Jefferson v. The State of Nevada et al

Filing 64

ORDER - IT THEREFORE IS ORDERED that the amended petition (ECF No. 47 ) is DENIED, and this action shall be DISMISSED with prejudice. IT FURTHER IS ORDERED that Jefferson is DENIED a certificate of appealability. IT IS FURTHER O RDERED that Jeffersons requests for an evidentiary hearing are DENIED. IT IS FURTHER ORDERED the Clerk of Court is directed to substitute Tim Garrett for Respondent Perry Russell. The Clerk of the Court shall enter final judgment accordingly in favor of respondents and against Jefferson, dismissing this action with prejudice. Signed by Judge Howard D. McKibben on 8/8/2022. (Copies have been distributed pursuant to the NEF - CJD)

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 1 of 38

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6
7
8

BRANDON M. JEFFERSON,

Case No. 3:18-cv-00064-HDM-CLB
Petitioner,

v.

ORDER

PERRY RUSSELL, 1 et al.,
Respondents.

9
10

Petitioner, Brandon M. Jefferson (“Jefferson”) filed a pro

11

se amended petition under 28 U.S.C. § 2254. (ECF No. 47.) The

12

respondents have answered (ECF No. 57) and Jefferson has replied

13

(ECF Nos. 58 and 63).

14

In

2012,

a

jury

convicted

Jefferson

of

three

counts

of

15

sexual assault and one count of lewdness involving his five-

16

year-old

daughter,

and

17

seventy

years

life.

18

Jefferson’s amended petition asserts five grounds for relief,

19

one of which was previously dismissed as procedurally defaulted.

20

Two of the remaining claims – Grounds Three and Four – are

21

before

22

establish cause and prejudice for their procedural default – and

23

the other two claims are before the court for merits review. For

24

the reasons discussed below, the petition will be denied.

25
26
27
28

the

to

Court

for

he

was

sentenced

(Exhibit

review

as

65

to

to

and

imprisonment
ECF

whether

No.

for

18–24.)

Jefferson

can

According to the state corrections department’s inmate locator page,
Jefferson is incarcerated at Lovelock Correctional Center. The department’s
website
reflects
Tim
Garrett
is
the
warden
for
that
facility.
https://ofdsearch.doc.nv.gov/form.php. The Court will therefore direct the
clerk to substitute Tim Garrett for respondent Perry Russell, under, inter
alia, Rule 25(d) of the Federal Rules of Civil Procedure.
1

1

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 2 of 38

Background 2

1
At

2

trial,

Cindy

married

Lamug

and

had

testified
a

son,

she

B.L.,

and
and

Jefferson
daughter,

were

3

previously

C.J. 3

4

(Exhibit 56 and ECF No. 62-5 at 12–14, 22.) She said that during

5

the summer of 2010, she worked from 4:00 p.m. to 10:00 p.m.

6

while Jefferson watched the children. (Id. at 14–16, 22.)
C.J. testified when she was seven years old that when she

7
8

was

five

years

old,

her

father,

Jefferson,

stuck

his

penis

9

(“tee-tee”) in her vagina, butt, and mouth. (Exhibit 55 and ECF

10

No. 62-4 at 41–45, 49–67.) She said it occurred more than one

11

time in her parents’ bedroom while her mother was at work, and

12

on one occasion he stuck his penis in her vagina and mouth while

13

they were in C.J.’s bedroom. (Id. at 49–70.) She said she cried

14

on one occasion in her parents’ bedroom. (Id. at 66–67.) C.J.

15

said “green” pee came out of her father’s penis into her mouth,

16

and he told her to swallow it; but she pretended to do so and

17

spit it out in the toilet. (Id. at 70–71.) She said her father

18

told her not to tell anyone about their activities. (Id. at 61–

19

62.)

20

B.L. testified when he was ten years old that on more than

21

one occasion, while his mother was at work, Jefferson took his

22

sister C.J. into his parents’ bedroom, and on one occasion, he

23

heard C.J. crying from the bedroom. (Id.) He said C.J. came out

24
25
26
27
28

The Court summarizes the relevant state court record for consideration
of the issues in the case. The Court makes no credibility findings or other
factual findings regarding the truth or falsity of evidence or statements of
fact in the state court.
2

Pursuant to LR IA 6-1(a), the minor witnesses are referred to by their
initials, “C.J.” and “B.L.”
3

2

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 3 of 38

1

of the bedroom looking like she was “hiding something” and on a

2

“few” occasions, he asked her what happened, and she said he did

3

not need to know. (Id. at 94–95.) B.L. never saw what happened

4

with his father and C.J. while they were in the bedroom. (Id. at

5

137.) He said his father would take his sister to the bedroom

6

“at least like every day my mother goes to work.” (Id. at 124–

7

25.)
Lamug testified that on September 14, 2010, she picked up

8
9

the

children

at

school

and

told

the

children

Jefferson

was

10

“really being mean” and did not go to work that day. (Exhibit 56

11

and ECF No. 62-5 at 28–29.) She explained that Jefferson left

12

the apartment and that she tried, without success, to locate him

13

so she could drive him to work. (Id.) She said she told the

14

children that if Jefferson did not return, she was going to

15

leave him, and since it would just be the three of them, they

16

had to work together, could have “no secrets,” and that they

17

“did a pinky swear.” (Id. at 29–30.) On cross-examination, Lamug

18

testified that when she told the children she was leaving the

19

marriage, she had determined she was going to keep custody of

20

their children. (Id. at 44.) C.J. testified that her parents

21

fought a lot, her mother told her that her father did not treat

22

her mother

23

mother’s team and needed to tell her all the secrets, and they

24

made a pinky-promise. (Exhibit 55 and ECF No. 62-4 at 76–77.)

25

B.L. also testified their parents fought a lot, and their mother

26

said their father was gone and asked C.J. and B.L. to be on

27

their mother’s team. (Id. at 113–15.)

28

Shortly

well,

her

after

mother

Lamug

told

made
3

her

these

she

had

to

comments,

be

C.J.

on

her

said,

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 4 of 38

1

“[M]ommy, I have a secret to tell you.” She told her mother that

2

her dad “makes [her] suck his tee-tee” and told her not to tell

3

anyone. (Exhibit 56 and ECF No. 62-5 at 31.) B.L. testified he

4

overheard C.J. tell their mother that Jefferson “made her suck

5

his penis” and explained that C.J. used the Tagalog word, “tee-

6

tee,” which means penis. (Exhibit 55 and ECF No. 62-4 at 97–

7

100.) Lamug testified she asked C.J. when it happened and C.J.

8

told her that it happened while Lamug was at work at night.

9

(Exhibit 56 and ECF No. 62-5 at 31–32.) Lamug said C.J. told her

10

that Jefferson pulls down her pants and puts his “tee-tee” “down

11

there” and C.J. pointed at her private. (Id. at 32–33.) B.L.

12

said his mother “seemed sort of shocked” and immediately called

13

the police, and that they went to hospital that night. (Exhibit

14

55 and ECF No. 62-4 at 100–01.)
According to Detective Todd Katowich with the Las Vegas

15
16

Metropolitan

Police

Department

(“Metro”),

he

and

Detective

17

Matthew Demas conducted individual interviews with C.J., B.L.,

18

and Lamug. Then they arrested Jefferson and took him to the

19

detective bureau where they handcuffed him and questioned him

20

following Miranda warnings. (Exhibit 56 and ECF No. 62-5 at 77–

21

81, 83–86, 88–89.) The compact disc recording of Jefferson’s

22

statement to police was admitted into evidence and played for

23

the jury at trial. (Exhibit 1 and ECF No. 62-1 at 56; Exhibit 57

24

and ECF No. 18-16 at 54–57.)

25

Detectives Katovich and Demas each testified that Jefferson

26

initially denied inappropriate contact with C.J. (Exhibit 56 and

27

ECF No. 62-5 at 100–01, 123; Exhibit 57 and ECF No. 18-16 at

28

86.)

However,

according

to

Detective
4

Katovich,

about

“25

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 5 of 38

1

minutes” into the interview, Jefferson admitted “his penis had

2

gone

3

possibly as many as three occasions,” “that she had touched his

4

penis with her hand on at least one occasion, but possibly as

5

many as three occasions,” and that “she had climbed on top of

6

him and rubbed her vagina against his penis.” (Exhibit 56 and

7

ECF

8

having “pre-cum,” but denied penetrating his daughter’s vagina

9

or anus or having a full orgasm with her. (Id. at 100–01.)

10

in

his

No.

62-5

The

daughter’s

at

defense,

mouth

99–100.)

for

its

on

at

Katowich

part,

least

said

one

occasion,

Jefferson

introduced

expert

and

described

testimony

11

regarding the relationship between the interview techniques the

12

detectives used to interview Jefferson and the occurrences of

13

false confessions. (Exhibit 57 and ECF No. 18-16 at 130 et seq.)

14

Pediatric

emergency

room

physician,

Theresa

Vergara,

15

testified she conducted a “suspected child abuse and neglect”

16

(SCAN)

17

(Exhibit 55 and ECF No. 62-4 at 3–4, 13.) A rape kit examination

18

was not conducted because the abuse allegedly occurred more than

19

a few hours before the examination. (Id. at 14.) Vergara said

20

C.J. denied pain or burning when urinating and did not have a

21

urinary tract infection. (Id. at 26–27.) She testified C.J.’s

22

examination produced “normal” results as she found “no bruises

23

or redness,” “no active bleeding or localized redness,” and the

24

“rectum looked normal”; however, she did find a “hymenal mound.”

25

(Id. at 16–17, 25–26, 37.) She likened the mound to a callous on

26

a finger from writing with a pen, and said, although repeated

27

pressure to the hymen could cause the mound, it could also be

28

C.J.’s “normal anatomy.” (Id. at 18–20, 39, 41.) She agreed it

examination

for

C.J.

at

5

Sunrise

Children’s

Hospital.

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 6 of 38

1

is sometimes possible to detect sustained long-term abuse, but

2

she found nothing concrete on C.J except the nonspecific hymenal

3

mound. (Id. at 33–34, 37, 40.) She said an examination will

4

often produce normal results where the abuse is disclosed days

5

or

6

perpetrator confesses to sexually abusing a child. (Id. at 15,

7

24–25.)

weeks

Metro

8

afterward

Forensic

and

is

normal

scientist

in

Julie

most

cases

Marschner

where

testified

the

she

9

conducted a DNA comparison analysis for the bedding taken from

10

Jefferson’s bedroom. (Exhibit 56 and ECF No. 62-5 at 47, 54–58,

11

70.)

12

consistent with Jefferson’s DNA on a brown comforter and sheet,

13

and a non-sperm DNA mixture (DNA from more than one person) for

14

which Jefferson and Lamug could not be excluded as contributors,

15

but for which C.J. was excluded as a contributor. (Id. at 60–61,

16

63,

17

sheet and pink blanket taken from C.J.’s bed. (Id. at 67–69;

18

76.)

19

Marschner

66–67,

On

or

discovered

76–77.)

about

semen

Marschner

December

that

contained

discovered

31,

2010,

no

sperm

semen

Jefferson

on

sent

a

cells

white

Lamug

a

20

letter, part of which she read to the jury during her testimony.

21

It stated:

22
23
24
25
26
27
28

I want the truth about us. For now, I’d like to
correct some statements about me that surfaced last
September. First, the whole thing was not my idea. I
did not plan it. It happened, and I went along with
it. That may sound like a funny way of describing it
with a so-called confession, obtained only after my
arresting
officer coerced
my
innocent
wife
and
daughter in an elaboration of acts beyond my character
or physical capabilities.
(Id. at 36–39.)

6

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 7 of 38

Standard

1
2

Under the Antiterrorism and Effective Death Penalty Act of

3

1996 (AEDPA), a federal court may not grant a petition for a

4

writ of habeas corpus on any claim that was adjudicated on the

5

merits

6

contrary to, or involved an unreasonable application of, clearly

7

established federal law as determined by United States Supreme

8

Court precedent, or was based on an unreasonable determination

9

of the facts in light of the evidence presented in the state-

10

in

state

court

unless

the

state

court

decision

was

court proceeding. 28 U.S.C. § 2254(d).
A state court’s decision is contrary to clearly established

11
12

Supreme

Court

13

§ 2254(d)(1),

14

contradicts the governing law set forth in [the Supreme Court’s]

15

cases” or “if the state court confronts a set of facts that are

16

materially indistinguishable from a decision of [the Supreme]

17

Court

18

[Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73

19

(2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000),

20

and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state

21

court’s

22

established

23

U.S.C. § 2254(d)(1) “if the state court identifies the correct

24

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

25

but

26

prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413).

27

“The ‘unreasonable application’ clause requires the state court

28

decision to be more than incorrect or erroneous . . . [rather]

and

precedent,
“if

the

nevertheless

decision

is

Supreme

unreasonably

within

state

the

court

arrives

at

unreasonable

Court

precedent

that

result

a

within

to

U.S.C.

rule

that

different

application

principle

7

of 28

applies

a

an

applies

meaning

the

the

of

clearly

meaning

facts

from

of 28

of

the

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 8 of 38

1

[t]he state court’s application of clearly established law must

2

be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at

3

409–10, 412) (internal citation omitted).

4

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

5

determination that a claim lacks merit precludes federal habeas

6

relief so long as ‘fairminded jurists could disagree’ on the

7

correctness

8

Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado,

9

541 U.S. 652, 664 (2004)). “[E]ven a strong case for relief does

of

mean

the

the

state

court’s

decision.” Harrington

not

11

unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see

12

also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing

13

the standard as “a difficult-to-meet” and “highly deferential

14

standard

15

state-court

16

(internal

17

carries the burden of proof. Pinholster, 563 U.S. at 181.

evaluating

decisions

quotation

contrary

state-court

be

marks

given
and

the

conclusion

v.

10

for

state

court’s

rulings,
benefit

citations

of

which
the

omitted)).

was

demands
doubt.”)

Petitioner

18

Where there is no clearly established federal law, i.e., no

19

holding from the Supreme Court, stating a particular standard or

20

rule

21

definition, a petitioner cannot establish under AEDPA that the

22

state court’s decision was either contrary to or an unreasonable

23

application of clearly established federal law. See, e.g., Carey

24

v. Musladin, 549 U.S. 70, 76–77 (2006); see also Williams, 529

25

U.S.

26

‘clearly established Federal law, as determined by the Supreme

27

Court of the United States’” contained in 28 U.S.C. § 2254(d)(1)

28

as referring to “the holdings, as opposed to the dicta, of the

at

at

the

390,

time

412

of

the

state

(Interpreting

8

court’s

“[t]he

decision,

meaning

of

then,

the

by

phrase

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 9 of 38

1

[Supreme] Court’s decisions as of the time of the time of the

2

relevant state-court decision.”). A state court need not cite

3

Supreme Court cases nor even be aware of Supreme Court cases so

4

long as neither the reasoning nor the result of the state-court

5

decision

6

(2003).

contradicts

them.

Early

v.

537

Packer,

U.S.

3,

8,

7

Under AEDPA, to conclude that a state court factual finding

8

is an unreasonable factual finding, the reviewing court “must be

9

convinced that an appellate panel, applying the normal standards

10

of

appellate

review,

could

11

finding is supported by the record.”

12

992, 1000 (9th Cir. 2004).

reasonably

conclude

that

the

Taylor v. Maddox, 366 F.3d

Discussion

13
14

not

A.

Ground 2

15

In ground 2, Jefferson alleges a violation of his right to

16

conflict-free counsel under the Sixth and Fourteenth Amendments

17

because a pretrial complaint to the state bar about one of his

18

attorneys created a per se conflict of interest for which he

19

need not demonstrate prejudice. (ECF No. 47 at 5.)

20

In October 2011, Jefferson sent the State Bar of Nevada a

21

letter

22

“‘lightly’ verbally abuses [him] or ignores [his] outlook” and

23

told him, “People like you belong in hell not prison.” (Exhibit

24

105 and ECF No. 19-29 at 21–22.) Jefferson wrote that Cox’s

25

alleged comment “hurt,” and he did not know if Cox “meant that

26

because

27

[Jefferson’s] African American heritage.” (Id. at 22.)

28

On

in

of

which

the

October

he

claimed

nature
19,

of

2011,

his

[the]

public

crime

Jefferson
9

defender,

or

filed

simply
a

pro

Bryan

Cox,

because
se

of

motion

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 10 of 38

1

asserting several complaints about Cox. (Exhibit 35 and ECF No.

2

17-35 at 3–4.) The motion did not mention the complaint to the

3

state bar, or the negative comment ascribed to counsel in that

4

complaint. (Id. at 1–8.)
On

5

November

1,

2011,

the

state

district

court

held

a

6

hearing on the motion to dismiss. (Exhibit 36 and ECF No. 17-36

7

at 2–3.) At the outset of the hearing, Cox informed the state

8

district

9

Jefferson told the court he asked Cox “to do some things for

10

[him] and he . . . hasn’t come through,” that he did not have

11

his “full discovery yet,” and based on things counsel said to

12

him,

13

Jefferson explained that despite his requests, Cox failed to

14

subpoena his employment records, call his family, or provide him

15

discovery. (Id. at 4.) Defense counsel explained “there’s been

16

lots of visits” during which Jefferson could view discovery, but

17

counsel was hesitant to leave him with copies as “nothing in the

18

jail is private” and doing so might create a conflict with other

19

inmates.

20

employment records as “key” support for an alibi defense because

21

no specific time was alleged for the offenses. (Id. at 6–7.) The

22

state district court concluded the relief sought was unwarranted

23

and denied the motion. (Id. at 7.)

court

he

did

he

wanted

not

(Id.

“feel

at

“what’s

best

comfortable”

4–6.)

Counsel

for

with

did

my

him.

not

client.”

(Id.

see

at

(Id.)

3–4.)

Jefferson’s

24

Two days later, the state bar advised Jefferson that his

25

grievance was sent to Cox with directions to respond in writing.

26

(Exhibit

27

Jefferson

28

whether

99
an

and

that

ECF
the

attorney

No.

19-23

at

state

bar’s

has

violated
10

83.)

function
the

The
was

Rules

letter
“to
of

informed
determine

Professional

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 11 of 38

1

Conduct”

and

it

could

not

“alter

or

affect

in

2

outcome of private legal matters in court.” (Id.)

any

way

the

3

Jefferson wrote letters dated March 28, 2012, and May 22,

4

2012, to Mr. Kohn at the Public Defender Office’s sexual assault

5

unit, complaining that Cox was not developing evidence to prove

6

his

7

against him and “these types of cases,” and believed Jefferson

8

belonged in prison. (Id. at 74–75.)

innocence,

On

9

was

not

postconviction

prepared

review,

for

the

trial,

state

was

prejudiced

courts

rejected

10

Jefferson’s claim that the filing of his state bar complaint

11

created a conflict of interest that prejudiced his trial. After

12

extensive legal and factual analysis, and discussions of cases

13

from various jurisdictions, the Court of Appeals held that the

14

filing

15

presumption of prejudice and that Jefferson had not otherwise

16

alleged any other actual conflict of interest resulting from the

17

filing

18

Amendment violation. The Court of Appeals explained in relevant

19

part:

20
21
22
23
24
25
26
27
28

of

of

a

the

bar

complaint

complaint

to

on

its

support

own

a

did

not

finding

of

create

a

Sixth

Below, Jefferson did not assert that his counsel
did anything in response to the filing of the bar
complaint that would independently entitle Jefferson
to relief. Nor did Jefferson contend that his bar
complaint led to the imposition of any discipline upon
his attorney that rendered his counsel ineffective.
Consequently, Jefferson’s contention was not that the
complaint happened to trigger a chain of events that
ended up producing an irreconcilable conflict between
him and his attorney, but rather that the filing of
the complaint, by itself; created an actual conflict
without anything more happening.
Thus, Jefferson would have been entitled to
relief only if, as a matter of law, the mere filing of
his bar complaint created a per se conflict of
interest rising to the level of a violation of the
11

a

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 12 of 38
Sixth Amendment.

1

…

2

We agree with the weight of authority and hold
that, as a matter of law, the mere filing of a bar
complaint by a defendant against his attorney does not
create a per se conflict of interest rising to the
level of a violation of the Sixth Amendment. The
filing of a bar complaint ought not become a routine
method of forcing a change in appointed counsel after
a district court motion has failed, or of obtaining
postconviction relief on manufactured or hypothetical
premises,
when
no
actual
conflict
of
interest
otherwise existed.

3
4
5
6
7
8
9

(Exhibit

127

and

No.

20-16

nor

state

12

an unreasonable determination of the facts.
assistance

an

courts’

application of Supreme Court authority and does not constitute
ineffective

to

The

11

establish

contrary

2–10.)

determination

To

neither

at

10

13

was

ECF

of

unreasonable

counsel,

the

14

petitioner must demonstrate (1) the attorney’s “representation

15

fell below an objective standard of reasonableness”; and (2) the

16

attorney’s deficient performance prejudiced the petitioner such

17

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

18

unprofessional errors, the result of the proceeding would have

19

been different.” Strickland v. Washington, 466 U.S. 668, 687–88,

20

694

21

sufficient to undermine confidence in the outcome.” Id. at 694.

22

(1984).

“A

“Establishing
was

reasonable
that

a

unreasonable

probability
state
under

is

court’s
§

2254(d)

a

probability

application
is

all

the

of
more

23

Strickland

24

difficult” because “[t]he standards created by Strickland and §

25

2254(d)

26

tandem, “review is ‘doubly so.’” See Richter, 562 U.S at 105

27

(internal citations omitted); see also Cheney v. Washington, 614

28

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

are

both

‘highly

deferential,’”

12

and

when

applied

in

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 13 of 38

1

state court’s Strickland determination under AEDPA, both AEDPA

2

and Strickland’s deferential standards apply; hence, the Supreme

3

Court’s description of the standard as ‘doubly deferential.’”)

4

(citing Yarborough v. Gentry, 540 U.S. 1, 6 (2003)).
The right to counsel includes the right to assistance by a

5
6

conflict-free

7

(1981)

8

and Holloway

9

possibility of conflict is insufficient to impugn a criminal

10

conviction. In order to demonstrate a violation of his Sixth

11

Amendment

rights,

12

conflict

of

13

performance.” Sullivan, 446 U.S. at 350.

14

attorney. Wood

(citing

Cuyler

v.

Prejudice

may

be

475,

U.S.

U.S.

481

261,

335

271

(1980)

(1978)).

must

establish

that

adversely

affected

his

lawyer’s

a

“defendant

presumed

a

case

where

interests.” Id. at 166, 175 (quoting Sullivan, 446 U.S. at 350

17

(emphasis added)). There is no clearly established Supreme Court

18

precedent applying this presumption outside the context of joint

19

representation. Id. at 174–76.
an

actively

actual

opposed

represented

actual

16

show

counsel

in

an

“[T]he

shows

To

his

U.S.

defendant

interest

446

Sullivan,
435

450

Georgia,

15

20

that

v.

Arkansas,

a

v.

“conflict that

to

a

mere

conflicting

affected

theoretical

counsel's

division

of

21

performance—as

22

loyalties,”

23

“must demonstrate some plausible alternative defense strategy or

24

tactic might have been pursued but was not and the alternative

25

defense was inherently in conflict with or not undertaken due to

26

the attorney’s other loyalties or interests.” See Foote v. Del

27

Papa, 492 F.3d 1026, 1029–30 (9th Cir. 2007) (quoting Hovey v.

28

Ayers,

458

Id.

at

F.3d

171

892,

(emphasis

908

in

(9th
13

original),

Cir.

2006)

a

petitioner

(quotations

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 14 of 38

1

omitted)); see

2

(9th Cir. 2003).
With

3

also McClure

respect

to

a

v.

Thompson,

breakdown

in

323

F.3d

the

1233,

1248

attorney-client

4

relationship, the Supreme Court has made it clear that the Sixth

5

Amendment guarantee of counsel does not guarantee a meaningful

6

attorney-client relationship. See Morris v. Slappy, 461 U.S. 1,

7

14 (1983). The Ninth Circuit has compared a legal conflict of

8

interest,

9

private interest and those of the client, with a “conflict” in

10

the sense that word is used in “common parlance” to describe a

11

personality conflict. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th

12

Cir. 2008). As the Ninth Circuit explained:

13

incompatibility

between

a

lawyer’s

own

[W]e are not aware of any [Supreme Court case] that
stands for the proposition that the Sixth Amendment is
violated when a defendant is represented by a lawyer
free of actual conflicts of interest, but with whom
the defendant refuses to cooperate because of dislike
or
distrust.
Indeed, Morris v. Slappy is
to
the
contrary.

14
15
16
17

an

i.e.,

Id.
The

18

state

courts

here

reasonably

concluded

that

a

19

defendant’s filing of a bar complaint against counsel during his

20

criminal

21

interest. Indeed, there is no clearly established Supreme Court

22

authority

23

(“Holloway ...

24

defense

25

timely objection, unless the trial court has determined that

26

there is no conflict.”); Brown v. Asuncion, 2019 WL 4509207, at

27

*19

28

adopted, 2019 WL 7037768 (C.D. Cal. Dec. 19, 2019) (“[T]here is

proceedings
holding

as

creates

counsel

(C.D.

does

Cal.

is

much.
an

forced

Apr.

not

12,

create
See

automatic
to

a

per

se

Mickens, 535
reversal

conflict
U.S.

rule

at

only

168
where

represent codefendants over

2019),

14

report

and

of

his

recommendation

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 15 of 38

1

no

authority—let

2

authority—supporting the proposition that a conflict of interest

3

arises whenever a criminal defendant files a state bar complaint

4

against his trial counsel. On the contrary, courts routinely

5

reject

6

12684213, at *42 (S.D. Cal. Dec. 16, 2014) (“The trial judge’s

7

finding that Petitioner failed to show an actual conflict with

8

counsel by simply writing a letter to the state bar association

9

complaining

that

alone

clearly

argument.”)

about

v.

counsel

12

2009

13

petitioner’s complaint to state bar and threat to sue counsel

14

did not, in and of itself, give rise to conflict of interest)).
Further,

15

the

state

Cal.

courts

adverse

because

representation by the alleged conflict.”) and Harris v. Adams,
(E.D.

any

correct,

WL

11

*5

demonstrate

2014

Biter,

was

Court

Petitioner

2705835,

to

trial

Grady

Supreme

10

WL

failed

his

(citing

established

Aug.

25,

reasonably

effect
2009)

on

his

(holding

determined

that

16

Jefferson failed to “assert that the filing of the bar complaint

17

adversely affected his counsel’s behavior or caused his counsel

18

to defend him less diligently.” Moreover, the record repels any

19

such

20

throughout pretrial and trial proceedings, and Jefferson has not

21

established that Cox, as a result of any conflict, failed to

22

pursue an avenue of defense that would have been more beneficial

23

to Jefferson.

24

assertion,

as

Cox

vigorously

represented

Jefferson

During voir dire, Cox stressed the importance of presuming

25

Jefferson’s

innocence

and

evaluating

26

objectively, considering influences on the child and the bias of

27

others, such as police or a parent who desired custody of the

28

child during a divorce. (Exhibit 53 and ECF No. 18-12 at 16–34,
15

a

child’s

testimony

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 16 of 38

1

38–40, 42–43, 46–51, 66–70, 80–83, 89, 99.) Cox also inquired

2

whether race would bias the jurors against Jefferson. (Id. at

3

85–86.) In closing, Cox strenuously argued that Jefferson was

4

not guilty -- even utilizing an exhibit that stated “Brandon is

5

innocent.” (Exhibit 59 and ECF No. 18-18 at 88, 102, 120–26;

6

Exhibit 146 and ECF No. 51-9 at 219.) Cox challenged C.J.’s

7

credibility and the plausibility of her testimony and asserted

8

that the allegations were motivated and created by Jefferson’s

9

wife who wanted a divorce and custody of the children. (Exhibit

10

59 and ECF No. 18-18 at 88-90, 95-96.) And finally, Cox argued

11

that

12

Jefferson’s breaking point and entice him to admit things that

13

didn’t happen. (Id. at 102–03.)

14

the

detectives

used

interview

techniques

to

find

In light of Cox’s vigorous representation, and Jefferson’s

15

failure

to

16

strategy

17

Jefferson has failed to establish any conflict between him and

18

counsel that prejudiced his defense.

or

show

that

tactic

“some

might

plausible

have

been

alternative

pursued

but

was

defense
not,”

19

Finally, Jefferson’s claim that a conflict of interest was

20

evident when Cox failed to appear at the July 26, 2012, calendar

21

call is belied by the record. (ECF No. 47 at 5.) Cox personally

22

appeared at four separate calendar calls for the case. (Exhibits

23

41 at 3, 44 at 3, 45 at 2–3, 48 at 2–3; ECF Nos. 18 at 3, 18-3

24

at 3, 18-4 at 2–3, 18-7 at 2–3.) While Cox and co-counsel Kevin

25

Speed both missed a calendar call and motion hearing scheduled

26

for July 26, 2012, the record reflects that both attorneys were

27

out of town on that date – and that the court was aware Cox

28

would be out of town -- and that the lack of coverage was due to
16

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 17 of 38

1

a mix-up and nothing more. (Exhibit 50 and ECF No. 18-9 at 3-5;

2

Exhibit

3

prosecutor during a break in the hearing, apologized for the

4

mix-up and requested, and obtained, a continuation of the motion

5

hearing set for the date. These facts do not support a finding

6

that Cox labored under a conflict and do not support any finding

7

of prejudice.

and

Given

8
9

51

ECF

No.

Cox’s

18-10

efforts

at

3–7.)

before

Cox,

and

reached

during

by

trial,

the

and

Jefferson’s failure to point to specific actions that Cox took

10

or

11

interests in favor of another party, Jefferson has failed to

12

establish

a

13

interest.

Accordingly,

14

habeas relief for ground 2.

15

B.

16

declined

to

pursue

Sixth

that

Amendment

adversely
violation

Jefferson

is

affected
due

not

to

Jefferson’s

a

conflict

entitled

to

of

federal

Ground 3
In

ground

Jefferson

challenge

was

Jefferson’s confession on the grounds the police lacked probable

19

cause to arrest him. (ECF No. 47 at 7–8.) The Court previously

20

deferred

21

prejudice to overcome the procedural default for this claim.

22

(ECF No. 56 at 16.)

Jefferson

can

the

counsel

18

whether

to

trial

ineffective

ruling

failing

alleges

17

23

for

3,

admissibility

demonstrate

cause

of

and

Where a petitioner “has defaulted his federal claims in

24

state

court

25

procedural rule,” federal habeas review “is barred unless the

26

prisoner

27

prejudice as a result of the alleged violation of federal law,

28

or demonstrate that failure to consider the claims will result

can

pursuant

to

demonstrate

an

independent

cause

17

for

the

and

adequate

default

and

state
actual

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 18 of 38

1

in a fundamental miscarriage of justice.” Coleman v. Thompson,

2

501 U.S. 722, 750 (1991). To demonstrate cause, the petitioner

3

must establish that some external and objective factor impeded

4

efforts to comply with the state’s procedural rule. E.g., Murray

5

v. Carrier, 477 U.S. 478, 488 (1986); Hiivala v. Wood, 195 F.3d.

6

1098,

7

petitioner] must show not merely a substantial federal claim,

8

such that ‘the errors . . . at trial created a possibility of

9

prejudice,’ but rather that the constitutional violation ‘worked

10

to his actual and substantial disadvantage.’” Shinn v. Ramirez,

11

___ U.S. ___, 2022 WL 1611786, at *7 (May 23, 2022) (citing

12

Carrier, 477 U.S. at 494 and quoting United States v. Frady, 456

13

U.S. 152, 170 (1982) (emphasis in original)).

1105

(9th

establish

16

procedural

17

counsel

18

ineffective assistance of counsel in his initial state habeas

19

proceeding. Martinez, 566 U.S. at 9. The Supreme Court outlined

20

the necessary circumstances as follows:

22
23
24
25
26

claim

where

requirement
for
a

an

for

an

purposes

ineffective

petitioner

alternative

can

of

overcoming

assistance
show

that

means

[a

overcome

default

provided

prejudice,

15

cause

has

“[T]o

The

the

Court

1999).

14

21

Supreme

Cir.

he

of

to
a

trial

received

[W]here (1) the claim of “ineffective assistance of
trial counsel” was a “substantial” claim; (2) the
“cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral
review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in
respect
to
the
“ineffective-assistance-of-trialcounsel claim”; and (4) state law requires that an
“ineffective assistance of trial counsel [claim] . . .
be raised in an initial-review collateral proceeding.”

27

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez,

28

566 U.S. at 14, 18).
18

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 19 of 38

A procedural default will not be excused if the underlying

1
2

ineffective-assistance-of-counsel

3

i.e.,

4

Martinez, 566 U.S. at 14–16 (citing Miller-El v. Cockrell, 537

5

U.S.

6

standard for issuing a certificate of appealability as analogous

7

support for whether a claim is substantial. Martinez, 566 U.S.

8

at 14. A claim is substantial if a petitioner shows “reasonable

9

jurists could debate whether . . . the [issue] should have been

10

resolved in a different manner or that the issues presented were

11

‘adequate to deserve encouragement to proceed further.’” Miller-

12

El, 537 U.S. at 336.

lacks
322

merit

(2003)).

or
In

is

claim

“wholly

without

the

Martinez,

“is

insubstantial,”
factual

Supreme

Court

support.”
cited

the

13

1.

14

Prior to Jefferson’s arrest, C.J. told Detectives Demas and

15

Katowich that she understood the difference between the truth

16

and a lie and agreed she would speak only the truth. (Exhibit

17

146 and ECF No. 51-9 at 107, 109–111.) C.J. denied having any

18

secrets

19

privates.” (Id. at 115, 120.) Demas told C.J. he heard something

20

a

21

somebody that somebody might have touched your private” and C.J.

22

replied

23

Thereafter, the following conversation ensued:

little

Additional Background

and

told

detectives,

different
“[n]obody

that

“[n]obody

day,

touched

and

my

asked

touches
her,

private.”

(Id.

me

“Did

you

At

Q:

Oh.

25

Q:

Have you ever had
their privates?

A:

Mm-mm.

Q:

Did you tell, did you tell somebody that?

26
27
28

19

make

you

the
tell

120–21.)

24

anybody

at

touch

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 20 of 38
A:

Uh . . .

Q:

‘Cause you know you’re not in trouble for
anything, right?

A:

Somebody
private.

Q:

Who did?

A:

My mom called the police and said like mm
[sic] my dad made me touch all his privates.

7

Q:

He did? How did he do that?

8

A:

(no audible response)

9

Q:

How did he do that?

10

A:

Mm, I don’t know.

11

Q:

You don’t know?

12

A:

No.

13

Q:

Well, how’d you know it happened?

14

A:

He told me to keep it a secret.

15

Q:

Who did?

16

A:

My dad.

17

Q:

Well when did this happen?

18

A:

When my mom was at work.

19

Q:

Yeah? Well where’d it happen at?

20

A:

She goes to work at Sundays and he made me
do it.

Q:

Okay. But where? Where did he make you do
it?

23

A:

Um, he made me do it like in his room.

24

Q:

Yeah? Where in his room?

25

A:

In his bed.

1
2
3
4
5
6

21
22

26

made

me

touched

[sic]

their

(Id. at 121–22.)

27

C.J. went on to tell the detectives her father wanted her

28

to suck one of his privates, and it hurt when her father “was
20

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 21 of 38

1

putting his private” in her private. (Id. At 122–23.) She told

2

the detectives that her father made her suck on one of his

3

privates, about seven times, and green liquid came out of her

4

father’s private. (Id. at 124–26.) She told them her father put

5

his private in her private seven times. (Id. at 129.) She told

6

them that one time in her bedroom, her father made her touch his

7

private

8

demonstrated the action for the detectives. (Id. at 128.) She

9

told them the last time it happened was on the Sunday one week

with

two

days

her

hand

and

When asked why she told her mother about it, C.J. answered “I

13

just wanted to tell her just so she’d know,” and she denied

14

anything happened that day to make her tell her mother about it.

15

(Id. at 131.) 4
a

pretrial

to

police

motion

to

suppress

grounds

that

Jefferson’s

18

involuntary but did not assert the detectives lacked probable

19

cause to arrest Jefferson. (Exhibit 12 and ECF No. 62-2.) During

20

the

21

Demas

22

Jefferson’s interview, had only the words of C.J., B.L., and

agreed

he

hearing
had

no

on

the

the

additional

17

evidentiary

on

provided

tree

12

filed

and

a

details about how the crimes were committed. (Id. at 125–35.)

statement

interview

pulling

11

counsel

the

was

and

Trial

to

she

10

16

prior

like

motion

physical

to

evidence

suppress
at

the

it

was

evidence,
time

of

23
24
25
26
27
28

At a hearing to determine whether C.J.’s statements to her mother or
Detective Demas would be admissible should C.J. not testify, pursuant to NRS
§ 51.385(2), the state district court determined C.J.’s statements to her
mother were admissible due to factors that guaranteed trustworthiness,
including the spontaneity of the statements and that her mother did not
repeatedly question C.J. (Exhibit 42 and ECF No. 62-3 at 66-67.) The court,
however, determined C.J.’s statements to Demas were not admissible because
they lacked a guarantee of trustworthiness due to Demas’s repetitive
questioning. (See Exhibit 42 and ECF No. 62-3 at 66-67.)
4

21

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 22 of 38

1

Lamug,

and

2

Jefferson’s word. (Exhibit 30 and ECF No. 17-30 at 26, 35.)

3

After

4

Jefferson’s interview with the detectives, the state district

5

court concluded Jefferson’s statement was voluntarily given and

6

denied the motion to suppress. (Id. at 46, 51.)

the

listening

At

7

that

to

trial,

case
the

Demas

boiled

tape

down

and

admitted

to

their

reading

that,

the

when

word

against

transcript

he

arrested

for

and

8

interviewed Jefferson, he did not expect to receive DNA evidence

9

and the hospital had not confirmed the abuse. (Exhibit 57 and

10

ECF No. 18-16 at 54–57.) Demas said he interviewed Jefferson

11

because C.J.’s statements were corroborated by B.L. and C.J.’s

12

mother. (Id. at 104, 114–16.)

13

2.

14

An

Applicable Legal Principles
arrest

without

a

warrant

is

valid

if

the

arrest

is

15

supported by probable cause. Dunaway v. New York, 442 U.S. 200,

16

216, (1979) (holding officers violated the Fourth and Fourteenth

17

Amendments when, without probable cause, they seized petitioner

18

and transported him to the police station for interrogation).
“Probable cause exists where the facts and circumstances

19
20

within

[the

21

reasonably

22

themselves to warrant a [person] of reasonable caution in the

23

belief that an offense has been or is being committed.” Stoot v.

24

City

25

Brinegar

26

(internal

27

States, 517

28

U.S. 213, 238 (1983)).

of

officers’]

knowledge

trustworthy

Everett,
v.

582

United

quotation
U.S.

690,

information

F.3d

910,

States, 338
marks
696

and

918

(9th

omitted);

22

which

[are]

U.S.

(1996); and

of

they

had

sufficient

in

Cir.

160,

2009)

(citing

175–76,

(1949)

Ornelas
Illinois

v.
v.

United

Gates, 462

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 23 of 38

Probable

1

cause

is

an

objective

standard

and

the

2

determination of whether probable cause exists “depends upon the

3

reasonable conclusion to be drawn from the facts known to the

4

arresting

5

Alford, 543 U.S. 146, 152–53 (2004) (“Our cases make clear that

6

an arresting officer’s state of mind (except for the facts that

7

he knows) is irrelevant to the existence of probable cause.”)

8

(citations omitted). “[N]either certainty, nor proof beyond a

9

reasonable

officer

at

doubt,

the

is

time

of

required

the

arrest.”

for

Devenpeck

probable

cause

v.

to

10

arrest.” United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir.

11

2010) (citation omitted).

12

Under certain circumstances, courts have held police may

13

rely upon the statement of a child for purposes of determining

14

whether there is probable cause to make an arrest. See, e.g.,

15

John v. City of El Monte, 515 F.3d 936, 940–41 (9th Cir. 2007)

16

(probable cause existed to arrest for molestation of a ten-year-

17

old where officer drew upon his experience and special training

18

in

19

child’s story); Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir.

20

1998) (three-year-old girl’s allegations of sexual abuse, along

21

with

22

mother,

23

core

24

defendant); Easton v. City of Boulder, Colo., 776 F.2d 1441,

25

1449–51 (10th Cir. 1985) (finding probable cause to arrest where

26

statements

27

year-old child, who both identified the abuser and the location

28

of the abuse inside the abuser’s apartment).

dealing

with

consistent
to

were
form

of

sexual

abuse

medical

sufficiently
the

basis

of

evidence
reliable
for

three-year-old

children

and
and

probable

child

23

was

her

in

evaluating

statements

trustworthy
cause

to

to

“at

by

her

their

arrest”

corroborated

the

the

five-

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 24 of 38

On

1

the

other

hand,

courts

have

in

some

cases

held

no

2

probable cause existed when police failed to conduct further

3

investigation about a child’s allegations of sexual abuse. See,

4

e.g., Stoot, 582 F.3d at 918-22 (no probable cause to arrest

5

juvenile solely on four-year-old’s allegations where four-year-

6

old changed her allegations, confused the juvenile with another

7

boy, and recounted events that had occurred when she was three);

8

Cortez v. McCauley, 478 F.3d 1108, 1113, 1116–1118 (10th Cir.

9

2007) (no reasonably trustworthy information supported probable

10

cause to arrest where statement attributed to a barely-verbal

11

two-year-old child that her babysitter’s “boyfriend” “hurt her

12

pee pee” was relayed by telephone to the officers, from the

13

nurse, who heard it from the mother who ostensibly heard it from

14

the child, and officers neither spoke directly to the child or

15

her mother nor waited for medical results, before making the

16

arrest); United

17

2006) (holding sole reliance upon mother’s allegation that child

18

made

19

establish probable cause where officers did not speak with child

20

and made no effort to corroborate mother’s allegations before

21

arresting defendant).

a

States

statement

v.

Shaw, 464

indicating

F.3d

possible

615,

abuse

624

(6th

Cir.

insufficient

to

22

In Nevada, there is no requirement that the testimony of a

23

child victim of sexual assault be corroborated, and the victim’s

24

testimony

25

sufficient to sustain a guilty verdict. Gaxiola v. State, 121

26

Nev. 638, 647–50, 119 P.3d 1225, 1232 (2005) (“This court has

27

repeatedly stated that the uncorroborated testimony of a victim,

28

without more, is sufficient to uphold a rape conviction.”).

alone,

if

believed

beyond

24

a

reasonable

doubt,

is

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 25 of 38

1

3.

Disposition of Ground 3

2

Jefferson

fails

to

default

meet

under

his

burden

to

procedural

4

demonstrate

a

5

ineffective

by

6

Jefferson’s arrest or that postconviction counsel’s failure to

7

assert the claim of ineffective assistance of trial counsel was

8

deficient or prejudicial.

Martinez

substantial

claim

to

that

he

trial

challenge

fails

the

3

failing

because

overcome

to

counsel

was

cause

for

probable

Trial counsel’s failure to challenge the arrest as lacking

9
10

probable

cause

did

11

reasonableness.

At

the

12

detectives

not

rely

13

C.J., and did so separately from her mother and brother shortly

14

after C.J. spontaneously disclosed the abuse to her mother in

15

B.L.’s

16

relatively recent abuse. The circumstances and timing of the

17

abuse were corroborated by her brother, B.L., who was present in

18

the house at the time of the abuse. And C.J. never accused

19

anyone other than her father of perpetrating the abuse. Although

20

C.J. initially denied anyone touched her privates, according to

21

the

22

specific

23

provided core details about the abuse to the detectives after

24

she was told she was not in trouble. See Devereaux v. Abbey, 263

25

F.3d

26

child witnesses of suspected sexual abuse must be given some

27

latitude in determining when to credit witnesses’ denials and

28

when to discount them . . .”) Given the statements available to

did

presence.

interview

1075

C.J.

fall
on

was

provided

(9th

below

time

transcript,

details

1070,

not

Cir.

an

of

years

she
by

did
the

2001)

25

standard

Jefferson’s

hearsay,

five

objective

but

old

not

instead

and

the

interviewed

was

simply

detectives;

(stating

arrest,

of

detailing

regurgitate
instead,

“[i]nterviewers

she

of

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 26 of 38

1

the

detectives

when

2

reasonable

3

totality of the circumstances, the facts known to the detectives

4

were sufficiently reliable and trustworthy to support probable

5

cause and, thus, a motion to suppress on those grounds would

6

have been futile.

trial

they

arrested

attorney

could

Jefferson,
determine

an

objectively

that,

under

the

For the same reasons, Jefferson also fails to demonstrate

7
8

deficient

performance

9

therefrom.

An

by

postconviction

objectively

reasonable

counsel

or

prejudice

postconviction

attorney

10

could determine the record failed to support a claim that trial

11

counsel was ineffective in failing to challenge probable cause

12

for

13

probability the result of the postconviction proceedings would

14

have

15

claim.

Jefferson’s
been

arrest.

different

Further,

had

there

postconviction

is

no

counsel

reasonable
raised

this

Accordingly, Jefferson has failed to establish cause and

16
17

prejudice

18

Ground 3 will therefore be dismissed.

19

C. Ground 4
In

20

to

overcome

ground

4,

the

procedural

Jefferson

default

alleges

of

trial

this

claim.

counsel

was

21

ineffective for failing to assert that Jefferson invoked his

22

right

23

stated, “That’s all I can say.” (ECF No. 47 at 9.) The Court

24

previously

25

cause and prejudice under Martinez to overcome the procedural

26

default of this claim. (ECF No. 56 at 16.)

to

silence

during

deferred

his

ruling

interview

whether

with

Jefferson

police
can

when

he

demonstrate

27

1.

Additional Background

28

According to the transcript of Jefferson’s interview with
26

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 27 of 38

1

the

2

Jefferson

3

(1966),

4

(Exhibit 146 and ECF No. 51-9 at 54–55.) Jefferson was silent in

5

response to some of the questions addressed to him during the

6

interview but answered other questions. (Id. at 54–106.) At one

7

point, the following conversation occurred:

8

11

15

23
24
25
26
27
28

to

know

he

is

384

Arizona,

understood

what’s

U.S.

those

causing

read
436

rights.

this

A: I don’t ask her to come to my room, sir. I mean
it’s—I mean I give her a little hug, a little kiss or
something like that . . . .

16

22

confirmed

v.

Demas

Q: --when—when you ask her to come to your room? What
goes on?

14

21

want

Miranda

Detective

A: __--

13

20

Jefferson

under

arrest,

Q: What goes through you—

12

19

and

rights

his

A: I—what—I maybe—maybe um, what—what—me not having
money. You know, I having a beer every now and then.
That’s about it. That’s all I can say.

10

18

his

following

Q:
So—we
behavior.

9

17

detectives

(Id. at 80.)
In the motion to suppress Jefferson’s statement, counsel
did

not

contend

Jefferson

invoked

his

rights

to

silence

following the Miranda warnings. (Exhibit 12 and ECF No. 62-2 at
4–11.)
At trial, Demas testified he read Jefferson his Miranda
rights

from

a

card

before

beginning

the

interview,

that

Jefferson stated he understood his rights, and that Jefferson
never invoked any of those rights. (Exhibit 57 and ECF No. 18–16
at 53, 97–98.) Defense witness Dr. Mark Chambers testified that
according

to

his

review

of

Jefferson’s

27

interview

transcript,

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 28 of 38

1

Jefferson “did not” say he wished to cease questioning or stop

2

talking to the police. (Id. at 215.)

3

2.

Applicable Legal Principles

4

Once

5

indicates

6

questioning, that he wishes to remain silent, the interrogation

7

must cease.” Miranda, 384 U.S. at 473–74; see, e.g., Tice v.

8

Johnson, 647 F.3d 87, 107 (4th Cir. 2011) (holding a reasonable

9

police

Miranda warnings

are

in

at

any

officer

manner,

under

given,
any

the

“[i]f

time

the

prior

to

circumstances

“I

have

decided

individual
or

during

would

not

to

have

10

understood Tice’s statement,

say

any

11

more,” to mean he no longer wished to answer questions about the

12

crimes, and, therefore, the officer should have stopped asking

13

questions).
On the other hand, an ambiguous invocation of the right to

14
15

remain

16

Berghuis

17

defendant read out loud, but refused to sign, the form stating

18

Miranda

19

minutes of a three-hour interrogation was insufficient to invoke

20

his right to remain silent because he never stated he wished to

21

remain silent, that he did not want to talk with police, or that

22

he wanted an attorney). A statement may be ambiguous where it is

23

open

24

double meaning or reference. See United States v. Rodriguez, 518

25

F.3d 1072, 1075, 1077 (9th Cir. 2008) (holding that, following

26

Miranda warnings, defendant’s statement “I’m good for tonight”

27

in response to a question whether he wished to speak with park

28

rangers, was not an invocation of the right to silence because

to

silent
v.

may

not

Thompson,

warnings,

more

than

his

one

give
560

rise

U.S.

silence

to

at
for

375,
two

interpretation

28

a Miranda violation.

or

380–82
hours

(2010)
and

reference

See

(where

forty-five

or

has

a

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 29 of 38

1

the statement was ambiguous and could have meant he wished to

2

talk to the rangers or did not wish to talk to them).

3

3.

Disposition of Ground 4

4

Jefferson

fails

to

meet

his

burden

to

overcome

the

5

procedural default of this claim under Martinez because he fails

6

to

7

ineffective

8

Jefferson’s statements to the detectives on the grounds that

9

Jefferson invoked his right to silence or that postconviction

10

counsel’s failure to assert the claim of ineffective assistance

11

of counsel was deficient or prejudicial under Strickland.

demonstrate

The

12

a

in

substantial

failing

detectives

to

read

claim

that

challenge

Jefferson

trial

the

the

counsel

admissibility

Miranda

warning,

was
of

and

13

Jefferson confirmed he understood. In his interview, Jefferson

14

never unambiguously stated he wished to remain silent, that he

15

did not want to talk with the police, or that he wanted an

16

attorney. Jefferson contends his statement, “That’s all I can

17

say” constitutes an invocation of his right to silence. However,

18

an objectively reasonable trial attorney could determine that,

19

under the circumstances, Jefferson’s statement meant he could

20

not further explain why he committed the offenses, rather than

21

an expression of a desire to remain silent and not speak with

22

the

23

Therefore, counsel’s failure to challenge the statement as an

24

invocation of the right to silence that warranted suppression of

25

any

26

objective

27

statement

28

silence, Jefferson fails to demonstrate there is a reasonable

detectives.

part

of

The

Jefferson’s

standard
is

statement

not

an

of

was,

confession

did

reasonableness.

unambiguous

29

at

best,

not

fall

Moreover,

invocation

of

the

ambiguous.

below
given
right

an
the
to

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 30 of 38

1

probability

the

result

of

the

proceedings

would

2

different had trial counsel asserted the claim.

have

been

By the same token, postconviction counsel did not perform

3
4

below

an

5

pursue

6

objectively reasonable postconviction attorney could determine

7

that under the totality of the circumstances such a claim would

8

have been futile.

9

Accordingly,

a

objective
claim

that

of

trial

Jefferson

overcome

the

reasonableness

counsel

has

was

failed

10

prejudice

11

Ground 4 will therefore be dismissed.

12

D.

13

to

standard

procedural

in

failing

ineffective,

to

establish

default

of

to

as

an

cause

this

or

claim.

Ground 5
In

ground
to

5,

Jefferson

evidence

15

Fourteenth Amendment. (ECF No. 47 at 11.)
1.

17

Jefferson

his

there

14
16

support

alleges

convictions

in

is

insufficient

violation

of

the

Additional Background
was

convicted

of

sexual

assault

with

a

minor

18

under the age of fourteen for penetrating C.J.’s vaginal opening

19

with his penis against her will, or under conditions in which he

20

knew,

21

incapable

22

conduct, in violation of Nevada Revised Statutes § 200.364 and §

23

200.366. (Exhibit 39 and ECF No. 17-39 at 4; Exhibit 65 and ECF

24

No. 18-24 at 2.)

25

or

should
of

Jefferson

have

known,

resisting

was

or

further

C.J.

was

mentally

understanding

convicted

of

the

sexual

or

physically

nature

of

assault

his

of

a

26

minor under the age of fourteen for subjecting C.J. to sexual

27

penetration, by fellatio, for placing his penis on and/or into

28

C.J.’s tongue and/or mouth against her will, or under conditions
30

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 31 of 38

1

in which he knew, or should have known, C.J. was mentally or

2

physically incapable of resisting or understanding the nature of

3

his conduct. (Exhibit 39 and ECF No. 17-39 at 5; Exhibit 65 and

4

ECF No. 18-24 at 2.)

5

Finally, Jefferson was convicted of lewdness with a child

6

under

the

age

7

Statutes

8

feloniously committing a lewd or lascivious act upon or with the

9

body, or any part or member, of C.J. by using his penis to touch

10

and/or rub and/or fondle the genital area of C.J. and/or causing

11

and/or directing C.J. to use her genital area to touch and/or

12

rub his penis with the intent of arousing, appealing to, or

13

gratifying the lust, passions, or sexual desires of Jefferson or

14

C.J. (Exhibit 39 and ECF No. 17-39 at 4–5; Exhibit 65 and ECF

15

No. 18-24 at 3.)

§

of

fourteen

201.230,

by

in

violation

willfully,

of

Nevada

lewdly,

Revised

unlawfully,

and

16

2.

Applicable Legal Principles

17

According to Jackson v. Virginia, a jury’s verdict must

18

stand

if,

“after

19

favorable to the prosecution, any rational trier of fact could

20

find the essential elements of the offense beyond a reasonable

21

doubt.”

443

22

federal

habeas

23

challenging

the

24

conviction.

Davis

25

2004). The Jackson standard is applied “with explicit reference

26

to the substantive elements of the criminal offense as defined

27

by state law.” Id. (quoting Jackson, 443 U.S. at 324 n.16.) A

28

reviewing court, “faced with a record of historical facts that

U.S.

viewing

307,

319

petitioner

the

(1979)
faces

sufficiency
v.

evidence

a

of

Woodford,

31

384

in

(emphasis

the

in

light

most

original).

A

“considerable

hurdle”

when

evidence

support

his

F.3d

to

628,

639

(9th

Cir.

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 32 of 38

1

supports conflicting inferences must presume—even if it does not

2

affirmatively

3

resolved any conflicts in favor of the prosecution, and must

4

defer to that resolution.” Id. (quoting Jackson, 443 U.S. at

5

326.)

6

3.

7

On

appear

in

the

direct

appeal,

9

support the jury’s verdict:

12
13
14
15
16
17
18
19

claim

the

Jefferson’s

11

the

trier

of

fact

State Court’s Determination

8
10

record—that

that

Supreme

there

was

Court

of

Nevada

insufficient

rejected

evidence

to

In this case, C.J. testified with specificity as
to four separate occasions of sexual abuse—three in
Jefferson’s bedroom, and one in her bedroom. She
testified that on each of the three occasions in the
master bedroom, Jefferson put his penis in her mouth,
vagina, and anus, and on the fourth occasion, in her
bedroom, he put his penis in her mouth and vagina.
Finally, Jefferson’s own confession also supports the
lewdness and sexual assault charges as he stated that
on different occasions C.J. rubbed her vagina against
his penis, touched his penis, and put his penis in her
mouth. Therefore, we conclude there was sufficient
evidence supporting the jury’s conviction because in
viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could have
found Jefferson guilty of three counts of sexual
assault and one count of lewdness beyond a reasonable
doubt. Rose, 123 Nev. at 202, 163 P.3d at 414; see NRS
200.366(1); NRS 201.230.

20

(Exhibit

21

determination

22

application of, Supreme Court authority and was not based on an

23

unreasonable determination of the facts.

24
25
26

4.

97

and

ECF

was

No.

19-21

neither

at

12–13.)

contrary

to,

The

nor

an

state

court’s

unreasonable

Disposition of Ground 5
a.

Sexual

Sexual Assault
assault

is

a

general

intent

crime.

Honeycutt

v.

27

State, 118 Nev. 660, 670, 56 P.3d 362, 368 (2002), overruled on

28

other grounds by Carter v. State, 121 Nev. 759, 121 P.3d 592
32

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 33 of 38

1

(2005).
At the time of Jefferson’s crimes, Nevada Revised Statutes

2
3

§ 200.366 defined sexual assault as follows:

4

A person who subjects another person to sexual
penetration, or who forces another person to make a
sexual penetration on himself or herself or another,
or on a beast, against the will of the victim or under
conditions in which the perpetrator knows or should
know that the victim is mentally or physically
incapable of resisting or understanding the nature of
his or her conduct, is guilty of sexual assault.

5
6
7
8
9

Nev. Rev. Stat. § 200.366, as amended by Laws 2007, c. 528 § 7.

10

Sexual

11

intrusion, however slight, of any part of a person’s body or any

12

object manipulated or inserted by a person into the genital or

13

anal

14

intercourse

15

amended by Laws 2009, c. 300, § 1.1.

16

penetration

openings

“[T]he

in

of
its

meant

the

“cunnilingus,

body

ordinary

testimony

of

a

of

another,

meaning.”
sexual

fellatio,

Id.

assault

or

including
§

sexual

200.364(4),

victim

any

alone

as

is

17

sufficient to uphold a conviction;” however, “the victim must

18

testify with some particularity regarding the incident in order

19

to uphold the charge.” LaPierre v. State, 108 Nev. 528, 531, 836

20

P.2d 56, 58 (1992) (emphasis in original) (citations omitted).

21

Separate and distinct acts of sexual assault committed as a part

22

of a single criminal encounter may be charged and convicted as

23

separate counts. Peck v. State, 7 P.3d 470, 116 Nev. 840 (2000).

24

Here, although Jefferson denied penetrating his daughter,

25

C.J. testified with particularity that Jefferson put his private

26

in her private on more than one occasion, in the master bedroom,

27

when she was five years old and while her mother was at work,

28

and one time while they were in C.J.’s bedroom, and that it hurt
33

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 34 of 38

1

when her father put his private inside her private. Viewing the

2

evidence in the light most favorable to the prosecution, the

3

state courts reasonably determined that a rational jury could

4

find beyond a reasonable doubt that Jefferson sexually abused

5

his daughter by penetrating her vaginal opening with his penis.
The

6

state

courts

also

reasonably

determined

the

record

7

presented sufficient evidence for a rational trier of fact to

8

find

9

testified that her father put his penis in her mouth on more

10

than one occasion while they were in the master bedroom, when

11

she was five years old while her mother was at work, and on one

12

occasion while they were in C.J.’s bedroom. C.J. also said her

13

father told her to swallow “pee” that came out of his penis.

14

Jefferson admitted to the detectives that his daughter had her

15

mouth on his penis for two to three minutes on at least two, but

16

no

17

there is insufficient evidence because it is illogical that he

18

committed

19

penis. However, C.J.’s testimony was more specific:

Jefferson

more

than
the

guilty

three,
crimes

of

sexual

occasions.
when

C.J.

assault

Jefferson
testified

by

fellatio.

nonetheless
she

never

20

[BY THE STATE:]

21

Q:

When your dad would put his penis
either in your mouth, or in your
vagina, or in your butt, did you ever –
did you ever actually see his penis?
Did you ever actually look at it?

24

A:

No.

25

Q:

Did you ever see it?

22
23

26

. . . .

27

THE WITNESS: I can’t remember.

28

THE STATE:
34

C.J.

claims

saw

his

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 35 of 38

1
2
3
4
5
6
7

Q:

Okay. Can you remember – do
what it looked like at all?

A:

Yes.

Q:

You do?

A:

Yes.

Q:

What did it look like?

A:

Brown.

you

remember

8

(ECF No. 18-14 at 72.) Because C.J. said she saw that his penis

9

was brown, a rational trier of fact could infer that what C.J.

10

meant by her answer was that she did not see his penis when it

11

was inside her mouth, vagina, or anus. As stated, for purposes

12

of review of an insufficiency of evidence claim, a reviewing

13

court presumes the jury resolved conflicting inferences in favor

14

of the prosecution and must defer to that resolution. Jackson,

15

443 U.S. at 326.

16

Given

that

no

corroboration

was

necessary

if

the

jury

17

believed C.J. beyond a reasonable doubt, C.J.’s specificity in

18

her testimony, Jefferson’s confession, and Jefferson’s letter to

19

his wife, and viewing the evidence in the light most favorable

20

to

21

sexually abused C.J. by penetrating her mouth with his penis

22

beyond a reasonable doubt on at least two occasions.

23
24
25
26
27
28

the

prosecution,

b.

a

rational

jury

could

find

Jefferson

Lewdness

At the time of Jefferson’s crimes, lewdness with a minor
under 14 years of age was proscribed as follows:
1. A person who willfully and lewdly commits any lewd
or lascivious act, other than acts constituting the
crime of sexual assault, upon or with the body, or any
part or member thereof, of a child under the age of 14
years, with the intent of arousing, appealing to, or
35

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 36 of 38
gratifying the lust or passions or sexual desires of
that person or of that child, is guilty of lewdness
with a child.

1
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

NRS 201.230(1), as amended by Laws, 2005, c. 507, § 33, eff.
July 1, 2005.
Here,

the

sufficient

state

evidence

courts
for

a

reasonably
rational

determined

trier

of

there

fact

to

was
find

Jefferson guilty of lewdness with a child under fourteen years
of age. According to Jefferson’s statement to the detectives,
which was played for the jury, C.J. touched his penis with her
hand

on

“not

more

than

three”

occasions,

his

penis

touched

C.J.’s vagina but did not penetrate her, C.J. rubbed her vagina
against

his

penis,

and,

as

a

result

of

these

activities,

Jefferson developed pre-cum. B.L. testified his father took C.J.
to the bedroom every time their mother was at work. Based on
Jefferson’s statement, and the testimony of Lamug, C.J., and
B.L., as well as all reasonable inferences that may be drawn
from

that

Jefferson

evidence,
was

guilty

a

rational

of

jury

lewdness,

could

separate

determine
from

the

that
sexual

assaults.
For

the

foregoing

reasons,

the

state

courts

reasonably

applied Jackson in rejecting Jefferson’s claim that there was
insufficient

evidence

to

support

the

verdicts,

and

its

determinations were not based on an unreasonable determination
of the facts. Therefore, Jefferson is not entitled to relief on
ground 5.
Certificate of Appealability
In order to proceed with an appeal, Jefferson must receive
a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R.

36

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 37 of 38

1

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

2

950-951 (9th Cir. 2006); see also United States v. Mikels, 236

3

F.3d 550, 551-52 (9th Cir. 2001). Generally, a defendant must

4

make “a substantial showing of the denial of a constitutional

5

right” to warrant a certificate of appealability. Allen, 435

6

F.3d at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

7

473,

8

reasonable jurists would find the district court’s assessment of

9

the constitutional claims debatable or wrong.” Allen, 435 F.3d

10

at 951 (quoting Slack, 529 U.S. at 484). In order to meet this

11

threshold

12

that the issues are debatable among jurists of reason; that a

13

court

14

questions

15

further. Id.

483-84

(2000).

inquiry,

could

petitioner

Jefferson

resolve

are

“The

the

adequate

has

the

issues

to

must

burden

demonstrate

of

differently;

deserve

that

demonstrating
or

encouragement

that
to

the

proceed

16

The court has considered the issues raised by Jefferson,

17

with respect to whether they satisfy the standard for issuance

18

of a certificate of appealability, and determines that none meet

19

that

20

certificate of appealability.

standard.

Accordingly,

23

47)

24

prejudice.

27
28

be

denied

a

IT THEREFORE IS ORDERED that the amended petition (ECF No.

22

26

will

Conclusion

21

25

Jefferson

is
IT

DENIED,
FURTHER

and

this

action

IS

ORDERED

that

shall

be

DISMISSED

Jefferson

is

with

DENIED

a

certificate of appealability.
IT

IS

FURTHER

ORDREED

that

evidentiary hearing are DENIED.
37

Jefferson’s

requests

for

an

Case 3:18-cv-00064-HDM-CLB Document 64 Filed 08/08/22 Page 38 of 38

1
2
3

IT IS FURTHER ORDERED the Clerk of Court is directed to
substitute Tim Garrett for Respondent Perry Russell.
The

Clerk

favor

the
of

Court

shall

4

accordingly

5

dismissing this action with prejudice.

6

in

of

respondents

enter
and

final

against

judgment
Jefferson,

DATED: this 8th day of August, 2022.

7
8

HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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12
13
14
15
16
17
18
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20
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22
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24
25
26
27
28
38