It is well established that a sentencing court may not punish a
defendant for exercising his constitutional rights . . . .” Mitchell v. State,
114 Nev. 1417, 1428, 971 P.2d 813, 820 (1998) overruled on other
grounds by Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002)
and Rosky v. State, 121 Nev. 184, 191 & n.10, 111 P.3d 690, 694 & n.10
(2005). But the defendant must prove “that the district court sentenced
him vindictively.” Id. In addition, this court has consistently afforded the
district court wide discretion in its sentencing decision. See, e.g., Houk v.
State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987). This court will
refrain from interfering with the sentence imposed “[s]o long as the record
does not demonstrate prejudice resulting from consideration of information
or accusations founded on facts supported only by impalpable or highly
suspect evidence.” Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161
(1976). Moreover, regardless of its severity, a sentence that is within the
statutory limits is not “‘cruel and unusual punishment unless the statute
fixing punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience.’” Blume v.
State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996).
Here, the jury convicted [Stewart] of 11 counts of sexual assault
with a minor under 14 years of age and 3 counts of lewdness with a minor
under 14 years of age. All of the district court’s sentences—lifetime
sentences for each sexual assault conviction and twenty year sentences
for each lewdness conviction—were within the statutory sentencing
guidelines. In addition, the district court relied upon C.T.’s and Melanie’s
statements, both of which discussed the impact the molestation had on
their lives. Finally, it appears that the district court’s reference to Melanie
as a victim was in the context of her child’s molestation, as opposed to the
alleged sexual assault on Melanie. Thus, we conclude that the district
court’s sentences were not vindictive, and therefore the district court did
not violate [Stewart’s] constitutional rights.
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Exh. 41, pp. 8-9.
Respondents point out that NRS 200.366(3) required the sentence that the
district court imposed for sexual assault of a minor under age fourteen at the time the
crimes were committed (ECF No. 30, p. 17). They also note that the trial court imposed
the lesser of two possible sentences, pursuant to state law, for the convictions for
lewdness with a minor under age fourteen, and that the court also explained the basis
for its decision to impose consecutive sentences. Id. at 18. Stewart argues that the
state district court should have run all sentences concurrently or at least run all sexual
assault counts concurrently (ECF No. 35, pp. 18-19).
Stewart has failed to demonstrate that the state supreme court decision was an
unreasonable application of clearly established federal law or was based on an
unreasonable determination of the facts in light of the evidence presented at trial. The
sentences imposed were all within the statutory sentencing guidelines. The trial judge
explained at some length the reasoning involved in her decision to impose consecutive
sentences on certain counts. Exh. 31, p. 15. Taken as a whole, the sentencing
transcript reflects that the court was lamenting a justice system in which the child had to
present such explicit testimony and apologized to the victim “on behalf of the system.”
Id. at 16-17.
Because Stewart has not met his burden to show that the Nevada Supreme
Court’s decision on federal ground 4 is contrary to, or involves an unreasonable
application of, clearly established federal law, as determined by the U.S. Supreme
Court, or was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding, federal ground 4 is denied. 28 U.S.C.
§ 2254(d).

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Ground 5A
Stewart contends that his trial counsel rendered ineffective assistance in violation of
his Sixth Amendment rights when counsel failed to request a jury instruction on mutual
consent (ECF No. 18, pp. 18-19).
To obtain relief based on an error in instructing the jury, a habeas petitioner must
show the “‘instruction by itself so infected the entire trial that the resulting conviction
violates due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). Where the defect is the failure to give an
instruction, the inquiry is the same, but the burden is even heavier because an omitted
or incomplete instruction is less likely to be prejudicial than an instruction that misstates
the law. See Henderson v. Kibbe, 431 U.S. 145, 155-157 (1977); see also Estelle, 502
U.S. at 72.
The Nevada Supreme Court affirmed the denial of the claim, finding:

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[A]ppellant argues that his trial counsel was ineffective for failing to
propose a jury instruction defining consent and failing to argue that the
jury instructions failed to properly define consent. Appellant argues that,
had the jury been properly instructed, they would have concluded that the
victim actually consented to the sexual contact because the victim
bargained with appellant regarding types and occurrence of sexual acts.
Appellant fails to demonstrate that his trial counsel’s performance was
deficient or that he was prejudiced.
“Submission is not the equivalent of consent.” McNair v. State, 108
Nev. 53, 57, 825 P.2d 571, 574 (1992) (citing Tryon v. State, 567 P.2d
290, 293 (Wyo. 1977)). Moreover, “[a] rape victim is not required to do
more than her age, strength, and the surrounding facts and attending
circumstances would reasonably dictate as a manifestation of her
opposition.” Id. (citing Dinkens v. State, 92 Nev. 74, 78, 546 P.2d 228,
230 (1976)); see also Shannon v. State, 105 Nev. 782, 790, 783 P.2d 942,
947 (1989) (discussing that factors such as the victim’s age, maturity level,
the influence of the defendant over the victim, and the victim’s act of
feigning sleep evidenced that the sexual acts occurred against the victim’s
will).
While the victim in this case stated that appellant reached an
agreement with her to not perform certain sexual acts and to limit the
sexual encounters to three times per week, the victim also testified that
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there was nothing she could do to stop appellant from performing at least
some sexual acts on her, that on at least one occasion appellant initiated
a sexual act while she was still asleep, and that appellant picked her
bedroom door lock after she locked the door in an effort to stop him from
performing sexual acts on her. Testimony also demonstrated that
appellant was the victim’s step-father, appellant had acted as the victim’s
parent since the victim was a one-year-old, and the victim was between
the ages of 12 to 14 years during the occurrence of the numerous sexual
acts.
There was substantial evidence that the sexual acts occurred against
the victim’s will or under conditions in which appellant knew or should
have known that the victim was mentally or physical incapable of resisting.
See Shannon, 105 Nev. at 790, 783 P.2d at 947 (citing NRS 200.366).
Appellant fails to demonstrate that reasonably competent counsel would
have argued for further instructions regarding consent under the
circumstances of this case. Moreover, as there was substantial evidence
that the victim did not consent, appellant fails to demonstrate a reasonable
probability that the outcome of the trial would have been different had
counsel sought additional instructions regarding consent. Therefore the
district court did not err in denying this claim. FN1
FN1 Appellant further argues in his reply brief that the victim consented
as evidenced by the fact that appellant did not use physical force or the
threat of physical force in conjunction with the sexual acts, and therefore,
appellant did not commit sexual assault. Appellant’s argument is without
merit as physical force or the threat of physical force is not necessary for a
crime of sexual assault. See Shannon, 105 Nev. at 790, 783 P.2d at 947.
Exh. 63, at 3-4.

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The jury was instructed that it should find Stewart not guilty of sexual assault if it
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found that he “had a reasonable but mistaken belief that the alleged victims consented
to the sexual penetration.” Exh. 27, p. 14. In fact, there were several instructions given

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to the jury that involved the definition of consent, including the instructions defining
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sexual assault, reasonable but mistaken belief of consent, and statutory sexual
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seduction. See, e.g., id. at 13-18, jury instruction nos. 5, 5a, 6, 7, 7b.
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C.T. testified as follows: that Stewart sexually assaulted her while she was asleep,
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and she woke up “mad and screaming;” that she believed that if she told anyone they
would think she was insane and send her to a “crazy house;” that she tried locking her

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bedroom door but Stewart picked the lock; that she could not stop the abuse so she
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negotiated a limit of about three times per week; and that she put music on to distract
herself from the abuse. Exh. 22, pp. 24-40. C.T. also testified that her mother did not
believe her until C.T. secretly tape recorded a conversation between C.T. and Stewart
about the abuse. Id. at 38-40.
Stewart alleges that the jury should have been instructed to “look to C.T.’s actions
and control as a means to demonstrate consent as oppose[d] to C.T.’s personal
thoughts” (ECF No. 35, p. 22). Stewart has failed to show that counsel was deficient or
that there was a reasonable probability of a different outcome if counsel had requested
another jury instruction. The court also notes that a review of the jury instructions
indicates that they encompass the notion of considering actions and control when
evaluating consent. See Exh. 26. Stewart has failed to meet his burden to demonstrate
that the Nevada Supreme Court’s decision is contrary to, or involves an unreasonable
application of, Strickland v. Washington, or was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 5A.
Ground 5B
Stewart asserts that trial counsel was ineffective for failing to object to jury
instructions regarding a defendant’s reasonable but mistaken belief of consent and that
he suffered prejudice because the burden of proof was shifted to him and he was forced
to testify (ECF No. 18, p. 19). Stewart argues that the “reasonable but mistaken belief”
instruction, “with no further guidance to the jury, could reasonably lead a jury into
believing that Stewart had to take the stand to provide evidence of his state of mind”
(ECF No. 35, p. 25).
The Nevada Supreme Court affirmed the denial of this claim on the basis that
Stewart failed to demonstrate that his trial counsel’s performance was deficient or that
he suffered prejudice, noting that “[t]he instruction properly informed the jury that they

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should find appellant not guilty if they concluded he had a reasonable but mistaken
belief that the victim consented to the sexual acts.” Exh. 63, pp. 4-5.
The state supreme court continued:

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In addition, considering testimony that the appellant initiated at least
one sexual act while the victim was sleeping, that the victim’s attempt to
stop the sexual acts by locking her bedroom door was thwarted by
appellant’s use of a hanger to pick the lock, the age of the victim during
the incidents, and appellant’s own recorded statements concerning the
sexual encounters with the victim, appellant fails to demonstrate a
reasonable probability of a different outcome at trial had trial counsel
objected to the challenged instruction. Therefore the district court did not
err in denying this claim.
Id. at 5.

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Stewart has not demonstrated that an objection had any likelihood of success. He

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has failed to demonstrate that the Nevada Supreme Court’s decision is contrary to, or

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involves an unreasonable application of, Strickland v. Washington, or was based on an

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unreasonable determination of the facts in light of the evidence presented in the state

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court proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 5B.

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Ground 6

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Finally, Stewart claims his appellate counsel was ineffective for failing to argue that

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the jury instructions did not properly define consent and improperly shifted the burden of

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proof to Stewart (ECF No. 18, p. 20).

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The United States Supreme Court has held that appellate counsel need not raise

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every nonfrivolous claim, but should select from among them in order to maximize the

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likelihood of success on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). In Smith

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v. Robbins, the Court further explained that it is possible to bring a Strickland claim

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based on appellate counsel’s failure to raise a certain claim, but that it is difficult to

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demonstrate that counsel was incompetent. 528 U.S. 259, 288 (2000). A petitioner

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bears the burden of showing that a particular nonfrivolous issue was clearly stronger

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than the issues that counsel presented. Id.

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In affirming the denial of this claim, the Nevada Supreme Court determined that, as
with the claim that trial counsel was ineffective for failing to object to the jury instruction
regarding consent, Stewart failed to demonstrate appellate counsel was deficient or that
this issue had a reasonable probability of success on appeal. Exh. 63, p. 6.
Stewart has not shown that appellate counsel was deficient for failing to raise the
claim that trial counsel was ineffective for failing to challenge a jury instruction that was
a correct statement of the law. He has not demonstrated that the Nevada Supreme
Court’s decision is contrary to, or involves an unreasonable application of, Strickland v.
Washington, or was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Federal habeas
relief is denied as to ground 6.
Accordingly, the petition is denied in its entirety.
IV.

Certificate of Appealability

This is a final order adverse to the petitioner. As such, Rule 11 of the Rules
Governing Section 2254 Cases requires this court to issue or deny a certificate of
appealability (COA). Accordingly, the court has sua sponte evaluated the claims within
the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v.
Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has
made a substantial showing of the denial of a constitutional right." With respect to
claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right and (2) whether the court's procedural ruling was correct. Id.

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Having reviewed its determinations and rulings in adjudicating Stewarts petition, the
court finds that none of those rulings meets the Slack standard. The court therefore
declines to issue a certificate of appealability for its resolution of any of Stewart’s claims.
V.

Conclusion

IT IS THEREFORE ORDERED that the second-amended petition (ECF No. 18) is
DENIED in its entirety.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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Dated: This 12th day of December, 2016.
DATED: 8 November 2016.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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