Turner v. Baker et al

Filing 61

ORDER that Petitioner's Amended Petition for Writ of Habeas Corpus (ECF Nos. 27 , 27 -1) is denied; Petitioner is denied a certificate of appealability; Clerk directed to enter judgment. Signed by Chief Judge Miranda M. Du on 2/24/2020. (Copies have been distributed pursuant to the NEF - LW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JEREMY TURNER,

Case No. 3:17-cv-00139-MMD-WGC
Petitioner,

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ORDER

v.
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RENEE BAKER, et al.,
Respondents.

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I.

INTRODUCTION

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This action is a petition for writ of habeas corpus by Jeremy Turner, an individual

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incarcerated at Nevada’s Lovelock Correctional Center. Respondents have filed an

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answer to Turner’s amended petition, and the case is before the Court for adjudication of

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Turner’s claims. The Court will deny the amended petition and deny Turner a certificate

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of appealability.

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II.

In an order in Turner’s state habeas action, the district court described the murder

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that is the subject of this case, as follows:

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On August 31, 2010, Mr. Turner was with his sister, Jamie Hulsey,
and her husband, Ronald Hulsey, at the Hulsey residence. The group was
joined by friends—Carolyn Faircloth, her boyfriend John Clymer, and her
son Carl Roberts—for a barbecue. Everyone drank heavily. At
approximately 7:00 p.m., Mr. Turner and Mr. Roberts became involved in a
dispute, a punch was thrown, and a violent physical altercation erupted
involving all adults present. Mr. Turner and Mr. Hulsey attacked Mr.
Roberts, repeatedly kicking him about his head and body. Ms. Faircloth and
Ms. Hulsey fought with each other, punching each other in the face. After
beating Mr. Roberts, Mr. Turner allegedly came upon the two women,
grabbed Ms. Faircloth by the hair, and punched her in the head. Mr. Hulsey
then kicked Ms. Faircloth in the head while she lay on the ground.

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BACKGROUND

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Mr. Clymer found Ms. Faircloth without a pulse. A neighbor called
911, and Ms. Faircloth was pronounced dead upon arrival at the hospital.
Mr. Roberts was beaten so severely his face was unrecognizable. Mr.
Turner fled the scene with Ms. Hulsey and her minor children before officers
responded, but he was later apprehended at the Gold Dust West casino.
He was transported to the Sheriff’s office and gave a statement. He told
officers he did not like Mr. Roberts because he was African American. He
also stated he did not remember hitting Ms. Faircloth. (ECF No. 14-5 at 2–
3 (Order filed June 9, 2014 (citations to trial transcript omitted)).) Following
a jury trial in Nevada’s Second Judicial District Court (Washoe County),
Turner was convicted on November 17, 2011, of second degree murder and
battery causing substantial bodily harm, and he was sentenced to life in
prison with the possibility of parole after ten years, and a consecutive term
of two to five years in prison. (See ECF No. 21-10 (Judgment of
Conviction).) The Nevada Supreme Court affirmed the judgment of
conviction on January 16, 2013. (See ECF No. 13-25 (Order of Affirmance).)

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Turner filed a petition for writ of habeas corpus in the state district court on

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December 13, 2013. (See ECF No. 13-29 (Petition for Writ of Habeas Corpus (Post-

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Conviction).) The court held an evidentiary hearing (see ECF No. 14-10 (Transcript of

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Evidentiary Hearing)), and then denied Turner’s petition on September 14, 2015 (see ECF

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No. 14-12 (Order Denying Post-Conviction Relief).) Turner appealed, and the Nevada

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Supreme Court affirmed on February 16, 2017. (See ECF No. 14-25 (Order of

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Affirmance).)

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Turner submitted his original pro se federal habeas corpus petition for filing,

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initiating this action, on March 6, 2017. (ECF No. 6.) Respondents filed a motion to

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dismiss on June 5, 2017. (ECF No. 10.) That motion was rendered moot, and was denied

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on that ground, on October 17, 2017, when the Court granted Turner’s motion to amend

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his petition. (ECF No. 26.) Turner filed his amended habeas petition, which is now his

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operative petition, on December 18, 2017. (ECF Nos. 27, 27-1.) The Court reads Turner’s

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amended petition to include the following claims:

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Ground 1A: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective because he “conceded to a fist strike upon the
victim.”
Ground 1B: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing “to have the jury properly instructed
on aiding and abetting, and/or specific intent,” and because his appellate
counsel was ineffective for failing to raise the issue on his direct appeal.
Ground 1C: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to file a motion to sever his trial from
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the trial of his co-defendant, and because his appellate counsel was
ineffective for failing to raise the issue on his direct appeal.
Ground 1D: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to file a motion for a mistrial based on
jury misconduct, and because his appellate counsel was ineffective for
failing to raise the issue on his direct appeal.
Ground 1E: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to file a motion to suppress his
statements to law enforcement.
Ground 1F: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to meaningfully cross-examine
prosecution witnesses.
Ground 1G: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to investigate and prepare for the
testimony of prosecution witnesses.
Ground 1H: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to prepare for his sentencing hearing.
Ground 1I: Turner’s federal constitutional rights were violated because his
trial counsel was ineffective for failing to object, or “argue against” the
restitution order imposed as part of his sentence.
Ground 1J: Turner’s federal constitutional rights were violated because his
appellate counsel failed to raise the following issues on his direct appeal:

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(i) the jury instructions regarding aiding and abetting, and/or
specific intent;

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(ii) juror misconduct;

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(iii) cruel and unusual punishment;

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(iv) insufficiency of the evidence;

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(v) the restitution order;

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(vi) cumulative error.

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Ground 1K: Turner’s federal constitutional rights were violated because of
the cumulative errors of his trial counsel.
Ground 2: Turner’s federal constitutional rights were violated because there
was insufficient evidence to prove that he acted with the malice necessary
for the crime of second degree murder.
Ground 3: Turner’s federal constitutional rights were violated as a result of
the cumulative effect of the errors he alleges.
Ground 4: Turner “is entitled to habeas relief for [the] reason [that] he is
actually and/or factually innocent of the second degree murder charge.”

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(See ECF No. 27.)

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On March 21, 2018, Respondents filed a motion to dismiss Turner’s amended

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petition (ECF No. 29), arguing that all his claims are unexhausted in state court, and that

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some are not cognizable in this federal habeas corpus action. The Court ruled on that

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motion, granting it in part and denying it in part, on August 20, 2018. (ECF No. 34.) The

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Court dismissed: the claim of ineffective assistance of appellate counsel in Ground 1C;

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the claim of ineffective assistance of appellate counsel in Ground 1D; and Grounds 1J(ii),

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1J(iii) and 1J(iv). In all other respects, the Court denied Respondents’ motion to dismiss.

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Respondents filed an answer on March 21, 2019. (ECF No. 53.) Turner filed replies

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on July 23 and August 26, 2019. (ECF Nos. 57, 59.) Respondents filed a response to

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Turner’s replies on September 18, 2019. (ECF No. 60.)

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III.

DISCUSSION

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A.

Procedural Default

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In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that a

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state prisoner who fails to comply with the state’s procedural requirements in presenting

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his claims is barred by the adequate and independent state ground doctrine from

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obtaining a writ of habeas corpus in federal court. Coleman, 501 U.S. at 731–32 (“Just as

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in those cases in which a state prisoner fails to exhaust state remedies, a habeas

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petitioner who has failed to meet the State’s procedural requirements for presenting his

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federal claims has deprived the state courts of an opportunity to address those claims in

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the first instance.”). Where such a procedural default constitutes an adequate and

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independent state ground for denial of habeas corpus, the default may be excused only

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if “a constitutional violation has probably resulted in the conviction of one who is actually

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innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting

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from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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To demonstrate cause for a procedural default, the petitioner must “show that

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some objective factor external to the defense impeded” his efforts to comply with the state

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procedural rule. Id. at 488. For cause to exist, the external impediment must have
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prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467,

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497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of

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showing not merely that the errors [complained of] constituted a possibility of prejudice,

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but that they worked to his actual and substantial disadvantage, infecting his entire

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[proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603

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(9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

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In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective

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assistance of post-conviction counsel may serve as cause, to overcome the procedural

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default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court

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noted that it had previously held, in Coleman, that “an attorney’s negligence in a

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postconviction proceeding does not establish cause” to excuse a procedural default. Id.

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at 15 (citing Coleman, 501 U.S. at 746–47). The Martinez Court, however, “qualif[ied]

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Coleman by recognizing a narrow exception: inadequate assistance of counsel at initial-

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review collateral proceedings may establish cause for a prisoner’s procedural default of

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a claim of ineffective assistance at trial.” Id. at 9. The Court described “initial-review

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collateral proceedings” as “collateral proceedings which provide the first occasion to raise

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a claim of ineffective assistance at trial.” Id. at 8.

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B.

Standard of Review of Merits of Claims

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

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federal court may not grant a petition for a writ of habeas corpus on any claim that was

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adjudicated on its merits in state court unless the state court decision was contrary to, or

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involved an unreasonable application of, clearly established federal law as determined by

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United States Supreme Court precedent, or was based on an unreasonable determination

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of the facts in light of the evidence presented in the state-court proceeding. 28 U.S.C. §

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2254(d). A state-court ruling is “contrary to” clearly established federal law if it either

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applies a rule that contradicts governing Supreme Court law or reaches a result that

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differs from the result the Supreme Court reached on “materially indistinguishable” facts.

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See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an
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unreasonable application” of clearly established federal law under section 2254(d) if it

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correctly identifies the governing legal rule but unreasonably applies the rule to the facts

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of the case. See Williams v. Taylor, 529 U.S. 362, 407–08 (2000). To obtain federal

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habeas relief for such an “unreasonable application,” however, a petitioner must show

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that the state court’s application of Supreme Court precedent was “objectively

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unreasonable.” Id. at 409–10; see also Wiggins v. Smith, 539 U.S. 510, 520–21 (2003).

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Or, in other words, habeas relief is warranted, under the “unreasonable application”

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clause of section 2254(d), only if the state court’s ruling was “so lacking in justification

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that there was an error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

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With respect to a claim that the state courts did not address on its merits—for

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example a claim procedurally barred in state court on which the petitioner can overcome

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the procedural default by showing cause and prejudice—the federal habeas court reviews

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such a claim de novo, rather than under the deferential AEDPA standard. See, e.g., Cone

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v. Bell, 556 U.S. 449, 472 (2009); Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011)

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(“When it is clear . . . that the state court has not decided an issue, we review that question

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de novo.”).

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C.

Ground 1A

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In Ground 1A, Turner claims that his federal constitutional rights were violated

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because his trial counsel was ineffective because he “conceded to a fist strike upon the

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victim.” (See ECF No. 27 at 3, 9, 19–26 (Amended Petition).)

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Turner asserted this claim in his state-court habeas petition. (See ECF No. 13-29

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at 6–7, 15–18 (Petition for Writ of Habeas Corpus).) The state district court held an

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evidentiary hearing, at which evidence was presented regarding this claim. (See Order

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(ECF No. 14-5 at 5, 19–20) (Order); ECF No. 14-10 (Transcript of Evidentiary Hearing).)

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Following the evidentiary hearing, the state district court denied Turner relief. (See ECF

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No. 14-12 (Order Denying Post-Conviction Relief).) Turner raised the issue of the denial

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of this claim on the appeal from the denial of his state habeas petition. (See ECF No. 146

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21 at 27–44 (Appellant’s Opening Brief).) The Nevada Supreme Court affirmed. (See ECF

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No. 14-25 (Order of Affirmance).)

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In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court prescribed

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a two-part test for analysis of claims of ineffective assistance of counsel: the petitioner

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

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

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

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unprofessional errors, the result of the proceeding would have been different.” Strickland,

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466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel

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must apply a “strong presumption” that counsel’s representation was within the “wide

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range” of reasonable professional assistance. Id. at 689. The petitioner’s burden is to

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show “that counsel made errors so serious that counsel was not functioning as the

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‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To establish

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

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

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

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result is reliable.” Id. at 687.

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After the state-court evidentiary hearing, at which Turner and his trial counsel, John

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Springgate, and others, testified (see ECF No. 14-10) (Transcript of Evidentiary Hearing)),

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the state district court made the following findings relative to this claim:

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1.
Ms. Faircloth died from a combination of violent blows to her
head. No single blow was identified as the death blow. Trial evidence
demonstrated that Mr. Turner’s co-defendant, Mr. Ronald Hulsey, was the
person who kicked Ms. Faircloth in the head. However, Mr. Clymer, Mr.
Steen, and Mr. Hulsey told the police and/or testified that Mr. Turner struck
Ms. Faircloth on the head with his fist. This strike occurred during or
immediately after Ms. Faircloth’s fight with Mr. Turner’s sister, Jamie
Hulsey. Ms. Bailey’s testimony directly implicated Mr. Turner based upon
words that can only be ascribed to Mr. Turner. Mr. Turner’s own statements
to the police were equivocal, as were the statements of Ms. Hulsey.
2.
After discussing trial and defense strategies with Mr. Turner,
Mr. Springgate made the tactical decision to concede that Mr. Turner struck
Ms. Faircloth one time on the head. Mr. Springgate sought to neutralize the
State’s compelling evidence of Mr. Turner’s participation during its case-in7

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chief. The defense theory was that Mr. Turner only committed misdemeanor
battery, possibly in defense of his sister, which unfortunately resulted in Ms.
Faircloth’s death. Thus, Messrs. Turner and Springgate hoped for
manslaughter instead of a conviction for murder in the first or second
degree. Mr. Springgate’s testimony about his trial strategies and
consultations with Mr. Turner was credible and specific.
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Mr. Springgate made the strategic decision to concede a trial
fact that exposed Mr. Turner to a lesser crime. The Nevada Supreme Court
has examined the concession of guilt strategy and concluded that it is no
different than any other strategy defense might employ at trial. ArmentaCarpio v. State, 129 Nev. [531], 306 P.3d 395, 398 (2013). This strategy
does not constitute a waiver that requires a court canvass to ensure the
defendant’s knowing and voluntary consent. Id. (overruling Hernandez v.
State, 124 Nev. 978, 194 P.3d 1235 (2008)).
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. . . Mr. Turner and Ms. Hulsey both testified that Mr. Turner
never struck Ms. Faircloth. Their testimony was self-serving. When
measured against the trial evidence, which was filtered through the
adversarial process of cross-examination, the post-conviction evidence was
unpersuasive.
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1.
Mr. Springgate was a credible witness. He effectively tested
the State’s case through the adversarial process. He communicated with
Mr. Turner and made appropriate strategic decisions. Mr. Turner failed to
demonstrate how Mr. Springgate’s representation fell below an objective
standard of reasonableness. To the contrary, this Court is persuaded that
Mr. Springgate was highly effective. Mr. Springgate’s efforts did result in a
lesser conviction than the State sought when it began trial. Even if Mr.
Springgate failed to perform an objectively reasonable task, there is no
preponderant showing of prejudice. The dispositive problem for Mr. Turner
is that Mr. Springgate could neither create nor change the underlying facts.

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(ECF No. 14-12 at 3–6 (Order Denying Post-Conviction Relief).) On the appeal in the

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state habeas action, the Nevada Supreme Court ruled as follows:

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Turner first argues that trial counsel should not have conceded
without his consent that he punched the decedent Carolyn Faircloth. A
concession of guilt may be a reasonable trial strategy when circumstances
dictate. Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398
(2013). The district court found that three witnesses told police that Turner
struck Faircloth, that a witness overheard one of Faircloth’s assailants tell
her that she should not have attacked “his sister” where Turner was the only
person present with a sister involved in the fight, and that Turner equivocally
told police that he could not recall whether he hit Faircloth. On this basis,
the district court concluded that trial counsel made a reasonable tactical
decision to concede the strike and argue that it did not cause Faircloth’s
death or, alternatively, that Turner’s defense of another warranted a lesser
manslaughter conviction. Substantial evidence supports the district court’s
factual findings, and we conclude that Turner has not shown that the district
court’s findings are not entitled to deference or that counsel’s tactical
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decision was not objectively reasonable under the circumstances. See Lara
v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (“[T]rial counsel’s
strategic or tactical decisions will be virtually unchallengeable [absent]
extraordinary circumstances.” (quotation marks and citation omitted)). The
district court therefore did not err in denying this claim. 1

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Second, Turner argues that trial counsel should have conducted a
more thorough investigation by hearing Turner’s version of events before
conceding that Turner struck Faircloth. In two police interviews within a day
of the incident, however, Turner asserted that he could not remember if he
had hit Faircloth. The district court found self-serving and unpersuasive
Turner’s evidentiary hearing testimony that he would have told trial counsel
that he did not hit Faircloth. Turner has not shown that this finding is not
entitled to deference or that his denial would have led counsel to use a
different strategy or to a different outcome at trial when Turner was
equivocal on the strike shortly after the incident and his later denial was
found to be unpersuasive. See Molina v. State, 120 Nev. 185, 192, 87 P.3d
533, 538 (2004). Accordingly, we conclude that Turner has not shown that
trial counsel was ineffective and thus that the district court did not err in
denying this claim.

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(ECF No. 14-25 at 3–4 (Order of Affirmance).)

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The Court has examined the trial transcript, the transcript of the evidentiary hearing

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held in the state district court, and the entire record in this case, and determines that the

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Nevada Supreme Court’s ruling on this claim was reasonable. Evidence presented at the

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state-court evidentiary hearing showed that the concession that Turner struck Faircloth

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was a matter of strategy, and there is no showing that counsel’s strategic decision in that

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regard was made based on insufficient investigation or that it was otherwise

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unreasonable. And, at any rate, given the strong evidence that Turner did in fact strike

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Faircloth, Turner makes no showing that he was prejudiced by the concession.

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There was strong evidence presented at trial indicating that Turner struck Faircloth.

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John Clymer, who was a friend of Turner and Ronald Hulsey, who had been Faircloth’s

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the extent that Turner claims that the concession strategy amounted to
ineffective assistance because he was actually innocent, the evidence he enlists as
support belies this conclusion: his codefendant’s appellate filings inculpate rather than
exculpate him, see Hulsey v. State, Docket No. 59725 (Appellant’s Opening Brief, May
31, 2012); J. Hulsey told police that she closed her eyes and did not know whether Turner
hit Faircloth; and G.H. told police that Turner thought he had killed Faircloth immediately
after the fight when J. Hulsey drove them away from the scene as police approached.
Further, S. Merritt testified that Turner told her on the night of the incident that he had
beaten two people to a pulp and that they needed resuscitation.
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boyfriend for several years before her death, and who witnessed the beatings of Faircloth

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and her son, Carl Roberts, testified as follows:

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Q.
And as the defendants go in the direction of Ms. Hulsey and
Ms. Faircloth, then describe what you see next.
A.
I seen Jay, Mr. Turner, grab Carolyn by her hair and jerk her
away, kind of, and punch her in the face, and tell her, ‘Don’t be hitting on
my sister, bitch.’ And that knocked Carolyn down.
Q.

Now, when you say “down,” what do you see?

A.

Knocked her down to the ground.

Q.

Then what do you see next?

A.
Then I was – the reason I was turned around was to see if
they was coming back to beat on us some more. And that’s when I seen
Jay hit Carol. And then I turned back around and got Ron – I got Carl turned
over, and got up to go help Carolyn; that’s when she was on the ground.
When I turned around, that’s when I seen Mr. Hulsey kick her in the face.
And then he went in the house. They all went in the house.
Q.
Describe – when you say you saw Ron Hulsey kick Carolyn,
how does he kick her?
A.

Like a drop-kick.

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(ECF No. 12-10 at 53–54 (Transcript of Trial, September 7, 2011); see also id. at 57

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(“Grabbed her by the hair and socked her.”); id. at 147 (reiterating on cross-examination

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that he saw Turner strike Faircloth); id. at 156 (stating that he told the police that he saw

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Turner strike Faircloth).)

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Frances Bailey, who lived down the street from the residence where the crimes

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occurred, and who observed the fighting from a distance, testified as follows about what

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she heard during the incident:

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Q.

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. . . And then did you hear a male voice?

A.
I also heard a male voice yelling, “You want to hit my sister?”
Just calling somebody a lot of names, and saying, “You want to hit my sister
–” that basically, this is what’s going to happen to you.
Q.
Now I know we’re in court, but I would like you to, as best you
can remember, tell us what you heard, even if it involves some profanity or
bad words.
A.

“Nigger-lover” was what they kept yelling over and over again.
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(ECF No. 12-10 at 273 (Transcript of Trial, September 7, 2011).) Turner was the only

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person with a sister at the scene, and there was strong evidence that Turner was

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motivated by racial animus; therefore, the evidence firmly supported the inference that it

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was Turner whose voice Bailey heard.

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Detective Joe Bowen testified that he interviewed Turner twice, once at

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approximately 2:00 a.m. on September 1, 2010, that is, during the night after the incident,

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and once during the early afternoon on September 1, 2010. (See ECF No. 12-12 at 71,

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85 (Transcript of Trial, September 9, 2011).) Detective Bowen testified that Turner told

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him that he punched Roberts and kicked him in the face more than once. (ECF No. 12-

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12 at 75–76, 85–86, 102–04.) Detective Bowen also testified as follows:
Q.
Did Mr. Turner express, during the interview, whether there
was one particular person that he was trying to engage or fight with?
A.

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Q.
Did he express a reason – or basically any reason why he
wanted to go after Carl Roberts?

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Yes. He stated that he wanted to fight with Carl Roberts.

A.

Yes. He stated that it was because of Carl’s ethnicity of being

black.
Q.
And do you recall, as close as you can, the words he used to
describe – express that feeling or idea?
A.
Yes. He stated that he is straight-up White Pride, and he’s the
little white boy that hates all niggers.
Q.

And that was the word that he used in the interview?

A.

Yes.

(ECF No. 12-12 at 76–77.) Detective Bowen testified further:
Q.
And in the first interview, did Mr. Turner indicate that he didn’t
remember whether he had hit Ms. Faircloth or not?
A.

Yes.

Q.

Did you ask him whether it was possible that he had?

A.

Yes, I did ask him that.

Q.

And how did he respond to that?

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A.

So he acknowledged that it was possible that he had done

A.

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He stated that, “Yes, it was possible.”

Q.

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Yes.

so?

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Q.
Did he also say, “But he didn’t think so? But he didn’t
remember?”

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A.

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Yes.
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Q.
. . . You talked about, in the second interview, whether Mr.
Turner had struck Carolyn Faircloth?

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A.

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Yes.

Q.
Did he tell you, in the second interview, that he didn’t
remember?

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A.

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Yes.

Q.
Did you ask him, in the second interview, whether it was
possible that he had?

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A.

Yes.

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Q.

Did he acknowledge the possibility?

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A.

Yes.

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(ECF No. 12-12 at 101–02.)

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In addition, Sonita Merritt, a friend of Turner’s who was with him during the night

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following the incident after he fled the scene, testified that Turner told her that he had

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beaten two people “to a pulp, to where they had to call the EMTs, they had to resuscitate

21

them and call the EMTs to be picked up.” (See ECF No. 12-11 at 119–20 (Transcript of

22

Trial, September 8, 2011).)

23

In view of the evidence, the state court could reasonably have concluded that

24

Turner’s trial counsel made a reasonable strategic decision to concede that Turner struck

25

Faircloth, with a view toward attempting to convince the jury that Turner’s actions

26

amounted to manslaughter rather than murder.

27

///

28

///
12

1

Furthermore, in view of the evidence, particularly the evidence described above, it

2

was reasonable for the state court to conclude that, at any rate, Turner was not prejudiced

3

by the concession that he struck Faircloth.

4

Turner was charged with open murder—including the possibility of first-degree

5

murder. (See ECF No. 11-2 (Criminal Complaint); ECF No. 11-19 (Information). While his

6

defense did not succeed in obtaining a manslaughter conviction rather than a murder

7

conviction, it did succeed in avoiding a first-degree murder conviction. Turner’s trial

8

counsel testified as follows at the evidentiary hearing:

9

12

I think in the context of the trial, what we succeeded in doing was
convincing Mr. Prengaman [the prosecutor] that it was, at worst, a seconddegree case. And he changed, in closing arguments, and requested a
second-degree verdict. Whereas from the start of the case, he had been
requesting first-degree. And as a result, the jury apparently followed that,
as opposed to my argument for manslaughter, and only convicted of
second-degree.

13

(ECF No. 14-10 at 69–70 (Transcript of Evidentiary Hearing); see also ECF No. 14-12 at

14

6) (“[T]his Court is persuaded that Mr. Springgate was highly effective. Mr. Springgate’s

15

efforts did result in a lesser conviction than the State sought when it began trial.”).)

10
11

16

Turner claims, and testified at the evidentiary hearing, that he did not authorize his

17

trial counsel to concede that he struck Faircloth. (See ECF No. 27 at 3, 9, 19–26

18

(Amended Petition); ECF No. 14-10 at 102–15 (Transcript of Evidentiary Hearing).) In

19

McCoy v. Louisiana, 138 S. Ct. 1500 (2018), the Supreme Court held that a defendant

20

has a Sixth Amendment right to control whether or not his counsel admits guilt “even

21

when counsel’s experienced-based view is that confessing guilt offers the defendant the

22

best chance to avoid the death penalty . . .. [I]t is the defendant’s prerogative, not

23

counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining

24

mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to

25

prove his guilt beyond a reasonable doubt.” Id. at 1505. Under McCoy, if counsel

26

concedes guilt contrary to the defendant’s express wish to maintain his innocence, the

27

Strickland two-part analysis does not apply; the error is structural, and reversal is required

28

///
13

1

without the need to show actual prejudice. Id. at 1510–11. McCoy does not, however,

2

help Turner with this claim in this federal habeas corpus action.

3

McCoy was not yet decided when the Nevada Supreme Court ruled on Turner’s

4

claim on February 16, 2017. Under 28 U.S.C. § 2254(d)(1), federal habeas courts are to

5

“measure state-court decisions ‘against [the Supreme Court's] precedents as of ‘the time

6

the state court renders its decision.’” Greene v. Fisher, 565 U.S. 34, 38 (2011) (quoting

7

Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (internal quotation omitted) (emphasis in

8

original)). Applying 28 U.S.C. § 2254(d)(1), this Court cannot find the Nevada Supreme

9

Court’s ruling to be contrary to, or an unreasonable application of, Supreme Court

10

precedent that did not exist when the Nevada Supreme Court ruled. When the Nevada

11

Supreme Court ruled in Turner’s state habeas action, the law was that the Strickland

12

analysis applied to a claim that counsel conceded guilt without the assent of the client.

13

See Florida v. Nixon, 543 U.S. 175, 178–79 (2004) (counsel’s failure to obtain the

14

defendant’s consent to a strategy of conceding guilt at the guilt phase of a capital trial did

15

not automatically render counsel’s performance deficient).

16

Furthermore, at the evidentiary hearing Turner’s trial counsel testified that he

17

spoke with Turner about the strategy of conceding that Turner struck Faircloth, and

18

attempting to convince the jury that this was a manslaughter case rather than a murder

19

case, and Turner did not object to that strategy. (See ECF No. 14-10 at 56–57, 64–66

20

(Transcript of Evidentiary Hearing).) The state court could reasonably have found

21

counsel’s testimony to be credible, and Turner’s testimony to the contrary to be less so.

22

Affording the state-court ruling the deference mandated by 28 U.S.C. § 2254(d),

23

this Court determines that habeas corpus relief is not warranted on this claim. The Nevada

24

Supreme Court’s ruling was not an unreasonable application of Strickland, or any other

25

United States Supreme Court precedent, and was not based on an unreasonable

26

determination of the facts in light of the evidence presented. The Court will deny Turner

27

habeas corpus relief on Ground 1A.

28

///
14

1

D.

2

In Ground 1B, Turner claims that his federal constitutional rights were violated

3

because his trial counsel was ineffective for failing “to have the jury properly instructed on

4

aiding and abetting, and/or specific intent,” and because his appellate counsel was

5

ineffective for failing to raise the issue of the aiding-and-abetting instruction on his direct

6

appeal. (See ECF No. 27 at 3, 9, 27–32 (Amended Petition).) In Ground 1J(i), Turner

7

repeats his claim that his appellate counsel was ineffective for failing to raise the issue of

8

the aiding-and-abetting instruction on his direct appeal. (See id. at 3, 11, 59–64.)

9
10
11
12
13
14
15
16
17
18
19
20
21

Grounds 1B and 1J(i)

The jury instruction that is the subject of these claims was as follows:
Every person concerned in the commission of a crime, whether the
person directly commits the act constituting the offense, or aids and abets
in its commission, and whether present or absent; and every person who,
directly or indirectly, counsels, encourages, hires, commands, induces or
otherwise procures another to commit a crime, is liable for the commission
of the crime.
First Degree Murder is a specific intent crime. A person may be liable
for the commission of First Degree Murder as an aider or abettor only if he
aids or abets in the commission of the crime with the specific intent that the
victim be killed. Second Degree Murder, Voluntary and Involuntary
Manslaughter, and Battery Causing Substantial Bodily Harm are all general
intent crimes.
In the case of general intent crimes, aiders and abettors are
criminally responsible for all harms that are a natural, probable, and
foreseeable result of their actions. The fact that the person aided, abetted,
counseled, encouraged, hired, commanded, induced or procured, could not
or did not entertain a criminal intent shall not be a defense to any person
aiding, abetting, counseling, encouraging, hiring, commanding, inducing or
procuring him.
(ECF No. 12-15 at 32 (Instruction No. 28).)

22

In his state habeas action, Turner claimed that this jury instruction was improper

23

and that both his trial and appellate counsel were ineffective for failing to ensure that the

24

jury was properly instructed and that the issue was raised on his direct appeal. (See ECF

25

No. 13-29 at 7, 18–20 (Petition for Writ of Habeas Corpus).) The state district court

26

dismissed those claims, ruling as follows:

27
28

The failure of counsel to object to an incorrect jury instruction may
constitute ineffective assistance of counsel. See Nika v. State, 124 Nev.
1272, 1290, 198 P.3d 839, 851 (2008). Mr. Turner relies on Sharma v.
15

1
2
3
4
5
6
7
8
9

State, 118 Nev. 648, 652–55, 56 P.3d 868, 870–72 (2002), to argue the
aiding and abetting instruction was incorrect because it did not inform the
jury that the State had to prove he had specific intent to kill. However, under
Sharma, an aider and abettor must be shown to have had specific intent to
kill only when the murder crime he or she is charged with is a specific intent
crime. Sharma, 118 Nev. at 655, 56 P.3d at 872 (involving defendant
convicted of attempted murder as an aider and abettor). Second degree
murder is a general intent crime, though, and Sharma does not apply. Intent
to kill need not be proven in order to convict a defendant of second degree
murder as an aider and abettor.
Mr. Turner also relies on Bolden v. State, 121 Nev. 908, 124 P.3d
191 (2005), to argue that to convict a defendant of a general intent crime as
an aider and abettor, the State must prove the crime being charged was a
reasonably foreseeable consequence of the defendant’s aiding the
principal. He argues the jury was not so instructed, but this is exactly what
is stated in Instruction 28.

10

(ECF No. 14-5 at 6 (Order).) On the appeal in his state habeas action, Turner argued that

11

the district court erred in dismissing these claims, among others. (See ECF No. 14-21 at

12

63–67 (Appellant’s Opening Brief).) The Nevada Supreme Court affirmed, ruling as

13

follows with respect to these claims:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

. . . Turner argues that the district court erred in dismissing several
of his claims without an evidentiary hearing. Turner fails to identify specific
claims that would have entitled him to relief and specific reasons why they
were improvidently denied. As he has not presented relevant authority and
cogent argument supporting this claim, we decline to address it. See
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
. . . Turner claims that appellate counsel should have challenged the
aiding-and-abetting jury instruction because it permitted the jury to find him
guilty without specific intent and argued that there was insufficient evidence
that he had the specific intent to kill. Although the challenged “natural and
probable consequences” language is improper when the crime aided and
abetted is a specific-intent crime, Sharma v. State, 118 Nev. 648, 654, 56
P.3d 868, 871–72 (2002), second-degree murder is a general-intent crime,
Hancock v. State, 80 Nev. 581, 583, 397 P.2d 181, 182 (1964), and
therefore the instruction properly referenced the “natural and probable
consequences” doctrine in relation to second-degree murder. [Footnote:
The instruction informed the jury that it had to find specific intent to convict
Turner of first-degree murder as an aider and abettor.] Because the trial
court did not abuse its discretion in giving the aiding-and-abetting
instruction, see Crawford v. State, 121 Nev. 744, 748, 121 )P.3d 582, 585
(2005), appellate counsel’s failure to challenge the instruction did not
amount to ineffective assistance. For similar reasons, appellate counsel
was not ineffective in failing to rely on a meritless specific-intent ground
when challenging the sufficiency of the evidence to support the seconddegree murder conviction. The district court therefore did not err in denying
this claim.
(ECF No. 14-25 at 7–8 (Order of Affirmance).)
16

1

The Nevada Supreme Court’s ruling that the aiding-and-abetting instruction was a

2

proper statement of Nevada law is authoritative, and beyond the scope of federal habeas

3

review. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[S]tate court's interpretation of

4

state law, including one announced on direct appeal of the challenged conviction, binds

5

a federal court sitting in habeas corpus.”) (citing Estelle v. McGuire, 502 U.S. 62, 67–68

6

(1991)); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Turner makes no colorable claim,

7

or showing, that the aiding-and-abetting instruction in any way violated his federal

8

constitutional rights.

9

Therefore, given that the aiding-and-abetting instruction was proper, the Nevada

10

Supreme Court reasonably ruled that Turner’s appellate counsel was not ineffective for

11

not raising an issue regarding that jury instruction on his appeal. That ruling was not an

12

unreasonable application of Strickland, or any other United States Supreme Court

13

precedent, and was not based on an unreasonable determination of the facts in light of

14

the evidence presented.

15

Turning to the claim in Ground 1B that Turner’s trial counsel was ineffective for

16

failing to challenge the aiding-and-abetting instruction, the Nevada Supreme Court ruled

17

that claim to be procedurally barred because of how it was presented on the appeal and

18

declined to address the claim on its merits. (See ECF No. 14-25 at 7–8 (Order of

19

Affirmance).) Therefore, the claim is subject to denial in this case as procedurally

20

defaulted, unless Turner can show that some exception to the procedural default doctrine

21

applies. Turner does not do so. Martinez does not apply, to save this claim from the

22

procedural default, for two reasons. First, the default of the claim in the state habeas

23

action occurred on the appeal before the Nevada Supreme Court, not in the state district

24

court; in the state district court, the claim was raised, and adjudicated on its merits. (See

25

ECF No. 13-29 at 7, 18–20 (Petition for Writ of Habeas Corpus); ECF No. 14-5 at 6

26

(Order).) Martinez only concerns ineffective assistance of post-conviction counsel in the

27

“initial-review collateral proceeding,” which, here, is the habeas proceeding in the state

28

district court. See Martinez, 566 U.S. at 16 (“The holding in this case does not concern
17

1

attorney errors in other kinds of proceedings, including appeals from initial-review

2

collateral proceedings . . ..”). Second, given the Nevada Supreme Court’s ruling that the

3

aiding-and-abetting instruction was proper, the ineffective assistance of trial counsel claim

4

is not substantial within the meaning of Martinez. See Id. at 14 (“To overcome the default,

5

a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-

6

counsel claim is a substantial one, which is to say that the prisoner must demonstrate

7

that the claim has some merit.”). The ineffective assistance of trial counsel claim in

8

Ground 1B, then, will be denied as procedurally defaulted.
The Court will, therefore, deny Turner habeas corpus relief on Grounds 1B and

9
10

1J(i).

11

E.

Ground 1C

12

In Ground 1C, Turner claims that his federal constitutional rights were violated

13

because his trial counsel was ineffective for failing to file a motion to sever his trial from

14

the trial of his codefendant, and because his appellate counsel was ineffective for failing

15

to raise the issue on his direct appeal. (See ECF No. 27 at 3, 9, 33–37 (Amended

16

Petition).) Turner argues that, because of his trial counsel’s failure to seek severance, he

17

was unable to confront his codefendant, Ronald Hulsey, who invoked his constitutional

18

right not to testify, and Jamie Hulsey, Ronald Hulsey’s wife, who invoked her spousal

19

privilege. (See id.)

20

The Court has dismissed, as procedurally defaulted, the claim of ineffective

21

assistance of appellate counsel in Ground 1C. (See ECF No. 34 at8, 15 (Order filed

22

August 20, 2018).)

23

In his state habeas action, Turner asserted the claim of ineffective assistance of

24

trial counsel in Ground 1C. (See ECF No. 13-29 at 7, 20–21 (Petition for Writ of Habeas

25

Corpus).) The state district court held an evidentiary hearing, at which evidence was

26

presented regarding this claim. (See ECF No. 14-5 at 5, 19–20 (Order); ECF No. 14-10

27

(Transcript of Evidentiary Hearing).) Following the evidentiary hearing, the state district

28

court denied Turner relief. (See ECF No. 14-12 (Order Denying Post-Conviction Relief).)
18

1

With respect to the claim that Turner’s trial counsel was ineffective for not moving to sever

2

Turner’s case from his codefendant’s, the state district court made the following findings:

3

4.
Jamie Hulsey is married to co-defendant Ronald Hulsey. Mr.
Turner contends that Mr. Springgate should have sought severance from
Mr. Hulsey so Jamie Hulsey would be available to testify that she never saw
him strike Ms. Faircloth. Mr. Turner’s contention is problematic for several
reasons. First, the State identified Ms. Hulsey as a witness favorable to the
prosecution. It attempted to call Ms. Hulsey to testify at the preliminary
examination. She invoked the marital privilege under NRS 49.295(1)(a).
The State then attempted to call her as a witness against Mr. Turner only.
Mr. Turner objected and Ms. Hulsey’s compelled testimony was the subject
of a writ proceeding during the justice court case. See Order Den. Pet. For
Writ of Habeas Corpus and Writ of Prohibition, CR11-0387 (Mar. 24, 2011).
Mr. Turner specifically resisted his sister’s testimony when the State sought
to introduce it against him.

4
5
6
7
8
9
10

5.
Second, Mr. Springgate did not consider Ms. Hulsey to be a
credible witness. She was directly involved in the fight ending in Ms.
Faircloth’s death. She secreted Mr. Turner and various children away from
the crime scene. Mr. Springgate did not want inculpatory evidence from the
children admitted. Ms. Hulsey provided inconsistent statements at the crime
scene and during later interviews with law enforcement.

11
12
13

6.
Mr. Springgate made the tactical decision to not seek
severance of the trials involving Mr. Hulsey and Mr. Turner. Ms. Hulsey’s
testimony would not assist Mr. Turner. The co-defendants did not have
inconsistent defenses. They presented a unified defense of manslaughter.
Mr. Springgate wanted to try the case with Mr. Hulsey as a co-defendant
because there was substantial evidence that Mr. Hulsey was the person
who kicked Ms. Faircloth. Mr. Hulsey’s shoe print was embedded on Ms.
Faircloth’s post-mortem face. The autopsy photographs were graphic and
unpleasant. There was no evidence that Mr. Turner kicked Ms. Faircloth,
and Mr. Springgate hoped this fact would persuade the jury that Mr. Hulsey
was primarily responsible for Ms. Faircloth’s death.

14
15
16
17
18
19

7.
Mr. Springgate’s tactical trial decision to not seek severance
and call Ms. Hulsey was confirmed at the post-conviction evidentiary
hearing. Mr. Turner and Ms. Hulsey both testified that Mr. Turner never
struck Ms. Faircloth. Their testimony was self-serving. When measured
against the trial evidence, which was filtered through the adversarial
process of cross-examination, the post-conviction evidence was
unpersuasive.

20
21
22
23
24

(ECF No. 14-12 at 4–5 (Order Denying Post-Conviction Relief).) Turner raised this issue

25

on the appeal from the denial of his state habeas petition. (See Appellant’s Opening Brief

26

ECF No. 14-21 at 44–53 (Appellant’s Opening Brief).) The Nevada Supreme Court

27

affirmed the denial of relief on this claim, ruling as follows:

28

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19

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. . . Turner argues that trial counsel should have moved to sever his
trial from his codefendant’s trial. To successfully seek a severance, counsel
would have had to establish that a joint trial would compromise a specific
trial right or prevent the jury from reliably determining guilt, as where the
codefendants have conflicting defenses. See Chartier v. State, 124 Nev.
760, 764–65, 191 P.3d 1182, 1185 (2008). None of the arguments now
asserted by Turner would have supported a motion to sever in this case.
Trial counsel did not [ ] call the codefendant’s wife (J. Hulsey) as a witness
at trial due to concerns about her credibility and thus the witness’s
invocation of the spousal privilege during the joint trial did not compromise
a specific trial right. Turner’s defense did not conflict with that of his
codefendant because his trial counsel made a tactical decision to pursue a
unified manslaughter defense with the codefendant’s counsel. To the extent
that Turner asserts that severance was required to avoid a Confrontation
Clause violation regarding his codefendant’s police statement, his
confrontation rights were not implicated because his codefendant’s
statement did not incriminate or mention Turner. See Bruton v. United
States, 391 U.S. 123, 126 (1968). A severance motion would have lacked
merit, and we accordingly conclude that Turner has failed to show that trial
counsel was deficient in failing to so move or that he was prejudiced by its
omission. The district court therefore did not err in denying this claim.
. . . Turner argues that trial counsel should have called J. Hulsey as
a witness. Counsel alone is entrusted with tactical decisions, such as what
witnesses to develop. Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167
(2002). The district court found that trial counsel considered J. Hulsey to not
be credible where she was directly involved in the fight, transported Turner
from the crime scene, and provided inconsistent statements to police.
Further, trial counsel was concerned that her testimony would invite G.H.’s
inculpatory testimony. We conclude that substantial evidence supports
these findings and that Turner has not shown that these findings are not
entitled to deference or that counsel’s tactical decision with respect to this
witness was not objectively reasonable under the circumstances. See Lara,
120 Nev. at 180, 87 P.3d at 530. The district court therefore did not err in
denying this claim.
. . . Turner argues that trial counsel should not have pursued a unified
trial strategy with his codefendant. The district court found that trial counsel
made a tactical decision to seek a joint trial when there was substantial
evidence that Turner’s codefendant kicked Faircloth in the head so that
counsel could argue that Turner did not cause Faircloth’s death despite
having fought alongside his codefendant. The district court found counsel’s
testimony that Turner approved of the trial strategy was credible. Turner has
not shown that these findings are not entitled to deference or that counsel’s
tactical decision was not objectively reasonable under the circumstances
and thus has failed to show that counsel’s performance was deficient. We
conclude that Turner has failed to show that counsel was ineffective on this
ground and that the district court therefore did not err in denying this claim.
(ECF No. 14-25 at 4–6 (Order of Affirmance).)

26

Turner’s trial counsel testified as follows at the evidentiary hearing:

27

Q.
Now, after preliminary hearing, but prior to trial, did you ever file a
motion to sever?

28

20

A.

No.

Q.

Why not?

A.

The parties did not have inconsistent defenses.

Q.

Did you wish to have Ms. Hulsey testify on behalf of your

5

A.

No.

6

Q.

Why not?

1
2
3
4

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client?

A.
I did not regard her as a credible witness, and I thought she
was adverse to our trial strategy.
Q.

Why did you think she was not credible?

A.
She had given inconsistent statements to the police at the
scene of the crime; she had given inconsistent statements to the police in
her interview; she had spirited my client and the minor children from the
crime scene, which would have come up in her testimony, and would have
looked bad for him.
The testimony from the minor child witnesses, when they were in the
car, with regards to Mr. Turner, was not helpful to him, and that would have
come out if she was testifying.
And in her statement to the police, she was equivocal about whether
or not she actually saw Mr. Turner hit Ms. Faircloth or not. Well, she wasn’t
equivocal, she said she didn’t know.
Q.
So were there other reasons that this case would have been
better suited to be severed, and an independent trial for Mr. Hulsey?
A.
severed?
Q.

Were there other reasons that it would be better to be
Yes.

A.
No. My strategy was that since we’re not going to get a
severance on the grounds of inconsistent defenses, and that Ms. Hulsey
was not a credible witness or a good witness, then it was my opinion that
we were better off trying the case together – since I thought it was going to
be tried together, in any event – with someone that I could be relatively
certain would not spend the bulk of the trial – if you’ll pardon the vernacular
– shoveling manure into my client’s boots, while I could avoid doing that to
Mr. Hulsey, and the two of us could have a unified strategy that would not
involve implicating each other.
(ECF No. 14-10 at 51–52 (Transcript of Evidentiary Hearing).)

27

It was reasonable for the Nevada Supreme Court to conclude that trial counsel

28

made an informed strategic decision not to seek severance, that trial counsel’s
21

1

performance was not unreasonable in that regard, and that, at any rate, Turner was not

2

prejudiced. The Nevada Supreme Court’s ruling was not an unreasonable application of

3

Strickland, or any other United States Supreme Court precedent, and was not based on

4

an unreasonable determination of the facts in light of the evidence. The Court will deny

5

Turner habeas corpus relief with respect to Ground 1C.

6

F.

Grounds 1D and 1J(ii)

7

In Ground 1D, Turner claims that his federal constitutional rights were violated

8

because his trial counsel was ineffective for failing to file a motion for a mistrial based on

9

jury misconduct, and because his appellate counsel was ineffective for failing to raise the

10

issue on his direct appeal. (See ECF No. 27 at 3, 9, 38–41 (Amended Petition).) In Ground

11

1J(ii), Turner repeats his claim that his appellate counsel was ineffective for failing to raise

12

the issue of the alleged jury misconduct. (See id. at 3, 11, 59–64).)

13

The Court has dismissed, as procedurally defaulted, the claim, of ineffective

14

assistance of appellate counsel in Grounds 1D and 1J(ii). (See ECF No. 34 at 9, 12–13,

15

15 (Order filed August 20, 2018).)

16

In his state habeas action, Turner asserted the claim of ineffective assistance of

17

trial counsel in Ground 1D. (See ECF No. 13-29 at 7, 21–22 (Petition for Writ of Habeas

18

Corpus).) The state district court dismissed that claim, ruling as follows:

19
20
21
22
23
24
25
26
27
28

Mr. Turner argues at least one juror prematurely developed opinions
about his case, as brought to this Court’s attention during trial by juror 9,
and his counsel was ineffective for failing to seek a mistrial based on this
misconduct.
A petitioner arguing counsel was ineffective for failing to file a motion
must show the motion would have been meritorious. [Cf. Kirksey v. State,
112 Nev. 980, 990, 923 P.2d 1102, 1109 (1996).] A defendant moving for a
mistrial based on juror misconduct must present admissible evidence
showing the occurrence of misconduct and that the misconduct was
prejudicial. Prejudice is shown when there is a reasonable probability the
misconduct affected the verdict. Meyer v. State, 119 Nev. 554, 563–64, 80
P.3d 447, 455 (2003).
In exercising its discretion, a district court must conduct a
hearing to determine if the violation of the admonishment
occurred and whether the misconduct is prejudicial to the
defendant. Prejudice requires an evaluation of the quality and
character of the misconduct, whether other jurors have been
22

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influenced, and the extent to which a juror who has committed
misconduct can withhold any opinion until deliberation.
Viray v. State, 121 Nev. 159, 163–64, 111 P.3d 1079, 1082 (2005). “Not
every incidence of juror misconduct requires the granting of a motion for a
new trial. Each case turns on its own facts, and the degree and
pervasiveness of the prejudicial influence possibly resulting. The district
court is vested with broad discretion in resolving allegations of juror
misconduct.” Meyer, 119 Nev. at 562, 80 P.3d at 453–54 (2003) (internal
quotation marks omitted) (quoting Barker v. State, 95 Nev. 309, 313, 594
P.2d 719, 721 (1979); United States v. Paneras, 222 F.3d 406, 411 (7th Cir.
2000)).
In Chavez v State, one of the alternate jurors told other jurors she
believed the defendant was guilty. The court became aware of this and
“proceeding in accord with Viray . . . held a hearing.” 125 Nev. 328, 347,
213 P.3d 476, 489 (2009). “After canvassing each juror, the district court
excused the alternate juror, who had expressed her opinion that Chavez
was guilty.” Id. The three other jurors who had heard the comment assured
the court they could remain impartial. On appeal, the Nevada Supreme
Court determined a mistrial was not necessary because excusing the
alternate juror was an appropriate remedy and “[a]ll the other jurors stated
that they did not hear anyone express an opinion about the ultimate
outcome of the case.” Id.
“[D]epending on the nature, scope, and timing of the misconduct, the
judge may have one or more reasonable means of curing any possible
prejudice .... a curative instruction ... may suffice.” Johnson v. State, 31 A.3d
239, 246 (Md. 2011). However, in Johnson, the Court found the trial court’s
curative instruction insufficient because “notwithstanding the obvious
potential for prejudice ... the court took no steps to develop facts related to
the effect the extrinsic information had on the jury.” Id. at 249. That is not
the case here. This Court spoke with the reporting juror on the record to
determine the nature and extent of the misconduct and whether other jurors
had been influenced or prematurely decided the case before fashioning a
remedy.
Mr. Turner argues jurors made up their minds about the case before
presentation of evidence concluded and that misconduct continued
throughout the proceeding. However, he fails to set forth specific factual
allegations and provides no evidence to support his argument. His
contention is belied by the record, which indicates that despite comments
on witness credibility, none of the jurors formed a premature opinion about
the ultimate outcome. The transcript of this Court’s discussion with juror 9
indicates there had been commentary on credibility only at the beginning of
the trial, which was addressed by a curative instruction. There is nothing in
the record showing misconduct persisted. Mr. Turner argues this Court was
required to canvas the entire panel. But Viray states only that the court must
evaluate whether other jurors have been influenced; it does not limit the
court’s discretion as to how this evaluation is to be performed.
Mr. Springgate was not ineffective for failing to file a motion for a
mistrial because such a motion would not have been meritorious.
(ECF No. 14-5 at 9–11 (Order) (citations to state-court habeas petition omitted).)
23

1

On the appeal in his state habeas action, Turner argued that the district court erred

2

in dismissing this claim. (See ECF No. 14-21 at 63–65 (Appellant’s Opening Brief).) The

3

Nevada Supreme Court affirmed, ruling the claim to be procedurally barred, and declined

4

to address the claim on its merits. (See ECF No. 14-25 at 7–8 (Order of Affirmance).)

5

Therefore, this claim is subject to denial as procedurally defaulted, unless Turner can

6

show that some exception to the procedural default doctrine applies. Turner does not do

7

so. Martinez does not apply because the default was on the appeal before the Nevada

8

Supreme Court, not in the state district court (see Martinez, 566 U.S. at 16); in the state

9

district court, the claim was raised, and adjudicated on its merits. (See ECF No. 13-29 at

10

7, 21–22 (Petition for Writ of Habeas Corpus); ECF No. 14-5 at 9–11 (Order).)

11

Furthermore, taking into consideration the state district court’s ruling, quoted above, and

12

the record of the handling of the issue during trial by counsel and the court (see ECF No.

13

12-10 at 5–14, 24–27 (Transcript of Trial, September 8, 2011)), this Court finds that the

14

ineffective assistance of trial counsel claim in Ground 1D is not substantial within the

15

meaning of Martinez. See id. at 14. A motion for mistrial would not have been successful,

16

and trial counsel was not ineffective for not making such a motion. The ineffective

17

assistance of trial counsel claim in Ground 1D will be denied as procedurally defaulted.

18

The Court will deny Turner habeas corpus relief on Grounds 1D and 1J(ii).

19

G.

20

In Ground 1E, Turner claims that his federal constitutional rights were violated

21

because his trial counsel was ineffective for failing to file a motion to suppress his

22

statements to law enforcement. (See ECF No. 27 at 3, 9, 42–43 Amended Petition).)

Ground 1E

23

Turner asserted this claim in his state habeas action. (See ECF No. 13-29 at 7,

24

22–25 (Petition for Writ of Habeas Corpus).) The state district court dismissed the claim,

25

ruling as follows:

26
27
28

When he was first interrogated by detectives at around 2:00 a.m. on
September 1, 2010, Mr. Turner stated he identifies with “white pride” and
“hates all ni***rs.” He now argues his racial comments, which were
introduced at trial, motivated the jury to convict him of second degree
murder rather than a lesser crime, and counsel was ineffective for failing to
24

1

file a motion to suppress. He argues the statements and his waiver of
Miranda were not voluntary because he was intoxicated.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

a.

Voluntariness of Statements

“A criminal defendant is deprived of due process of law if his
conviction is based, in whole or in part, upon an involuntary confession, and
even if there is ample evidence aside from the confession to support the
conviction.” Passama v. State, 103 Nev. 212, 213, 735 P.2d 321, 322
(1987). A confession is involuntary if coerced by physical intimidation or
psychological pressure. Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300,
1301 (1992). “[T]he voluntariness analysis involves a subjective element ....
the prosecution has the burden of proving by a preponderance of the
evidence that ... ‘the defendant’s will was [not] overborne.’” Rosky v. State,
121 Nev. 184, 193, 111 P.3d 690, 696 (2005) (quoting Lynumn v. Illinois,
372 U.S. 528, 534 (1963)). Courts look to various factors, including the
defendant’s age, lack of education or intelligence, lack of advice regarding
constitutional rights, the length of detention, whether questioning was
prolonged, and the use of punishments such as deprivation of sleep. “A
suspect’s prior experience with law enforcement is also a relevant
consideration.” Id. at 193–94, 111 P.3d at 696.
“The defendant’s intoxication alone does not automatically make a
confession inadmissible. A confession is inadmissible only if it is shown that
the accused was intoxicated to such an extent that he was unable to
understand the meaning of his comments.” Kirksey, 112 Nev. at 992, 923
P.2d at 1110. Exhibit 2 to the petition reflects that at 3:20 a.m. on September
1, 2010, Mr. Turner’s blood-alcohol content (BAC) was .116. Accordingly,
when his interview with Detective Bowen began at 2:00 a.m., Mr. Turner’s
BAC was not far above .116. That is only a few points beyond the limit at
which a person is considered sufficiently sober to drive. See NRS
484C.110(1). This indicates Mr. Turner was not so intoxicated his
statements were per se involuntary. He provides no facts or evidence
tending to show that when he made the statements in question he was
unable to understand what he was saying. To the contrary, he gave a
detailed and coherent statement describing the events, and he returned
later at 12:30 p.m. and repeated the statement he had given earlier.
In Kirksey, the Nevada Supreme Court found no indication defendant
was so affected by substance withdrawals his statement was involuntary,
reasoning that “he recounted the incident in essentially the same words. He
was responsive to the questions posed by the officers in each interview and
there was little variation in his story.” 112 Nev. at 992, 923 P.2d at 1110.
Similarly here, Mr. Turner made a coherent statement while under the
moderate influence of alcohol, and he returned when he was no longer
inebriated and recounted the same description of events.
b.

Voluntariness of Waiver

Under Miranda v. Arizona, a suspect must be warned they have the
right to remain silent and to the assistance of counsel if they are subjected
to custodial interrogation. 384 U.S. 436, 444 (1966). “In order to admit
statements made during custodial interrogation, the defendant must
knowingly and voluntarily waive the Miranda rights.” Koger v. State, 117
Nev. 138, 141, 17 P.3d 428, 430 (2001). Statements taken in violation of
25

1
2
3
4
5
6
7
8
9
10
11
12

Miranda are inadmissible at trial. Miranda, 384 U.S. at 444, Rosky v. State,
121 Nev. 184, 191, 111 P.3d 690, 695 (2005).
“A valid waiver of rights under Miranda must be voluntary, knowing
and intelligent. A waiver is voluntary if, under the totality of the
circumstances, the confession was the product of a free and deliberate
choice rather than coercion or improper conduct.” The waiver need not be
written; it can be inferred from the suspect’s actions. Mendoza v. State, 122
Nev. 267, 276, 130 P.3d 176, 181–82 (2006). A court will examine the same
factors discussed above: background, conduct, experience and age of the
defendant; defendant’s education and intelligence; any advice given to
defendant regarding constitutional rights; the length of defendant’s
detention; the repetitive or prolonged nature of questioning; and
punishments used such as deprivation of food or sleep. Floyd v. State, 118
Nev. 156, 171, 42 P.3d 249, 259–60 (2002), abrogated on other grounds by
Good v. State 124 Nev. 110, 178 P.3d 154 (2008)).
Mr. Turner’s intoxication alone does not make his waiver of Miranda
involuntary. See Floyd, 118 Nev. at 173, 42 P.3d at 260. He states only that
he “could not and did not voluntarily waive his rights per Miranda to speak
with police.” He fails to provide any specific factual allegations indicating he
was too intoxicated to understand what he was doing. Having failed to
provide specific factual allegations, he is not entitled to an evidentiary
hearing.

13
14

(ECF No. 14-5 at 11–14 (Order) (citations to state-court habeas petition and trial transcript

15

omitted).) Turner then asserted this claim on the appeal in his state habeas action. (See

16

ECF No. 14-21 at 59–65 (Appellant’s Opening Brief).) The Nevada Supreme Court

17

affirmed, ruling as follows:

18
19
20
21
22
23
24

. . . Turner argues that trial counsel should have moved to suppress
his police statement because he was intoxicated. A police statement will be
inadmissible as involuntarily uttered by reason of intoxication only if the
speaker was so intoxicated that he was unable to understand the meaning
of his remarks. Kirksey, 112 Nev. at 992, 923 P.2d at 1110. Turner made a
voluntary statement on the night of the incident and his blood-alcohol
content three hours later was 0.116. Turner’s responses, however, were
cogent, and he appeared to comprehend the sentiments expressed.
Further, Turner’s statement the following afternoon presented a
substantially similar account of the events, further showing that his prior
statement was uttered cogently and with comprehension. Accordingly, a
suppression motion would have lacked merit, and we conclude that trial
counsel was not deficient in omitting it and that Turner was not prejudiced
in its omission. The district court therefore did not err in denying this claim.

25
26

(ECF No. 14-25 at 7 (Order of Affirmance).)

27

The Nevada Supreme Court’s analysis was reasonable. There is no showing that

28

the Nevada Supreme Court’s ruling was contrary to, or an improper application of,
26

1

Strickland or any other Supreme Court precedent, or that it was unreasonable in light of

2

the evidence. Applying the deference mandated by 28 U.S.C. 2254(d), this Court

3

determines that federal habeas relief is unwarranted—it is reasonably arguable that the

4

state court ruling was correct. See Richter, 562 U.S. at 103. The Court will deny habeas

5

corpus relief on Ground 1E.

6

H.

Grounds 1F and 1G

7

In Ground 1F, Turner claims that his federal constitutional rights were violated

8

because his trial counsel was ineffective for failing to meaningfully cross-examine

9

prosecution witnesses. (See ECF No. 27 at 3, 9–11, 44–48 (Amended Petition).) In

10

Ground 1G, Turner claims that his federal constitutional rights were violated because his

11

trial counsel was ineffective for failing to investigate and prepare for the testimony of

12

prosecution witnesses. (See id. at 3, 11, 49–52.)

13

Turner asserted these claims in his state habeas action, contending that his trial

14

counsel was ineffective with respect to his investigation and cross-examination of

15

witnesses John Clymer and Frances Bailey. (See ECF No. 13-29 at 7, 25–27 (Petition for

16

Writ of Habeas Corpus).) The state district court granted Turner a hearing with respect to

17

the claim that his trial counsel did not adequately investigate Bailey’s ability to observe

18

the incident. (See ECF No. 14-5 at 14–16 (Order).) The state district court dismissed the

19

remainder of these claims, ruling as follows:

20
21
22
23
24
25
26
27
28

Frances Bailey, neighbor to the Hulseys, was the person who called
9-1-1. She witnessed some of the altercation from the front yard of her
house and testified at trial regarding what she saw and heard. She testified
she had seen two men stomping and kicking at something on the ground,
presumably someone, as she could hear “gargling.” But she said she could
only see the two men from the waist up because her view of that part of the
Hulsey’s yard was obstructed to some degree. She testified she heard a
male voice yelling, “You want to hit my sister, this is what will happen to
you.” She also testified that “’[n]i***r-lover’ was what they kept yelling over
and over again.”
Mr. Turner argues “[c]ounsel’s cross-examination of witness Frances
Bailey was limited. This witness could not have seen what she testified to
because it was physically impossible. Inadequate investigation led to
inadequate cross-examination.” He also argues that “[c]ross-examination of
witness John Clymer was ineffective as Mr. Clymer never testified to any
race based statements . . .. Cross examination of Mr. Clymer would have
27

2

demonstrated that his anger at the loss of Carolyn F. was tainting his
testimony.” Mr. Turner contends that if “counsel had effectively cross
examined the key witnesses, Petitioner would not have been found guilty of
second degree murder.”

3

a.

4

While failure to effectively cross-examine may constitute ineffective
assistance, a petitioner must identify the evidence that would have been
revealed by effective cross-examination. See Hargrove v. State, 100 Nev.
498, 502, 608 P.2d 222, 225 (1984). Mr. Turner has not accomplished this
in his petition. He claims Ms. Bailey could not have seen what she testified
to but does not explain why or what mor Mr. Springgate could have done to
reveal this to the jury. Exhibit 172, an aerial photograph of East First Street,
was offered demonstratively at trial. Ms. Bailey was able to mark on the
photo where her house was in relation to the Hulsey’s. Mr. Springgate
referred to this photograph during his cross-examination to discuss with Ms.
Bailey the obstacles that impeded her view. There is no basis for finding the
exhibit was such that a different depiction could have shown Ms. Bailey was
perjuring herself and could not have actually seen what she testified to. Mr.
Turner has failed to set forth specific factual allegations that would entitle
him to a hearing. [Means v. State, 120 Nev. 1001, 1016, 103 P.3d 25, 35
(2004).] Furthermore, his allegations are belied by the record. Mr.
Springgate questioned Ms. Bailey in great depth regarding her view from
where she was standing.

1

5
6
7
8
9
10
11
12
13

b.

14

Cross-Examination of Frances Bailey

Cross-Examination of John Clymer

Mr. Clymer told police Mr. Turner hit Ms. Faircloth only after he
learned Ms. Faircloth was dead, and Mr. Springgate questioned him about
this on cross-examination. This testimony indicated anger may have
motivated Mr. Clymer’s accusation. Accordingly, Mr. Turner’s argument that
Mr. Springgate was ineffective for failing to reveal this bias by crossexamination is belied by the record.

15
16
17
18

Mr. Turner also argues Mr. Clymer never mentioned any of the
yelling Ms. Bailey heard. Mr. Turner fails, however, to detail what testimony
would have resulted from further cross-examination of Mr. Clymer. Mr.
Turner does not argue Mr. Clymer would have testified that the yelling Ms.
Bailey said she heard never happened. Notably, when asked on direct
examination what happened after Ms. Faircloth was attacked, Mr. Clymer
testified that “[t]hings went kind of blank for me right then.”

19
20
21
22
23

Mr. Turner has failed to make specific factual allegations that, if true,
would show counsel ineffectively cross-examined Ms. Bailey or Mr. Clymer
in a way that prejudiced him. Means, 120 Nev. at 1016, 103 P.3d at 35.

24

(Id. at 14–16) (citations to trial transcript and state-court habeas petition omitted).) Then,

25

after the evidentiary hearing, the state district court ruled as follows regarding the claim

26

that Turner’s trial counsel did not adequately investigate Bailey’s ability to observe the

27

incident:

28

///
28

1
2
3
4
5
6
7
8
9
10
11

8.
Mr. Springgate did not investigate the physical dimensions of
Ms. Bailey’s testimony as thoroughly as it was investigated post-conviction.
Mr. Turner’s post-conviction investigation focused on lines of sight and
geographical distances. Even though there were some unanswered
questions about where Ms. Bailey stood in relation to what she saw and
heard, the gravamen of her testimony was Mr. Turner’s racist and violent
comment. Mr. Turner’s post-conviction investigator did not demonstrate the
volume of Mr. Turner’s comment or whether it could have been heard by
Ms. Bailey. Nor could he place Ms. Bailey at any specific location when she
heard Mr. Turner’s comment.
9.
Mr. Springgate’s investigation decision did not fall below a
reasonable standard. Ms. Bailey testified about what she heard, as opposed
to what she saw. As noted in a prior order, Mr. Springgate effectively crossexamined Ms. Bailey. Exhibit 172, an aerial photograph of East First Street,
was offered at trial. Ms. Bailey was able to mark on the photo where her
house was in relation to the Hulsey’s home. Mr. Springgate referred to this
photograph during his cross-examination to discuss with Ms. Bailey the
obstacles that impeded her view. Mr. Springgate questioned Ms. Bailey in
great depth regarding her view from where she was standing.
(ECF No. 14-12 at 5–6 (Order Denying Post-Conviction Relief).)

12

On his appeal in his state habeas action, Turner specifically raised the issue

13

regarding his trial counsel’s investigation of Bailey’s observations, and he generally

14

asserted that the state district court erred in dismissing the rest of these claims. (See ECF

15

No. 14-21 at 53–57, 63–65 (Appellant’s Opening Brief).) The Nevada Supreme Court

16

affirmed, ruling as follows regarding the claim regarding trial counsel’s investigation of

17

Bailey:

18

24

. . . Turner argues that trial counsel should have investigated more
thoroughly the distance between witness F. Bailey’s location and the crime
scene. The district court found that trial counsel cross-examined Bailey on
her ability to see the crime scene and that, in demonstrating obstructions to
the line of sight, Tuner failed to demonstrate that the distance precluded
Bailey’s hearing the yelled comments that incriminated Turner. We
conclude that Turner has not shown deficiency because trial counsel did
cross-examine the witness on this ground and has not shown prejudice
because he has not shown that further investigation would have produced
evidence leading to a different outcome. See Molina, 120 Nev. at 192, 87
P.3d at 538. To the extent that Turner claims a Confrontation Clause
violation, the claim is belied by the record because the witness was crossexamined. The district court therefore did not err in denying this claim.

25

(ECF No. 14-25 at 6–7 (Order of Affirmance).) And, here again, regarding the remainder

26

of these claims, which were dismissed by the state district court before the evidentiary

27

hearing, the Nevada Supreme Court ruled that those claims were procedurally barred and

28

declined to reach their merits. (See id. at 7–8).)

19
20
21
22
23

29

1

Regarding the claim that Turner’s counsel was ineffective with respect to his

2

investigation of Bailey, this Court, having examined the trial transcript and the evidentiary

3

hearing transcript, and the entire record, determines that the Nevada Supreme Court’s

4

ruling was reasonable. Turner made no showing that his trial counsel’s investigation of

5

Bailey was unreasonable, or that any further investigation would have changed the cross-

6

examination of Bailey so significantly as to raise a reasonable probability that, but for the

7

alleged failure to adequately investigate, the result of the trial would have been different.

8

See Strickland, 466 U.S. at 688, 694.

9

Regarding the remainder of the claims in Grounds 1F and 1G—those dismissed

10

by the state district court before the evidentiary hearing—the Nevada Supreme Court

11

ruled those claims to be procedurally barred and declined to address their merits. Those

12

claims, therefore, are subject to denial in this federal habeas action as procedurally

13

defaulted, unless Turner can show that some exception to the procedural default doctrine

14

applies. Turner does not do so. Here again, the default was on the appeal before the

15

Nevada Supreme Court, not in the state district court; in the state district court, the claims

16

were raised, and adjudicated on their merits. (See ECF No. 13-29 at 7, 25–27 (Petition

17

for Writ of Habeas Corpus); (ECF No. 14-5 at 14–16 (Order).) Martinez does not apply.

18

See Martinez, 566 U.S. at 16. Furthermore, taking into consideration the state district

19

court’s ruling, and the entire record, and in particular the transcripts of the cross-

20

examinations of Bailey and Clymer (see ECF No. 12-10 at 72–138, 146–53, 159–64)

21

(Transcript of Trial, September 7, 2011 (Clymer)); id. at 279–95 (Bailey), this Court finds

22

that the ineffective assistance of trial counsel claim in Ground 1F is not substantial within

23

the meaning of Martinez. See id. at 14. Turner does not show that his trial counsel’s

24

investigation of Clymer, or his cross-examination of Clymer or Bailey, was unreasonable,

25

or that he was prejudiced. These claims in Grounds 1F and 1G will be denied as

26

procedurally defaulted.

27
28

The Court will, therefore, deny Turner habeas corpus relief with respect to Grounds
1F and 1G.
30

1

I.

Grounds 1H and 1J(iii)

2

In Ground 1H, Turner claims that his federal constitutional rights were violated

3

because his trial counsel was ineffective for failing to prepare for his sentencing hearing.

4

(See (ECF No. 27 at 3, 11, 53–55 (Amended Petition).) In Ground 1J(iii), Turner claims

5

that his appellate counsel was ineffective for not asserting, on his direct appeal, that his

6

sentence is cruel and unusual, in violation of his federal constitutional rights. (See id. at

7

3, 11, 59–64.)

8

The Court has dismissed, as procedurally defaulted, the claim of ineffective

9

assistance of appellate counsel in Ground 1J(iii). (See ECF No. 34 at 12–13, 15 (Order

10

filed August 20, 2018).)

11

In his state habeas action, Turner asserted the claim that his trial counsel was

12

ineffective with respect to his sentencing hearing. (See ECF No. 13-29 at 7, 27–29

13

(Petition for Writ of Habeas Corpus).) The state district court dismissed that claim, ruling

14

as follows:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Mr. Turner argues Robin Turner and Jamie Hulsey were present at
the sentencing hearing to testify regarding Mr. Turner’s daughter, Vanessa,
who was born premature and assisted by Mr. Turner in “[overcoming] many
of the birth issues.” Instead, counsel Springgate relied upon letters of
mitigation written to the Court.”
Failure to contact and present a defendant’s family members at
sentencing may constitute ineffective assistance of counsel. Doleman v.
State, 112 Nev. 843, 848–49, 921 P.2d 278, 281 (1996). In Doleman, [the]
defendant was found guilty of murder and robbery and sentenced to death.
By a petition for writ of habeas corpus, he claimed his trial counsel failed to
call certain witnesses during the penalty phase.
Doleman’s mother would have told the jury that during
Doleman’s childhood, she was a prostitute and drug addict,
Doleman was physically abused, and Doleman was often
abandoned. Also, Doleman’s mother [would] have described
the series of foster homes and reform schools that Doleman
attended from age four. Doleman’s sister was prepared to
give similar testimony.
Id. at 848, 921 P.2d at 281. The Court found trial counsel ineffective,
reasoning that by failing to investigate defendant’s family, counsel failed to
discover and assess their testimony and whether it would have benefited
defendant at sentencing. “[W]e conclude that trial counsel could not make
a reasonable tactical decision whether Doleman’s family members should
testify at the penalty hearing.” Id.; see also Lambright v. Schriro, 490 F.3d
31

1
2
3

1103, 1116 (9th Cir. 2007) (“[A] decision not to ... offer particular mitigating
evidence is unreasonable unless counsel has explored the issue sufficiently
to discover the fact that might be relevant to ... making an informed
decision.”).

13

In evaluating prejudice, the Ninth Circuit has stated the court should
compare the evidence petitioner alleges should have been presented with
what was actually presented at sentencing and determine whether the
difference “is sufficient to ‘undermine confidence in the outcome’ of the
proceeding.” Lambright, 490 F.3d at 1121. Here, there was ample evidence
and testimony presented at sentencing regarding Mr. Turner’s relationship
with his children. There were three letters in aid of sentencing. One was
from Mr. Turner’s grandmother, in which she described Mr. Turner as a
“hard working and very devoted father.” Another was from Mr. Turner’s aunt,
in which she spoke of Mr. Turner’s daughters’ dependence on his support
and stated that “Jeremy is one of the best fathers I have known. He will have
a job available to him as soon as he is released in order to ... continue
raising both his daughters.” Mr. Springgate also spoke of Mr. Turner’s
daughters, “that, by the reports, by the letters in aid of sentencing, are the
most important things in his life, and the things that caused him to straighten
up.” Mr. Springgate also told this Court how Mr. Turner’s daughters had
visited him every week while he was in custody. He asked this Court to “give
[Mr. Turner] that daylight to hope for ... being able to come out and
reintegrate and see his daughters.” Mr. Turner cannot establish prejudice
because there was ample evidence presented regarding his positive
qualities as a father.

14

(ECF No. 14-5 at 16–17 (Order) (citations to state-court habeas petition, and citations to

15

items in state habeas court record, omitted).)

4
5
6
7
8
9
10
11
12

16

On the appeal in his state habeas action, Turner argued that the district court erred

17

in dismissing this claim. (See ECF No. 14-21 at 63–65 (Appellant’s Opening Brief).) The

18

Nevada Supreme Court ruled the claim procedurally barred and declined to reach its

19

merits. (See ECF No. 14-25 at 7–8 (Order of Affirmance).) This claim, then, is subject to

20

denial in this federal habeas action as procedurally defaulted, unless Turner can show

21

that some exception to the procedural default doctrine applies. Turner does not do so.

22

Here again Martinez does not apply because the default was on the appeal before the

23

Nevada Supreme Court, not in the state district court (see Martinez, 566 U.S. at 16); in

24

the state district court, the claim was raised, and adjudicated on its merits. (See ECF No.

25

13-29 at 7, 21–22 (Petition for Writ of Habeas Corpus); ECF No. 14-5 at 9–11 (Petition

26

for Writ of Habeas Corpus).)

27

Furthermore, the Court has examined the transcript of the sentencing, and the

28

other materials in the record regarding the sentencing (see ECF No. 16-1 (Presentence
32

1

Investigation Report) (filed under seal); ECF No. 12-23 (Notice of Documents in Aid of

2

Sentencing); ECF No. 12-24 (Addendum to Notice of Documents in Aid of Sentencing);

3

ECF No. 12-25; ECF No. 12-26 (Letter on Behalf of Defendant – Confidential) (filed under

4

seal)), and the Court finds that the ineffective assistance of trial counsel claim in Ground

5

1H is not substantial within the meaning of Martinez. See id. at 14. Turner does not show

6

that his trial counsel performed unreasonably at sentencing or that the alleged deficiency

7

was such as to give rise to a reasonable probability that, but for the alleged deficiency,

8

the result of the sentencing would have been different. See Strickland, 466 U.S. at 688,

9

694. The Court will deny Turner’s claims in Ground 1H and 1J(iii) as procedurally

10

defaulted.

11

J.

12

In Ground 1I, Turner claims that his federal constitutional rights were violated

13

because his trial counsel was ineffective for failing to object, or “argue against” the

14

restitution order imposed as part of his sentence. (See ECF No. 27 at 3, 11, 56–58

15

(Amended Petition).) In Ground 1J(v), Turner claims that his appellate counsel was

16

ineffective for failing to assert on his direct appeal that the restitution order was improper.

17

(See id. at 3, 59–64.)

18
19
20
21
22

Grounds 1I and 1J(v)

The judgment of conviction included a provision that Turner pay restitution, as
follows:
It is further ordered that Jeremy James Turner shall pay $25.00 as
an administrative assessment fee, reimburse the County of Washoe the
sum of $1,000.00 for legal representation, and pay restitution in the amount
of $49,294.74, to be paid joint and several with co-offender Ronald Hulsey.

23

(ECF No. 12-27 at 3 (Judgment of Conviction).) Evidently, the $49,294.74 in restitution

24

included $12,110.03 in restitution to the “State of Nevada, Victims of Crime,” a “victim

25

agency,” for amounts paid to cover Roberts’ medical expenses, and $37,184.71 in

26

restitution to Renown Medical Center, to cover Roberts’ unpaid medical expenses at that

27

hospital. (See ECF No. 16-1 at 10 (Presentence Investigation Report) (filed under seal);

28

ECF No. 12-25 at 36–37 (Transcript of Sentencing Hearing).)
33

1

Turner asserted these claims in his state habeas action. (See ECF No. 13-29 at7,

2

29–30 (Petition for Writ of Habeas Corpus).) The state district court dismissed the claims,

3

ruling as follows:

4

Mr. Turner argues both trial and appellate counsel were ineffective
for failing to object to the identity of the restitution recipient because ”[i]n no
way, shape or form is Renown a victim of crime.”

5
6

Pursuant to NRS 176.033, the court sentencing a defendant to
imprisonment must set an amount of restitution for each victim of the
offense, if restitution is appropriate. No definition of who or what qualifies as
a “victim” is provided. However, in NRS 213.005, which sets forth definitions
applicable to NRS Chapter 213 regarding pardons, remissions of fines and
commutations of punishments, “victim” is defined as 1) a person, including
a governmental entity, against whom a crime has been committed; 2) a
person who has been injured or killed as a direct result of the commission
of a crime; or 3) a relative of a person described in paragraph (a) or (b). This
definition of “victim” is broad and does not necessarily exclude a hospital
that treated persons injured by a crime.

7
8
9
10
11
12

In Roe v. State, 112 Nev. 733, 917 P.2d 959 (1996), defendant
argued that a state agency could not be considered a victim for purposes of
restitution pursuant to NRS 176.033. The Court looked to Igbinovia v. State,
111 Nev. 699, 895 P.2d 1304 (1995), in which it had recently held that a law
enforcement agency that set up a drug sting was not a “victim” eligible to
receive restitution. In Igbinovia, the Court reasoned that “the word ‘victim’
has commonly understood notions of passivity, where the harm or loss
suffered is generally unexpected and occurs without the voluntary
participation of the person suffering the harm or loss.” Id. at 706, 917 P.2d
at 1308. It went on to state, however, that “it is not without any foundation
in logic that the government might fall under the wording of subsection [3(a)]
of NRS 213.005.” Id. The Roe Court distinguished Igbinovia:

13
14
15
16
17
18

It would be a drastic oversimplification of the holding of
Igbinovia merely to state that a governmental agency cannot
be considered a victim.... The rule announced in Idbinovia is
a narrow one, tailored specifically to cases where law
enforcement agencies have expended money to conduct
undercover drug buys.

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20
21
22

Roe, 112 Nev. at 735, 917 P.2d at 960. It concluded the state agencies at
issue—the County Social Services Department and the State Welfare
Department—were victims to which the defendant, convicted of child abuse,
could be ordered to pay restitution:

23
24

First, they qualify under the reasoning set forth in Igbinovia,
i.e., the harm or loss suffered was unexpected and occurred
without the voluntary participation of the agencies.... Second,
the money expended by the agencies was for the benefit of
the children in the case, the true victims of [defendant’s]
criminal conduct.

25
26
27
28

///
34

Id. Here, Renown Hospital fulfills both of the above qualifications. Its
expenditures to treat the injuries caused by Mr. Turner were unexpected
and occurred without voluntary participation. And they were for the benefit
of the true victims—Ms. Faircloth and Mr. Roberts. Renown was properly
considered a victim.

1
2
3
4

(ECF No. 14-5 at 17–18 (Order) (citation to state-court habeas petition omitted).)

5
On the appeal in his state habeas action, Turner argued that the district court erred
6
in dismissing these claims. (See ECF No. 14-21 at 63–68 (Appellant’s Opening Brief).)
7
The Nevada Supreme Court affirmed, ruling as follows on Turner’s claim of ineffective
8
assistance of appellate counsel relative to the restitution order:
9

15

. . . Turner claims that appellate counsel should have contested the
restitution judgment to Renown Hospital, rather than to the person he
injured. Turner has not suggested that appellate counsel should have
challenged the amount of restitution. Thus, even assuming that Turner
should have been ordered to pay restitution to the victim rather than the
medical care provider, but see Martinez v. State, 115 Nev. 9, 11, 974 P.2d
133, 134 (1999), the challenge omitted by appellate counsel would have
changed only the identity of the restitution recipient and therefore would not
have resulted in any substantive relief from the restitution order.
Accordingly, we conclude that Turner was not prejudiced by appellate
counsel’s omission of this issue. The district court therefore did not err in
denying this claim.

16

(ECF No. 14-25 at 8–9 (Order of Affirmance).) And, with respect to Turner’s claim of

17

ineffective assistance of trial counsel relative to the restitution order, the Nevada Supreme

18

Court ruled that the claim was procedurally barred and declined to reach its merits. (See

19

ECF No. 14-25 at 7–8 (Order of Affirmance).)

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11
12
13
14

20

As an initial matter, the Nevada courts’ ruling that the restitution order was proper

21

under Nevada law was a determination of state law, beyond the scope of this federal

22

habeas corpus action. See Bradshaw, 546 U.S. at 76; Mullaney, 421 U.S. at 691. Turner

23

does not allege that the restitution order violated his federal constitutional rights.

24

Furthermore, the Nevada Supreme Court’s ruling that Turner was not prejudiced,

25

even if appellate counsel’s failure to raise the issue of the restitution order was deficient,

26

is reasonable. The Nevada Supreme Court’s ruling in this regard was not an

27

unreasonable application of Strickland, or any other United States Supreme Court

28

///
35

1

precedent, and was not based on an unreasonable determination of the facts in light of

2

the evidence presented. The Court will deny Turner habeas corpus relief on Ground 1J(v).

3

Turning to the Nevada Supreme Court’s ruling on the claim of ineffective

4

assistance of trial counsel in Ground 1I, as that court ruled the claim to be procedurally

5

barred, the claim is subject to denial in this federal habeas action as procedurally

6

defaulted, unless Turner can show that some exception to the procedural default doctrine

7

applies. Again, Turner does not do so. Martinez does not apply because the default was

8

on the appeal before the Nevada Supreme Court, not in the state district court (see

9

Martinez, 566 U.S. at 16); Turner asserted the claim in the state district court, and it was

10

adjudicated on its merits in that court. (See ECF No. 13-29 at 7, 29–30 (Petition for Writ

11

of Habeas Corpus); ECF No. 14-5 at 17–18 (Order).) Furthermore, the claim in Ground

12

1I is not substantial. See id. at 14. Accepting the state-court ruling that the restitution order

13

was proper under state law, it follows that Turner’s claim that his trial counsel was

14

deficient for failing to contest the restitution order is meritless. Moreover, as the Nevada

15

Supreme Court pointed out in ruling on the claim of ineffective assistance of appellate

16

counsel, Turner was not prejudiced. The Court will deny the claim in Ground 1I as

17

procedurally defaulted.

18

The Court, therefore, denies Turner habeas corpus relief on Grounds 1I and 1J(v).

19

K.

20

In Ground 1K, Turner claims that his federal constitutional rights were violated

21

because of the cumulative errors of his trial counsel. (See ECF No. 27 at 10, 65–67

22

(Amended Petition).) In Ground 1J(vi), Turner claims that his federal constitutional rights

23

were violated because of the cumulative errors of his appellate counsel. (See id. at 3, 59–

24

64).) As the Court determines that Turner has not shown there to have been deficient

25

performance by either his trial or appellate counsel, there is no deficient performance to

26

be considered cumulatively under Strickland, and the claims in Grounds 1K and 1J(vi)

27

fail. The Court will deny Turner habeas corpus relief on Grounds 1K and 1J(vi).

28

///

Grounds 1K and 1J(vi)

36

1

L.

Grounds 2 and 1J(iv)

2

In Ground 2, Turner claims that his federal constitutional rights were violated

3

because there was insufficient evidence to prove that he acted with the malice necessary

4

for the crime of second-degree murder. (See id. at 4, 10, 68–74).) In Ground 1J(iv), Turner

5

claims that his appellate counsel was ineffective for failing to raise this issue on his direct

6

appeal. (See id. at 3, 59–64).)

7

The Court has dismissed, as procedurally defaulted, the ineffective assistance of

8

appellate counsel claim in Ground 1J(iv). (See ECF No. 34 at 12–13, 15 (Order filed

9

August 20, 2018).)

10

On his direct appeal, Turner asserted a claim that there was insufficient evidence

11

at trial to support his conviction of second-degree murder. (See ECF No. 13-18 at 27–30

12

(Appellant’s Opening Brief).) The Nevada Supreme Court ruled on that claim as follows:

13

. . . Turner argues that the evidence presented at trial was insufficient
to support his conviction for second-degree murder because his one punch
to the victim was insufficient to demonstrate malice. We disagree. The
evidence presented at trial indicated that Turner and his codefendant
attacked the victim’s son. When the victim attempted to intervene, Turner
instructed his sister to “take care” of her. After Turner ‘s sister attacked the
victim, Turner pulled the victim’s head back by her hair and punched her
once in the face, knocking her unconscious with a blow described by the
medical examiner as “very forceful.” Turner’s codefendant kicked the victim
once in the face, leaving a footprint. The jury also heard of the size and age
differences between Turner and his codefendant and the victim, who was
57 and in relatively poor health at the time. Turner then fled the scene.
Malice may be implied from an assault and battery with the hands or fists
alone if evidence showing the character of the assault and the
circumstances under which it was made “’signifies general malignant
recklessness of others’ lives and safety or disregard of social duty.” Keys v.
State, 104 Nev. 736, 738, 766 P.2d 270, 271 (1988) (quoting Thedford v.
Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970)); see also People v.
Jones, 186 N.E.2d 246, 249 (Ill. 1962) (citation omitted); People v. Munn, 3
P. 650, 652 (Cal. 1884). “[I]t is the function of the jury, not the appellate
court, to weigh the evidence.” Walker v. State, 91 Nev. 724, 726, 542 P.2d
438, 439 (1975). Accordingly, we conclude that “’after viewing the evidence
in the light most favorable to the prosecution,’” a rational juror could have
found the essential elements of the crime beyond a reasonable doubt under
the alternative theories offered by the prosecution. McNair v. State, 108
Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)); NRS 200.010; NRS 200.030(2).

14
15
16
17
18
19
20
21
22
23
24
25
26
27

(ECF No. 13-25 at 2–3 (Order of Affirmance).)

28

///
37

1

The Due Process Clause of the United States Constitution “protects the accused

2

against conviction except upon proof beyond a reasonable doubt of every fact necessary

3

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).

4

However, a federal court collaterally reviewing a state court conviction for sufficiency of

5

the evidence does not determine whether it is satisfied that the evidence established guilt

6

beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992).

7

Rather, “the relevant question is whether, after viewing the evidence in the light most

8

favorable to the prosecution, any rational trier of fact could have found the essential

9

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

10

319 (1979) (emphasis in original); see also Payne, 982 F.2d at 338. “[F]aced with a record

11

of historical facts that supports conflicting inferences,” the court “must presume—even if

12

it does not affirmatively appear in the record—that the trier of fact resolved any such

13

conflicts in favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown,

14

558 U.S. 120, 133 (2010). The Supreme Court has instructed that claims of insufficiency

15

of the evidence “face a high bar in federal habeas proceedings . . ..” Coleman v. Johnson,

16

566 U.S. 650, 651 (2012) (per curiam).

17

Turner’s claim that there was insufficient evidence at trial to support his second-

18

degree murder conviction is meritless. Viewing the evidence in the light most favorable to

19

the prosecution, there was ample evidence supporting Turner’s conviction of second-

20

degree murder—that is, ample evidence that Turner harbored the malice necessary for

21

murder under Nevada law. (See, e.g., ECF No. 12-10 at 27–35 (Transcript of Trial,

22

September 7, 2011 (Clymer’s testimony describing Turner and Ronald Hulsey acting

23

jointly beating up Roberts)); id. at 53–54, 57, 147 (Clymer’s testimony describing Turner

24

striking Faircloth and knocking her down, and then Ronald Hulsey kicking her); id. at 156

25

(Clymer stating that he told the police that he saw Turner strike Faircloth); id. at 273

26

(Bailey’s testimony that she heard a voice yelling, “You want to hit my sister?” and

27

“Nigger-lover”);ECF No. 12-11 at 119–20 (Transcript of Trial, September 8, 2011)

28

(Merritt’s testimony that Turner told her that he had beaten two people “to a pulp, to where
38

1

they had to call the EMTs, they had to resuscitate them and call the EMTs to be picked

2

up”).) The Nevada Supreme Court's denial of relief on this claim was not contrary to, or

3

an unreasonable application of Jackson, or any other Supreme Court precedent, and was

4

not based on an unreasonable determination of the facts in light of the evidence

5

presented.

6

The Court will deny Turner habeas corpus relief on Grounds 2 and 1J(iv).

7

M.

8

In Ground 3, Turner claims that his federal constitutional rights were violated as a

9

result of the cumulative effect of the errors he alleges. (See ECF No. 27 at 5, 10, 75–77

10

(Amended Petition).) As the Court determines that Turner has not shown there to have

11

been any violation of his federal constitutional rights, there is no such error to be

12

considered cumulatively, and the claim in Ground 3 fails. The Court will deny Turner

13

habeas corpus relief on Ground 3.

Ground 3

14

N.

Ground 4

15

In Ground 4, Turner claims that he “is entitled to habeas relief for [the] reason [that]

16

he is actually and/or factually innocent of the second-degree murder charge.” (See id. at.

17

6, 10, 78–82.)

18

In the order resolving Respondents’ motion to dismiss, the Court ruled that this

19

claim is subject to dismissal as procedurally defaulted unless Turner can show that a

20

fundamental miscarriage of justice would result if it is not adjudicated on its merits. (See

21

ECF No. 34 at 14–15 (Order filed August 20, 2018).) A federal court may consider a

22

procedurally defaulted claim if the petitioner demonstrates that, otherwise, a fundamental

23

miscarriage of justice would result. See Coleman, 501 U.S. at 750. To establish that a

24

fundamental miscarriage of justice would result if a claim is not heard on the merits, a

25

petitioner must demonstrate that “a constitutional violation has probably resulted in the

26

conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995).

27

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.

28

United States, 523 U.S. 614, 623 (1998). This is a narrow exception, reserved for
39

1

extraordinary cases. See Sawyer v. Whitley, 505 U.S. 333, 340 (1992). To demonstrate

2

actual innocence to overcome a procedural bar, a petitioner must present “new reliable

3

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

4

accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S.

5

at 324. “New” evidence is “relevant evidence that was either excluded or unavailable at

6

trial.” Id. at 327–28. Taking into account all the evidence, the petitioner “must show that it

7

is more likely than not that no reasonable juror would have convicted him in the light of

8

the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513

9

U.S. at 327); see also Schlup, 513 U.S. at 329 (“a petitioner does not meet the threshold

10

requirement unless he persuades the district court that, in light of the new evidence, no

11

juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt”);

12

House v. Bell, 547 U.S. 518, 538 (quoting Schlup, 513 U.S. at 327–28 (regarding

13

evidence to be considered in making the determination)). “The Court’s function is not to

14

make an independent factual determination about what likely occurred, but rather to

15

assess the likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538.

16

Meeting this standard “raise[s] sufficient doubt about [the petitioner’s] guilt to undermine

17

confidence in the result of the trial without the assurance that the trial was untainted by

18

constitutional error,” warranting “a review of the merits of the constitutional claims[.]”

19

Schlup, 513 U.S. at 317.

20

The new evidence Turner points to in support of his claim of actual innocence is

21

the testimony of Jamie Hulsey at the state-court evidentiary hearing, an affidavit of Jamie

22

Hulsey, and an affidavit of Ronald Hulsey. (See ECF No. 27 at 6, 10, 78–82 (Amended

23

Petition); see also ECF No. 27-1 at 12–16 (Affidavit of Jamie Hulsey, Exh. 4 to Amended

24

Petition); id. at 17–24 (Affidavit of Ronald Hulsey, Exh. 4 to Amended Petition); ECF No.

25

14-10 at 73–100) (Transcript of Evidentiary Hearing (Hulsey)).) This Court determines

26

that, in view of the strong evidence of Turner’s guilt presented at trial, this evidence is

27

insufficient to establish Turner’s actual innocence under Schlup; it is plain that had the

28

versions of events recounted by Jamie and Ronald Hulsey been presented to the jury, a
40

1

reasonable juror could still have found Turner guilty of second-degree murder beyond a

2

reasonable doubt.
The Court will deny Turner’s claim of actual innocence in Ground 4 as procedurally

3
4

defaulted.

5

O.

6

The standard for the issuance of a certificate of appealability requires a “substantial

7

showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The Supreme Court

8

has interpreted 28 U.S.C. § 2253(c) as follows:

9

Certificate of Appealability

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where, as here, the district
court dismisses the petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.

10
11
12
13
14
15
16

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

17

1077–79 (9th Cir. 2000).
Applying the standard articulated in Slack, the Court finds that a certificate of

18
19

appealability is unwarranted.

20

The denial of a certificate of appealability by this Court does not preclude Turner

21

from appealing and seeking a certificate of appealability from the Court of Appeals. To

22

appeal, Turner must file a timely notice of appeal in this Court.

23

IV.

It is therefore ordered that Petitioner’s Amended Petition for Writ of Habeas Corpus

24
25

CONCLUSION

(ECF Nos. 27, 27-1) is denied.
It is further ordered that Petitioner is denied a certificate of appealability.

26
27

///

28

///
41

1
2
3

It is further ordered that the Clerk of the Court is directed to enter judgment
accordingly.
DATED THIS 24th day of February 2020.

4
5
6
7

MIRANDA M. DU,
CHIEF UNITED STATES DISTRICT JUDGE

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