Winn v. Baker et al

Filing 48

ORDER that the first-amended petition ECF No. 19 is DENIED; a certificate of appealability is DENIED; Clerk directed to enter judgment and close case. Signed by Judge Larry R. Hicks on 3/21/2019. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

MANUEL WINN,

10

Petitioner, ORDER
v.

11

RENEE BAKER, et al.,

12

Respondents.

13
14
15

Case No. 3:13-cv-00669-LRH-WGC

This 28 U.S.C. § 2254 habeas petition filed by Manuel Winn comes before the
court for final disposition on the merits (ECF No. 19).

16

I.

Procedural History and Background

17

On July 21, 2010, a jury convicted Winn of battery with the use of a deadly weapon

18

and attempted robbery with use of a deadly weapon (exhibit 36). 1 The jury found Winn

19

not guilty of burglary while in possession of a deadly weapon. Id. The state district

20

court adjudicated Winn a habitual criminal and sentenced him to two consecutive terms

21

of life without the possibility of parole. Exh. 42. 2 Judgment of conviction was entered

22

on November 18, 2010. Exh. 43. An amended judgment of conviction was entered on

23

February 16, 2011 to reflect the jury verdict. 3 Exh. 51. The Nevada Supreme Court

24
25
26
27
28

1

Exhibits 1-91 referenced in this order are exhibits to petitioner’s first-amended petition, ECF No. 19, and
are found at ECF Nos. 20-24. Exhibits 92-96 are exhibits to respondents’ motion to dismiss, ECF No. 26,
and are found at ECF No. 27.
2 At sentencing, the judge explained his habitual criminal determination: “I have to look at Mr. Winn’s history.
In the last 24 years, he’s got five felony convictions; he’s been to prison five times; he’s been – had probation
revoked once; he’s had parole revoked, looks like four times; he’s been in jail 18 times. That tells me that
he is a historical criminal. Exh. 42, p. 10.
3 The verdict form given to the jury had the charges in incorrect order, with counts 2 and 3 flipped.

1

1

affirmed Winn’s convictions on November 18, 2011, and remittitur issued on December

2

16, 2011. Exhs. 59, 60.

3

Winn filed a pro per state postconviction petition for habeas corpus on August 15,

4

2012. Exh. 74. After an October 10, 2012 hearing, the state district court denied the

5

petition on October 31, 2012. Exh. 83. On September 18, 2013, the Nevada Supreme

6

Court affirmed the denial of the petition, determining that the ineffective assistance of

7

counsel claims were properly denied on the merits and that the remaining substantive

8

claims were procedurally barred pursuant to NRS 34.810(1). Exh. 89. Remittitur issued

9

on October 15, 2013. Exh. 91.

10

On November 26, 2013, Winn dispatched his federal habeas petition for filing (ECF

11

No. 6). This court appointed the Federal Public Defender as counsel for Winn, and

12

Winn filed a counseled first-amended petition on September 30, 2015 (ECF No. 19).

13

Respondents have now answered the two remaining grounds before the court (ECF No.

14

46). Winn replied (ECF No. 47).

15

II.

Legal Standards
a. AEDPA Standard of Review

16
17

28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty

18

Act (AEDPA), provides the legal standards for this court’s consideration of the petition in

19

this case:

20
21
22
23
24
25
26

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.

27

The AEDPA “modified a federal habeas court’s role in reviewing state prisoner

28

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
2

1

convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

2

685, 693-694 (2002). This court’s ability to grant a writ is limited to cases where “there is

3

no possibility fair-minded jurists could disagree that the state court’s decision conflicts

4

with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The

5

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

6

state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538

7

U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing

8

the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating

9

state-court rulings, which demands that state-court decisions be given the benefit of the

10

doubt”) (internal quotation marks and citations omitted).

11

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

12

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

13

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

14

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

15

Supreme Court] and nevertheless arrives at a result different from [the Supreme

16

Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362,

17

405-06 (2000), and citing Bell, 535 U.S. at 694.

18

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

19

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

20

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

21

unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538

22

U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause

23

requires the state court decision to be more than incorrect or erroneous; the state

24

court’s application of clearly established law must be objectively unreasonable. Id.

25

(quoting Williams, 529 U.S. at 409).

26

To the extent that the state court’s factual findings are challenged, the

27

“unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas

28

review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir.2004). This clause
3

1

requires that the federal courts “must be particularly deferential” to state court factual

2

determinations. Id. The governing standard is not satisfied by a showing merely that the

3

state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires

4

substantially more deference:

5
6
7
8
9
10
11

.... [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

12

correct unless rebutted by clear and convincing evidence. The petitioner bears the

13

burden of proving by a preponderance of the evidence that he is entitled to habeas

14

relief. Cullen, 563 U.S. at 181.

15
16

b. Ineffective Assistance of Counsel
Three ineffective assistance of counsel (IAC) claims remain before the court.

17

IAC claims are governed by the two-part test announced in Strickland v. Washington,

18

466 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming

19

ineffective assistance of counsel has the burden of demonstrating that (1) the attorney

20

made errors so serious that he or she was not functioning as the “counsel” guaranteed

21

by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense.

22

Williams, 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To establish

23

ineffectiveness, the defendant must show that counsel’s representation fell below an

24

objective standard of reasonableness. Id. To establish prejudice, the defendant must

25

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

26

the result of the proceeding would have been different. Id. A reasonable probability is

27

“probability sufficient to undermine confidence in the outcome.” Id. Additionally, any

28

review of the attorney’s performance must be “highly deferential” and must adopt
4

1

counsel’s perspective at the time of the challenged conduct, in order to avoid the

2

distorting effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to

3

overcome the presumption that counsel’s actions might be considered sound trial

4

strategy. Id.

5

Ineffective assistance of counsel under Strickland requires a showing of deficient

6

performance of counsel resulting in prejudice, “with performance being measured

7

against an objective standard of reasonableness, . . . under prevailing professional

8

norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations

9

omitted). When the ineffective assistance of counsel claim is based on a challenge to a

10

guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that

11

there is a reasonable probability that, but for counsel’s errors, he would not have

12

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

13

59 (1985).

14

If the state court has already rejected an ineffective assistance claim, a federal

15

habeas court may only grant relief if that decision was contrary to, or an unreasonable

16

application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

17

There is a strong presumption that counsel’s conduct falls within the wide range of

18

reasonable professional assistance. Id.

19

The United States Supreme Court has described federal review of a state supreme

20

court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.”

21

Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

22

The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s

23

performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal

24

citations omitted). Moreover, federal habeas review of an ineffective assistance of

25

counsel claim is limited to the record before the state court that adjudicated the claim on

26

the merits. Cullen, 563 U.S. at 181-84. The United States Supreme Court has

27

specifically reaffirmed the extensive deference owed to a state court's decision

28

regarding claims of ineffective assistance of counsel:
5

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 123. The Strickland standard is a
general one, so the range of reasonable applications is substantial. 556
U.S. at 124. 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.

1
2
3
4
5
6
7

Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of

8

counsel must apply a ‘strong presumption’ that counsel’s representation was within the

9

‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466

10

U.S. at 689). “The question is whether an attorney’s representation amounted to

11

incompetence under prevailing professional norms, not whether it deviated from best

12

practices or most common custom.” Id. (internal quotations and citations omitted).

13

III.

14

Ground 3(A)

15

Winn asserts that his Sixth Amendment rights were violated because trial counsel

16

was ineffective regarding the State’s key witness and victim, Christopher Jackson (ECF

17

No. 19, pp. 24-26). After jury selection, counsel moved the court to preclude the State

18

from calling the victim, Christopher Jackson, because up until that day the State had

19

said that Jackson would not be called as a witness because they had been unable to

20

locate him. Defense counsel urged the court that he had not had an opportunity to

21

prepare a defense strategy if Jackson was testifying. The court denied the request. Id.

22

Instant Petition

The state-court record reflects the following. The State noticed Jackson as a

23

witness. At calendar call on the eve of trial, defense counsel informed the court that he

24

was going to ask that the State be precluded from calling Jackson because the State

25

had failed to provide any contact information for him. Exh. 27. Defense counsel then

26

observed that apparently the State was not going to call Jackson anyway, “[s]o that’s

27

not going to be an issue.” Id. at 5. The prosecutor responded: “We haven’t been able

28

to find him. If I had contact information, obviously, I would provide it, but we’re in the
6

1

same situation. The State is ready. We have five to eight witnesses.” Id. See also exh.

2

32, pp. 162-163.

3

On July 20, 2010, the first day of trial, the court conducted a Petrocelli hearing and

4

then a jury was selected. Exh. 32, pp. 4-161. Defense counsel learned around noon

5

that the State’s investigator had located Jackson that morning. Id. at 163. Defense

6

counsel then urged the court not to allow Jackson to testify. Counsel argued that he

7

could not interview Jackson and re-vamp his entire defense—which he said had been

8

based on Jackson not testifying—and represent Winn effectively if he had to proceed

9

that day. The state district court allowed Jackson to testify, stating: “Well, it’s sort of

10

defense roulette not to be prepared for [the victim]. You always have to be prepared for

11

any witness that they potentially may call. This was an indictment, you knew who the...

12

victim was. You’ve worked on the case. We’re going to go forward. I’m going to allow

13

his testimony to go forward.” Id. at 165-166.

14

Jackson testified. Id. at 211-240. He stated that he and Winn were in the parking lot

15

of a convenience store on the day in question. He owed Winn $5; he gave Winn $2 and

16

told Winn he had to take his girlfriend’s children who were with him home and then he

17

would get change and pay Winn the rest. Winn got upset, “got up in [Jackson’s] face,

18

and Jackson put his hands up to protect himself. He felt a sharp pain in his wrist,

19

looked down, and saw a hole in his wrist.” Then he noticed that Winn had a knife. Winn

20

came toward Jackson again. Jackson backed in to the store, and Winn followed.

21

Jackson did not have a weapon. Police arrived and apprehended Winn. Jackson

22

identified Winn—who was his neighbor at that time—to police as his attacker. On direct

23

examination Jackson stated that he only learned that morning that he was supposed to

24

testify. He stated that he had no choice but to testify because a detective told him he

25

could do 3 years in prison if he refused.

26

On cross examination, Jackson testified that he went to the hospital for treatment

27

after the incident. Medical personnel put a butterfly bandage on his wrist and said he

28

did not need stitches. Defense counsel elicited testimony that Jackson bought
7

1

marijuana the day of the incident but did not smoke it. Jackson stated that the next time

2

he went to the convenience store was about 24 hours later, though the store clerk had

3

testified that Jackson returned later that same day. He acknowledged that his memory

4

of the incident might be a little hazy because it was 3 or 4 months ago. On cross

5

Jackson also said that it scared him when a detective told him he would spend 3 years

6

in prison if he did not testify.

7

The store clerk testified. Id. at 240-273. He was looking out of the window from the

8

store counter and he saw Winn and Jackson in the parking lot. They were having an

9

altercation, and Winn appeared to be the aggressor. The clerk went outside, and

10

Jackson and Winn were yelling at each other at the top of their lungs. Jackson was

11

backing up and appeared to be trying to defend himself and get away. The clerk saw

12

what he described as a stabbing motion by Winn, then Jackson pulled his arm back and

13

was holding it. He then saw what he said was the blade part of a steak knife that Winn

14

was holding. The store clerk did not see a blade penetrate the skin. The police came

15

into the store and subdued Winn, and they found no weapon. The store clerk walked

16

down the aisle where Winn had gone toward the drink cooler and saw a knife under a

17

bottle of soda; he went and informed police. The store clerk did not touch or move the

18

knife.

19

Police officer Scott Mendoza testified that he and his partner were driving by the

20

convenience store in question when he saw what looked like a fight going on in front of

21

the store. Exh. 32, pp. 273-298. They turned around and drove into the parking lot.

22

Mendoza said about 4 or 5 males were standing there; one person in particular—

23

Mendoza identified the person as Winn in court—looked at Mendoza, then turned and

24

went into the back of the store. Another man was jumping around holding his wrist,

25

exclaiming, “He stabbed me, he stabbed me!” The person—Jackson—pointed out Winn

26

to Mendoza as the man who stabbed him. Mendoza stated that after they had secured

27

the store, an employee saw a knife and brought Mendoza over to the knife. Mendoza

28
8

1

said that he did not tell Jackson that he would go to prison for 3 years if he did not

2

testify.

3

The testimony of Mendoza’s partner, Joe Patton, was consistent with Mendoza’s.

4

Exh. 33, pp. 4-35. Sergeant Pelletier also testified that he responded to the fight call.

5

Exh. 35, pp. 38-41. He stated that he put Winn in a patrol car and advised him of his

6

Miranda rights. Winn told him that he and Jackson got into a fight over a $5 bag of

7

marijuana that Winn sold Jackson earlier that day. Winn said Jackson attacked Winn

8

and that Jackson’s injury must have been caused by Winn’s fingernails. Id.

9

In opening and closing statements, defense counsel focused on inconsistencies

10

between Jackson and the other witnesses, such as regarding the start of the fight, how

11

long the fight lasted, whether Jackson pushed Winn or raised his voice, and whether

12

Jackson had used alcohol or marijuana that day. Exh. 32, pp. 173-179; exh. 33, pp. 82-

13

105. Counsel emphasized that the knife was not tested for fingerprints or DNA. He

14

advanced the defense theory that there was no evidence that Winn actually was the

15

aggressor, but that Winn merely reacted nervously when police arrived by retreating into

16

the back of the convenience store. He argued that the police did not closely examine

17

Winn for injuries and never tried to verify Winn’s statements that it was Jackson who

18

attacked Winn. Id.

19

The state district court denied federal ground 3(A) in Winn’s state postconviction

20

petition, pointing out that counsel objected to the introduction of Jackson’s testimony on

21

the grounds that defense counsel had been unaware Jackson was going to testify until

22

the day of trial, and the objection was overruled. Exh. 83, p. 8. The Nevada Supreme

23

Court, which had concluded that the record was sufficient for review and that briefing

24

was unwarranted, affirmed the denial of all of Winn’s ineffective assistance of counsel

25

claims for failure to demonstrate deficiency or prejudice. Exh. 89; see also id. at 1 n.1.

26

This court agrees that Winn cannot demonstrate prejudice. Defense counsel

27

vigorously cross-examined Jackson. He elicited testimony from Jackson that he was

28

threatened with prison time if he did not testify. Mendoza’s and Patton’s testimony
9

1

conflicted with that; it was for the jury to make the credibility determination. The store

2

clerk, who was familiar with Winn and Jackson, identified him as the assailant, as did

3

the police officers who testified that they responded to the fight call. The clerk

4

witnessed the altercation and the stabbing. Even if defense counsel had succeeded in

5

persuading the court that Jackson should not testify, there is not a reasonable

6

probability of a different outcome.

7

Habeas relief is warranted only if a constitutional error “‘had substantial and injurious

8

effect or influence in determining the jury's verdict.’” Penry v. Johnson, 532 U.S. 782,

9

795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Winn has failed

10

to demonstrate that the state’s highest court’s rejection of the petitioner’s claim was “so

11

lacking in justification that there was an error well understood and comprehended in

12

existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S.

13

at 103. Winn has not shown that the Nevada Supreme Court decision was contrary to

14

or involved an unreasonable application of Strickland. 28 U.S.C. § 2254(d).

15

Accordingly, federal habeas relief is denied as to ground 3(A).

16

Ground 3(B)

17

Winn contends that his counsel failed to conduct an adequate investigation,

18
19

including failing to locate and interview Jackson prior to trial (ECF No. 19, pp. 26-27).
The state district court noted that Winn failed to demonstrate prejudice by showing

20

what witnesses should have been called or what other investigation his counsel should

21

have undertaken. Exh. 83, p. 8. The Nevada Supreme Court agreed that Winn failed to

22

demonstrate deficiency or prejudice and pointed out that Winn did not identify any

23

witnesses or the nature of their testimony. Exh. 89, p. 4. The state supreme court

24

further noted that the State properly noticed the victim as a witness and counsel was

25

aware prior to trial that the victim could testify. Id. at 7. Also, the record belies Winn’s

26

argument that his counsel was ineffective in failing to locate Jackson, as the State was

27

unable to locate him either until the day trial started. Winn does not identify what other

28

investigation counsel should have conducted or how he suffered prejudice. Winn has
10

1

not shown that the Nevada Supreme Court decision was contrary to or involved an

2

unreasonable application of Strickland. 28 U.S.C. § 2254(d). Accordingly, ground 3(B)

3

is denied.

4

Ground 3(C)

5

Winn argues that he was deprived of effective assistance of counsel because he had

6

a conflict with his trial attorney (ECF No. 19, pp. 27-28). The Nevada Supreme Court

7

affirmed the denial of this claim as bare and unsupported by any specific factual

8

allegations. Exh. 89, p. 3.

9

This claim lacks merit. The trial transcript reflects that defense counsel zealously

10

defended Winn. Winn’s allegations that counsel refused to present Winn’s defense at

11

trial, refused to call Winn’s witnesses, refused to file pretrial motions, and failed to

12

inform Winn that the State filed a notice of intent to seek habitual criminal treatment are

13

bare and unsupported. Winn does not describe the alternate defense or pretrial

14

motions and does not identify the witnesses. 4 Winn’s allegation that his counsel failed to

15

meet with him regarding the presentence investigation report is belied by the record.

16

Exhs. 41, 42. Winn has not shown that the Nevada Supreme Court’s decision on this

17

claim was contrary to or involved an unreasonable application of Strickland. 28 U.S.C.

18

§ 2254(d). Accordingly, ground 3(C) is denied.

19

Ground 5

20

Finally, Winn contends that he is entitled to habeas relief due to the cumulative

21

effect of the errors that he alleges (ECF No. 19, p. 33). It is unclear whether the

22

Nevada Supreme Court evaluated a separate claim of cumulative error.

23

See Exh. 89. However, as this court has concluded that no basis for federal habeas

24

relief as to any remaining ground exists, this claim of cumulative error is also denied.

25

The petition, therefore, is denied in its entirety.

26

///

27

4

28

A petitioner may not use a reply to an answer to present additional claims and allegations that are not
included in the federal petition. See, e.g., Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
To the extent that Winn has done so in his federal reply, this court does not consider these additional claims
and allegations.

11

1

IV.

2

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

3

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

4

appealability (COA). Accordingly, the court has sua sponte evaluated the claims within

5

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

6

Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002).

7

Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has

8

made a substantial showing of the denial of a constitutional right." With respect to

9

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

10

would find the district court's assessment of the constitutional claims debatable or

11

wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

12

U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable

13

jurists could debate (1) whether the petition states a valid claim of the denial of a

14

constitutional right and (2) whether the court's procedural ruling was correct. Id.

15

Having reviewed its determinations and rulings in adjudicating Winn’s petition, the

16

court finds that none of those rulings meets the Slack standard. The court therefore

17

declines to issue a certificate of appealability for its resolution of any of Winn’s claims.

18

V.

19

IT IS THEREFORE ORDERED that the first-amended petition (ECF No. 19) is

20

Conclusion

DENIED.

21

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

22

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close this case.

23
24

DATED this 21st day of March, 2019.

25

LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

26
27
28
12