Hidalgo v. LeGrand et al

Filing 100

ORDER - It is therefore ordered that Petitioner Hidalgos third amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 67 ) is denied. It is further ordered that a certificate of appealability is denied. The C lerk of Court is directed to substitute Tim Garrett for Respondent Robert LeGrand, enter judgment accordingly, and close this case. Re: 67 Amended Petition for Writ of Habeas Corpus Signed by Chief Judge Miranda M. Du on 9/23/2022. (Copies have been distributed pursuant to the NEF - CJS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LUIS ALONSO HIDALGO, III

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Petitioner,

v.

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ORDER

TIM GARRETT, 1 et al.,

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Case No. 3:16-cv-00618-MMD-CSD

Respondents.
I.

SUMMARY
Petitioner Luis Alonso Hidalgo III (“Petitioner Hidalgo” 2) was sentenced in Nevada

state court to, inter alia, two consecutive life sentences with parole eligibility after an
aggregate of 20 years after being found guilty by a jury of conspiracy to commit battery
with a deadly weapon, second-degree murder with the use of a deadly weapon, and two
counts of solicitation to commit murder. (ECF No. 26-5.) This matter is before the Court
for adjudication of the merits of the remaining grounds 3 in Petitioner Hidalgo’s counseled
third amended petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 67

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1The

state corrections department’s inmate locator page states that Petitioner
Hidalgo is incarcerated at Lovelock Correctional Center. Tim Garrett is the current warden
for that facility. At the end of this order, the Court directs the clerk to substitute Tim Garrett
as a respondent for Respondent Robert LeGrand. See Fed. R. Civ. P. 25(d).
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was noted in this Court’s previous order granting the motion to dismiss in part,
Luis Alonso Hidalgo III has the same name as his late father and co-defendant, Luis
Alonso Hidalgo, Jr. At trial, and in some court-filed documents, their nicknames were
used: Luis Alonso Hidalgo, Jr. was referred to as “Mr. H.,” and Luis Alonso Hidalgo III was
referred to as “Little Lou.” Rather than using these nicknames, the Court will refer to Luis
Alonso Hidalgo III as “Petitioner Hidalgo” and his father as “Hidalgo Sr.”
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83, 86.)

Court previously dismissed grounds 9, 10, 11, 12, 13, 14, and 15. (ECF Nos.
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(“Petition”).) For the reasons discussed below, the Court denies the Petition and a

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Certificate of Appealability.

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II.

BACKGROUND 4

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On May 19, 2005, around 11:30 p.m., three friends were driving home from Lake

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Mead near Las Vegas, Nevada when they saw a dead body lying in the road. (ECF No.

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23-2 at 26–27.) There were numerous advertisement cards for the Palomino Club, a strip

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club in North Las Vegas, found near the body. (ECF No. 23-3 at 21.) The victim, identified

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as Timothy Hadland, had been shot twice in the head. (ECF No. 23-4 at 70–71.)

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Hadland’s girlfriend, Paijik Karlson, testified that she and Hadland had gone

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camping at Lake Mead the evening of May 19, 2005, about two weeks after Hadland’s

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job as a doorman at the Palomino Club ended. (ECF No. 23-2 at 48–49, 57–58.) Hadland

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received a phone call while they were camping, and after that call, Hadland told Karlson

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that he was going to meet “Angelo,” who Karlson knew as Hadland’s former coworker

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from the Palomino Club, to get some marijuana. (Id. at 63–64.) Hadland left to meet

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“Angelo” between 9:00 p.m. and 10:00 p.m. and never returned. (Id. at 65.)

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Hidalgo Sr., Petitioner Hidalgo’s father, owned the Palomino Club; Anabel

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Espindola, Hidalgo Sr.’s girlfriend, was the general manager of the Palomino Club;

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Petitioner Hidalgo was a manager at the Palomino Club; and Deangelo Carroll did

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promotions, helped DJ, and “helped on the floor” of the Palomino Club. (ECF No. 24-3 at

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5, 9, 34–35.) There was testimony presented at the trial that, at one time or another, “all

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the adult clubs [in Las Vegas] pa[id] taxi drivers to bring them customers.” (ECF No. 23-

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5 at 60–61.) Front doormen of the clubs would count the number of people a taxi driver

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brought to the adult club and give the taxi driver a slip, and the taxi driver would then use

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the slip to get paid. (Id. at 62.) Espindola testified that about a week before Hadland’s

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Court makes no credibility findings or other factual findings regarding the truth
or falsity of this evidence from the state court. The Court’s summary is merely a backdrop
to its consideration of the issues presented in the Petition. Any absence of mention of a
specific piece of evidence does not signify the Court overlooked it in considering
Petitioner Hidalgo’s claims.
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murder, she heard a conversation between Hidalgo Sr. and Petitioner Hidalgo about how

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“[t]hey believed that Mr. Hadland was . . . falsifying tickets and getting a kickback.” (ECF

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No. 24-3 at 37.) Hidalgo Sr. told Petitioner Hidalgo to watch Hadland, and a day or two

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later, Hidalgo Sr. indicated that Hadland needed to be fired. (Id. at 40, 42.)

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Espindola, a prosecution witness, testified that on May 19, 2005, Carroll told her

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that Hadland “was going to another strip club and bad mouthing the . . . Palomino.” (ECF

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No. 24-3 at 44–45.) Espindola told Hidalgo Sr. and Petitioner Hidalgo what Carroll had

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said, and although Hidalgo Sr. “didn’t really react,” Petitioner Hidalgo was angry. (Id. at

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48.) Petitioner Hidalgo yelled to Hidalgo Sr., “[y]ou’re not going to do anything? That’s

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why nothing ever gets done. You’ll never be like Gilardi and Rizzolo. They take care of

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business.” (Id.) Petitioner Hidalgo then “mention[ed] that Rizzolo[, an owner of another

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adult club in Las Vegas,] had sent one of his employees to beat up a customer.” (Id. at

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50.) Hidalgo Sr. got angry and told Petitioner Hidalgo “to mind his own business.” (Id.)

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Later that evening, according to Espindola, Carroll came to visit Hidalgo Sr. (ECF

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No. 24-3 at 68.) After their conversation, Carroll and Hidalgo Sr. left the office. (Id. at 69.)

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Eventually, Hidalgo Sr. came back with another person, “PK,” and told Espindola to “call

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[Carroll] and tell him to go to plan B.” (Id. at 69–71.) Espindola called Carroll and told “him

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to go to plan B,” but Carroll responded, “I’m already here.” (Id. at 74.) Espindola again

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told Carroll to go to plan B, but the phone call was disconnected. (Id.) A little while later,

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Carroll returned to Hidalgo Sr.’s office and tells Hidalgo Sr. “[i]t’s done.” (Id. at 79.) Hidalgo

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Sr. ordered Espindola to get $5,000 from a safe, and Hidalgo Sr. gave the money to

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Carroll. (Id. at 80, 82.) The next morning, as Espindola and Hidalgo Sr. were watching the

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news, a story about “a death at Lake Mead” came on, and Hidalgo Sr. said, “he did it.”

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(Id. at 87.) The following day, Petitioner Hidalgo came over and told Hidalgo Sr., “[d]on’t

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worry, I already talked to [Carroll]. He said he’s not going to say anything. He’s dealt with

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the police before.” (ECF No. 24-4 at 13.)

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Rontae Zone, another prosecution witness, testified that Carroll got him a job

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handling out advertisement cards with Jayson Taoipu for the Palomino Club. (ECF No.
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23-4 at 89–91.) On May 19, 2005, around noon, Zone was with Carroll and Taoipu, and

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Carroll “said that [Petitioner Hidalgo] . . . said that [Hidalgo Sr.] wanted someone” to be

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“dealt with,” meaning killed. (ECF No. 23-5 at 4, 7.) Carroll asked Zone if he was “into

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doing it.” (Id. At 4.) Zone said that he was not, but Taoipu said he was interested. (Id. at

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4–5.) When asked if there was “any discussion as to how this would happen,” Zone

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testified that “[t]here was discussion of baseball bats and there was a discussion of trash

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bags.” (Id. at 5.) Zone testified that Carroll said that Petitioner Hidalgo “spoke of baseball

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bats and trash bags.” (Id.) Carroll then pulled out “a .22 revolver with a green pearl

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handle,” and Taoipu took it. (Id. At 7–8.) Carroll told Zone and Taoipu that Hidalgo Sr.

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“was going to pay $6,000 to the man who killed him.” (Id. at 11.)

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According to Zone, later that day, he, Carroll, and Taoipu picked up Kenneth

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Counts in a van and drove to Lake Mead. (ECF No. 23-5 at 14–16.) Carroll said that they

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were going to meet Hadland to kill him. (Id. at 18.) Carroll called Hadland while they were

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driving and told him that they were coming to smoke with him. (Id. at 19.) Hadland, who

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had driven from his campground to the location of the van, parked his car, walked up to

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the van, and started talking to Carroll, who was sitting in the driver’s seat. (Id. at 25–26.)

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Meanwhile, Counts exited the van, shot Hadland in the head, and then shot Hadland in

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the head again “after he hit the ground.” (Id. at 27.) Counts got back into the van, and

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they drove to the Palomino Club. (Id. at 28, 30.) The next day Carroll changed the van’s

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tires and “cleaned up the interior and he had washed the van.” (Id. at 33–34.)

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Law enforcement located Hadland’s cell phone in his car, and the last call Hadland

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received was from Carroll. (ECF No. 23-8 at 13.) Law enforcement contacted Carroll, and

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to determine who orchestrated the killing, law enforcement asked Carroll to wear a

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recording device. (Id. at 56.) Carroll agreed and recorded a conversation he had with

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Espindola and Petitioner Hidalgo. (ECF No. 26-18 at 10.) After Carroll mentioned the

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other two guys in the van, Zone and Taoipu, possibly snitching about the murder,

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Petitioner Hidalgo said, “[c]ould you have fucking [Counts] kill them too, we’ll fucking put

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something in their food so they die of rat poison or something.” (Id.) After Carroll replied,

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“[w]e can do that too,” Petitioner Hidalgo said, “[a]nd we get [Counts] last.” (Id.)

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Although Petitioner Hidalgo did not testify at the trial, Hidalgo Sr., who was tried

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with Petitioner Hidalgo, testified. (ECF No. 25-6 at 60.) Hidalgo Sr. denied hearing that

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Hadland was “badmouthing” the club from Espindola or Petitioner Hidalgo. (ECF No. 25-

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7 at 7.) Rather, Hidalgo Sr. testified that he had yelled at Carroll about something

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unrelated to Hadland, and then “maybe about 10” minutes later, Carroll came back to

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report about Hadland’s “badmouthing.” (Id. at 8.) Hidalgo Sr. “said so what, you know,

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what’s the big deal, you know? And . . . [Carroll] mumbled, murmured to [Espindola]

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saying, well, job security.” (Id. at 11.) Carroll then said, “well, maybe I . . . should go talk

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to him.” (Id.) Espindola replied, “if you’re going to go talk to him, you talk to him on your

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own. That’s entirely up to you.” (Id.) As Carroll was leaving, Hidalgo Sr. said, “if you want

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to talk to him, just tell him to stop it, you know what I mean.” (Id. at 12.) Hidalgo Sr. testified

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that Petitioner Hidalgo was not in the room when this conversation occurred, and Hidalgo

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Sr. never asked or insinuated that someone should harm Hadland. (Id. at 12, 14.)

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According to Hidalgo Sr., Carroll came back later that night and told Espindola, “I

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fucked up,” explaining that “the dude got out of the car and put the bullet in the guy’s

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head.” (ECF No. 25-7 at 16.) Carroll said they were smoking dope on the way to Lake

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Mead and the man who kill Hadland now wanted $5,000. (Id.) Carroll said, “and by the

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way, he’s a Crip, a gang member with the Crips, and you better not fuck with my boy.”

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(Id. at 18.) Hidalgo Sr. paid the $5,000 out of fear. (Id. at 19.)

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The jury found Petitioner Hidalgo guilty of conspiracy to commit a battery with a

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deadly weapon or battery resulting in substantial bodily harm, second-degree murder with

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the use of a deadly weapon, and two counts of solicitation to commit murder as to Taoipu

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and Zone. (ECF No. 25-13 at 4.) Petitioner Hidalgo appealed his judgment of conviction,

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and the Nevada Supreme Court affirmed. (ECF No. 26-8.) Petitioner Hidalgo sought post-

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conviction relief. (ECF No. 26-9.) The state district court denied relief, and the Nevada

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Supreme Court affirmed. (ECF Nos. 26-13, 26-16.)
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III.

GOVERNING STANDARD OF REVIEW

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

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habeas corpus cases under the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”):

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim —

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(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

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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

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

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

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

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

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

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is an unreasonable application of clearly established Supreme Court precedent within

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the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing

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legal principle from [the Supreme] Court’s decisions but unreasonably applies that

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

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

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

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

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omitted).

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

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claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
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disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

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

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

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

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

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

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

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quotation marks and citations omitted)).

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IV.

DISCUSSION

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A.

Ground 1—Jury Instruction No. 40

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In ground 1, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

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Amendment rights to due process of law and to a fair trial were violated because Jury

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Instruction No. 40 erroneously instructed that the existence of a conspiracy and his

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membership in it could be established by “slight evidence.” (ECF No. 67 at 81.)

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Jury Instruction No. 40 provided as follows:

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Whenever there is slight evidence that a conspiracy existed, and that
the defendant was one of the members of the conspiracy, then the
statements and the acts by any person likewise a member may be
considered by the jury as evidence in the case as to the defendant found to
have been a member, even though the statements and acts may have
occurred in the absence and without the knowledge of the defendant,
provided such statements and acts were knowingly made and done during
the continuance of such conspiracy, and in furtherance of some object or
purpose of the conspiracy.
This holds true, even if the statement was made by the coconspirator prior to the time the defendant entered the conspiracy, so long
as the co-conspirator was a member of the conspiracy at the time.
The statements of a co-conspirator after he has withdrawn from the
conspiracy were not offered, and may not be considered by you, for the truth
of the matter asserted. They were only offered to give context to the
statements made by the other individuals who are speaking, as or adoptive
admissions or other circumstantial evidence in the case.
An adoptive admission is a statement of which a listener has
manifested his adoption or belief in its truth.

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(ECF No. 26-17 at 44.)

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1.

Standard for reviewing jury instructions

Issues relating to jury instructions are not cognizable in federal habeas corpus
unless they violate due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991); see also
Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“[W]e have never said that the possibility
of a jury misapplying state law gives rise to federal constitutional error.”). The question
is “‘whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process,’ . . . not merely whether ‘the instruction is undesirable,
erroneous, or even universally condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154
(1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). And significantly,
when reviewing a jury instruction, the Court considers that jury instruction “in the context
of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72.
2.

State court determination

In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme
Court held:
Hidalgo first argues that Jury Instruction No. 40’s reference to “slight
evidence” is a misstatement of the applicable law because it provided the
incorrect burden of proof for establishing a conspiracy. We disagree.
Whether a proffered jury instruction is an accurate statement of law
is a legal question for de novo review. Nay v. State, 123 Nev. 326, 330, 167
P.3d 430, 433 (2007). NRS 51.035(3)(e) defines as nonhearsay the
statements uttered by coconspirators of the defendant during the course
and in furtherance of the conspiracy. Preliminary questions concerning the
admissibility of evidence shall be determined by the judge. NRS 47.060. In
determining the admissibility of coconspirator statements, the district court
may determine the existence of a conspiracy by a “slight evidence”
standard. McDowell v. State, 103 Nev. 527, 529, 746 P.2d 149, 150 (1987).
Here, the instruction informed the jury on a permitted use of hearsay
under NRS 51.035(3)(e). Thus, it did not misstate the law, as it provided the
relevant admissibility standard for consideration of coconspirator
statements under McDowell.
[FN2] Because the jury instruction did not actually reduce the
State’s burden of proof, we reject Hidalgo’s argument that it
amounted to structural error. Cage v. Louisiana, 498 U.S. 39,
40 (1990) (finding structural error where a jury instruction
reduced the State’s burden by equating reasonable doubt with
grave uncertainty).
Nevertheless, Hidalgo next contends that the instruction’s language
created a risk that the jury would improperly confuse the standard for
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admissibility of coconspirator statements with the standard of beyond a
reasonable doubt for convicting him of conspiracy.
“This court evaluates appellate claims concerning jury instructions
using a harmless error standard of review.” Barnier v. State, 119 Nev. 129,
132, 67 P.3d 320, 322 (2003). An erroneous instruction “‘may not be judged
in artificial isolation,’ but must be considered in the context of the
instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S.
62, 72, (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). As
such, Hidalgo must show a “reasonable likelihood” that the jury would have
concluded that this jury instruction, when read in context with other
instructions, authorized a conviction based on slight evidence. See Boyde
v. California, 494 U.S. 370, 381 (1990).
Here, the jury was repeatedly instructed regarding the applicable
burden of proof: guilt beyond a reasonable doubt. As the district court
explained in denying Hidalgo’s motion for new trial, “it seems inconceivable
that the jury could have misunderstood those six (6) words in instruction 40
considering that the jury was instructed more than ten (10) times on the
State’s burden of proof.”
Thus, we conclude that any error in the Jury instruction’s reference
to “slight evidence” was harmless.
(ECF No. 26-8 at 3–4.)

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3.

Analysis

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The Nevada Supreme Court has held that “[t]he preliminary question of the

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existence of a conspiracy for purposes of NRS 51.035(3)(e)[5] need only be

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established . . . by ‘slight evidence.’” McDowell v. State, 746 P.2d 149, 150 (Nev. 1987);

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see also Peterson v. Sheriff, Clark Cnty., 598 P.2d 623, 624 (Nev. 1979) (“[A]pplication

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of the coconspirator exception is contingent upon a showing, by independent evidence,

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that a conspiracy existed.”). Although it does not appear that it was necessary to instruct

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the jury regarding this evidentiary threshold to determine whether a co-conspirator’s

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statements should be admitted, the Nevada Supreme Court reasonably concluded that

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Jury Instruction No. 40 did not misdescribe the prosecution’s burden of proof or confuse

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the jury as to the State’s burden of proof. See Sullivan v. Louisiana, 508 U.S. 275, 281

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(1993) (explaining that “the essential connection to a ‘beyond a reasonable doubt’

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§ 51.035(3)(e) provides that a statement is hearsay unless “[t]he statement
is offered against a party and is . . . [a] statement by a coconspirator of a party during the
course and in furtherance of the conspiracy.”
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factual finding cannot be made where the instructional error consists of a misdescription

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of the burden of proof, which vitiates all the jury’s findings”). Indeed, rather than

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instructing that the existence of a conspiracy could be established by “slight evidence,”

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as Petitioner Hidalgo contends, Jury Instruction No. 40 merely outlined the preconditions

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to the jury’s consideration of a coconspirator’s statements in furtherance of a conspiracy

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as evidence against another member of the conspiracy. 6

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Further, as the Nevada Supreme Court reasonably noted, the jury was also

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instructed in Jury Instruction No. 35 that Petitioner Hidalgo “is presumed innocent until

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the contrary is proved,” and “[t]his presumption places upon the State the burden of

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proving beyond a reasonable doubt every material element of the crime charged and

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that the Defendant is the person who committed the offense.” (ECF No. 26-17 at 39.)

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And Jury Instruction No. 15 instructed that “[t]o be guilty of conspiracy, a defendant must

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intend to commit, or to aid in the commission of, the specific crime agreed to.” (Id. at

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Therefore, because Jury Instruction No. 40 did not violate due process, especially

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when considered in conjunction with Jury Instruction Nos. 15 and 35, Estelle, 502 U.S.

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at 72, the Nevada Supreme Court’s determination constitutes an objectively reasonable

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application of clearly established federal law and was not based on an unreasonable

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application of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for

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ground 1.

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B.

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In ground 2, Petitioner Hidalgo alleges that the state district court erred and

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violated his Fifth, Sixth, and Fourteenth Amendment rights when it failed to admit Carroll’s

Ground 2—Carroll’s Recorded Statement

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6Petitioner

Hidalgo also appears to assert that Jury Instruction No. 40 created an
improper barrier to the consideration of evidence. (ECF No. 67 at 82.) However, the case
Petitioner Hidalgo cites in support of this assertion, Cool v. United States, 409 U.S. 100,
104 (1972), discusses the creation of “an artificial barrier to the consideration of relevant
defense testimony,” which is inapplicable here.
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recorded statement, which exculpated him, for the truth of the matter asserted and as

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substantive evidence of his innocence. (ECF No. 67 at 83.)
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Background information

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While wearing a recording device following the murder and speaking with

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Espindola and Petitioner Hidalgo, Carroll made the following comment, apparently

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towards Petitioner Hidalgo: “what the fuck are you talking about[,] don’t worry about

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it . . . you didn’t have nothing to do with it.” (ECF No. 48-24 at 65.) Neither Petitioner

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Hidalgo nor Espindola commented on this statement. (Id.)

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Petitioner Hidalgo’s trial counsel mentioned this statement at the beginning of his

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opening statement, saying, “the man who was sent by the police to get incriminating

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evidence . . . stopped [Petitioner Hidalgo] . . . when he first made a comment and he

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said, [w]hat are you saying? You had nothing to do with this.” (ECF No. 23-1 at 73.) A

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little later in opening arguments, counsel stated, “[o]ut of Deangelo Carroll’s mouth is

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the best evidence in the case, [Petitioner Hidalgo], you had nothing to do with it.” (ECF

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No. 23-2 at 3.)

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During the trial, Petitioner Hidalgo’s counsel argued that Carroll’s statement was

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admissible “under the hearsay exceptions.” (ECF No. 23-6 at 8.) Following the

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prosecutor’s argument on the issue, the state district explained, “[t]hey’re not saying that

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Deangelo Carroll’s statement is truthful. They’re saying . . . that the acquiescence in this

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statement was a statement by a coconspirator, that the fact that they didn’t contradict it,

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that it was adopted by failure to contradict.” (Id. at 10.) The state district court later ruled:

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“the statements of Deangelo Carroll after he has withdrawn from the conspiracy were

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not offered and may not be considered by you for the truth of a matter asserted.” (ECF

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No. 25-9 at 76.) However, the state district court stated that “they may be considered to

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give context to the statements made by the other individuals who are speaking as

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adoptive admissions or as other circumstantial evidence.” (Id. at 80.) The state district

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court’s ruling was encompassed in Jury Instruction No. 40. (ECF No. 26-17 at 44.)

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2.

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Standard of review regarding right to present a defense

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“The right of an accused in a criminal trial to due process is, in essence, the right

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to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi,

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410 U.S. 284, 294 (1973); see also Washington v. Texas, 388 U.S. 14, 19 (1967)

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(explaining that an accused “has the right to present his own witnesses to establish a

6

defense” and that “[t]his right is a fundamental element of due process of law”); DePetris

7

v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (“The Supreme Court has made clear

8

that the erroneous exclusion of critical, corroborative defense evidence may violate both

9

the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to

10

present a defense.”). “[T]he Constitution [also] guarantees criminal defendants ‘a

11

meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S.

12

683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). A

13

defendant’s opportunity to be heard “would be an empty one if the State were permitted

14

to exclude competent, reliable evidence . . . when such evidence is central to the

15

defendant’s claim of innocence.” Id. This is because, “[i]n the absence of any valid state

16

justification, exclusion of . . . exculpatory evidence deprives a defendant of the basic

17

right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful

18

adversarial testing.’” Id. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656

19

(1984)). That said, the United States Supreme Court has “never questioned the power

20

of States to exclude evidence through the application of evidentiary rules that

21

themselves serve the interests of fairness and reliability—even if the defendant would

22

prefer to see that evidence admitted.” Id. at 690.
3.

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State court determination

In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme
Court held:
In the days following Hadland’s murder, Deangelo Carroll, who was
one of Hidalgo’s coconspirators but who also acted as a police informant,
was recorded as saying to Hidalgo in Anabel Espindola’s presence: “[D]on't
worry about it ... you didn't have nothing [sic] to do with it.” At trial, Hidalgo
sought to introduce this potentially exculpatory statement for its substantive
12

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truth. On hearsay grounds, the district court prohibited Hidalgo from
introducing the statement for its truth, but instead permitted Hidalgo to read
the statement into the record and argue that Espindola believed it to be true
based on her silence.
On appeal, Hidalgo contends that he was improperly prohibited from
introducing the statement as exculpatory evidence. This argument is twoprong, as Hidalgo argues that: (1) Carroll’s statement should have been
admitted for its truth as an admission of a party-opponent under NRS
51.035(3)(d); and (2) even if not, due process required it to be admitted
regardless of its hearsay status.
The statement was properly excluded as hearsay
Hidalgo contends that because Carroll was operating as a State
agent, his statement should have been admitted for its truth as an admission
of a party-opponent. We disagree.
Under NRS 51.035(3), an admission by a party is not hearsay and
is admissible for the truth of the matter asserted. This doctrine extends to
statements made by the party’s “agent or servant concerning a matter within
the scope of the party’s agency or employment.” NRS 51.035(3)(d).
Nevada has never considered whether statements made by a police
informant qualify under the agency exception to the hearsay rule. However,
even among other jurisdictions to consider this issue, “it appears fairly wellsettled that statements by government agents at the investigative level are
not admissible” under the agency exception. State v. Asbridge, 555 N.W.2d
571, 576 (N.D. 1996) (emphasis added) (setting forth the majority view
among federal courts).
[FN3] Hidalgo cites U.S. v. Branham, 97 F.3d 835, 851 (6th
Cir. 1996), for the proposition that the statements of a paid
informant are admissible against the government. We find this
argument unpersuasive. The case at hand is markedly
distinguishable from Branham, which has not been extended
beyond the scenario of paid informants. Moreover, Branham
stands in stark contrast to the majority of courts that have
considered this narrow issue and concluded that the out-ofcourt statements of a government informant are not
admissible in a criminal trial as an admission by the agent of
a party-opponent. See U.S. v. Yildiz, 355 F.3d 80, 81-82 (2nd
Cir. 2004); Lippay v. Christos, 996 F.2d 1490, 1499 (3rd Cir.
1993) (holding that statements by informers are generally not
intended to fall under the agency exception given the tenuous
relationship between informers and police officers).
Thus, because Carroll’s statement occurred at the investigative level, the
district court properly determined that it was only admissible for context and
impeachment purposes, and not for its truth as substantive evidence of
innocence.
[FN4] Hidalgo makes two alternative arguments that are
unpersuasive. First, he argues that Carroll’s statement should
have been admitted under NRS 51.315. As discussed in more
detail below, this argument fails due to the statement’s
13

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unreliable nature. See NRS 51.315(1)(a) (requiring that the
“circumstances under which [the statement] was made offer
strong assurances of accuracy”).
Second, Hidalgo contends that the statement should
have been admitted for its truth as an “adoptive admission”
under NRS 51.035(3)(b) because Espindola’s silence was an
adoption of Carroll’s proclamation. We disagree, as the
statute only allows for statements made by a party opponent,
and Espindola would not qualify as such. To the extent that
Hidalgo also argues that a different portion of Jury Instruction
No. 40 improperly allowed the jury to consider Carroll’s taperecorded statements as adoptive admissions but not for their
truth, we conclude that any error was harmless. The record
shows that Hidalgo was permitted to read the statement to the
jury and argue that Espindola believed it to be true, implicitly
arguing that he had nothing to do with the conspiracy.
Exclusion of the statement did not violate due process
Hidalgo argues that he was constitutionally entitled to have Carroll’s
statement admitted for its truth. See Chia v. Cambra, 360 F.3d 997, 1003
(9th Cir. 2004) (“[W]hen a hearsay statement bears persuasive assurances
of trustworthiness and is critical to the defense, the exclusion of that
statement may rise to the level of a due process violation.”).
Here, we conclude that the district court did not commit a due
process violation in excluding this evidence, as Carroll’s tape-recorded
statement does not bear the requisite assurances of trustworthiness.
Although probative on the issue of whether Hidalgo was aware of the hit on
Hadland prior to the killing, the circumstances surrounding Carroll’s
statement render the statement unreliable because he was acting as a
police informant and had been prompted to make false statements to elicit
incriminating responses. Also, Carroll’s statement was not against his penal
interest, as he had already provided a full confession and his apparent
purpose for meeting with Hidalgo was to gain favor with law enforcement.
(ECF No. 26-8 at 4–7.)
4.

Analysis

“[W]hen a hearsay statement bears persuasive assurances of trustworthiness
and is critical to the defense, the exclusion of that statement may rise to the level of a
due process violation.” Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004). The Nevada
Supreme Court reasonably determined that Carroll’s statement did not bear these
requisite assurances of trustworthiness. In fact, as the Nevada Supreme Court
reasonably noted, at the time he made the statement that Petitioner Hidalgo “didn’t have
nothing to do with” the murder, Carroll was working as a police informant, wearing a wire
14

1

to obtain incriminating statements, and had been told to lie. Sergeant Michael McGrath

2

testified that prior to having Carroll wear the recording device, he “told [Carroll] some

3

prompts or things [he] wanted [Carroll] to say to gain information and reactions,”

4

including telling lies. (ECF Nos. 23-8 at 3, 24-2 at 18.) Further, as was also reasonably

5

noted by the Nevada Supreme Court, Carroll’s purpose in meeting with Petitioner

6

Hidalgo and Espindola was to gain favor with law enforcement and attempt to place the

7

blame on them. Thus, Carroll’s statement, which the jury heard during the trial, had

8

questionable reliability. Accordingly, the Nevada Supreme Court reasonably determined

9

that the state district court’s instruction that the jury could not consider the statement for

10

the truth of the matter asserted did not violate Petitioner Hidalgo’s right to due process.

11

See Chambers, 410 U.S. at 294. As such, Petitioner Hidalgo fails to demonstrate that

12

his right to a fair opportunity to defend against the State’s accusations or right to present

13

a complete defense were violated. See Chambers, 410 U.S. at 294; Crane, 476 U.S. at

14

690. Because the Nevada Supreme Court’s determination constitutes an objectively

15

reasonable application of clearly established federal law and was not based on an

16

unreasonable application of the facts, Petitioner Hidalgo is not entitled to federal habeas

17

relief for ground 2.

18

C.

19

In ground 3, Petitioner Hidalgo alleges that the state district court erred and

20

violated his Fifth, Sixth, and Fourteenth Amendment rights in denying admission of

21

Taoipu’s former testimony. (ECF No. 67 at 85.)

22

Ground 3—Admission of Former Testimony

1.

Background information

23

As a reminder, when asked if there was “any discussion as to how [the murder]

24

would happen,” Zone testified that “[t]here was discussion of baseball bats and there

25

was a discussion of trash bags.” (ECF No. 23-5 at 5.) When asked who spoke of these

26

items, Zone testified that Carroll said that Petitioner Hidalgo “spoke of baseball bats and

27

trash bags” in front of him and Taoipu. (Id.) Contrarily, during Counts’s trial, which

28

occurred prior to Petitioner Hidalgo’s trial, Taoipu testified that “before [they] went to go
15

1

pick up [Counts],” Carroll “told [them] that he called [Espindola,] and [Espindola] was

2

talking about baseball bats and trash bags.” (ECF No. 27-1 at 31, 67.)

3

Petitioner Hidalgo’s trial counsel moved to admit Taoipu’s statement from

4

Counts’s trial, arguing that it was exculpatory evidence as to Petitioner Hidalgo. (ECF

5

No. 25-8 at 59.) Hidalgo Sr. objected on Confrontation Clause grounds. (Id. at 62.) The

6

state district court disallowed the statement to be introduced, explaining that “if you let

7

in the statement that’s inconsistent with what Rontae Zone testified to, . . . that opens

8

the door to other statements that Jason Taoipu made . . . that indicate that [Petitioner

9

Hidalgo] was involved and gave the order.” (Id. at 63.) The state district court further

10

explained: “you can’t just take the one exculpatory statement without looking and at least

11

having part of the transcript in that pertains to [Petitioner Hidalgo]’s involvement.” (Id.)

12

Later, Petitioner Hidalgo’s counsel requested that Zone’s “testimony related to

13

bats and bags be stricken from the record,” since “we weren’t allowed to put in the part

14

of [Taoipu’s] transcript which speaks directly to that point.” (ECF No. 25-10 at 19.) The

15

state district court disagreed, stating “they are allowed to comment on that.” (Id. at 20.)
2.

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24
25
26
27
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State court determination

In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme
Court held:
Hidalgo argues that the district court abused its discretion in
excluding a portion of Jason Taoipu’s former testimony from the Kenneth
Counts murder trial, in which Taoipu stated that Espindola (instead of
Hidalgo) had instructed Carroll to bring baseball bats and trash bags to the
Palomino on the night of Hadland’s murder.
[FN5] Hidalgo also challenges the district court’s
determination that a partial admission of Taoipu’s former
testimony would allow the State to admit any other relevant
portion. This argument lacks merit, as NRS 47.120 provides
that when a writing or recorded statement is admitted, any part
of it that is relevant to the part introduced may be admitted as
well.
District court evidentiary rulings are reviewed for an abuse of
discretion. Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131
(2008). NRS 51.325 provides that prior testimony is not excluded by the
hearsay rule if (1) the declarant is unavailable as a witness, (2) the party
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against whom the former testimony is offered was a party or is in privity with
one of the former parties, and (3) the issues are substantially the same.
Here, it is undisputed that Taoipu was unavailable in Hidalgo’s trial
and that the State was a party in both trials. Thus, the relevant inquiry
becomes whether the issues were substantially the same. We conclude that
they were not. Counts was the direct perpetrator of the murder and there
was abundant evidence of his conspiracy with Carroll and Taoipu.
Accordingly, the State had no motive in the Counts trial to impeach Taoipu’s
statement for the superfluous goal of identifying further members of the
conspiracy. Further, in the Counts trial, the origin of the statement Hidalgo
sought to admit was largely irrelevant for proving Counts’ culpability. In the
instant case, the origin of the statement is at issue. Because the issues are
not substantially the same, the district court properly excluded Taoipu’s
former testimony.
(ECF No. 26-8 at 7–8.)

10

3.

Analysis

11

To be sure, introducing Taoipu’s prior testimony at Counts’s trial, which would

12

have contradicted Zone’s testimony that Petitioner Hidalgo was the one who spoke of

13

baseball bats and trash bags to Carroll, would have allegedly been helpful defense

14

evidence. However, even if Taoipu’s prior statement was exculpatory, the Court cannot

15

conclude that Petitioner Hidalgo’s constitutional rights were violated by the state district

16

court’s denial of his ability to admit the statement. The Nevada Supreme Court, the final

17

arbiter of Nevada law, determined that the state district court’s evidentiary ruling was

18

not an abuse of discretion according to Nevada law. Indeed, the Nevada Supreme Court

19

reasonably determined, under NRS § 51.325, 7 that the issue surrounding Taoipu’s prior

20

testimony was not substantially the same as it would be at Petitioner Hidalgo’s trial

21

because Taoipu’s statement at Counts’s trial was superfluous, which was not the case

22

in the current action.

23

Consequently, because the state courts determined that the evidence did not

24

meet the standards required by NRS § 51.325, thereby constituting a valid state

25

justification for its exclusion, see Crane, 476 U.S. at 690-91, it cannot be concluded that

26
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7NRS

§ 51.325 provides that “[t]estimony given as a witness at another hearing . .
. is not inadmissible under the hearsay rule if: (1) [t]he declarant is unavailable as a
witness; and (2) . . . the party against whom the former testimony is offered was a party .
. . and the issues are substantially the same.”
17

1

Petitioner Hidalgo’s right to present a complete defense, right to due process, and right

2

to a fair trial were violated. See Chambers, 410 U.S. at 294; Trombetta, 467 U.S. at 485.

3

As such, because the Nevada Supreme Court’s determination constitutes an objectively

4

reasonable application of clearly established federal law and was not based on an

5

unreasonable application of the facts, Petitioner Hidalgo is not entitled to federal habeas

6

relief for ground 3.

7

D.

8

In ground 4, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

9

Amendment rights to a fair trial, to due process of law, and to effective assistance of

10

counsel at trial and on direct appeal were impinged when counsel did not tender a jury

11

instruction directing the jury not to find the deadly weapon enhancement if the jury were

12

to find him guilty of second-degree murder on a conspiracy theory, absent evidence of

13

use of a weapon as part of the conspiracy. (ECF No. 67 at 86.) Alternatively, Petitioner

14

Hidalgo alleges that his trial counsel was prejudicially ineffective in not making this attack

15

part of his motion for judgment of acquittal. (Id.)

16

Ground 4—Deadly Weapon Enhancement Jury Instruction

1.

Standard for ineffective assistance of counsel

17

In Strickland v. Washington, the Supreme Court propounded a two-prong test for

18

analysis of claims of ineffective assistance of counsel requiring the petitioner to

19

demonstrate (1) that the attorney’s “representation fell below an objective standard of

20

reasonableness,” and (2) that the attorney’s deficient performance prejudiced the

21

defendant such that “there is a reasonable probability that, but for counsel’s

22

unprofessional errors, the result of the proceeding would have been different.” 466 U.S.

23

668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel

24

must apply a “strong presumption that counsel’s conduct falls within the wide range of

25

reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that

26

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

27

guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish

28

prejudice under Strickland, it is not enough for the habeas petitioner “to show that the
18

1

errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.

2

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

3

whose result is reliable.” Id. at 687.

4

This standard is also utilized to review appellate counsel’s actions: a petitioner

5

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

6

and to file a merits brief raising them” and then “that, but for his [appellate] counsel’s

7

unreasonable failure to file a merits brief, [petitioner] would have prevailed on his

8

appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000).

9

Where a state district court previously adjudicated the claim of ineffective

10

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

11

is especially difficult. See Richter, 562 U.S. at 104–05. In Richter, the United States

12

Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, and

13

when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v.

14

Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state

15

court’s Strickland determination under AEDPA, both AEDPA and Strickland’s deferential

16

standards apply; hence, the Supreme Court’s description of the standard as doubly

17

deferential.”) (internal quotation marks omitted). The Supreme Court further clarified

18

that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were

19

reasonable. The question is whether there is any reasonable argument that counsel

20

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

21
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23
24
25
26
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2.

State court determination

In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada
Supreme Court held:
Second, appellant contends that the district court erred by denying
his claim that trial counsel were ineffective for failing to challenge the
deadly-weapon enhancement based on Moore v. State, 117 Nev. 659, 663,
27 P.3d 447, 450 (2001) (holding that “it is improper to enhance a sentence
for conspiracy using the deadly weapon enhancement.”). Because the
deadly weapon enhancement was not applied to the conspiracy conviction,
appellant failed to demonstrate that counsel was ineffective. To the extent
appellant challenges the instruction given at trial based on Brooks v. State,
124 Nev. 203, 180 P.3d 657 (2008), no relief is warranted because the
19

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3
4

instruction complied with Brooks; moreover, appellant has challenged the
instruction for the first time on appeal. Therefore, we conclude that the
district court did not err by denying this claim.
(ECF No. 26-16 at 3–4.)
3.

Analysis

5

In Moore v. State, the Nevada Supreme Court “conclude[d] that it is improper to

6

enhance a sentence for conspiracy using the deadly weapon enhancement.” 27 P.3d

7

447, 450 (Nev. 2001). The Nevada Supreme Court reasoned that “[b]ecause an unlawful

8

agreement is the essence of the crime of conspiracy and because in Nevada conspiracy

9

is committed upon reaching the unlawful agreement,” a defendant can “not ‘use’ a

10

deadly weapon to commit the crime of conspiracy for purposes of the deadly weapon

11

enhancement.” Id. As the Nevada Supreme Court reasonably concluded here, the

12

deadly weapon was not used to enhance Petitioner Hidalgo’s conspiracy conviction.

13

Rather, it was only used to enhance his second-degree murder conviction. (ECF No.

14

26-17 at 35 (providing in Jury Instruction No. 31 that “if you find a defendant guilty of

15

Murder of the First Degree, or Murder of the Second Degree, you must also determine

16

whether or not a deadly weapon was used in the commission of this crime”).)

17

The Court now turns to Petitioner Hidalgo’s argument that a deadly weapon

18

cannot be used to enhance a murder conviction if that murder conviction is premised on

19

a conspiracy theory of liability. In Brooks v. State, the Nevada Supreme Court concluded

20

that a defendant “is subject to a sentence enhancement” if “the unarmed offender is

21

liable as a principal for the offense that is sought to be enhanced, another principal to

22

the offense is armed with and uses a deadly weapon in the commission of the offense,

23

and the unarmed offender had knowledge of the use of the deadly weapon.” 180 P.3d

24

657, 661 (Nev. 2008). As the Nevada Supreme Court reasonably concluded here, Jury

25

Instruction No. 33 complied with Brooks. (ECF No. 26-17 at 37 (providing in Jury

26

Instruction No. 33 that “[a]n unarmed offender ‘uses’ a deadly weapon when the

27

unarmed offender is liable for the offense, another person liable to the offense is armed

28
20

1

with and uses a deadly weapon in the commission of the offense, and the unarmed

2

offender had knowledge of the use of the deadly weapon”).)

3

Because the jury instructions given on the deadly weapon enhancement were

4

accurate recitations of Nevada law as reasonably determined by the Nevada Supreme

5

Court, the final arbiter of Nevada law, Petitioner Hidalgo fails to demonstrate that his

6

trial or appellate counsel were ineffective regarding the deadly weapon enhancement

7

jury instructions. Accordingly, the Nevada Supreme Court’s determination constitutes

8

an objectively reasonable application of federal law under Strickland and was not based

9

on an unreasonable determination of the facts. Petitioner Hidalgo is not entitled to

10

federal habeas relief for ground 4.

11

E.

12

In ground 5, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

13

Amendment rights to a fair trial, to due process of law, and to effective assistance of

14

counsel at trial and on direct appeal were impinged when counsel failed and refused to

15

tender a jury instruction that out-of-court statements made by co-conspirators may not

16

be considered against him if the statements themselves were the only evidence of his

17

participation in the conspiracy. (ECF No. 67 at 89.)

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20
21
22
23
24
25
26
27
28

Ground 5—Out-of-Court Statement Instruction

1.

State court determination

In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada
Supreme Court held:
Third, appellant contends that the district court erred by denying his
claim that trial counsel were ineffective for failing to proffer an instruction
regarding the admissibility of co-conspirator statements that was consistent
with the Federal Rules of Evidence, and appellate counsel was ineffective
for failing to argue that the admission of his co-conspirator’s statements
violated Crawford v. Washington, 541 U.S. 36, 56 (2004). Appellant failed
to demonstrate that the instructions given at trial were incorrect or that the
statements should not have been admitted. See McDowell v. State, 103
Nev. 527, 529, 746 P.2d 149, 150 (1987) (adopting the “slight evidence”
standard in Nevada); see also Crawford, 541 U.S. at 56 (recognizing that
statements made in furtherance of a conspiracy are nontestimonial); Lilly v.
Virginia, 527 U.S. 116, 137 (1999) (recognizing that statements made in the
furtherance of a conspiracy are reliable). Therefore, he fails to demonstrate
that counsel were ineffective. Accordingly, we conclude that the district
court did not err by denying this claim.
21

1

(ECF No. 26-16 at 4.)
2.

2

Analysis

3

Jury Instruction No. 40 was the jury instruction on out-of-court statements made

4

by co-conspirators: “Whenever there is slight evidence that a conspiracy existed, . . .

5

then the statements and the acts by any person likewise a member may be considered

6

by the jury as evidence in the case as to the defendant found to have been a member,

7

even though the statements and acts may have occurred in the absence and without

8

the knowledge of the defendant” if the “statements and acts were knowingly made and

9

done during the continuance of such conspiracy, and in furtherance of some object or

10

purpose of the conspiracy.” (ECF No. 26-17 at 44.) As the Nevada Supreme Court

11

reasonably determined, Jury Instruction No. 40 complied with Nevada law.

12

NRS § 51.035(3)(e) provides that a “statement by a coconspirator of a party

13

during the course and in furtherance of the conspiracy” is not hearsay. And Nevada

14

caselaw only requires the state district court to find that a conspiracy existed by “slight

15

evidence.” See McDowell v. State, 746 P.2d 149, 150 (Nev. 1987). Because Jury

16

Instruction No. 40’s slight evidence language was an accurate recitation of Nevada law

17

as reasonably determined by the Nevada Supreme Court, the final arbiter of Nevada

18

law, Petitioner Hidalgo fails to support his argument that under Nevada law out-of-court

19

statements made by co-conspirators may only be considered if there was other evidence

20

of his participation in the conspiracy. As such, Petitioner Hidalgo fails to demonstrate

21

that his trial or appellate counsel were ineffective for not making that argument, and the

22

Nevada Supreme Court’s determination constitutes an objectively reasonable

23

application of federal law under Strickland and was not based on an unreasonable

24

determination of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for

25

ground 5.

26

F.

Ground 6—Jury Instruction Nos. 19, 20, and 22

27

In ground 6, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

28

Amendment rights to a fair trial, to due process of law, and to effective assistance of
22

1

counsel at trial and on direct appeal were impinged when trial counsel failed to object to

2

Jury Instruction Nos. 19, 20, and 22 and failed to tender instructions that more precisely

3

defined the concepts of “vicarious liability for a second degree murder.” (ECF No. 67 at

4

94.) Specifically, Petitioner Hidalgo argues that none of the instructions advised the jury

5

that it had to find that Petitioner Hidalgo had to act with implied malice or that the

6

underlying felony was the proximate cause of the death in question. (Id. at 95–96.)

7

1.

Background information

8

Petitioner Hidalgo was charged with murder with the use of a deadly weapon

9

under two theories of criminal liability: (1) “by aiding and abetting the commission of the

10

crime by, directly or indirectly, . . . procuring . . . Carroll to beat and/or kill” Hadland,

11

and/or (2) “by conspiring to commit the crime of battery and/or battery with use of a

12

deadly weapon and/or battery resulting in substantial bodily harm and/or to kill” Hadland

13

“whereby each and every co-conspirator is responsible for . . . the natural and

14

foreseeable general intent crimes of each and every co-conspirator during the course

15

and in furtherance of the conspiracy.” (ECF No. 20-9 at 3–4.) The jury found Petitioner

16

Hidalgo guilty of second-degree murder with the use of a deadly weapon. (ECF No. 26-

17

1 at 3.) The jury’s reliance on a particular theory of liability is unclear. Jury Instruction

18

Nos. 19, 20, and 22 instructed, in part, the jury on these theories of liability.

19

Jury Instruction No. 19 provided:

20

Murder in the First Degree is a specific intent crime. A Defendant can
not be liable under conspiracy and/or aiding and abetting theory for First
Degree Murder for acts committed by a co-conspirator, unless, Defendant
also had a premeditated and deliberate specific intent to kill.

21
22
23
24
25

Murder in the Second Degree may be a general intent crime. As
such, Defendant may be liable under conspiracy theory or aiding and
abetting theory for Murder of the Second Degree for acts committed by a
co-conspirator if the killing is one of the reasonably foreseeable probable
and natural consequences of the object of the conspiracy or the aiding and
abetting.

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27
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(ECF No. 26-17 at 23.)
Jury Instruction No. 20 provides:
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Where two or more persons are accused of committing a crime
together, their guilt may be established without proof that each personally
did every act constituting the offense charged.
All persons concerned in the commission of a crime who either
directly and actively commit the act constituting the offense or who
knowingly and with criminal intent aid and abet in its commission or, whether
present or not, who advise and encourage its commission, with the intent
that the crime be committed, are regarded by the law as principals in the
crime thus committed and are equally guilty thereof.
A person aids and abets the commission of a crime if he knowingly
and with criminal intent aids, promotes, encourages or instigates by act or
advice, or by act and advise, the commission of such crime with the
intention that the crime be committed.
The State is not required to prove precisely which defendant actually
committed the crime and which defendant aided and abetted.
(Id. at 24.)

12

Jury Instruction No. 22 provides:

13

Where several parties join together in a common design to commit
any lawful act, each is criminally responsible for the reasonably foreseeable
general intent crimes committed in furtherance of the common design. In
contemplation of law, as it relates to general intent crimes, the act of one is
the act of all. Battery, Battery Resulting in Substantial Bodily Harm and
Battery With A Deadly Weapon are general intent crimes. Second Degree
Murder can be a general intent crime.

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Additionally, a co-conspirator is guilty of the offenses he specifically
intended to be committed. First Degree Murder is a specific intent crime.
(Id. at 26.)
2.

State court determination

In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada
Supreme Court held:
First, appellant contends that the district court erred by denying his
claim that trial counsel were ineffective for failing to tender appropriate
instructions regarding second-degree murder. Specifically, appellant
challenges the instructions relating to co-conspirator liability and seconddegree felony murder. Regarding the co-conspirator liability instructions,
appellant failed to demonstrate that the instructions given at trial were
inaccurate. See Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191, 201
(2005) (holding that “vicarious coconspirator liability may be properly
imposed for general intent crimes only when the crime in question was a
‘reasonably foreseeable consequence’ of the object of the conspiracy”). To
the extent appellant argues that second-degree murder is not a general
24

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3
4
5

intent crime pursuant to Ho v. Carey, 332 F.3d 587, 592 (9th Cir. 2003), his
reliance on Ho is misplaced because Ho addressed California law.
Regarding second-degree felony murder, even assuming that the jury was
not properly instructed pursuant to Labastida v. State, 115 Nev. 298, 307,
986 P.2d 443, 449 (1999), appellant failed to demonstrate that trial counsel
were deficient or that he was prejudiced given the evidence presented at
trial and the theories of vicarious liability alleged in the charging document.
Therefore, we conclude that the district court did not err by denying this
claim.
[FN1] For the same reasons, we conclude the district court did
not err by denying appellant's claim regarding appellate
counsel.

6
7
8

(ECF No. 26-16 at 2–3.)
3.

9

Analysis

10

The Nevada Supreme Court, the final arbiter of Nevada law, reasonably

11

determined that the jury was properly instructed about second-degree murder under

12

Nevada law. First, with respect to vicarious co-conspirator liability, the Nevada Supreme

13

Court has held that “vicarious coconspirator liability may be properly imposed for general

14

intent crimes only when the crime in question was a ‘reasonably foreseeable

15

consequence’ of the object of the conspiracy.” Bolden v. State, 124 P.3d 191, 201 (Nev.

16

2005), receded from on other grounds by Cortinas v. State, 195 P.3d 315, 324 (Nev.

17

2008). As the Nevada Supreme Court reasonably noted here, Jury Instruction No. 19

18

tracks this language. (ECF No. 26-17 at 23 (“Defendant may be liable under conspiracy

19

theory or aiding and abetting theory for Murder of the Second Degree for acts committed

20

by a co-conspirator if the killing is one of the reasonably foreseeable probable and

21

natural consequences of the object of the conspiracy or the aiding and abetting.”).)

22

Second, as to Petitioner Hidalgo’s argument that none of the instructions advised the

23

jury that it had to find he acted with malice, the record belies Petitioner Hidalgo’s

24

argument. Jury Instruction No. 6, which mirrors NRS § 200.010(1), 8 provided that

25

“[m]urder is the unlawful killing of a human being, with malice aforethought, either

26

express or implied.” (ECF No. 26-17 at 10.) And Jury Instruction No. 13 provided, in

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28

8NRS

§ 200.010(1) provides that “[m]urder is the unlawful killing of a human
being . . . [w]ith malice aforethought, either express or implied.”
25

1

relevant part, that “[m]urder of the Second Degree is . . . [m]urder with malice

2

aforethought, but without the admixture of premeditation and deliberation.” (Id. at 17.)

3

Third, as to Petitioner Hidalgo’s argument that none of the instructions advised the jury

4

that the underlying felony must be the proximate cause of the death in question, the

5

Nevada Supreme Court reasonably noted that felony murder was not alleged as a theory

6

of liability.

7

Accordingly, the Nevada Supreme Court’s determination that Petitioner Hidalgo

8

failed to demonstrate that his trial and appellate counsel were ineffective regarding the

9

second-degree murder jury instructions constitutes an objectively reasonable

10

application of federal law under Strickland and was not based on an unreasonable

11

determination of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for

12

ground 6.

13

G.

14

In ground 7, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

15

Amendment rights to a fair trial, due process of law, and effective assistance of counsel

16

at trial and on direct appeal were impinged when counsel did not seek a partial

17

severance under Morales v. State in the middle of trial to gain the admission of Taoipu’s

18

former testimony, which the Court discussed in ground 3. (ECF No. 67 at 101.)

Ground 7—Severance

19

In Morales v. State, the Nevada Supreme Court concluded that the state district

20

courts may bifurcate, rather than completely sever, “where the State, in the indictment

21

or criminal information, joins a charge of unlawful possession of a firearm by an ex-felon

22

with other substantive criminal violations.” 143 P.3d 463, 464 (Nev. 2006). Citing

23

Morales, Petitioner Hidalgo argues that his trial counsel should have argued for the

24

following remedy: “allow [Hidalgo Sr.] to finish his case, have the jury deliberate and

25

reach a verdict as to him,” and “[t]hen, without discharging the jury,” let him “present the

26

sworn testimony of Mr. Taoipu, and then present the cause [sic] to the same jury for

27

return of the second verdict regarding” him. (ECF No. 67 at 103–04.)

28

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26

1

1.

Background information

2

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

3

hearing that he “[v]ery much” wanted Taoipu to testify because Taoipu had made a

4

statement in Counts’s trial that “exonerated or was exculpatory for” Petitioner Hidalgo.

5

(ECF No. 26-12 at 17–18.) Counsel attempted to locate Taoipu, but “he had in essence

6

skipped town.” (Id. at 19.) Counsel sought to admit Taoipu’s prior testimony, but the

7

prosecution stated that if an excerpt of Taoipu’s former testimony would be admitted,

8

then all his former testimony would need to be admitted. (Id. at 19–20.) Hidalgo Sr.’s

9

counsel objected on Confrontation Clause grounds. (Id. at 20.)

10

Petitioner Hidalgo’s counsel argued that excluding the testimony violated

11

Petitioner Hidalgo’s due process rights, but he “did not move for a severance at that

12

time.” (Id. at 21.) Counsel testified that he “failed to request the severance which in

13

hindsight and going through the appeal and to this day [he] regret[s].” (Id. at 23.) Counsel

14

explained the basis of his regret: “[w]e would have moved for the severance and

15

preserved that issue for appeal regardless of how [the court] ruled” on the admissibility

16

of Taoipu’s testimony. (Id. at 35.)

17

Importantly, counsel testified that before trial Petitioner Hidalgo and Hidalgo Sr.

18

stipulated with the prosecution “to waive the death penalty in exchange for trying the

19

case[s] together.” (Id.) At the post-conviction evidentiary hearing, the state district court

20

stated, “the Court ruled that the . . . prior testimony of Mr. Taoipu wouldn’t come in

21

regardless for either defendant,” so it did not “see any point at that juncture to have

22

moved for severance.” (Id. at 49.) The state district court also explained: “[c]learly that

23

motion [to sever] would have been denied. And it would have exposed both defendants

24

. . . to the possibility of having the State seek the death penalty, which is a huge, huge

25

risk.” (Id.) Therefore, the state district court “f[ou]nd it curious . . . that for some sort of

26

attenuated appellate position [counsel] would have subjected his client to such a risk”

27

and found it incredible that counsel “would have moved for severance [during trial] based

28

on the record and the Court’s comments.” (Id.)
27

2.

1

In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada

2
3

Supreme Court held:

4

Fourth, appellant contends that the district court erred by denying his
claim that trial counsel were ineffective for failing to seek a severance during
trial to admit evidence that was favorable to him but unfavorable to his
codefendant. We disagree because the trial court did not decline to admit
the evidence based on prejudice to appellant’s codefendant and therefore
a severance would not have been granted on this basis. Because appellant
failed to demonstrate that a severance would have been granted under the
circumstances, trial counsel were not ineffective. Therefore, we conclude
that the district court did not err by denying this claim.

5
6
7
8
9

State court determination

(ECF No. 26-16 at 4-5.)
3.

10

Analysis

11

The Nevada Supreme Court reasonably concluded that Petitioner Hidalgo failed

12

to demonstrate that his trial counsel was deficient for not moving to sever his trial from

13

Hidalgo Sr.’s trial to admit Taoipu’s testimony and his appellate counsel was deficient

14

for failing to include this issue in his direct appeal. See Strickland, 466 U.S. at 688.

15

Before trial, Petitioner Hidalgo agreed to the joinder of his trial with Hidalgo Sr.’s trial in

16

exchange for the prosecution waiving the death penalty. Consequently, the state district

17

court reasonably noted that it would have been risky to ask for a severance during trial

18

because a new trial could have exposed Petitioner Hidalgo to the death penalty. Further,

19

regarding a bifurcation during the trial, the state district court stated at the post-

20

conviction evidentiary hearing that she presided over the trial and (1) would not have

21

allowed Taoipu’s testimony to be admitted regardless of bifurcation, and (2) would have

22

denied any type of motion to sever or bifurcate. Thus, because seeking bifurcation would

23

have been futile, the Nevada Supreme Court’s determination that Petitioner Hidalgo

24

failed to demonstrate that his trial counsel and appellate counsel were ineffective

25

constitutes an objectively reasonable application of federal law under Strickland and

26

was not based on an unreasonable determination of the facts. Petitioner Hidalgo is not

27

entitled to federal habeas relief for ground 7.

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28

1

H.

Ground 8—Motion to Sever the Charges

2

In ground 8, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth

3

Amendment rights to a fair trial, due process of law, and effective assistance of counsel

4

at trial and on direct appeal were violated when trial counsel failed to move to sever the

5

solicitation of murder counts, which regarded Petitioner Hidalgo’s solicitation of Carroll

6

to kill Taoipu and Zone with rat poison, from the murder and conspiracy to murder counts

7

regarding Hadland. (ECF No. 67 at 106.)
1.

8

Background information

9

At a post-conviction hearing, the state district court judge, whoalso presided over

10

Petitioner Hidalgo’s trial, noted, “had [Petitioner Hidalgo’s trial counsel] filed that motion

11

[to sever counts 1 and 2 from counts 3 and 4] that would have been clearly denied”

12

because “all of the evidence would have essentially been the same even if you had tried

13

to sever it.” (ECF No. 26-11 at 11.) The state district court judge explained that the

14

prosecution was not using the solicitation counts, the stronger of the counts, to say

15

Petitioner Hidalgo was “a bad guy” so “he must have been involved in these other

16

things.” (Id. at 12.) Rather, the prosecution used the solicitation counts “to show

17

[Petitioner Hidalgo’s] involvement in this whole thing and his knowledge and his desire

18

to sort of clean it all up and tie it all together.” (Id. at 12.) As such, regarding any prejudice

19

Petitioner Hidalgo may have suffered from his counsel’s failure to move to sever the

20

counts, the state district court judge stated, “we don’t need to, you know, surmise what

21

would have happened. I can tell you what would have happened because I was the trial

22

judge.” (Id. at 13.) Later, at the continued post-conviction evidentiary hearing, Petitioner

23

Hidalgo’s post-conviction counsel reiterated the state district court’s previous comments

24

on this issue: “you stated in court about how you would not have granted a motion to

25

sever counts.” (ECF No. 26-12 at 6.) The state district court commented: “I can say I

26

wouldn’t have granted it . . . On this one I wasn’t on the line. Revisiting the issue, I

27

decided again, no, I wouldn’t have severed those.” (Id. at 10.)

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29

1

2.

Nevada law on severance

2

In relevant part, NRS § 173.115 provides that “[t]wo or more offenses may be

3

charged in the same indictment or information . . . if the offenses charged . . . are . . .

4

[b]ased on two or more acts or transactions connected together or constituting parts of

5

a common scheme or plan.” And NRS § 174.165(1) provides that “[i]f it appears that a

6

defendant or the State of Nevada is prejudiced by a joinder of offenses . . . in an

7

indictment or information, or by such joinder for trial together, the court may order an

8

election or separate trials of counts.” This determination is discretionary. See Jones v.

9

State, 899 P.2d 544, 547 (Nev. 1995).

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3.

State court determination

In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada
Supreme Court held:
Fifth, appellant contends that the district court erred by denying his
claim that trial counsel were ineffective for failing to seek a severance of the
solicitation counts. Appellant failed to demonstrate that a severance would
have been granted because the counts were clearly connected together.
See Weber v. State, 121 Nev. 554, 573, 119 P.3d 107, 120 (2005).
Therefore counsel were not ineffective. Accordingly, we conclude that the
district court did not err by denying this claim.
(ECF No. 26-16 at 5.)
4.

Analysis

19

The Nevada Supreme Court reasonably concluded that Petitioner Hidalgo failed

20

to demonstrate prejudice. See Strickland, 466 U.S. at 694. On post-conviction review,

21

the state district court judge, who also presided over Petitioner Hidalgo’s trial, stated that

22

she would not have granted a motion to sever the counts. Petitioner Hidalgo fails to

23

demonstrate that the result of the proceedings would have been different if his trial

24

counsel had filed such a motion or that he would have prevailed on appeal had his

25

appellate counsel included this claim on appeal. This is because (1) granting a motion

26

to sever is discretionary under NRS § 174.165(1), and (2) the same state district court

27

judge definitively stated that she would not have used her discretion to grant such a

28

motion. And the Nevada Supreme Court, the final arbiter of Nevada law, reasonably
30

1

agreed because the solicitation of murder counts were connected with the murder and

2

conspiracy counts under NRS § 173.115. Indeed, the solicitation of murder counts

3

demonstrated Petitioner Hidalgo’s knowledge of Hadland’s murder and desire to

4

eliminate witnesses to it. Accordingly, the Nevada Supreme Court’s determination

5

constitutes an objectively reasonable application of federal law under Strickland and

6

was not based on an unreasonable determination of the facts. Petitioner Hidalgo is not

7

entitled to federal habeas relief for ground 8.

8

I.

Ground 16—Cumulative Error 9

9

In ground 16, Petitioner Hidalgo alleges that his trial and appellate counsel’s

10

cumulative errors violated his right to equal protection, a fair trial, due process of law,

11

and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments.

12

(ECF No. 67 at 154.) In affirming the denial of Petitioner Hidalgo’s state habeas petition,

13

the Nevada Supreme Court held: “appellant contends that cumulative error entitles him

14

to relief. Because we have found no error, there are no errors to cumulate.” (ECF No.

15

26-16 at 5.)

16

Cumulative error applies where, “although no single trial error examined in

17

isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple

18

errors may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381

19

(9th Cir. 1996); see also Parle v. Runnels, 387 F.3d 1030, 1045 (9th Cir. 2004)

20

(explaining that the court must assess whether the aggregated errors “‘so infected the

21

trial with unfairness as to make the resulting conviction a denial of due process’” (citing

22

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Court has not identified any

23

errors on the part of Petitioner Hidalgo’s trial or appellate counsel, so there are no errors

24

to cumulate. Petitioner Hidalgo is not entitled to federal habeas relief for ground 16. 10

25
26
27
28

9The

Court previously partially dismissed ground 16 as it related to errors on his
direct appeal. (ECF Nos. 83 at 18, 84, 86.)
10Petitioner

Hidalgo requests that the Court conduct an evidentiary hearing. (ECF
No. 67 at 155.) Petitioner Hidalgo fails to explain what evidence would be presented at
an evidentiary hearing. Furthermore, the Court has already determined that Petitioner
31

1

V.

CERTIFICATE OF APPEALABILITY

2

This is a final order adverse to Petitioner Hidalgo. Rule 11 of the Rules Governing

3

Section 2254 Cases requires the Court to issue or deny a certificate of appealability

4

(COA). The Court has sua sponte evaluated the claims within the petition for suitability

5

for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851,

6

864–65 (9th Cir. 2002). Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the

7

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

8

respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable

9

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

10

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

11

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

12

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

13

right and (2) whether the Court’s procedural ruling was correct. Id.
Applying these standards, the Court finds that a certificate of appealability is

14
15

unwarranted.

16

VI.

CONCLUSION
It is therefore ordered that Petitioner Hidalgo’s third amended petition for a writ of

17
18

habeas corpus under 28 U.S.C. § 2254 (ECF No. 67) is denied.

19

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20

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26
27
28

Hidalgo is not entitled to relief, and neither further factual development nor any evidence
that may be proffered at an evidentiary hearing would affect this Court’s reasons for
denying relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes
the applicant’s factual allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.”); see also 28 U.S.C. § 2254(e)(2). Thus,
Petitioner Hidalgo’s request for an evidentiary hearing is denied.
32

1

It is further ordered that a certificate of appealability is denied.

2

The Clerk of Court is directed to substitute Tim Garrett for Respondent Robert

3
4

LeGrand, enter judgment accordingly, and close this case.
DATED THIS 23rd Day of September 2022.

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8

MIRANDA M. DU,
UNITED STATES DISTRICT JUDGE

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