Morrow v. Williams et al

Filing 39

ORDER - The Petition (ECF No. 4 ) is denied. A certificate of appealability is denied. Clerk is directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 8/18/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:17-cv-00580-MMD-CLB Document 39 Filed 08/18/20 Page 1 of 16

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TROY ANTHONY MORROW,
Petitioner,

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Case No. 3:17-cv-00580-MMD-CLB
ORDER

v.
BRIAN E. WILLIAMS, SR., et al.,

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Respondents.

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Troy Anthony Morrow’s pro se 28 U.S.C. § 2254 petition for writ of habeas corpus

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is before the Court for final disposition on the merits (ECF No. 4).

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I.

PROCECURAL HISTORY AND BACKGROUND

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A.

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A jury convicted Morrow of burglary and grand larceny in August 2012 (Ex. 26).1

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The convictions stemmed from Morrow’s theft of electronics from a Las Vegas Walmart.

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(Exh. 24.) At the time he was working as a confidential police informant in an operation

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targeting ex-felons selling firearms and individuals in possession of dynamite grenades.

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At a detective’s request, Morrow was initially released and then was arrested for the

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incident several months later.

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Procedural History

The state district court adjudicated Morrow a large habitual criminal and sentenced
him to two concurrent terms of 10 years to life. (Exh. 38.)

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The Nevada Supreme Court affirmed Morrow’s convictions in 2014, and the

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Nevada Court of Appeals affirmed the denial of his state postconviction petition in 2016.

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(Exhs. 44, 71.)

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///

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referenced in this order are exhibits to Respondents’ motion to dismiss,
ECF No. 9, and are found at ECF Nos. 10-15.
1Exhibits

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The remaining two grounds in Morrow’s federal petition are claims of ineffective

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assistance of counsel (ECF No. 4). Respondents have answered the remaining grounds,

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and Morrow has replied (ECF Nos. 34, 38).

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B.

Pertinent Trial Testimony

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At the August 2012 jury trial, the Walmart asset protection agent from the store in

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question testified. (Exh. 24, pt. 1, at 9-87.) She stated that she was monitoring the store

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via cameras and saw Morrow enter the store with three packs of pencils and get a sticker

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from a greeter marked “3” in order to return those items. A few minutes later she saw

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Morrow in the electronics department with a shopping cart. She continued to watch him.

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When he left the store with a home theater system, a Blu-Ray DVD player and a DVD

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player, the Walmart management team approached him and brought him back into the

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store. She asked Morrow what he was doing. He admitted to taking the items. She told

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him she was calling the police, and he told her that “he wasn’t going to go to jail because

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he knows too many people.” Id. at 26. The State showed the surveillance video from the

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incident and had the asset protection agent describe what the video depicted as it played.

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On cross-examination the asset protection agent stated that she saw Morrow take

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the electronic items off the shelf but conceded that the surveillance video did not show

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Morrow taking anything off the shelves, nor did it show Morrow walk into Walmart with

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any items.

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Las Vegas Metro Detective Dale Anderson also testified. (Exh. 24, pt. 2, at 10-28.)

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Anderson confirmed that at the time of his arrest Morrow was working with Anderson as

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a confidential informant (“CI”). Anderson stated that he works as an undercover detective

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and that Morrow’s function was to introduce Anderson to ex-felons with guns and

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dynamite grenades that were looking to sell them. Anderson stated that when the

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arresting officer, Matthew Carter, called him, Anderson confirmed that Morrow was a CI

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and told Carter that if there was any way possible that he could let Morrow go, that

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Anderson would appreciate it. Anderson agreed on cross-examination that, depending on

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the circumstances, if a confidential informant refused to participate in something illegal,

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that that might be a tip-off to the people he is informing police about that something might

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not be right. Anderson testified that he never instructed Morrow to commit a burglary or

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grand larceny at a Walmart or anywhere else. He also stated that he encouraged Morrow

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to advance the firearms investigation and that he gave Morrow specific instruction as to

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what not to do.

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Officer Carter testified similarly that Morrow told him he was a CI, that Carter called

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Anderson to confirm, and that Anderson requested that he release Morrow. Carter also

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stated that Morrow told him that he was teaching a guy how to steal expensive items.

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(Exh. 24, pt. 1, at 89-100; Exh. 24, pt. 2 at 1-10.)

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II.

LEGAL STANDARDS

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A.

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

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Act (“AEDPA”), provides the legal standards for the Court’s consideration of the Petition

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in this case:

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AEDPA Standard of Review

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim ―
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

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

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

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convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685,

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693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there is no

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possibility fair-minded jurists could disagree that the state court’s decision conflicts with

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

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

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

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

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

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

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

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

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

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

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

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and nevertheless arrives at a result different from [the Supreme Court’s] precedent.”

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Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and

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citing Bell, 535 U.S. at 694).

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A state court decision is an unreasonable application of clearly established

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

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

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

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

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

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application of clearly established law must be objectively unreasonable. Id. (quoting

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Williams, 529 U.S. at 409).

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

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

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

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the federal courts “must be particularly deferential” to state court factual determinations.

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Id. The governing standard is not satisfied by a showing merely that the state court finding

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was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires substantially more

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deference:

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

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Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

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

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

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of proving by a preponderance of the evidence that he is entitled to habeas relief. See

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Cullen, 563 U.S. at 181.

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B.

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Ineffective assistance of counsel (“IAC”) claims are governed by the two-part test

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announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme

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Court held that a petitioner claiming ineffective assistance of counsel has the burden of

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demonstrating that (1) the attorney made errors so serious that he or she was not

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functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the

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deficient performance prejudiced the defense. See Williams, 529 U.S. at 390-91 (citing

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Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that

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counsel’s representation fell below an objective standard of reasonableness. See id. To

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establish prejudice, the defendant must show that there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. See id. A reasonable probability is a “probability sufficient to undermine

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confidence in the outcome.” Id. Additionally, any review of the attorney’s performance

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must be “highly deferential” and must adopt counsel’s perspective at the time of the

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challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466

Ineffective Assistance of Counsel

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U.S. at 689. It is the petitioner’s burden to overcome the presumption that counsel’s

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actions might be considered sound trial strategy. See id.

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Ineffective assistance of counsel under Strickland requires a showing of deficient

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

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an objective standard of reasonableness, . . . under prevailing professional norms.”

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

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When the ineffective assistance of counsel claim is based on a challenge to a guilty plea,

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the Strickland prejudice prong requires a petitioner to demonstrate “that there is a

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reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

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would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

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

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

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

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

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reasonable professional assistance. See id.

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

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

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

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

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

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

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is limited to the record before the state court that adjudicated the claim on the merits. See

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

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the extensive deference owed to a state court’s decision regarding claims of ineffective

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assistance of counsel:

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Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh
v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997),
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and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S.
at 123. The Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S. at 124. Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d) applies, the
question is whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard.

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

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

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

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

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

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

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III.

DISCUSSION

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A.

Grounds 1(b) and 2(b)

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Morrow contends that his trial counsel was ineffective for failing to object when

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Morrow was never arraigned (2(b)) and that his appellate counsel failed to argue that

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Morrow did not enter a plea or otherwise was not arraigned in state district court (1(b)).

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(ECF Nos. 4, 34.)

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The record reflects the following pre-trial proceedings. Morrow appeared for a

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preliminary hearing in Justice Court in June 2011, but the hearing was continued at

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Morrow’s request to allow him time to review the discovery. (Exh. 1.) On July 25, 2011,

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Morrow was present with counsel and unconditionally waived his right to a preliminary

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hearing. (Exh. 2.) His counsel informed the court that a plea deal had been negotiated

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and that Morrow would plead guilty to one count of burglary with a stipulation to habitual

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criminal treatment and a term of 7 to 20 years. (Id.) Morrow’s August 1, 2011 arraignment

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was continued, and at his August 10 and August 22, 2011 arraignment hearings, Morrow

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asked for more time to consult with counsel. (Exhs. 5, 6, 8.) At a September 6 hearing,

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the parties told the court that they were still negotiating. (Exh. 10.) The court set Morrow’s

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trial date for November 7, 2011.

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At a November 3, 2011 calendar call, the parties informed the court that they were

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still negotiating. (Exh. I to Exh. 56, pt. 1 at 8-21.) Morrow was present, and defense

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counsel told the court that the negotiations included stipulating to habitual criminal

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treatment and a term of 7 to 20 years. The court explicitly discussed with Morrow that if

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the parties did not reach a deal, the State would seek large habitual criminal treatment,

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which carried possible sentences of life without the possibility of parole, life with the

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possibility of parole after 10 years, or a term of 10 to 25 years. Morrow acknowledged

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that he was “well aware” of the potential sentences. (Id. at 16.) He also told the court that

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the reality was that he needed to take a deal in order to avoid a possible life sentence.

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The court continued the case for a status check/calendar call on March 8, 2012. (Exh.

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13.)

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The negotiations ultimately fell through, and at a July 19, 2012 calendar call the

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parties announced they were ready for trial. (Exh. 17.) At a hearing on July 26, 2012, the

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State confirmed that it was leaving a plea offer open for Morrow so that he could review

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the offer and a surveillance tape with defense counsel. (Exh. 19.) Morrow appeared with

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counsel at a hearing on July 30, 2012, and defense counsel confirmed that Morrow

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rejected the State’s final plea offer. (Exh. 21.)

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On state postconviction review, the Nevada Court of Appeals affirmed the denial

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of the claim that trial counsel was ineffective for failing to argue that Morrow was never

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formally arraigned:

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Morrow argues the district court erred by denying his claim trial counsel was
ineffective for failing to object when the district court failed to conduct an
arraignment as required by NRS 174.015. Although Morrow was not
formally arraigned, the record reveals he was fully aware of the criminal
charges and the possibility of a habitual criminal adjudication if he
proceeded to trial and lost. It further reveals his arraignment was continued
several times so he could pursue plea negotiations. Because the record
does not demonstrate Morrow was prejudiced by counsel’s failure to object
to the absence of a formal arraignment, we conclude the district court did
not err in rejecting this claim.

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///

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(Exh. 71 at 2.)
With respect to Morrow’s claim that appellate counsel was ineffective for failing to
challenge the fact that Morrow was not arraigned, the Nevada Court of Appeals stated:
The district court found that any attempt made by counsel to raise this issue
on appeal would have been futile because a defendant waives his right to
formal arraignment by proceeding to trial without objecting to the absence
of a plea. The record supports the district court’s finding and we conclude
the district court did not err in rejecting this claim.
(Id. at 3.)

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While the record reflects that Morrow was never formally arraigned, it also reflects

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that arraignment proceedings were continued several times while the parties negotiated,

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and that Morrow waived his right to a preliminary hearing. He was also clearly aware of

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the charges and possible sentences. He has failed to demonstrate that the Nevada Court

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of Appeal’s decisions were contrary to or involved an unreasonable application of

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Strickland. See 28 U.S.C. § 2254(d). Federal habeas relief is denied as to grounds 1(b)

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and 2(b).

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B.

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Relatedly, Morrow contends that trial counsel failed to advise him that he could be

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Ground 2(a)

sentenced under the habitual criminal sentence if he lost at trial. (ECF No. 4 at 39-40.)
The Nevada Court of Appeals rejected this claim:
Morrow argues the district court erred by denying his claim trial counsel was
ineffective for failing to advise him that sentencing under the large habitual
criminal statute was a possible consequence of proceeding to trial and
losing. Morrow further asserts the district court erred by not conducting an
evidentiary hearing on this claim. However, the district court found Morrow's
claim was belied by the record, the record supports the district court's
finding, and the record reveals Morrow was fully informed of the
consequences he would face by going to trial. Therefore, we conclude the
district court did not err in rejecting this claim without conducting an
evidentiary hearing. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d
222, 225 (1984) (holding a petitioner is not entitled to an evidentiary hearing
or relief where his claims are belied by the record).

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(Exh. 71 at 4.)

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As set forth above with respect to grounds 1(b) and 2(b), this claim is belied by the

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record. Morrow has not demonstrated that the Nevada Court of Appeal’s decision was

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contrary to or involved an unreasonable application of Strickland. See 28 U.S.C. §

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2254(d). Federal habeas relief is denied as to ground 2(a).

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C.

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Morrow contends that his trial counsel was ineffective for failing to provide an

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additional jury instruction on the burden of proof for a public authority defense (2(c)) and

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that appellate counsel was ineffective for failing to raise the burden of proof challenge on

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Grounds 1(c) and 2(c)

appeal (1(c)). (ECF Nos. 4, 34.)

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Morrow’s theory of defense at trial was that when he entered Walmart and

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attempted to leave without paying for several electronics, he was acting in his capacity as

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a confidential informant for law enforcement. (Exh. 24, pt. 3, at 3-9.) The trial court

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instructed the jury:

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If you find that Mr. Morrow was acting or reasonably believed he was acting
on behalf of a law enforcement agency or officer when he engaged in the
conduct charged in counts 1 and 2 of the indictment, then you must acquit
him of these charges.
(Exh. 25, instruction no. 21.)

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The State argued in closing that the defense bore the burden of proving the

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affirmative defense that Morrow reasonably believed he was acting on behalf of law

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enforcement by a preponderance of the evidence. (Exh. 24, pt. 3 at 10-11.)

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The Nevada Court of Appeals rejected Morrow’s argument that trial counsel was

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ineffective for failing to provide an additional jury instruction on the burden of proof for a

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public authority defense and that appellate counsel was ineffective for failing to raise this

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issue on appeal:

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Morrow argues the district court erred by denying his claim trial counsel was
ineffective for failing to offer a jury instruction on the burden of proof for the
public authority defense modeled after the burden of proof for the procuring
agent defense described in Love v. State. See Love v. State, 893 P.2d 376,
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379 (Nevada 1995) (holding the defendant does not have the burden to
prove the procuring agent defense), overruled on other grounds by Adam
v. State, 261 P.3d 1063 (Nevada 2011).2 The district court found such an
offer would have been futile.

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On direct appeal, Morrow alleged the district court erred by failing to
instruct the jury on the necessary burden of proof for the public authority
defense. The Nevada Supreme Court rejected the claim, concluding “[e]ven
assuming that Nevada recognizes the public authority defense . . . no
prejudice resulted from the deficiencies in the instruction appellant identifies
considering the substantial evidence supporting appellant’s convictions”. . .
. In light of the Nevada Supreme Court’s conclusion, Morrow cannot
demonstrate he was prejudiced by counsel’s failure to offer a burden-ofproof instruction and, therefore, the district court did not err in rejecting this
claim.
. . . .Morrow [also] argues that the district court erred by denying his
claim appellate counsel was ineffective for failing to incorporate Love into
the burden-of-proof issue he presented on appeal. The district court found
the jury was properly instructed on the State’s burden of proof. Because the
record supports its finding and the Nevada Supreme Court concluded
Morrow was not prejudiced by any possible deficiencies in the instruction
given, Morrow cannot demonstrate that incorporating Love into the burdenof-proof issue would have improved the issue’s probability of success on
appeal. Therefore, we conclude the district court did not err in rejecting this
claim.
(Exh. 71 at 3-4.)

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Detective Anderson testifed at trial that Morrow was working for him as a

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confidential informant related to illegal firearm and grenade sales. However, he also

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testified:

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Q: Is it normal for detectives to let confidential informants get away
with shoplift/burglaries while they’re working as a confidential informant?

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2In

Love, the Nevada Supreme Court held that the trial court erred when it failed
to instruct a jury that the State bore the burden of disproving defendant’s procuring agent
defense and in instructing the jury that the procuring agent defense does not apply unless
the drug sale is initiated by a police informant. See 893 P.2d at 378. The state supreme
court discussed that it had previously established that the procuring agent defense in a
prosecution for a sale of a controlled substance can be maintained only if the defendant
was merely a conduit for the purchase and in no way benefited from the transaction. See
id. Even if the procuring agent defense set out in Love extends to other illegal activity, this
Court notes that such a defense is not really “on all fours” with Morrow’s theory of defense
here.
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A: I wouldn’t call it get away with.

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Q: Well, how would you describe it then?

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A: Well, he didn’t get away with it; it was just a charge or a case that
we held. He didn’t get away with it.
Q: What do you mean by that?

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A: That means it’s something that Mr. Morrow did that we didn’t arrest
him for that night. He could be arrested for it later, and that’s what
happened. I submitted for an arrest warrant at a later date. . . .
Q: . . . . – as part of his work as a CI were you – was [Morrow] ever
instructed or asked to go commit a burglary or grand larceny at a Walmart
or any other store?

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A: Absolutely not.

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(Exh. 24, p. 2, at 14, 28.)

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The Walmart asset protection agent testified that she observed Morrow take the

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items from the store. Officer Carter testified that Morrow told him he was teaching another

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individual how to steal large-ticket items. Detective Anderson testified that he never told

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Morrow to take anything from a store as part of his role as a confidential informant related

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to illegal firearm sales. In light of the substantial evidence introduced at trial, Morrow has

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not shown that the Nevada Court of Appeals’ decisions on these trial and appellate IAC

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claims were contrary to or involved an unreasonable application of Strickland. See 28

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U.S.C. § 2254(d). Grounds 1(c) and 2(c) are, therefore, denied.

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D.

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Morrow asserts that his appellate counsel was ineffective because counsel failed

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to challenge statements made by the prosecution during voir dire. Morrow argues these

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statements deprived him of his Fourteenth Amendment right to a fair trial. (ECF No. 4 at

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23-24.)

Ground 1(a)

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During voir dire, Deputy District Attorney Rogan addressed potential jurors:

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The basic facts are that on December 15th, 2009, the defendant entered
a Walmart located at 201 North Nellis Avenue – Boulevard here in Las

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Vegas, Clark County, Nevada, and stole various electronic items. He was
caught in the act and confessed to a police officer.

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(Exh. 22 at 21.)
The prosecutor later had this exchange with a potential juror regarding the juror’s

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personal experiences with law enforcement:

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So every time that something was stolen would you call the police?

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Yeah, but they had to take it all down to the department and they
wouldn’t come out no more. So I didn’t get no satisfaction, never went
nowhere.

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Okay. You understand that in this particular case, the defendant was
actually caught inside the Walmart?

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(Exh. 22 at 70.)
Defense counsel Jenkins raised these improper comments during a bench

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conference:

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Mr. Jenkins: and, Your Honor, one – Mr. Rogan already cited it, but
arguing or stating the facts of the case during voir dire –

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Mr. Rogan: It’s inappropriate.

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The Court: Yeah.

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Mr. Rogan: It just came up.

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The Court: Yeah, it’s – it does run afoul of EDCR 7.70.

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Mr. Rogan: I’m familiar. It just came up. I apologize.

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The Court: Okay, All right.

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Mr. Jenkins: We’ll make a more full record when we’re outside the
presence --

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(Exh. 22 at 73-74.)

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///

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Next, and before Mr. Jenkins had an opportunity to make a full record of the
defense objection, the trial court was prompted to issue a curative instruction:
Prospective Juror: when we first came in here, did I hear it be said that
he was seen with property of Walmart – in the beginning did I hear that
correctly?

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[district attorney] Ms. Hojjat: And, unfortunately, we’re not allowed to
discuss –

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Prospective Juror: I thought I’ve heard it like two or three times said.

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The Court: Well let me go ahead and clarify this. The situation is the
lawyers typically at the early part of the proceedings today, as they did,
could give a description of what they think the case is about. But what the
lawyers say, just like opening statements or closing statements, that’s not
evidence, so you haven’t received any evidence. So regardless of what
somebody may have thought the case or evidence would show, you don’t
have any evidence to support that one way or the other so there’s no
evidence has been presented at this point. So what I’m really saying is
that if there were any opinions given by counsel as to what they thought
the case would show, that’s not evidence and really I would tell you you’re
not to consider that.
(Exh. 22 at 80-81.)
The Nevada Court of Appeals agreed the trial court’s curative instruction to
potential jurors was sufficient to preserve Morrow’s fair trial right:
The district court found any attempt made by counsel to allege Morrow was
deprived of his right to a fair trial based on the prosecutor’s comments would
have been futile because it gave a curative instruction advising the potential
jurors the comments and questions by counsel were not evidence and could
not be considered by jurors. Because the record supports the district court’s
finding and further reveals trial counsel acknowledged the matter was cured
during voir dire, we conclude the district court did not err in rejecting this
claim. See Kirksey v. State, 923 P.2d 1102, 1114 (Nevada 1996) (“An
attorney’s decision not to raise meritless issues on appeal is not ineffective
assistance of counsel.”).

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(Exh. 71 at 2.)

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In light of the curative instruction issued, in which the court specifically admonished

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potential jurors that comments during voir dire, just like opening and closing arguments,

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are not evidence, the Court agrees that Morrow has not demonstrated that the Nevada
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Court of Appeal’s decision was contrary to or involved an unreasonable application of

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Strickland. See 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 1(a).

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Accordingly, the petition is denied in its entirety.
IV.

CERTIFICATE OF APPEALABILITY

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

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

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

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

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

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

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

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

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4

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(1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate

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(1) whether the petition states a valid claim of the denial of a constitutional right and (2)

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whether the court’s procedural ruling was correct. See id.

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

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

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declines to issue a certificate of appealability for its resolution of Morrow’s petition.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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issues before the Court.

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It is therefore ordered that the petition (ECF No. 4) is denied.

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

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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DATED THIS 18th day of August 2020.

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MIRANDA M. DU, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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