Howard v. Wickham et al

Filing 63

ORDERED that the amended petition for writ of habeas corpus (ECF No. 21 ) is DENIED, and this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Howard's motion for an evidentiary hearing (ECF No. 60 ) is DENIED. IT IS FUR THER ORDERED that Howard is DENIED a certificate of appealability. The Clerk of Court shall enter final judgment accordingly and CLOSE this case. Signed by Judge Howard D. McKibben on 2/12/2020. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10

LAMONT HOWARD,

11

Petitioner,
v.

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13

Case No. 3:16-cv-00665-HDM-CLB
ORDER

HAROLD WICKHAM, et al.,
Respondents.

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15

This counseled habeas petition pursuant to 28 U.S.C. § 2254

16

comes before the court for consideration of the merits of the

17

amended petition (ECF No. 21).

18

50), and petitioner Lamont Howard (“Howard”) has replied (ECF No.

19

58).

Respondents have answered (ECF No.

20

In addition, Howard has moved for an evidentiary hearing.

21

(ECF No. 60). Respondents have opposed (ECF No. 61), and Howard

22

has replied (ECF No. 62).

23

I. Background

24

Howard

challenges

his

2011

state

court

judgment

of

25

conviction, pursuant to jury trial, of sexual assault, two counts

26

of first-degree kidnapping, attempted sexual assault, and two

27
28
1

(Ex. 46). 1

1

counts of battery with intent to commit sexual assault.

2

The charges arose from two incidents that took place on July 31,

3

2010. (Ex. 4). Howard was accused of first kidnapping and sexually

4

assaulting

5

sexually assault Michele C. (Id.) A third woman, Heather, alleged

6

that Howard had also followed her around Virginia Lake for upwards

7

of an hour that same day. Howard was not charged with any crimes

8

in connection with Heather.

Marilyn

S.

and

then

kidnapping

and

attempting

to

9

On June 6, 2011, trial commenced. (See Ex. 132). The first

10

victim, Marilyn, testified that Howard approached her in the

11

parking lot of the Ponderosa Hotel on her way to the Discount

12

Liquor Store, at around 8 a.m. on July 31, 2010. (Id. at 214, 222-

13

23). Howard, who was with another man, asked Marilyn to go with

14

him; Marilyn said no and hurried over to the store. (Id. at 222-

15

25, 228-229). As Marilyn stood outside the liquor store, trying to

16

see if the owner, who had previously banned her, was inside, Howard

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pulled into the parking lot and parked in front of the store. (Id.

18

at 230-31). The man that had been with him got out of the car and

19

left. (Id. at 232-33; 239).

20

Howard got out and pushed Marilyn toward his car. (Id. at

21

233-35). She told him to leave her alone and go away, but Howard

22

continued to push. (Id. at 235-36). Once he had Marilyn in the

23

car, Howard shut the door, ran to the driver’s side, and drove

24

back to the Ponderosa parking lot. (Id. at 241, 244).

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26
1

27
28

The exhibits cited in this order, comprising the relevant state court
record, are located at ECF Nos. 30-33 & 51. Petitioner also filed
exhibits, located at ECF Nos. 16 and 59, which the court does not cite
in this order.

2

1

While in the parking lot, Howard pulled his pants down and

2

crawled on top of Marilyn, as Marilyn struggled and tried to push

3

him away. (Id. at 244-45, 248-49). Howard told Marilyn that he was

4

going to penetrate her, to call him “daddy,” and that he wasn’t

5

going to share her with anyone. (Id. at 251-52). He unzipped her

6

pants, began rubbing her vagina, and told her to grab his penis.

7

(Id. at 252-53). Although Marilyn complied, she did so by squeezing

8

hard, but the effort, intended to get Howard off of her, did not

9

work. (Id. at 252-54). Eventually, however, Howard did get off.

10

(Id. at 253-55). Marilyn attempted again to get out of the car,

11

but Howard pulled her back in by her leg, clothing, and hair. (Id.

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at 245-46; 254). He then drove off. (Id. at 255).

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As they drove, Marilyn asked Howard to take her to a nearby

14

gas station, where she knew other people would be and where she

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planned to call 911. (Id. at 233). On the way there, Howard

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continued to pull her hair and her clothes. (Id. at 256).

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there, Howard parked in the back of the station, where he again

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pulled on Marilyn’s hair and forced her head down toward his lap,

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this time sticking his penis in her mouth. (Id. at 257, 260-61).

Once

20

Marilyn continued to fight and was eventually able to get out

21

of the car and into the gas station, where she called the police

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from the store’s phone. (Id. at 261-62; Ex. 133 (Tr. 20)). Howard

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drove to the front of the store, got out of the car, and opened

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the door to the store. (Ex. 133 (Tr. 23)).

25

but instead stood in the doorway. (Id. at 23). After standing there

26

for a few seconds, he left. (Id. at 24).

He did not come inside

27

According to the gas station clerk, Rajeev Verma, Marilyn

28

appeared scared and said she needed help and that someone was
3

1

trying to rape her. (Ex. 133 (Tr. 77-80)). When Howard was in the

2

doorway, he was trying to talk to Marilyn, apparently asking her

3

to come outside, but Marilyn did not appear to want to go with

4

him. (Id. at 80-83). Verma described Howard as yelling and unkind,

5

describing him as “kind of rude and kind of like he was mad on her

6

or something.” (Id. at 97).

7

The officer who responded to Marilyn’s 911 call described her

8

as calm when he was talking to her. (Ex. 134 (Tr. 80)). Another

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officer said that during his interview with Marilyn, it seemed

10

like the timeline of events was much longer than the details she

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was giving. (Id. at 144-45). And the man who was with Howard in

12

the

13

testified that he observed Howard and a woman fitting Marilyn’s

14

description engaged in playful, almost flirting, conversation for

15

a long time. (Ex. 135 (Tr. 129-33)). That man thought there was

16

reciprocal interest based on the way Howard and the woman were

17

talking. (Id. at 148-50).

Ponderosa

parking

lot

when

Howard

and

Marilyn

first

met

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The second victim, Michele, testified that she was walking

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home from her friend’s house in the area of Kuenzli Lane in Reno

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on July 31, 2010, at around 10 a.m. when Howard pulled up into a

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driveway, blocking her path, and told her he wanted to give her

22

the

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responded, “no thank you, I’m not interested in that, but you can

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give me a ride if that’s what you want to do.”

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Howard replied, “Okay get in.” (Ex. 134 (Tr. 24)).

time

of

her

life.

(Ex.

133

(Tr.

104-08,

111)).

Michele

(Id. at 111-12).

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Michele pointed Howard in the direction she wanted to go, but

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he went the opposite way. (Ex. 133 (Tr. 112)). His words became

28

sexually aggressive. (Id.)

Michele told Howard he was going the
4

1

wrong way, to which Howard responded that he was going to give her

2

the time of her life before he would let go. (Id. at 113). As

3

Michele began looking for a way out of the car, Howard reached

4

over and began to play with her hair. (Id. at 114). Michele told

5

Howard to stop the car and instead he sped up. (Id.) Howard reached

6

over and pulled the scrunchie out of Michele’s hair; Michele got

7

angry and grabbed it back. (Id. at 115-16). Howard became more

8

physical and forceful, reaching over, twisting Michele’s hair, and

9

pulling her head down inches away from his groin. (Id. at 116).

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Michele was able to push herself back up. (Id. at 118).

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All the time, Howard continued to drive. (Id. at 117). Howard

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did not stop at any stop signs, and there were no red lights. (Id.

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at 119-20). As they approached a stop sign and Howard slowed – but

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didn’t stop -- Michele opened the door and jumped out. (Id. at

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119-2). Howard grabbed Michele’s hair and sped up, but Michele was

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already halfway out, and after being dragged some distance with

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her legs out the door, she eventually fell out of the car, landing

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on her chin. (Id. at 121-22, 125-26). Badly injured, Michele

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approached a cab driver and asked him to take her to her hotel;

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the driver refused, telling Michele to call 911. (Id. at 126, 129).

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Michele then went to a nearby minimart and asked them to call 911;

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the clerk refused and told Michele to leave. (Id. at 129). Sachin

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Verma, who was in the store at the time, offered to call 911 on

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his cell for Michele. (Id. at 131; (Ex. 134 (Tr. 34-35)). Sachin

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Verma described Michele’s demeanor as frantic, scared and crying.

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(Ex. 134 (Tr. 34-35)).

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5

1

Heather 2 also testified. She told the jury that on the morning

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of July 31, 2010, she was visibly pregnant and walking her two-

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year-old daughter around Virginia Lake when Howard pulled up next

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to her in his car and asked her to come talk with him. When she

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refused, explaining she was pregnant, with her daughter, and had

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a boyfriend at home, he continued to drive alongside her for at

7

least

8

Eventually, Heather got to the park and Howard drove away. (Id. at

9

106-09).

five

or

ten

minutes

more.

(Ex.

135

(Tr.

96-105)).

10

After letting her daughter play for 30-45 minutes, Heather

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began to walk back the way she had come. When she reached the

12

parking lot, however, Howard was there, and as she passed near him

13

he again started talking to her. (Id. at 109-10). Heather told

14

Howard he was scaring her, and Howard replied, “I don’t want to

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scare you,” and drove off. (Id. at 110). But again Heather ran

16

into Howard, this time near the bathrooms. When she again told him

17

he was scaring her, he left in his car momentarily but returned,

18

pulling up next to her and saying, “Well if you were a real bitch,

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you would sit and at least talk with me.” (Id. at 111-13, 115).

20

Heather put her head down and continued to walk; Howard continued

21

to follow her. (Id. at 114). All told, Howard followed Heather for

22

about an hour. Howard left only after Heather encountered a couple

23

that was willing to help her. (Id. at 116-17).

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25
26
27
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2 Before the trial began, the court had ruled Heather’s testimony was
not admissible but warned the door to it could be opened. Following
statements by defense counsel in opening and in questioning Detective
Doser, the trial court ruled the door had been opened and Heather could
testify.

6

1

Marilyn, Michele and Rajeev Verma all identified Howard as

2

the man in question during trial. (Ex. 132 at 222; Exhibit 133 at

3

81; Exhibit 133 at 106). In addition, other evidence connected

4

Howard to the crimes. The license plate number of the vehicle used

5

in Marilyn’s assault matched a vehicle belonging to Howard’s

6

daughter, and Howard could not be excluded as the source of DNA

7

collected from Marilyn’s mouth. (Ex. 134 (Tr. 60, 68-69); Ex. 135

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(Tr. 84-85)). When interviewed by Detective Doser, Howard lied

9

about where he had been the morning of July 31, 2010, and denied

10

engaging in any sexual contact that day. (Ex. 134 (Tr. 116-19,

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147)).

12

The jury found Howard guilty on all counts. (Ex. 46). Howard

13

moved to set aside the verdict or, in the alternative, for a new

14

trial; the motion was denied. (Exs. 49 & 137 at 3-4). Howard was

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sentenced and judgment of conviction entered. (Exs. 56 & 137).

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On appeal, the Nevada Supreme Court affirmed. (Exs. 61, 72 &

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80). Howard thereafter pursued a state postconviction petition,

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which the trial court denied. (Exs. 83, 89 & 99). The Nevada

19

Supreme Court affirmed. (Ex. 111).

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Howard now pursues his claims via the instant federal habeas

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petition pursuant to 28 U.S.C. § 2254.

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before this court for review on the merits.

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II. Standard

The claims therein are

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28 U.S.C. § 2254(d) provides the legal standards for this

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Court’s consideration of the merits of the petition in this case:

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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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28

7

1

(1)

2
3

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.

4
5
6

AEDPA “modified a federal habeas court’s role in reviewing
7
state prisoner applications in order to prevent federal habeas
8
‘retrials’ and to ensure that state-court convictions are given
9
effect to the extent possible under law.” Bell v. Cone, 535 U.S.
10
685, 693-694 (2002). This court’s ability to grant a writ is to
11
cases where “there is no possibility fairminded jurists could
12
disagree that the state court’s decision conflicts with [Supreme
13
Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
14
The Supreme Court has emphasized “that even a strong case for
15
relief does not mean the state court’s contrary conclusion was
16
unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75
17
(2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
18
(describing the AEDPA standard as “a difficult to meet and highly
19
deferential standard for evaluating state-court rulings, which
20
demands that state-court decisions be given the benefit of the
21
doubt”) (internal quotation marks and citations omitted.)
22
A state court decision is contrary to clearly established
23
Supreme Court precedent, within the meaning of 28 U.S.C. § 2254,
24
“if the state court applies a rule that contradicts the governing
25
law set forth in [the Supreme Court’s] cases” or “if the state
26
court

confronts

a

set

of

facts

that

are

materially

27
indistinguishable from a decision of [the Supreme Court] and
28
8

1

nevertheless arrives at a result different from [the Supreme

2

Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v.

3

Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at

4

694).

5

A state court decision is an unreasonable application of

6

clearly established Supreme Court precedent, within the meaning of

7

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

8

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

9

unreasonably applies that principle to the facts of the prisoner’s

10

case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413).

11

The “unreasonable application” clause requires the state court

12

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

13

application

14

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

of

clearly

established

law

must

be

objectively

15

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

16

challenged, the “unreasonable determination of fact” clause of §

17

2254(d)(2) controls on federal habeas review. E.g., Lambert v.

18

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires

19

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

20

court factual determinations. Id. The governing standard is not

21

satisfied by a showing merely that the state court finding was

22

“clearly

23

substantially more deference:

24
25
26
27
28

erroneous.”

Id.

at

973.

Rather,

AEDPA

requires

.... [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district
court decision. Rather, we must be convinced that an
appellate panel, applying the normal standards of
appellate review, could not reasonably conclude that the
finding is supported by the record.

9

1

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also

2

Lambert, 393 F.3d at 972.

3

Under 28 U.S.C. § 2254(e)(1), state court factual findings

4

are presumed to be correct unless rebutted by clear and convincing

5

evidence.

6

preponderance of the evidence that he is entitled to habeas relief.

7

Cullen, 563 U.S. at 181.

8

are entitled to deference under AEDPA and may not be disturbed

9

unless they were ones “with which no fairminded jurist could

The

petitioner

bears

the

burden

of

proving

by

a

The state courts’ decisions on the merits

10

agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015).

11

III. Analysis

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A. Ground One

13

In

Ground

One,

Howard

asserts

that

his

“trial

attorney

14

provided ineffective assistance of counsel by opening the door to”

15

Heather’s testimony. (ECF No. 21 at 13).

16

Ineffective assistance of counsel claims are governed by

17

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,

18

a petitioner must satisfy two prongs to obtain habeas relief—

19

deficient performance by counsel and prejudice. 466 U.S. at 687.

20

With respect to the performance prong, a petitioner must carry the

21

burden of demonstrating that his counsel’s performance was so

22

deficient

23

reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s

24

performance must be highly deferential,’ and ‘a court must indulge

25

a strong presumption that counsel's conduct falls within the wide

26

range

27

Mirzayance,

28

assessing prejudice, the court “must ask if the defendant has met

of

that

it

reasonable
556

U.S.

fell

below

an

professional
111,

124

10

“objective

assistance.’”

(2009)

(citation

standard

of

Knowles

v.

omitted).

In

1

the burden of showing that the decision reached would reasonably

2

likely have been different absent [counsel’s] errors.” Strickland,

3

466 U.S. at 696.

4

The State moved to admit Heather’s testimony prior to trial.

5

(Ex. 7). At a hearing, the trial court ruled Heather’s testimony

6

was inadmissible to prove a common plan or scheme but warned that

7

the door could be opened depending on the questions defendant asked

8

or

9

attorneys for trial -- Marc Picker and Angela Lightner – did not

10

assume representation of Howard until after this hearing. (See

11

id.; Ex. 26).

evidence

he

introduced

during

trial.

(Ex.

126).

Howard’s

12

In opening statements during trial, Lightner argued that

13

Howard believed the women were open to having fun with him and

14

that prostitution commonly occurs in the area where the crimes

15

allegedly took place. (Ex. 132 (Tr. 207)). Then, while questioning

16

Detective Doser, Picker asked the following:

17
18

Q: Okay. Because you said to Mr. Howard, “Oh, it happens
all the time. Guys pick up girls on Virginia Street all
the time.” Is that a true statement?

19

A. We certainly look at alternative hypotheses, yes.

20

. . . .

21

Q. How about the statement, “Sometimes it’s a
misunderstanding, a business deal gone awry. And you’re
gonna sit here and tell me there aren’t prostitutes in
the city, man, ‘cuz there is.” That part’s true, right?
You know there’s prostitutes in the city and on South
Virginia Street, right?

22
23
24
25
26

A. Yes.
. . . .

27

Q. Is picking up a prostitute in Washoe County a crime,
or in the city of Reno? . . .

28

A. Yes. It’s against the law.
11

1
2

Q. Okay. So if you were accusing somebody of picking up
a prostitute, they might deny it?

3

(Ex. 134 (Tr. 150, 152, 156-57)). The prosecutor objected to the

4

last statement, and the objection was sustained.

5

In response to these questions, the State moved to introduce

6

Heather’s testimony.

7

“bringing up the defense that he believed that these women were

8

prostitutes and that his only mistake was committing a crime of

9

picking

up

a

It argued that Howard had opened the door by

prostitute

versus

picking

up

these

women

and

10

assaulting them.” (Ex. 134 (Tr. 182)).

11

fact Heather was “pregnant and pushing her baby around the lake is

12

indicative that she’s not a prostitute.”

13

defense counsel argued that he was merely repeating Doser’s own

14

words,

15

admissible as to defendant’s intent, in part because the defense

16

had suggested in opening that Howard believed the women were

17

prostitutes. (Id.; Ex. 135 (Tr. 55-56)).

the

trial

court

ultimately

The State argued that the

(Id. at 183). Although

ruled

Heather’s

testimony

18

Defense counsel immediately moved for a mistrial on the basis

19

of ineffective assistance of counsel. When the court noted it

20

seemed that counsel had strategic reasons for its questions,

21

counsel objected, stating:

22
23
24
25

It was a misreading on our part. Since we didn’t do the
hearing [at which the court warned defense might open
the door to Heather’s testimony], we didn’t properly
understand the basis and where you’re coming from, so
quite frankly, we’ve screwed this trial up and I don’t
think there’s a way around it.
(Id. at 56).

The court denied the motion. (Id. at 56-57).

But

26
before

Heather

testified,

it

issued

27
advising the jury that it was
28
12

a

limiting

instruction,

1
2
3
4

about to hear evidence that the defendant committed
other acts not charged here. You may consider this
evidence only for its bearing, if any, on the question
of the defendant’s intent or absence of mistake and for
no other purpose. You may not consider this evidence as
evidence of guilt of the crimes for which the defendant
is now on trial.
(Ex. 135 (Tr. 96)).

5
The

Nevada

Supreme

Court

addressed

Howard’s

claim

that

6
counsel was ineffective for opening the door to Heather’s testimony
7
as follows:
8
9
10
11
12
13
14
15

We conclude that the district court did not err in
denying this claim without an evidentiary hearing. On
direct appeal, this court concluded that, even if the
prior bad act evidence was erroneously admitted at
trial, the admission was harmless in light of the other
evidence. . . Thus, the district court properly found
that
Howard
could
not
demonstrate
a
reasonable
probability of a different outcome at trial but for trial
counsel’s opening the door to this evidence. Because
Howard’s claim of ineffective assistance failed on the
prejudice prong, he was not entitled to an evidentiary
hearing. . . .
(Ex. 111 at 1-2). On direct appeal, the Nevada Supreme Court had

16
held that the admission of Heather’s testimony, even if improper,
17
“would amount to harmless error, since both Marilyn and Michele
18
provided

sufficient

credible

evidence

to

support

Howard's

19
convictions.”

(Ex. 80 at 11). The court also noted, in another

20
context, that the evidence supporting Howard’s conviction was
21
“overwhelming.” (Id. at 13).
22
Howard first argues that the Nevada Supreme Court’s finding
23
of no prejudice should not be entitled to deference because it
24
applied the incorrect standard.

Specifically, although the court

25
purported to find no reasonable probability of a different outcome
26
absent Heather’s testimony, it did so on the basis of its direct
27
appeal finding that introduction of Heather’s testimony, if error,
28
13

1

was harmless, because Marilyn and Michele provided “sufficient

2

credible evidence to support Howard’s conviction.”

3

argues,

4

predicated on a “sufficiency of the evidence” standard, a standard

5

much lower and easier for the State to meet than the applicable

6

Strickland standard. Therefore, Howard argues, the state courts

7

applied the wrong legal standard and their determination is not

8

entitled to deference.

Nevada

Supreme

Court’s

holding

of

no

Thus, Howard
prejudice

was

9

The court is not persuaded. There is no indication that the

10

Nevada Supreme Court’s use of the words “sufficient evidence” meant

11

that it was applying a sufficiency of the evidence standard to

12

determine whether there was harmless error -- particularly where,

13

just above, it had cited Tavares v. State for the harmless error

14

standard. Tavares dictates that an error is harmless unless it had

15

a “substantial and injurious effect on the jury’s verdict.” (See

16

Ex. 80 at 9 (citing Tavares v. State, 30 P.3d 1128, 1132 (Nev.

17

2001)). And there is no indication that by referring back to this

18

finding,

19

standard, that the Nevada Supreme Court was applying a sufficiency

20

of the evidence standard. The court therefore finds that the state

21

courts

22

determination

23

entitled to deference.

while

applied

expressly

the

and

citing

appropriate

that

the

state

the

applicable

standard
court

to

finding

the
is

Strickland

prejudice
therefore

24

Turning to the question of whether the state courts were

25

objectively reasonable in finding no prejudice from Heather’s

26

testimony, Howard argues that Marilyn and Michele’s testimonies

27

were so weak that there is a reasonable probability the jury would

28

not have convicted in the absence of Heather’s credible and very
14

1

inflammatory testimony. Respondents argue that Heather’s testimony

2

was relatively innocuous compared to the far more violent and

3

inflammatory accounts of Marilyn and Michele.

4

Heather’s testimony undoubtedly cast Howard in a negative

5

light. She testified that Howard persistently pestered her, a

6

visibly pregnant woman with her toddler child, for more than an

7

hour. 3

8

detailed physical sexual violence over prolonged periods of time,

9

by way of forced abduction and in the face of clear protest by

10

both women. It would have been reasonable for the state courts to

11

conclude that, as such, the testimony of the victims was far more

12

inflammatory than Heather’s testimony.

13
14

Nevertheless,

Marilyn

and

Michele’s

testimonies

both

Further, the testimonies of the victims were not as weak as
Howard suggests.

15

With respect to Michele’s testimony, Howard focuses on the

16

fact that it began with Michele making a questionable decision –

17

to get into the car with Howard after he had propositioned her for

18

sex. While a decision that many would not have made, it does not

19

render Michele’s account of Howard’s actions unbelievable. Howard

20

can

21

Michele’s account, other than the fact that when Howard forced her

22

head to his groin she could not remember if his penis was exposed.

point

to

little

else

inconsistent

or

unbelievable

about

23
24
25
26
27
28

3

As an example of the inflammatory nature of Heather’s testimony, Howard
highlights an instance in which Heather appeared to break down during
her testimony. (See Ex. 135 at 106-07). Respondents argue that, in
context, Heather’s breakdown is more likely attributable to a court
admonishment than to her own testimony. The court would agree – or at
the least it would not have been unreasonable for the state courts to
interpret the exchange in this way.

15

1

It is not reasonably likely that Michele’s failure to remember

2

this detail would have caused a jury to doubt her testimony.

3

Most of Howard’s attack on Marilyn’s testimony is also without

4

merit. While it is true that Marilyn omitted details from her

5

various accounts, that does not necessarily indicate she was lying.

6

Omitting

7

inconsistent details, and Marilyn’s testimony included the former,

8

not the latter. Additionally, Marilyn testified that she had mental

9

health issues and problems communicating; it is reasonable to

10

expect that someone with these limitations who just underwent a

11

traumatic event might not remember to share every detail each time

12

she tells the story.

details

is

altogether

different

from

providing

13

In addition, Howard asserts Marilyn’s version of events could

14

not have been believed because her actions did not make sense. In

15

particular, Howard makes much of the fact that Marilyn was going

16

to a liquor store at 8 a.m. despite professing to not drinking

17

alcohol,

18

blacklisted at the store. He also makes much of her choice to call

19

911 from a gas station instead of the cell phone in her pocket.

20

Both of these decisions, however, were reasonable as a matter of

21

common sense and based on testimony at trial.

not

intending

to

purchase

alcohol,

and

to

being

22

Marilyn testified that she was planning to enter the liquor

23

store only if the man who had expelled her was not there. While

24

she could not state what she was planning to buy, other evidence

25

at trial – including from defendant’s own witness 4 – suggested that

26

the liquor store carried items other than alcohol. And there is no

27

indication that there were other businesses nearby from which

28

4

Ex. 135 (Tr. 129-33)).

16

1

Marilyn

2

Marilyn’s decision to call 911 from a gas station also made sense.

3

Rather than attempting a call from within the car, in a position

4

in which Howard could have stopped the call or hurt her even more,

5

she chose to be brought to a place of safety, around other people,

6

before calling 911. This was a reasonable choice on her part.

could

have

obtained

whatever

it

was

she

was

after.

7

Howard also asserts that it is improbable that Howard abducted

8

Marilyn or that Marilyn failed to call for help. Howard notes that

9

the abduction supposedly occurred on Virginia Street, which he

10

describes

11

“presumably” people would be walking. However, Howard provides no

12

evidence to support his presumption that, at 8 a.m. on a Saturday

13

morning, there would have been such a number of people walking on

14

that particular stretch of Virginia Street that either an abduction

15

could not have occurred or a call for help would have been heard.

16

Nor was any such evidence presented at trial.

as

a

major

thoroughfare

near

downtown

Reno

where

17

Finally, the fact Howard did not ejaculate while assaulting

18

Marilyn is not a fact of any significance. There are a plethora of

19

reasons Howard might have stopped before ejaculating that are

20

consistent with him assaulting Marilyn against her will.

21

Howard raises a number of additional points about Marilyn’s

22

testimony and argues that Heather’s testimony unduly corroborated

23

Marilyn’s questionable account. However, even considering these

24

additional points, there is no reasonable probability that the

25

outcome of the proceedings would have been different had Heather

26

not testified.

27

First, the trial court issued a proper limiting instruction,

28

which restrained the impact of Heather’s testimony to the issue of
17

1

Howard’s intent and absence of mistake.

2

instruction, there is not a reasonable probability of a different

3

outcome had Heather not testified.

In light of the limiting

4

Second, Howard does not challenge the joinder of Marilyn’s

5

and Michele’s charges. Because the cases were tried together, the

6

evidence that was adduced included both Michele’s testimony and

7

Marilyn’s testimony. Michele presented an account that was in many

8

ways similar to Marilyn’s account, and the women had no connection

9

to each other or apparent motivation to be untruthful. This,

10

considered with Howard’s denial of being with either woman and all

11

the other evidence that did not include Heather’s testimony, was

12

overwhelming evidence of Howard’s guilt. It was not objectively

13

unreasonable for the state courts to conclude that the outcome of

14

the proceedings would not have been different had Heather not

15

testified.

16
17

Howard

is

not

entitled

to

relief

on

Ground

One

of

the

petition.

18

B. Ground Two

19

In Ground Two of the petition, Howard asserts that the trial

20

court violated his rights to due process and a fair trial by

21

admitting Heather’s testimony. (ECF No. 21 at 21).

22

“[I]t is not the province of the federal habeas court to

23

reexamine state court determinations on state-law questions. In

24

conducting habeas review, a federal court is limited to deciding

25

whether a conviction violated the Constitution, laws, or treaties

26

of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

27

Therefore, as a general rule, federal courts may not review a trial

28

court’s evidentiary rulings. Crane v. Kentucky, 476 U.S. 683, 689
18

1

(1986). A state court’s evidentiary ruling, even if erroneous, is

2

grounds for federal habeas relief only if it is so fundamentally

3

unfair as to violate due process. Dillard v. Roe, 244 F.3d 758,

4

766 (9th Cir. 2001); see also Windham v. Merkle, 163 F.3d 1092,

5

1103 (9th Cir. 1998) (The federal court’s “role is limited to

6

determining whether the admission of evidence rendered the trial

7

so fundamentally unfair as to violate due process.”). Habeas relief

8

is thus available only if an evidentiary ruling or rule was

9

arbitrary, disproportionate to the end it was asserted to promote,

10

or so prejudicial that it rendered the trial fundamentally unfair.

11

See Holmes v. South Carolina, 547 U.S. 319, 324 (2006); Walters v.

12

Maass, 45 F.3d 1355, 1357 (9th Cir.1995).

13

Petitioner is entitled to habeas relief only if the error has

14

a “substantial and injurious effect or influence in determining

15

the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 627, 637

16

(1993).

17

As previously discussed, the Nevada Supreme Court addressed

18

this claim by holding that admission of Heather’s testimony, even

19

if improper, “would amount to harmless error, since both Marilyn

20

and

21

Howard’s convictions.”

22

discussed in Ground One, Howard is not entitled to relief on this

23

ground

24

objectively unreasonable in finding any error, it if was error, to

25

be harmless given the strength of the evidence against Howard.

26

Howard is not therefore entitled to relief on Ground Two.

Michele

of

provided

the

sufficient

credible

evidence

to

support

(Ex. 80 at 11). For the same reasons as

petition.

The

Nevada

27
28
19

Supreme

Court

was

not

1

C. Ground Three

2

In

3

prosecutor’s

4

statements, individually and cumulatively, violated his rights to

5

due process and a fair trial. (ECF No. 21 at 21).

6

Ground

Three,

Howard

statements

asserts

amounted

to

that

several

misconduct

and

of

the

that

the

A defendant’s constitutional right to due process of law is

7

violated

8

“fundamentally unfair”; thus, a prosecutor’s improper comments

9

amount to a constitutional violation if they “so infected the trial

10

with unfairness as to make the resulting conviction a denial of

11

due process.” Darden v. Wainwright, 477 U.S. 168, 181-83 (1986).

12

However, even if there was a constitutional violation, a petitioner

13

is entitled to relief only if he was actually prejudiced by the

14

comments. Id. (citing Ayala, 135 S. Ct. at 2197, and Brecht, 507

15

U.S. at 627, 637). Comments cause actual prejudice if they had a

16

“substantial and injurious effect or influence on the jury’s

17

verdict.” Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012). “Under

18

this test, relief is proper only if the federal court has ‘grave

19

doubt about whether a trial error of federal law had ‘substantial

20

and

21

verdict.’” Ayala, 135 S. Ct. at 2197–98.

22

if

the

injurious

Claims

of

prosecutor’s

effect

or

misconduct

influence

prosecutorial

in

misconduct

renders

determining

are

a

the

reviewed

trial

jury's

“on

the

23

merits, examining the entire proceedings to determine whether the

24

prosecutor’s [actions] so infected the trial with unfairness as to

25

make the resulting conviction a denial of due process.” Johnson v.

26

Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation and internal

27

quotation marks omitted).

28

following

factors:

(1)

The Supreme Court has looked at the
whether
20

the

prosecutor’s

comments

1

manipulated or misstated the evidence; (2) whether the trial court

2

gave a curative instruction; (3) the weight of the evidence against

3

the accused.

4

Darden, 477 U.S. at 181-82.

Howard first asserts that the prosecutor improperly referred

5

to his defense theory as a “lie.”

6

the prosecutor was discussing what Howard intended with respect to

7

Marilyn and Michele. She stated:

8
9
10
11

This statement occurred when

That’s what you have to consider with regard to intent.
That is the reason that Heather B. was here to testify,
because if it was the intent of him to just pick up some
girls and have a good time and possibly these were
prostitutes, that’s a lie by the fact he approached her
at Virginia Lake.
(Ex. 136 at 195). The Nevada Supreme Court addressed Howard’s claim

12
as follows:
13
14
15
16
17
18
19
20
21
22
23
24
25

Howard argues that the prosecutor engaged in misconduct
by making numerous prejudicial comments during the
State’s closing argument. . . . Some of the alleged
prosecutorial misconduct that Howard challenges on
appeal was not objected to at trial. . . .
The unobjected-to comments that Howard now asserts
amounted to prosecutorial misconduct occurred when the
prosecutor: (1) characterized the defense as a lie. . .
.
Generally, failure to object precludes appellate review
unless the error is plain error. Valdez v. State, 124
Nev. 1172, 1190, 196 P.3d 465, 477 (2OO8). Under plain
error review, reversal is not warranted unless "the
defendant demonstrates that the error affected his or
her substantial rights, by causing actual prejudice or
a miscarriage of justice. Id. (internal quotations
omitted). Howard has failed to demonstrate how the
unobjected-to comments substantially prejudiced him or
caused a miscarriage of justice. Since these particular
comments do not constitute plain error, reversal is not
warranted.
(Ex. 80 at 11-12 & n.5).

26
Respondents argue that (1) the prosecutor’s comment can be
27
read as intending to state that Howard’s position was “belied” by
28
21

1

the fact he approached Heather, and (2) even if the passing

2

reference was improper, it did not so fatally infect the trial

3

with unfairness to be a violation of due process.

4

While

the

prosecutor

may

have

intended

to

use

the

word

5

“belied,” the word she actually used was “lie.” The prosecutor

6

therefore called Howard’s defense a lie. However, even assuming

7

such a statement amounted to misconduct, the error would be subject

8

to harmless error analysis, Crane, 476 U.S. at 691, meaning that

9

Howard would be entitled to habeas relief only if it had a

10

“substantial and injurious effect or influence in determining the

11

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 627, 637

12

(1993)). The evidence against Howard was extremely strong, so

13

strong that the court cannot find the state courts were objectively

14

unreasonable

15

prosecutor did not impact the jury’s verdict in any substantial

16

way.

17

of Ground Three.

in

concluding

that

this

isolated

remark

by

the

Howard is not therefore entitled to relief on sub-part one

18

Second, Howard asserts that the State improperly vouched for

19

Marilyn by saying she “didn’t like to tell her story” and that she

20

“can’t remember a lot of what” Howard said to her while she was in

21

the gas station. (ECF No. 21 at 22). The district court upheld the

22

objection to the second statement and instructed the prosecutor to

23

rephrase, which she did. The Nevada Supreme Court addressed this

24

claim as follows:

25
26
27
28

Errors properly preserved for appellate review
reviewed for harmless error. Id. Valdez states:
The proper standard of harmless-error
review depends on whether the prosecutorial
misconduct is of a constitutional dimension.
If the error is of constitutional dimension,
22

are

then we . . . will reverse unless the State
demonstrates, beyond a reasonable doubt, that
the error did not contribute to the verdict.
If the error is not of constitutional
dimension, we will reverse only if the error
substantially affects the jury’s verdict.

1
2
3
4

Id. at 1188-89, 196 P.3d at 476 (footnotes omitted).

5

Howard first asserts that the prosecutor improperly
commented that Marilyn did not like being a witness and
telling her story. We conclude that this statement was
a fair comment on the evidence because the prosecutor
was pointing out Marilyn’s demeanor as a witness, rather
than asserting a personal belief. A prosecutor is
allowed to express opinions and beliefs during closing
argument so long as the statements made are fair comments
on the evidence presented to the jury. Domingues v.
State, 112 Nev. 683, 696,917 P.2d 1364, 1373 (1996).

6
7
8
9
10
11
12

Howard next asserts that the prosecutor improperly
vouched for Marilyn’s testimony when she made the
following statement:
Now, the idea that Marilyn said, Well, he
just stood there in the doorway, and Mr. Verma
said, Well he was sort of beckoning her and
saying rude things, Marilyn can’t remember a
lot of what he said. I—I asked her –

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

“Vouching may occur in two ways: the prosecution may
place the prestige of the government behind the witness
or may indicate that information not presented to the
jury supports the witness’s testimony.” Lisle v. State,
113 Nev. 540, 553, 937 P.2d 473, 481 (1997) (internal
quotations omitted).
It is unclear from Howard’s
argument what part of the prosecutor’s comment he
believes amounted to vouching.
Assuming he meant to
concentrate on the phrase “Marilyn can’t remember a lot
of what he said,” this is also a fair comment on the
evidence and not tantamount to vouching. Further, even
if it were somehow vouching, in light of the overwhelming
evidence supporting Howard’s conviction, we conclude
that this statement did not “substantially affect[] the
jury’s verdict.” See Valdez, 124 Nev. at 1189, 196 P.3d
at 476.
(Ex. 80 at 12-13).
The

state

courts

were

not

objectively

unreasonable

in

26

concluding that the prosecutor’s statements did not amount to

27

vouching and that, even if they were vouching, they were harmless.

28

It is clear from Marilyn’s testimony that she had difficulty
23

1

remembering things. And it is a fair reading of the testimony that

2

she did not like to tell her story.

The state courts were not

3

therefore

in

4

prosecutor’s

5

Moreover, the evidence against Howard was very strong, and it is

6

unlikely that these comments had a substantial and injurious effect

7

on the jury’s verdict. Howard is not therefore entitled to relief

8

on sub-part two of Ground Three.

objectively
comments

unreasonable
were

a

fair

concluding

comment

on

the

that

the

evidence.

9

Third, Howard asserts the prosecutor relied on facts not in

10

evidence when she made statements about the effect of Marilyn’s

11

medications and when she said Marilyn was the type of person one

12

would pick to victimize. (Ex. 136 (Tr. 127-29)).

13

stated:

14
15
16
17
18
19

And you
I think
the top
does is

The prosecutor

heard that the medication she’s on is twofold.
it was Abilify and Celexa. I can’t remember off
of my head. But she did tell you that what it
it levels her out and keeps her level.

So if she has a flat affect and she doesn’t sound like
she’s hysterical on the 911 call, you can hear her go up
and down in her voice because she’s getting frustrated,
but she’s on medication and it keeps her at that level,
and it does it because there’s a reason for that.
. . . .

20
21
22
23
24
25
26

She is who you would pick out if you were going down the
street and looking for someone to victimize, the kind of
person you would pick out, because of her size, her
demeanor, and her inability to sort of be effective in
communicating with people. And what are the chances of
someone like that coming to court and actually
testifying, which she did in this case.
So if you’re on the street and you’re looking for a
victim, that’s sort of someone who you want to find;
someone who you know you can victimize easily.
(Ex. 136 (Tr. 128-29)).

27
28
24

1

The Nevada Supreme Court found no prejudice or miscarriage of

2

justice on the basis of the prosecutor’s statements. (Ex. 80 at

3

11-12 & n.5). Respondents assert that the Nevada Supreme Court’s

4

conclusion was objectively reasonable because the prosecutor’s

5

statements were a fair comment on the evidence.

6

The state court’s rejection of this claim was not contrary

7

to, or an unreasonable application of, clearly established federal

8

law. Initially, the court would point out that Marilyn testified

9

she is bipolar, suffering from anxiety, depression, and panic

10

attacks, and was on two medications to calm her down.

11

(Tr. 211-13)). She also testified that, as a result of her mental

12

condition,

13

explaining and understanding things, and that she often gets

14

frustrated. (Id. at 213).

15

to the first objection, the prosecutor’s statement was based on

16

facts in evidence and was not improper. The second objected-to

17

statement encompassed both things Marilyn testified to and facts

18

that the jury could observe. The prosecutor’s statements on those

19

facts were also fair commentary on the evidence.

she

has

difficulty

communicating

with

(Ex. 132

people,

In light of this testimony, at least as

20

Further, regardless of the propriety of either statement, it

21

was not unreasonable for the state courts to conclude they did not

22

prejudice Howard. As previously noted, the evidence against Howard

23

was

24

statements in this regard had any real effect on the jury’s

25

verdict.

26

Ground Three.

27
28

extremely

strong.

It

is

unlikely

that

the

prosecutor’s

Howard is not entitled to relief on sub-part three of

Fourth,

Howard

asserts

the

prosecutor

inappropriately

personalized the case several times, including when she stated:
25

1

(1) “I take issue with a couple of things that were represented,”

2

(Ex. 136 (Tr. 186)); (2) “I don’t need to prove a sexual assault

3

with Marilyn at the Ponderosa.

4

is the fellatio that occurred at the XXX parking lot,” (id. at

5

189), and (3) “my sexual assault charge,” (id. at 190). After the

6

last comment, the prosecutor was admonished to restate, and she

7

corrected her statement to the “the State’s charges.”

The sexual assault I need to prove

8

The Nevada Supreme Court found no prejudice or miscarriage of

9

justice on the basis of the prosecutor’s statements. (Ex. 80 at

10

11-12 & n.5). The state courts’ conclusion was not contrary to, or

11

an unreasonable application of clearly established federal law or

12

an unreasonable determination of the facts.

13

the evidence against Howard, it was not objectively unreasonable

14

for the state courts to conclude that the prosecutor’s statements

15

did not have a substantial and injurious effect on the jury’s

16

verdict. Howard is not entitled to relief on this part of the

17

Ground Three.

Given the strength of

18

Fifth, Howard argues that the prosecutor tried to inflame the

19

jury’s passions by telling them to put themselves in Michele’s

20

shoes.

21

Howard cites to the following statement:

25

No, as he’s doing this, the situation is escalating, and
she’s not sure what to make of this: Is this guy serious?
Because you don’t really expect when you’re leaving your
friend’s house on a regular day, walking down the street
on a beautiful July day, that some guy’s really going to
pick you up and then try to assault you. You’re thinking:
What’s going on here? And your red flags are going off,
but you’re not sure how to take it, and then you’re not
sure what you’re going to do about it.

26

(Ex. 136 (Tr. 135-36)). The Nevada Supreme Court found no prejudice

27

or

28

statements. (Ex. 80 at 11-12 & n.5).

22
23
24

miscarriage

of

justice

on

the

26

basis

of

the

prosecutor’s

1

The state court’s conclusion was not contrary to, or an

2

unreasonable application of, clearly established federal law, or

3

an unreasonable determination of the facts.

4

the evidence against Howard, it was not objectively unreasonable

5

to conclude that Howard suffered no prejudice from the comments.

6

Howard is not entitled to relief on sub-part five of Ground Three.

7

Sixth, Howard asserts that the prosecutor made a series of

8

additional improper statements to which defense counsel objected.

9

Howard merely cites a four-page span, however, without identifying

10

which of several objected-to statements violated his rights, or

11

how.

12

Three is insufficiently pled and relief cannot be granted on such

13

conclusory claims. Howard is not entitled to relief on sub-part

14

six of Ground Three.

15

Given the strength of

The court agrees with respondents that to this extent Ground

Finally,

Howard

argues

that

the

prosecutor’s

statements,

16

cumulatively, rose to the level of a due process violation.

17

court has considered the cumulative effect of the prosecutor’s

18

statements and concludes that, in light of the strong evidence

19

against Howard, whatever error there was in the prosecutor’s

20

statements, they did not have a substantial and injurious effect

21

on the jury’s verdict -- even cumulatively.

22

The

Howard has not established entitlement to relief under any

23

part of Ground Three of the petition.

24

IV. Motion for Evidentiary Hearing

25

Howard has filed a motion for an evidentiary hearing on the

26

question of deficient performance with respect to the ineffective

27

assistance of counsel claim in Ground One. (ECF No. 60).

28

the court resolves Ground One on the basis of prejudice, it does
27

Because

1

not reach the question of performance, and an evidentiary hearing

2

is unnecessary. The motion for evidentiary hearing is therefore

3

denied.

4

V. Certificate of Appealability

5

In order to proceed with an appeal, Howard must receive a

6

certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App.

7

P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951

8

(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550,

9

551-52 (9th Cir. 2001). Generally, a petitioner must make “a

10

substantial showing of the denial of a constitutional right” to

11

warrant a certificate of appealability. Allen, 435 F.3d at 951; 28

12

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

13

(2000). “The petitioner must demonstrate that reasonable jurists

14

would find the district court’s assessment of the constitutional

15

claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack,

16

529 U.S. at 484). In order to meet this threshold inquiry, Howard

17

has the burden of demonstrating that the issues are debatable among

18

jurists

19

differently;

20

encouragement to proceed further. Id.

of

reason;
or

that

that
the

a

court

could

resolve

the

issues

questions

are

adequate

to

deserve

21

The court has considered the issues raised by Howard, with

22

respect to whether they satisfy the standard for issuance of a

23

certificate of appealability, and determines that none meet that

24

standard. Accordingly, Howard will be denied a certificate of

25

appealability.

26
27
28
28

1

VI. Conclusion

2

In accordance with the foregoing, IT IS THEREFORE ORDERED

3

that the amended petition for writ of habeas corpus (ECF No. 21)

4

is DENIED, and this action is therefore DISMISSED WITH PREJUDICE.

5

IT IS FURTHER ORDERED that Howard’s motion for an evidentiary

6
7
8
9
10

hearing (ECF No. 60) is DENIED.
IT IS FURTHER ORDERED that Howard is DENIED a certificate of
appealability, for the reasons set forth above.
The Clerk of Court shall enter final judgment accordingly and
CLOSE this case.

11

IT IS SO ORDERED.

12

DATED: This 12th day of February, 2020.

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____________________________
UNITED STATES DISTRICT JUDGE

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