Ramet v. LeGrande et al

Filing 43

ORDER that ECF No. 9 Ramet's Amended Petition for Writ of Habeas Corpus is denied; Clerk directed to enter judgment; and a certificate of appealability is granted. Signed by Judge Miranda M. Du on 1/24/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 DANIEL A. RAMET, 10 Case No. 3:14-cv-00452-MMD-WGC Petitioner, ORDER v. 11 ROBERT LeGRANDE, et. al, 12 Respondents. 13 Before the Court for a decision on the merits is an application for a writ of habeas 14 15 corpus filed by Daniel A. Ramet, a Nevada prisoner. (ECF No. 9.) 16 I. PROCEDURAL BACKGROUND1 17 On June 4, 2007, a jury in the state district court for Clark County, Nevada, found 18 Ramet guilty of first degree murder. After a sentencing hearing the following day, the jury 19 imposed a sentence of life without possibility of parole. The court entered a judgment of 20 conviction on August 31, 2007. Ramet appealed. 21 On June 4, 2009, the Nevada Supreme Court affirmed the conviction in an opinion 22 that discussed in detail only one of Ramet’s claims of error, that being his claim that 23 testimony concerning his refusal to consent to a search of his home, coupled with the 24 prosecutor’s reference to it in closing argument, violated his Fourth Amendment rights. 25 The Nevada Supreme Court found any error in admission of that evidence harmless, and 26 it summarily denied the remainder of Ramet’s claims in a footnote. 27 28 1This procedural background is derived from the exhibits filed under ECF Nos. 1014 and this Court’s own docket. 1 On December 11, 2009, Ramet filed a proper person state habeas petition, which 2 the state district court ultimately denied without appointing counsel to represent Ramet. 3 The Nevada Supreme Court reversed the district court, finding the state district court 4 erred in failing to appoint counsel, and remanded to the district court for further 5 proceedings. Appointed counsel filed a supplemental petition. The state district court held 6 an evidentiary hearing and subsequently denied the petition. Ramet appealed. On July 7 22, 2014, the Nevada Supreme Court affirmed the denial of relief. 8 On August 28, 2014, this Court received Ramet’s federal habeas petition. With the 9 assistance of appointed counsel, Ramet filed an amended petition on May 11, 2015. On 10 October 2, 2015, respondents filed a motion to dismiss, which the Court granted in part 11 and denied in part – that is, the Court concluded that Claim Ten was unexhausted and 12 that claims for relief in Claim Four that are not premised on ineffective assistance of 13 counsel (IAC) must be dismissed as procedurally defaulted, 14 In addition, the Court concluded that the IAC claims in Claims Four and Six are 15 also procedurally defaulted, but reserved judgment as to whether Ramet could 16 demonstrate cause and prejudice to overcome the default of those claims. Thereafter, 17 Ramet abandoned Claim Ten and the parties briefed the remaining claims on the merits. 18 II. 19 20 21 22 23 24 25 26 27 28 FACTUAL BACKGROUND The Nevada Supreme Court gave this summary of the facts of Ramet’s case in its opinion deciding his direct appeal: Ramet killed his 20-year-old daughter, Amy Ramet, in the home they shared. Ramet strangled Amy for a minute or two and then stopped; she moved, and he checked for a pulse, and then he strangled her for “another couple of minutes.” He continued to live in his home with Amy's body for three weeks, sending text messages from her cell phone to allay the fears of his younger daughter, Delsie, and his ex-wife, Bernadette. After not being able to speak with Amy for three weeks, Bernadette and Delsie became so worried that they filed a missing person's report. Three days later, unsatisfied with the police's efforts, they decided to break into Ramet's home. Bernadette broke a window with a baseball bat and a foul smell came out, prompting them to call the police. Shortly thereafter, the police arrived at Ramet's home and the officers asked to perform a welfare check on Amy. Ramet refused, claiming it was a “search and 2 1 seizure issue.” The police obtained a search warrant and discovered Amy's badly decomposed body in Ramet's home. Ramet was arrested and he confessed to killing his daughter. 2 3 Ramet v. State, 209 P.3d 268, 269 (Nev. 2009). 4 III. 5 6 7 8 9 10 11 12 13 14 STANDARDS OF REVIEW This action is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under AEDPA: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (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. 28 U.S.C. § 2254(d). 15 A decision of a state court is "contrary to" clearly established federal law if the state 16 court arrives at a conclusion opposite that reached by the Supreme Court on a question 17 of law or if the state court decides a case differently than the Supreme Court has on a set 18 of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An 19 "unreasonable application" occurs when "a state-court decision unreasonably applies the 20 law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas 21 court may not "issue the writ simply because that court concludes in its independent 22 judgment that the relevant state-court decision applied clearly established federal law 23 erroneously or incorrectly." Id. at 411. 24 The Supreme Court has explained that "[a] federal court's collateral review of a 25 state-court decision must be consistent with the respect due state courts in our federal 26 system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 27 'highly deferential standard for evaluating state-court rulings,' and 'demands that state- 28 court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 3 1 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 2 537 U.S. 19, 24 (2002) (per curiam)). "A state court's determination that a claim lacks 3 merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the 4 correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) 5 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has 6 emphasized "that even a strong case for relief does not mean the state court's contrary 7 conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); 8 see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard 9 as "a difficult to meet and highly deferential standard for evaluating state-court rulings, 10 which demands that state-court decisions be given the benefit of the doubt") (internal 11 quotation marks and citations omitted). 12 "[A] federal court may not second-guess a state court's fact-finding process unless, 13 after review of the state-court record, it determines that the state court was not merely 14 wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); 15 see also Miller-El, 537 U.S. at 340 ("[A] decision adjudicated on the merits in a state court 16 and based on a factual determination will not be overturned on factual grounds unless 17 objectively unreasonable in light of the evidence presented in the state-court proceeding, 18 § 2254(d)(2)."). Because de novo review is more favorable to the petitioner, federal courts 19 can deny writs of habeas corpus under § 2254 by engaging in de novo review rather than 20 applying the deferential AEDPA standard. Berghuis v. Thompkins, 560 U.S. 370, 390 21 (2010). 22 IV. ANALYSIS OF CLAIMS 23 A. Claim One 24 In Claim One, Ramet alleges that he was denied his rights under the Fourth and 25 Fourteenth Amendment because the prosecutor improperly elicited testimony about his 26 invocation of his Fourth Amendment rights. In addressing this issue, the Nevada Supreme 27 Court noted as follows: 28 /// 4 1 2 3 4 5 6 7 8 At trial, the State presented testimony from two officers regarding Ramet's refusal to consent to a search of his home. On the stand, Officer Yant testified that Ramet's statements that he did not want the police in his house because “it would be a search and seizure issue” made the police even more suspicious. Officer Yant repeated Ramet's statement that “it would be a search and seizure issue” two more times. Officer Bertges also repeated Ramet's statement during his testimony. In addition, evidence of Ramet's refusal to submit to a search was used by the State to incriminate Ramet. During closing argument, the prosecuting attorney commented on Ramet's refusal: “[a]nd when the police come to the house on two different occasions, he won't even let them conduct a welfare check. He's hiding something.” Ramet, 209 P.3d at 269. 9 The Nevada Supreme Court then concluded that the admission of the evidence 10 and the State’s argument violated Ramet’s constitutional rights under Griffin v. California, 11 380 U.S. 609 (1965). Id. at 269-70. The court also held, however, the error was harmless 12 under Chapman v. California, 386 U.S. 18 (1967), due to the “overwhelming evidence of 13 Ramet's guilt.” Id. at 270. 14 In Griffin, the Court held that the trial court's and the prosecutor's comments on the 15 defendant's failure to testify violated the self-incrimination clause of the Fifth Amendment. 16 380 U.S. at 614. While Ramet’s claim alleges a violation of his rights under the Fourth 17 Amendment, respondents do not dispute the Nevada Supreme Court’s constitutional error 18 determination. Instead, they argue that this Court must defer to the state supreme court’s 19 determination that the error was harmless under Chapman. 20 To determine whether a constitutional error is harmless under Chapman, a 21 reviewing court “must be able to declare a belief that it was harmless beyond a reasonable 22 doubt.” Chapman, 386 U.S. at 24. If a state court finds an error harmless, the federal 23 habeas court reviews that determination under the deferential AEDPA standard, which 24 means that relief is not available for the error “unless the state court's harmlessness 25 determination itself was unreasonable.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015) 26 (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). 27 And, even if the federal court determines the state court’s application of Chapman 28 was unreasonable, the petitioner is still not entitled to relief unless he can establish that 5 1 the constitutional error “resulted in ‘actual prejudice.’” Ayala, 135 S.Ct. at 2197 (quoting 2 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Under Brecht, the federal court can 3 grant relief only if it has “grave doubt about whether a trial error of federal law had 4 ‘substantial and injurious effect or influence in determining the jury's verdict.’” O'Neal v. 5 McAninch, 513 U.S. 432, 436 (1995). That is, “[t]here must be more than a ‘reasonable 6 possibility’ that the error was harmful.” Ayala, 135 S.Ct. at 2198 (quoting Brecht, 507 U.S. 7 at 637). 8 In finding the Fourth Amendment violation harmless, the Nevada Supreme Court 9 noted that “Ramet confessed during trial that he strangled his daughter, stopped and 10 checked her pulse, and then continued to strangle her.” Ramet, 209 P.3d at 270. Ramet 11 argues that the state court’s decision was unreasonable and that he can meet the Brecht 12 standard because the error had a “deep impact” on his defense and “was particularly 13 harmful because the evidence of first-degree murder was weak.” (ECF No. 41 at 11.2) 14 In this regard, he contends that evidence that he invoked his Fourth Amendment 15 rights suggested that he was being cold and calculated, which undermined his defense 16 that killing Amy was the result of a spur-of-the-moment impulse and that he immediately 17 regretted it. Also damaging to that defense, however, was evidence that Ramet kept 18 Amy’s corpse in the house for several weeks and went to great lengths to conceal her 19 death from his other daughter and ex-wife. And, given that Ramet now concedes that the 20 evidence proved second degree murder (ECF No. 41 at 23-25), this contention has merit 21 only if there was more than a reasonable probability that the jury relied upon the 22 invocation of his Fourth Amendment rights to find that the murder was premeditated and 23 deliberate. See NRS § 200.030. The time lag between the murder and Ramet’s attempts 24 to prevent the police from entering his home precludes such a conclusion. 25 Ramet also points to the extensive amount of testimony the State elicited on the 26 subject, the fact that a juror submitted a question to Ramet about it at the conclusion of 27 2References 28 to page numbers for documents filed electronically are based on CM/ECF pagination. 6 1 his testimony, and the prosecutor’s references to it in closing argument, all of which, 2 according to him, demonstrate the importance of the evidence to the State’s case. This 3 is also unavailing. The State elicited the improper testimony in its case-in-chief, prior to, 4 and without knowing, that Ramet would subsequently provide the incriminating testimony 5 cited by the Nevada Supreme Court in its harmless error analysis. And while the 6 prosecutor stated in closing argument that Ramet’s refusal to allow the police into his 7 house showed that he was “hiding something,” the prosecutor did not explicitly argue that 8 it showed premeditation or deliberation. There is no dispute that the evidence was harmful 9 to the defense, but here again, there is not a reasonable probability that it prompted the 10 jury to find first degree murder rather than second degree murder. 11 In summary, Ramet fails to convincingly demonstrate that evidence and argument 12 regarding the invocation of his Fourth Amendment rights had a significant impact on the 13 jury’s verdict. Claim One is denied. 14 B. Claim Two 15 In Claim Two, Ramet alleges that he was provided ineffective assistance of 16 counsel, in violation of his rights under the Sixth and Fourteenth Amendment, because 17 trial counsel failed to accurately advise him of the consequences of going to trial. In 18 support of this claim, Ramet alleges that the State offered a plea bargain that would have 19 resulted in him serving fifteen years to life that he turned down on the advice of counsel. 20 After trial, the jury sentenced him to life without parole. 21 Ineffective assistance of counsel claims are governed by Strickland v. Washington, 22 466 U.S. 668 (1984). Under Strickland, a petitioner must satisfy two prongs to obtain 23 habeas relief — deficient performance by counsel and prejudice. 466 U.S. at 687. With 24 respect to the performance prong, a petitioner must carry the burden of demonstrating 25 that his counsel’s performance was so deficient that it fell below an “objective standard of 26 reasonableness.” Id. at 688. “’Judicial scrutiny of counsel's performance must be highly 27 deferential,’ and ‘a court must indulge a strong presumption that counsel's conduct falls 28 within the wide range of reasonable professional assistance.’” Knowles v. Mirzayance, 7 1 556 U.S. 111, 124 (2009) (citation omitted). In assessing prejudice, the court “must ask if 2 the defendant has met the burden of showing that the decision reached would reasonably 3 likely have been different absent [counsel’s] errors.” Id. at 696. 4 In addressing this claim in Ramet’s state post-conviction proceeding, the Nevada 5 Supreme Court identified Strickland as the federal law governing the claim. (ECF No. 14- 6 2 at 2.) The court adjudicated the claim as follows: 7 8 9 10 11 12 13 14 15 16 17 [A]ppellant argues that counsel was ineffective for discouraging him from accepting the State's guilty plea offer. Appellant has failed to demonstrate deficiency. The reasonableness of counsel's actions [is] evaluated as of the time of the action, not through "the distorting effects of hindsight." Strickland, 466 U.S. at 689. Counsel testified that he had based his recommendation to reject the plea offer on the evidence and appellant's own words, and that it was only after hearing appellant's testimony at trial, the full contents of which he "didn't see ... coming," that he realized he should have counseled him to accept the plea offer. Further, appellant's case is distinguishable from Lafler v. Cooper, in which the parties stipulated that counsel was deficient where counsel's advice was based upon a misunderstanding of the legal requirements to obtain a conviction. 566 U.S. [156], 132 S. Ct. 1376, 1384 (2012). Here, the parties did not stipulate that counsel was deficient, and there is no allegation that counsel misunderstood the applicable law. Accordingly, appellant failed to demonstrate by a preponderance of the evidence that counsel's advice, at the time it was given, was objectively unreasonable. We therefore conclude that the district court did not err in denying this claim. (Id. at 3.) 18 In Lafler, the allegation was that petitioner had rejected favorable plea offers “after 19 his attorney convinced him that the prosecution would be unable to establish his intent to 20 murder” because the victim “had been shot below the waist.” Lafler, 566 U.S. at 161. The 21 Supreme Court confirmed that the Strickland test applies to the plea bargaining process 22 when a defendant rejects a plea offer and elects to go to trial. Id. at 163. The Court also 23 rejected the notion that a fair trial “wipes clean any deficient performance by defense 24 counsel during plea bargaining.” Id. at 169-70. As the Nevada Supreme Court noted, 25 however, the question whether counsel’s performance fell below the Strickland standard 26 was not an issue decided in Lafler. Id. at 163. Thus, other than stating that counsel’s 27 advice was concededly deficient, the Supreme Court in Lafler did not provide any 28 standards under which lower courts are to evaluate the sufficiency of a trial counsel's 8 1 performance in rendering plea advice. See id. at 174 (stating that deficient performance 2 had been conceded by all parties, so there is no need to address what type of 3 performance would be required to find counsel to be constitutionally ineffective). 4 The Court in Lafler did note, however, that “an erroneous strategic prediction about 5 the outcome of a trial is not necessarily deficient performance.” Id. In the case below, the 6 Sixth Circuit had “found that respondent's attorney had provided deficient performance 7 by informing respondent of ‘an incorrect legal rule.’” Id. at 162. The Lafler Court suggested 8 that respondent's counsel may not have provided ineffective assistance if he simply 9 thought the fact that the shots hit victim below the waist “would be a persuasive argument 10 to make to the jury to show lack of specific intent,” as opposed to believing that it 11 precluded a “convict[ion] for assault with intent to murder as a matter of law.” Id. at 174. 12 Similarly, the Ninth Circuit has held that, in the plea advice context, “[c]ounsel 13 cannot be required to accurately predict what the jury or court might find, but he can be 14 required to give the defendant the tools he needs to make an intelligent decision.” Turner 15 v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002). In Turner, the defendant alleged ineffective 16 assistance, in part, because counsel advised him that 15 years to life was the worst 17 possible outcome, and that his case was not a “death penalty” case. Id. at 880-81. 18 Consequently, the defendant turned down a second-degree murder plea offer and went 19 to trial, where he was convicted of first-degree murder and robbery and subsequently 20 sentenced to death. Id. at 861. 21 The court held that the defendant “was informed that he was subject to the death 22 penalty, and of the plea offer,” in contrast to cases where an attorney failed to advise his 23 client of a plea offer or misled his client about the law. Id. at 881 “That counsel and [the 24 defendant] chose to proceed to trial based on counsel's defense strategy and presumably 25 sincere prediction that the jury would not award a sentence of death, does not 26 demonstrate that Turner was not fully advised of his options.” Id. The Ninth Circuit has 27 also held that although “a mere inaccurate prediction, standing alone, would not constitute 28 ineffective assistance, the gross mischaracterization of the likely outcome . . . combined 9 1 with the erroneous advice on the possible effects of going to trial, falls below the level of 2 competence required of defense attorneys.” Womack v. Del Papa, 497 F.3d 998, 1003 3 (9th Cir. 2007) (internal quotation marks omitted) (quoting Iaea v. Sunn, 800 F.2d 861, 4 865 (9th Cir. 1986)). 5 In this case, Ramet was charged with open murder, which included first degree 6 murder, second degree murder, and voluntary manslaughter as possible verdicts. (ECF 7 No. 12-3 at 5.) Other than specifically-enumerated types of murder not pertinent here, the 8 difference between first degree murder and second degree murder, in Nevada, is that the 9 former requires that the killing be “willful, deliberate, and premeditated.” Byford v. State, 10 994 P.2d 700, 719 (Nev. 2000). Voluntary manslaughter requires “a serious and highly 11 provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion 12 in a reasonable person, or an attempt by the person killed to commit a serious personal 13 injury on the person killing.” NRS § 200.050. 14 In a non-capital case, the possible sentences resulting from a first degree murder 15 conviction are (1) life without the possibility of parole, (2) 20 years to life, or (3) 20 years 16 to 50 years. NRS § 200.030(4)(b). A second degree murder conviction allows for parole 17 eligibility after serving ten years, while a voluntary manslaughter conviction results in a 18 sentence of one to ten years. NRS §§ 200.030(5), 200.080. 19 At the outset of Ramet’s trial, the trial judge and the parties confirmed for the record 20 that the State had extended a plea offer of fifteen years to life that Ramet rejected. (ECF 21 No. 11-10 at 3.) The trial court made sure that Ramet was aware of the possible 22 sentences he faced if convicted of first degree murder. (Id.) 23 Ramet’s counsel, Norman Reed, testified at the state post-conviction evidentiary 24 hearing that it “was a very bad idea” for him to discourage Ramet from taking the deal 25 and that he “got it wrong.” (ECF No. 13-28 at 15.) Reed elaborated on that by testifying 26 that he “looked at the evidence and thought that . . . we really had a good shot at a 27 manslaughter,” but “in retrospect . . . evaluating the evidence and hearing [Ramet’s] 28 testimony . . ., it was very ill-advised to have told him to turn down such a good offer.” (Id. 10 1 at 16.) Regarding the chances of a manslaughter verdict, Reed testified that their defense 2 strategy was that Ramet had killed his daughter in a heat of passion, without 3 premeditation or deliberation. (Id. at 18.) As for Ramet’s trial testimony, counsel testified 4 that “it played out” in a way he “completely didn’t see . . . coming” and that if he had had 5 a “better handle” on that, he “would’ve told [Ramet] to take the deal.” (Id.) 6 Ramet testified at the post-conviction evidentiary hearing that, prior to trial, Reed 7 “was mocking the [State’s] offer saying that they were adding five years for an 8 enhancement on some charge that was going to be made up.” (Id. at 34.) He further 9 testified that he (Ramet) was aware that the punishment for second degree murder was 10 ten to 25 years or ten to life and that he probably would have taken a deal with a minimum 11 sentence of 10 years, but that the State never offered less than 15 years. (Id. at 34-37.) 12 He also testified, however, that he would have first conferred with “Mr. Reed, who I had 13 a lot of confidence in and trust in.” (Id. at 36.) 14 Given Ramet’s confession to the police and statements Ramet made to his 15 daughter in recorded phone calls, Reed’s assessment of Ramet’s chances at trial was 16 clearly misguided. For one, he underestimated the possibility that the State would be able 17 to prove first degree murder. Most notable was Ramet’s admission to his daughter that 18 he had stopped strangling Amy when she passed out, but resumed when she “came to a 19 little bit.” (ECF Nos.10-12 at 4 and 10-14 at 4.) The State relied on this point to argue that 20 the murder was premeditated and deliberate. (ECF No. 12-2 at 6.) 21 Secondly, Reed overestimated the likelihood of a manslaughter verdict. The 22 defense’s case relied on evidence that Ramet was deeply depressed and suicidal at the 23 time of the killing. (ECF No. 12 at 29-36.) His wife had divorced him after meeting another 24 man online. (Id.) He had lost his long-time job as a bartender at a casino and was out of 25 money. (Id.) His house was in foreclosure and lacked power and running water. (Id.) He 26 had no money for food, and had to live off of dog and cat food. (Id.) Amy, who had recently 27 moved back into Ramet’s house, was unhappy about the living conditions. (Id. at 37.) On 28 the day of the killing, Amy was upset because there was no food. (Id.) After unsuccessfully 11 1 calling friends to bring her food, she came out of the bedroom, threw a glass object at 2 Ramet, and then began berating him — telling him that he was a loser and that he should 3 just kill himself. (Id.) Ramet “snapped” and “strangled her.” (Id.) 4 Based on these circumstances, Reed had at least some reason to believe the 5 State would not be able to prove premeditation and deliberation, but he was unjustifiably- 6 optimistic in predicting a “good shot at manslaughter.” As hurtful as Amy’s insults may 7 have been, they were hardly “a serious and highly provoking injury inflicted upon the 8 person killing, sufficient to excite an irresistible passion in a reasonable person.” See NRS 9 § 200.050. And, because the definition incorporates a “reasonable person” standard, 10 evidence that Ramet was emotionally distraught, with his personal life was in shambles, 11 was not necessarily relevant. 12 Notwithstanding the foregoing, this Court is not convinced that Reed’s 13 performance fell below the Strickland standard as applied in the plea bargaining context. 14 There is no evidence that his advice to Ramet included an “incorrect legal rule,” as 15 contemplated in Lafler. And, while Reed inaccurately predicted the outcome of Ramet’s 16 trial, the record does not demonstrate “gross error on the part of counsel” — i.e., the type 17 of error necessary to conclude that Reed was unconstitutionally deficient in advising 18 Ramet to turn down the plea offer. Turner, 281 F.3d at 881 (citation omitted). 19 Ramet was informed by counsel and the trial court that a first degree murder 20 conviction was a possible outcome and that such a conviction could result in a life 21 sentence without possibility of parole. In addition, Reed was not unreasonable in 22 believing, prior to trial, that the State would not be able to satisfy the elements of first 23 degree murder.3 It was Ramet’s testimony at trial that provided the strongest evidence of 24 premeditation and deliberation, including his admission that he “look[ed] for a pulse” 25 /// 26 /// 27 3Indeed, 28 Ramet argues at length in his reply brief, in support of Claim One, that the State’s case for first-degree murder was weak. (ECF No. 41 at 16-25.) 12 1 before strangling Amy for “another couple of minutes.” 4 (ECF No. 12 at 43-44.) 2 Accordingly, it was also not unreasonable for Reed to predict that the worst likely outcome 3 resulting from going to trial would be a second degree murder conviction with a ten to life 4 sentence — i.e., five years less than the State’s plea offer. 5 In sum, Reed’s advice to Ramet with respect to the State’s offer was not outside 6 the “wide range” of reasonable professional assistance. Strickland, 466 U.S. at 687. 7 Moreover, as the Supreme Court has stated, “[w]hen a state prisoner asks a federal court 8 to set aside a sentence due to ineffective assistance of counsel during plea bargaining, 9 our cases require that the federal court use a ‘doubly deferential’ standard of review that 10 gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 11 134 S.Ct. 10, 13 (2013). Because the Nevada Supreme Court’s decision denying relief is 12 reasonable and supported by the record, Ramet is not entitled to federal habeas relief on 13 Claim Two. 14 C. Claim Three 15 In Claim Three, Ramet alleges that he did not knowingly or voluntarily waive his 16 rights under Miranda v. Arizona, 384 U.S. 436 (1966), and the admission of his involuntary 17 confession violated his Fifth and Fourteenth Amendment rights. In support of this claim, 18 he contends that, before his confession to law enforcement, he had stayed up all night 19 surrounded by police and that, during the interrogation, the police applied psychological 20 pressure, discouraged him from getting an attorney, gave him legal advice instead of 21 providing him an attorney, and refused to allow him to contact his daughter until he 22 confessed. According to Ramet, his will was overborne, so he confessed. 23 24 25 26 27 28 4Ramet made several admissions in his trial testimony that were significantly more damaging than his statements to the police and to his daughter. For example, when asked on cross-examination what he did when Amy moved a little bit after he choked her initially, Ramet replied: As I said, I tried to make a decision, check her, see what was going on or not, and I figure at this time that she might be near dead, you know, so I’m looking for a pulse . . .. (ECF No. 12 at 44.) This was presumably an example of testimony that Reed “didn’t see coming.” 13 1 As mentioned, the Nevada Supreme Court rejected several of Ramet’s claims in a 2 footnote to its opinion on direct appeal.5 Ramet, 209 P.3d at 268 n.1. This claim was 3 among them. See id. 4 “[T]he determination whether statements obtained during custodial interrogation 5 are admissible against the accused is to be made upon an inquiry into the totality of the 6 circumstances surrounding the interrogation, to ascertain whether the accused in fact 7 knowingly and voluntarily decided to forgo his rights to remain silent and to have the 8 assistance of counsel.” Fare v. Michael C., 442 U.S. 707, 724–25 (1979) (citing Miranda, 9 384 U.S. at 475-477). The U.S. Supreme Court has held that “[t]he voluntariness of a 10 waiver of [the privilege against self-incrimination] has always depended on the absence 11 of police overreaching, not on ‘free choice’ in any broader sense of the word.” Colorado 12 v. Connelly, 479 U.S. 157, 170 (1986). “[C]oercive police activity is a necessary predicate 13 to the finding that a confession is not voluntary . . ..” Connelly, 479 U.S. at 167 (internal 14 quotation marks omitted). And, while the mental condition of the defendant may be a 15 significant factor in the “’voluntariness’ calculus,” that does not mean that “a defendant's 16 mental condition, by itself and apart from its relation to official coercion, should ever 17 dispose of the inquiry into constitutional ‘voluntariness.’” Id. at 164. 18 The state court record does not support Ramet’s claims of police coercion. Ramet 19 claims that before his arrest the police had him “under siege” in his house for ten hours. 20 (ECF No. 9 at 21.) What the record shows, however, is the following. Police were called 21 regarding a domestic disturbance at Ramet’s home and, upon arriving around 8:00 p.m., 22 found Ramet’s ex-wife, holding a baseball bat, and his daughter in front of the house. 23 (ECF No. 11-11 at 13, 19.) The police also noted “a very foul odor” coming from a broken 24 window that smelled of “a decomposing human body.” (Id. at 14, 20.) After officers 25 26 27 28 5The Nevada Supreme Court summarily denied five of Ramet’s direct appeal arguments in the footnote. Even though the court did not explain its reasons for rejecting these arguments, this Court must presume that the court adjudicated Ramet’s federal law claims on the merits for the purposes of 28 U.S.C. § 2254(d). See Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”). 14 1 knocked on the front door for several minutes, Ramet answered the door, but denied the 2 officers entry into the house. (Id. at 13-16, 20-22.) The officers then posted themselves 3 on each side of the house “just to make sure Daniel didn’t try to leave.” (Id. at 23.) Later 4 in the evening, detectives set up a command post at a junior high school across the street. 5 (Id.) Once the detectives obtained a search warrant, the SWAT team arrived about 4:15 6 a.m., pulled an armored vehicle up onto Ramet’s front lawn, and used a bullhorn to tell 7 Ramet to exit his house. (Id. at 16-17.) Ten to fifteen minutes later, Ramet came out of 8 the house and was arrested without incident. (Id.) 9 With respect to the interrogation, the transcript and videotape of the event show 10 that police detectives clearly advised Ramet of his Miranda rights prior to questioning him 11 and repeatedly acknowledged throughout the interview that he had the right to remain 12 silent and the right to state-provided counsel. (ECF Nos. 10-8/15). Police provided Ramet 13 with food, something to drink, and a restroom break. (Id.) The videotape also supports a 14 finding that the detectives were non-confrontational and did not, at any point, apply undue 15 pressure to obtain a confession. (ECF No. 15.) In addition, the transcript does not support 16 Ramet’s claim that the detectives would not allow him to call his daughter until he 17 confessed. They advised him that they would allow him to speak with her, to the extent 18 she was willing, at the conclusion of the interview, but they did not condition that 19 opportunity on him confessing to the murder. (ECF No. 10-8 at 32-33, 54-55.) In addition, 20 Ramet’s vague references to an attorney or wanting to talk to someone about his 21 “psychological situation” were not sufficient to invoke his right to counsel. (Id. at 9-11, 18- 22 19.) See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that a “suspect must 23 unambiguously request counsel” to require that officers stop questioning). 24 Here, the totality of the circumstances surrounding the interrogation show Ramet's 25 waiver of his Miranda rights was voluntary, knowing and intelligent. In addition, he has 26 not shown that his confession was the product of police coercion. The Nevada Supreme 27 Court's denial of Ground Three was based on a reasonable determination of the facts and 28 /// 15 1 was neither contrary to, nor an unreasonable application of, clearly established federal 2 law, within the meaning of 28 U.S.C. § 2254(d). 3 Claim Three is denied. 4 D. 5 In Claim Four, Ramet alleges that police failed to honor his invocation of his right 6 to remain silent, in violation of his Fifth, Sixth, and Fourteenth Amendment rights, and that 7 trial and direct appeal counsel were ineffective for failing to raise this claim, in violation of 8 his Sixth and Fourteenth Amendment rights. According to Ramet, he invoked his right to 9 remain silent when the police arrived at his home and, therefore, any subsequent 10 statements made to the police should have been suppressed. He also claims that the 11 police coached his daughter to question him about Amy’s death, so his statements to her 12 in their phone conversations should have also been suppressed. Claim Four 13 In deciding respondents’ motion to dismiss, this Court determined that this claim is 14 procedurally defaulted, but gave Ramet the opportunity to demonstrate that the default of 15 the IAC claims should be excused under Martinez v. Ryan, 566 U.S. 1 (2012). (ECF No. 16 34 at 4-6.) The Supreme Court recently confirmed that Martinez is confined to defaulted 17 claims of ineffective assistance of trial counsel and declined to extend the holding to 18 defaulted claims of ineffective assistance of appellate counsel. See Davila v. David, 137 19 S. Ct. 2058, 2070 (2017). Thus, only the default of Ramet’s ineffective assistance of trial 20 counsel claims may be excused under Martinez. 21 In Martinez, the Supreme Court held that, in collateral proceedings that provide the 22 first occasion to raise a claim of ineffective assistance at trial, ineffective assistance of 23 post-conviction counsel in that proceeding may establish cause for a prisoner's 24 procedural default of such a claim. Martinez, 566 U.S. at 9. Ramet must show not only 25 post-conviction counsel’s ineffectiveness but also “that the underlying ineffective- 26 assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner 27 must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14. Because 28 these determinations are intertwined with the ultimate merit of Claim Four, the Court 16 1 deferred ruling on the cause and prejudice issue until the merits of the claim were briefed. 2 (ECF No. 34 at 6.) 3 As discussed above in relation to Claim Three, Ramet did not invoke his Fifth 4 Amendment rights after being given the Miranda warning prior to police questioning. He 5 contends in Claim Four, that the police were nonetheless not permitted to question him 6 because he had invoked his right to remain silent when the police first contacted him at 7 his home. Ramet is incorrect. 8 An invocation of the right to remain silent, like the right to counsel, must be 9 unambiguous. Berghuis, 560 U.S. at 381-82. This requirement applies regardless of 10 whether the statements allegedly invoking the privilege occur before or after the suspect 11 receives a Miranda warning. Sessoms v. Grounds, 776 F.3d 615, 621 (9th Cir. 2015). 12 Here, Ramet claims he invoked his right to remain silent when police came to his house 13 on the domestic disturbance call, but cites to no evidence to support this claim other than 14 police reports of that incident. (ECF No. 9 at 29.) Those reports indicate that, after the 15 police knocked on his door for several minutes, Ramet opened the door and spoke with 16 police, answering several questions. (ECF Nos. 10-4, 10-5, and 10-7.) While the reports 17 show that he refused to allow the police in his house and kept telling them to leave, there 18 is no indication that he expressly invoked his right to remain silent. See Salinas v. Texas, 19 133 S. Ct. 2174, 2179-82 (2013) (discussing “the express invocation requirement” and 20 confirming that “[a] suspect who stands mute has not done enough to put police on notice 21 that he is relying on his Fifth Amendment privilege.”). 22 Even assuming Ramet’s interaction with the police at his home could be construed 23 as an invocation of his right to remain silent, his post-Miranda statements to the police 24 and to his daughter were nonetheless admissible. Ramet relies on Mosley v. Michigan, 25 423 U.S. 96, 97 (1975), to claim that the police were required to honor his right to cut off 26 questioning. (ECF No. 9 at 29.) In Mosley, however, “the Supreme Court rejected the 27 proposition that its earlier decision in Miranda barred law enforcement officials from ever 28 questioning a suspect after the suspect had invoked his right to remain silent,” advocating 17 1 instead “a case-by-case approach that takes the concerns of the Miranda Court into 2 account.” United States v. Hsu, 852 F.2d 407, 409 (9th Cir. 1988). 3 Relying on Mosley, the court in Hsu held that the defendant's right to cut off 4 questioning was scrupulously honored where the defendant asserted his right to remain 5 silent during an initial interrogation, then answered questions during a second 6 interrogation after being advised again of his Miranda rights. Id. at 412. The court focused 7 on “the provision of a fresh set of Miranda rights” as “the most important factor” in arriving 8 at that conclusion. Id. at 411. The court also noted “the change of scenery” between the 9 two interrogations as another important factor. Id. at 412. Both of those circumstances 10 were present in Ramet’s case. 11 Because Ramet voluntarily waived his right to remain silent after being given the 12 Miranda warning, his confession to the police and his statements to his daughter in 13 subsequent phone calls were admissible at trial. The claim that counsel was ineffective 14 in failing to argue that Ramet had invoked his right to remain silent, as grounds for 15 suppressing either, is without merit for the purposes of Martinez.6 Thus, Claim Four is 16 dismissed as procedurally defaulted. 17 E. 18 In Claim Five, Ramet contends that the State failed to prove the victim’s death was 19 the result of criminal agency, in violation of his rights under the Fourth and Fourteenth 20 Amendment. In support of this claim, Ramet argues that the only evidence establishing 21 that he was responsible for Amy’s death, were his own admissions, which in the absence 22 of sufficient independent evidence, is not sufficient to establish corpus delicti under 23 Nevada law. See Sheriff, Washoe Cty. v. Middleton, 921 P.2d 282, 286 (Nev. 1996). 24 Ramet contends that there was insufficient evidence at both the preliminary hearing and 25 the trial to establish corpus delicti. 26 27 28 Claim Five 6To be clear, trial counsel did file motions to suppress with respect to Ramet’s confession to the police and his phone calls to his daughter, both of which were denied. (ECF Nos. 10-35, 10-36, and 10-(41-44).) Ramet’s claim is that counsel was ineffective in failing to argue, in support of those motions, that Ramet had invoked his right to remain silent. 18 1 Under Nevada law, the corpus delicti of murder requires proof of two elements: (1) 2 the fact of death; and (2) the criminal agency of another responsible for that death. Hooker 3 v. Sheriff, Clark Cty., 506 P.2d 1262, 1263 (Nev. 1973). In addition, “[t]he corpus delicti 4 of a crime must be proven independently of the defendant's extrajudicial admissions.” 5 See Doyle v. State, 921 P.2d 901, 910 (Nev. 1996), overruled on other grounds by 6 Kaczmarek v. State, 91 P.3d 16, 29 (Nev. 2004). At a minimum, this requires a prima 7 facie showing by the State “‘permitting the reasonable inference that a crime was 8 committed.’” Id. (citation omitted). The identity of the perpetrator is not an element of 9 corpus delicti. State v. Fouquette, 221 P.2d 404, 418 (Nev.1950) 10 In deciding respondents’ motion to dismiss, this Court concluded that Claim Five 11 presents a federal issue under Jackson v. Virginia, 443 U.S. 307 (1979). (ECF No. 34 at 12 8.) Under Jackson, the reviewing court asks “whether, after viewing the evidence in the 13 light most favorable to the prosecution, any rational trier of fact could have found the 14 essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 15 (citation omitted). Under AEDPA, “there is a double dose of deference that can rarely be 16 surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011); see Parker v. 17 Matthews, 132 S. Ct. 2148, 2152 (2012) (per curiam) (describing habeas review of 18 sufficiency claims as applying a “twice-deferential standard”); Coleman v. Johnson, 132 19 S. Ct. 2060, 2062 (2012) (per curiam) (explaining that sufficiency claims “face a high bar 20 in federal habeas proceedings because they are subject to two layers of judicial 21 deference”). “[T]o grant relief, [the Court] must conclude that the state court's 22 determination that a rational jury could have found that there was sufficient evidence of 23 guilt, i.e., that each required element was proven beyond a reasonable doubt, was 24 objectively unreasonable.” Boyer, 659 F.3d at 965. 25 Here, respondents argue that the corpus delicti rule is not grounded in the U.S. 26 Constitution and, instead, is a creature of state law, the application of which is not 27 reviewable in federal habeas corpus proceedings. With respect to Ramet’s claim in 28 relation to the preliminary hearing, this Court agrees that his challenge to the sufficiency 19 1 of the evidence does not provide grounds for habeas relief. Indeed, Ramet would not be 2 entitled to habeas relief even if the State deprived him of a preliminary hearing altogether. 3 See Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (“[A] conviction will not be vacated on 4 the ground that the defendant was detained pending trial without a determination of 5 probable cause”); United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986) (conviction 6 affirmed despite violation of statutory probable cause requirement). 7 As for the sufficiency of evidence at trial, Ramet cannot establish the that the 8 Nevada Supreme Court’s denial of his claim was objectively unreasonable.7 For one, the 9 corpus delicti rule he relies upon applies to extrajudicial confessions. See Doyle, 921 P.2d 10 at 910; see also United States v. Kerley, 838 F.2d 932, 939-40 (7th Cir.1988) (observing 11 that the corpus delicti rule is a “vestige of a time when brutal methods were commonly 12 used to extract confessions, sometimes to crimes that had not been committed”). Here, 13 Ramet testified at trial that he strangled his daughter. (ECF No. 12 at 37-38.) Thus, the 14 State did not need to rely upon his extrajudicial admissions to establish criminal agency. 15 Also, in conducting its Jackson analysis, “’a reviewing court must consider all of 16 the evidence admitted by the trial court,’ regardless whether that evidence was admitted 17 erroneously.” McDaniel v. Brown, 558 U.S. 120, 131 (2010) (quoting Lockhart v. Nelson, 18 488 U.S. 33, 41 (1988). Thus, even if the state trial court violated the corpus delicti rule 19 in admitting Ramet’s confession, the confession must nonetheless be factored into this 20 Court’s Jackson analysis. Because overwhelming evidence presented at trial establishes 21 that Amy’s death was the result of a criminal act, Claim Five fails. 22 F. Claim Six 23 In Claim Six, Ramet alleges that trial counsel was ineffective, in violation of his 24 Sixth and Fourteenth Amendment rights, for failing to request an instruction that the State 25 was required to prove corpus delecti beyond a reasonable doubt. Ramet contends that 26 he was prejudiced because “the jury was never instructed that it had to find, beyond a 27 7The 28 Nevada Supreme Court summarily rejected the claim in the aforementioned footnote. Ramet, 209 P.3d at 268 n.1. 20 1 reasonable doubt and independent of Mr. Ramet’s confession, that Ms. Ramet’s death 2 was caused by criminal agency.” (ECF No. 9 at 41-42.) Like Claim Four, this claim is 3 procedurally defaulted. (ECF No. 34 at 7.) Thus, as described in relation to Claim Four, 4 Ramet must show the claim has “some merit” in order for this Court to reach the merits. 5 He cannot make such a showing because Nevada law does not require the State 6 to prove corpus delicti both beyond a reasonable doubt and independent of the 7 defendant’s confession. The Nevada Supreme Court has explained that, under the corpus 8 delicti rule, “the nature and degree of independent proof required to corroborate a 9 defendant's admission” is “’not . . . beyond a reasonable doubt,’” but rather, “’[a] slight or 10 prima facie showing, permitting the reasonable inference that a crime was committed.’” 11 Doyle, 921 P.2d at 910 (quoting People v. Alcala, 685 P.2d 1126, 1136 (Cal. 1984)). 12 Ramet’s trial counsel did not perform below the Strickland standard, nor can Ramet 13 show prejudice, by virtue of counsel’s failure to request a jury instruction not 14 countenanced by Nevada law. Thus, Claim Six is without merit for the purposes of 15 Martinez and is, therefore, dismissed as procedurally defaulted. 16 G. Claim Seven 17 In Claim Seven, Ramet alleges that trial counsel was ineffective, in violation of his 18 Sixth and Fourteenth Amendment rights, for failing to adequately investigate his mental 19 health and failing to adequately present this issue to the jury. According to Ramet, a 20 mental health expert “would have been able to explain how [his] severe depression 21 affected his mental state” and “would have been able to put [his] actions in context for the 22 jury in a way that no lay witness could.” (ECF No. 9 at 42.) He further alleges that “[a]n 23 expert also may have shown that additional defenses were available to Mr. Ramet based 24 on his mental state.” (Id.) 25 The Nevada Supreme Court addressed this claim in affirming the lower court’s 26 denial of this claim in Ramet’s state post-conviction proceeding. (ECF No. 14-2.) Having 27 identified Strickland as the federal law standard, the state supreme court held as follows: 28 /// 21 1 [A]ppellant argues that counsel was ineffective for failing to adequately investigate his mental health through a psychological or psychiatric evaluation. Appellant has failed to demonstrate prejudice. Appellant failed to produce an expert witness or report at his evidentiary hearing to indicate what the results of an evaluation would have been. Accordingly, appellant failed to demonstrate a reasonable probability of a different outcome had counsel obtained a psychological or psychiatric evaluation. We therefore conclude that the district court did not err in denying this claim. 2 3 4 5 6 (ECF No. 14-2 at 3-4.) 7 The Nevada Supreme Court’s adjudication of the claim is entitled to deference 8 under § 2254(d). “[T]he presentation of expert testimony is not necessarily an essential 9 ingredient of a reasonably competent defense.” Bonin v. Calderon, 59 F.3d 815, 834 (9th 10 Cir. 1995). More importantly, Ramet has presented no evidence setting forth the 11 testimony an expert witness would have provided or demonstrating that it actually would 12 have supported his defense. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) 13 (no ineffective assistance of counsel for failing to retain expert where petitioner did not 14 offer evidence that expert would have provided). In addition, mere conjecture as to the 15 availability of a favorable expert opinion is not sufficient to show prejudice. See Grisbv v. 16 Blodgett, 130 F.3d 365, 373 (9th Cir.1997) (“Speculation about what an expert could have 17 said is not enough to establish prejudice.”). 18 Claim Seven is denied. 19 H. 20 In Claim Eight, Ramet claims he was denied his right to due process by the 21 improper admission of evidence that he took Amy, then 17 years-old, and her best friend 22 out drinking. During the direct examination of the friend, the prosecutor asked: “Did you 23 ever go anywhere with the defendant as you got into high school?” (ECF No. 11-12 at 24 27.) She responded: “Yes, he would take us, me and Amy, downtown to watch the bands 25 and drink.” (Id.) After a bench conference, the trial court struck the comment (id. at 28), 26 but Ramet claims that it was nonetheless unduly prejudicial because the jury had learned 27 that he not only had killed his daughter, but that he also had encouraged her to drink 28 /// Claim Eight 22 1 alcohol when she was a minor. He further alleges that the trial court’s instruction to strike 2 the statement was insufficient to cure the harm caused by this testimony. 3 4 This claim is one of the claims the Nevada Supreme Court rejected in the footnote to its opinion on direct appeal. Ramet, 209 P.3d at 268 n.1. 5 A state trial court's admission of evidence under state evidentiary law will form the 6 basis for federal habeas relief only where the evidentiary ruling “so fatally infected the 7 proceedings as to render them fundamentally unfair” in violation of the petitioner's due 8 process rights. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); see also 9 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (“The admission of evidence 10 does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair 11 in violation of due process.”) (citation omitted). 12 The U.S. Supreme Court has “defined the category of infractions that violate 13 ‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990). 14 The Court has declined to hold that evidence of other crimes or bad acts “so infused the 15 trial with unfairness as to deny due process of law.” Estelle v. McGuire, 502 U.S. 62, 75 16 & n.5. (1991); see also Spencer v. Texas, 385 U.S. 554, 564-64 (1967) (rejecting 17 argument that due process requires the exclusion of prejudicial evidence). In sum, “[t]he 18 Supreme Court has made very few rulings regarding the admission of evidence as a 19 violation of due process.” Holley, 568 F.3d at 1101. The Ninth Circuit in Holley noted that 20 the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly 21 prejudicial evidence constitutes a due process violation sufficient to warrant issuance of 22 the writ” and that “[a]bsent such ‘clearly established Federal law,’ we cannot conclude 23 that the state court's ruling was an ‘unreasonable application.’” Id. (citing Carey v. 24 Musladin, 549 U.S. 70, 77(2006) 25 Based on Holley, Ramet’s claim is foreclosed by the absence of clearly established 26 Federal law “ruling that admission of irrelevant or overtly prejudicial evidence constitutes 27 a due process violation sufficient to warrant issuance of the writ.” Holley, 568 at 1101. 28 This Court cannot conclude that the state court's ruling on this issue was either contrary 23 1 to, or an “unreasonable application” of, clearly established Federal law. And, even without 2 the deference required under AEDPA, the claim fails because there is no possibility that 3 the evidence had “a substantial and injurious effect or influence in determining the jury's 4 verdict.” Brecht, 507 U.S. at 637. 5 Claim Eight is denied. 6 I. 7 In Claim Nine, Ramet contends he was denied his right to due process by the 8 prosecutor’s improper remarks suggesting that he had committed other serious offenses. 9 Ramet cites to the prosecutor’s comment during closing argument wherein the prosecutor 10 provided examples of Ramet “minimizing” his past conduct and then stated, “And then 11 with the most serious offense of his life he again —.” (ECF No. 12-2 at 8.) At that point, 12 trial counsel objected to the prosecutor’s mischaracterization, pointing out, “[t]here’s no 13 other evidence of any other offense in his life.” (Id.) Ramet claims that the trial court 14 exacerbated the effect of the comment by stating: “Objection is noted but overruled. I 15 think that killing is pretty serious. I think it’s a fair comment.” (Id.) This claim is also one of the claims the Nevada Supreme Court rejected in a 16 17 Claim Nine footnote to its opinion on direct appeal. Ramet, 209 P.3d at 268 n.1. 18 “Improper argument does not, per se, violate a defendant's constitutional rights.” 19 Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (citations omitted). Habeas corpus 20 relief is available on grounds of improper argument only when the “prosecutor’s 21 comments so infected the trial with unfairness as to make the resulting conviction a denial 22 of due process.” Darden v. Wainwright, 477 U.S. 168, 171 (1986) (quoting Donnelly v. 23 DeChristoforo, 416 U.S. 637, 643 (1974)). Relief will be granted when the prosecutorial 24 misconduct amounts to constitutional error, and such error is not harmless under Brecht. 25 Thompson v. Borg, 74 F.3d 1571, 1577 (9th Cir. 1996) (“Only if the argument were 26 constitutional error would we have to decide whether the constitutional error was 27 harmless.”) 28 /// 24 1 This Court is not convinced that the comment was sufficient to cause the type of 2 harm that would provide grounds for habeas relief. Placed in context, the comment was 3 referring to “offenses” in a broader sense, not criminal offenses. Even though the trial 4 court’s ruling appears to have missed the point of the objection, the comment was so 5 fleeting as to have no appreciable prejudicial impact. Thus, it did not render the trial so 6 unfair that it violated Ramet’s right to due process. The Nevada Supreme Court’s rejection 7 of the claim was not unreasonable. 8 Claim Nine is denied. 9 10 11 V. CONCLUSION For the reasons set forth above, Ramet’s petition for habeas relief is denied. Certificate of Appealability 12 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 13 Governing Section 2254 Cases requires this Court to issue or deny a certificate of 14 appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within 15 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 16 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 17 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 18 "has made a substantial showing of the denial of a constitutional right." With respect to 19 claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would 20 find the district court's assessment of the constitutional claims debatable or wrong." Slack 21 v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 22 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 23 (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 24 whether the court's procedural ruling was correct. Id. 25 Having reviewed its determinations and rulings in adjudicating Ramet’s petition, 26 the Court finds that the Slack standard is met with respect to one claim on the merits. 27 Reasonable jurists could debate the Court’s decision to deny Claim Two, above. The 28 Court therefore will grant a certificate of appealability as to that issue. The Court declines 25 1 to issue a certificate of appealability for its resolution of any procedural issues or any of 2 Ramet’s remaining habeas claims. It is therefore ordered that Ramet’s amended petition for writ of habeas corpus 3 4 (ECF No. 9) is denied. The Clerk will enter judgment accordingly. It is further ordered that a certificate of appealablity is granted as to the following 5 6 7 issue: 8 Whether Claim Two, alleging a violation of the Sixth and Fourteenth Amendment due to trial counsel’s inaccurate advice about the consequences of going to trial, fails on the merits. 9 A certificate of appealability is otherwise denied. 10 DATED THIS 24th day of January 2018. 11 12 13 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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