Kelsey v. Baker et al

Filing 53

ORDER petition for a writ of habeas corpus (ECF No. 6 ) remains denied. A certificate of appealability is granted for grounds 1 and 2.The Clerk of Court is directed to substitute Tim Garrett for respondent Renee Baker. The Clerk of Court shall not amend the judgment previously entered on August 22, 2019. The Clerk of Court is directed to close this case. Signed by Chief Judge Miranda M. Du on 3/29/2022., Case terminated. (Copies have been distributed pursuant to the NEF - LG)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

ZACHARY KELSEY,

7

Petitioner,
TIM GARRETT,1 et al.,
Respondents.

10
11

ORDER

v.

8
9

Case No. 3:18-cv-00174-MMD-CLB

I.

SUMMARY

12

Petitioner Zachary Kelsey filed a petition for writ of habeas corpus under 28 U.S.C.

13

§ 2254 on May 16, 2018. (ECF No. 6 (“Petition”).) This Court denied the Petition and a

14

certificate of appealability on August 22, 2019. (ECF No. 27.) Kelsey appealed on

15

September 4, 2019, and the United States Court of Appeals for the Ninth Circuit granted

16

a certificate of appealability with respect to the following issues: whether Kelsey’s trial

17

counsel provided ineffective assistance, including whether his counsel was ineffective for

18

(a) waiving closing argument, or (b) failing to consult with or retain an expert regarding

19

the victim’s cause of death.2 (ECF Nos. 29, 31.)

20

Kelsey moved for a remand because documents—namely, John Ohlson’s

21

deposition testimony and Amy L. Llewellyn, M.D.’s report—from the state court record

22

were not submitted to—and thus not reviewed by—this Court when it denied the Petition.

23

The United States Court of Appeals for the Ninth Circuit granted the motion on July 12,

24
25
26
27
28

1The

state corrections department’s inmate locator page states that Kelsey is
incarcerated at Lovelock Correctional Center. Tim Garrett is the current warden for that
facility. At the end of this order, this Court directs the clerk to substitute Tim Garrett as a
respondent for the prior respondent Renee Baker. See Fed. R. Civ. P. 25(d).
2These

issues were grounds 1 and 2, respectively, of the Petition. (ECF No. 6.)

1

2021, pursuant to Nasby v. McDaniel, and remanded the case for further proceedings.

2

Based on that order, this Court reopened this action.

3

Based on the foregoing, grounds 1 and 2 of the Petition are before this Court for

4

consideration of Ohlson’s deposition and Dr. Llewellyn’s report to determine whether this

5

Court’s previous judgment should be amended. In that respect, Kelsey filed a

6

supplemental brief, respondents answered, and Kelsey replied. (ECF Nos. 44, 49, 52.)

7

This Court now affirms its previous denial of—but grants a certificate of appealability for—

8

grounds 1 and 2 of the Petition.

9

II.

BACKGROUND3

10

On February 4, 2012, a group of approximately 50 people, ranging from high

11

school students to individuals in their early 20s, were at the motocross track in Lemmon

12

Valley, Nevada having a party and bonfire. (ECF Nos. 18-1 at 73–74, 88; 18-3 at 179.) A

13

few hours into the party, two women, Amber Dutra and Kasey Sinfellow, started to fight.

14

(ECF No. 18-4 at 78.) Taylor Pardick, Dutra’s boyfriend, broke up the fight, but Sinfellow

15

hit Pardick. (Id.) Pardick “threatened that he wasn’t scared to punch a girl in the face,” so

16

Jacob Graves, Sinfellow’s close friend, joined the altercation, saying, “if you want to try

17

and hit a girl, then you can hit me.’” (Id. at 274.) Andrue Jefferson and others tried to

18

instigate a fight between Pardick and Graves, asking if Pardick “was part of the [Twisted

19

Minds] crew, and if [he] was, then [he] needed to fight.” (ECF No. 18-2 at 212, 214.) Eric

20

Boatman joined the altercation to assist Pardick, but Graves hit Boatman and Pardick,

21

knocking them both to the ground. (Id. at 215.)

22

Michael Opperman testified that he and Kelsey were walking away from the

23

altercation involving Graves, Boatman, and Pardick when they heard Jared Hyde

24

comment, to no one in particular, “[t]his is bullshit. You just knocked out my best friend.”

25

(ECF No. 18-2 at 282.) Kelsey overheard Hyde’s comment and pushed him. (Id.) Hyde

26
27
28

3This

Court makes no credibility findings or other factual findings regarding the
truth or falsity of this evidence from the state court. The summary is merely a backdrop
to its consideration of the issues presented in the case. Any absence of mention of a
specific piece of evidence does not signify the Court overlooked it in considering Kelsey’s
claims.
2

1

“had his arms up kind of like . . . don’t hit kind of thing,” and Kelsey hit him twice in the

2

head. (Id. at 283.) “And then as [Hyde] was going down, [Kelsey] grabbed his head and

3

kneed him twice in the head.” (Id.) Aubree Hawkinson testified that she saw Kelsey “grab[

4

Hyde] by the shirt and knee[ ] him in the face and hit him a couple times.” (ECF No. 18-4

5

at 275.) Opperman testified that he grabbed Kelsey and pushed him away from Hyde.

6

(ECF No. 18-2 at 283.) Hyde got up, “had blood either from his mouth or his nose running

7

down, his shirt was torn,” and walked away. (Id.) Opperman characterize the incident

8

between Kelsey and Hyde as an attack: “[Hyde] had no way to defend himself. He was

9

just walking, was talking to himself . . . . [Kelsey] overheard it, thought he was talking shit

10

about him or about maybe one of his friends or something like that and kind of just went

11

at him.” (ECF No. 18-3 at 18.)

12

Opperman testified that he tried to calm Kelsey down because Kelsey was

13

screaming at Hyde as he walked away. (ECF No. 18-2 at 283-84.) Cliffton Fuller testified

14

that Kelsey was “taking off his shirt acting like he wanted to go again,” and Hyde “seemed

15

kind of out of it.” (ECF No. 18-3 at 167-69.) Anthony Fuller testified that Hyde’s “mouth

16

was bleeding, [and] his shirt was ripped in half.” (ECF No. 18-2 at 106.) And Brandon

17

Naastad testified that Hyde “was scared. He was about to cry. He didn’t want to be there

18

at all.” (ECF No. 18-4 at 39.)

19

Tyler DePriest, who drove Hyde and a few other people to the party in his Dodge

20

Durango, testified that he saw Hyde following the incident with Kelsey, “[a]nd the collar of

21

[Hyde’s] shirt was really stretched out and ripped” and “[h]e looked kind of distraught.”

22

(ECF No. 18-2 at 11, 16.) Hyde told DePriest, “[l]et’s go, let’s get out of here. I just got

23

rocked.” (Id. at 16.) DePriest and Hyde walked back to the Durango to leave. (Id.) As they

24

walked, Kelsey, who was approximately 30 feet away with his shirt off, asked Hyde, “[o]ne

25

punch, that’s it?” (Id. at 17.) As DePriest was getting in the driver’s side door of the

26

Durango, believing Hyde was getting in the vehicle on the passenger’s side, he saw Hyde

27

“drop.” (Id. at 17-18.)

28

///
3

1

L.E.4 testified that she saw Robert Schnueringer walk up to Hyde at the Durango

2

and ask, “[s]o do you want to fight, too?” (ECF No. 18-3 at 240.) Hyde responded, “[n]o,

3

I’m just trying to leave.” (Id.) Schnueringer hit Hyde “[r]eally hard,” and Hyde fell to the

4

ground. (Id. at 240–241.) Jefferson and two other individuals then punched and kicked

5

Hyde. (Id. at 241.) Naastad testified that Schnueringer and Jefferson were asking Hyde if

6

he was “still talking smack,” and after Hyde responded in the negative while “about to

7

cry,” Jefferson “hit [Hyde] and then [Hyde] kind of fell and then [Schnueringer] hit him one

8

time and then [Jefferson] hit him two more times on the ground.” (ECF No. 18-4 at 40.)

9

Hawkinson testified that Schnueringer “punched [Hyde] about three times and [Hyde]

10

looked pretty like [sic] he was going to pass out from the fight. And then the next thing

11

you know, [Jefferson] jumped from behind the car and hit [Hyde] as well about three

12

times.” (Id. at 281.) Opperman testified that Schnueringer hit Hyde in the head with a “full-

13

blown” punch, causing Hyde to fall, and Jefferson then told Hyde, “[y]ou got knocked the

14

fuck out,” and punched Hyde in the head. (ECF Nos. 18-2 at 284; 18-3 at 22.) Mark Rankin

15

testified that Schnueringer asked Hyde “if he had a problem with the crew and if he wanted

16

to get down with TM, get down with the mob.” (ECF No. 18-3 at 300.) Schnueringer then

17

“proceeded to keep yelling things about TM and he hit [Hyde],” causing him to “kind of

18

noodle[ ] to the ground.” (Id.) J.B. testified that Schnueringer’s hit to Hyde was hard and

19

“sounded like a baseball bat,” and Schnueringer and Jefferson kicked Hyde after he fell.

20

(ECF No. 18-4 at 195.) And Justin Ferretto testified that Schnueringer asked Hyde if he

21

had a problem, and after Hyde said no, Schnueringer hit him, causing Hyde to fall. (Id. at

22

136.) Jefferson and Schnueringer then “started stomping on [Hyde’s] head.” (Id. at 139.)

23

Brett Stuber testified that after Jefferson hit Hyde, “[h]e was jumping around

24

saying, ‘I slept him, I slept him.’” (ECF No. 18-5 at 27.) Cliffton Fuller also testified that

25

Jefferson said that he “slept” Hyde. (ECF No. 18-3 at 175.) Anthony Fuller testified that

26

while the incident with Schnueringer and Jefferson was occurring, he “heard TM being

27

yelled,” meaning “twisted minds,” which is “a tagging group.” (ECF No. 18-2 at 109, 172.)

28
4The

Court refers to minors by their initials. See LR IC 6-1(a)(2).
4

Hyde was brought to the emergency room “in essentially cardiorespiratory arrest,”

1
2

and efforts to resuscitate him were unsuccessful. (ECF No. 18-1 at 203.)

3

Schnueringer presented three witnesses at trial—Aaron Simpson, Zachary Fallen,

4

and Zach Smith—who each testified that they saw Kelsey the night after Hyde died, and

5

Kelsey told them that he had used brass knuckles in his fight with Hyde and that “the last

6

person [he] hit died.” (ECF No. 18-5 at 214, 243, 259.)

7

Kelsey testified that he was watching the fight between Graves, who was his good

8

friend, and Pardick when three individuals, including Hyde, rushed into the fight. (ECF

9

No. 18-9 at 36.) Kelsey “jumped between them and [Graves] and swung at the first two”

10

individuals. (Id. at 37.) Hyde then said to Kelsey, “[i]f you are going to swing on me[,] I’m

11

going to knock you out.” (Id.) Hyde then “came forward with his fists balled up.” (Id. at 38.)

12

Kelsey punched Hyde twice, and Hyde grabbed Kelsey’s shirt, causing Kelsey to try to

13

kick Hyde off him. (Id.) In an effort to get Hyde to release his hold on Kelsey’s shirt, Kelsey

14

“ended up just leaning back and putting [his] weight into putting [Hyde] off of [him] and

15

when [he] did that[, Hyde] pulled [his] shirt over [his] head.” (Id.) With his shirt over his

16

head, Kelsey “got pushed and tripped and fell into [a] tree.” (Id.) Kelsey stood up and with

17

his “fists balled up” asked Hyde, “[a]re you done?” (Id. at 39.) Hyde said he was, and then

18

their fight was over. (Id.) Kelsey gave Schnueringer a ride home after the party and denied

19

using, or bragging about using, brass knuckles. (Id. at 21, 50, 56-57.)

20

Kelsey, Schnueringer, and Jefferson were found guilty of second-degree murder.

21

(ECF No. 18-13 at 83-84.) Kelsey was sentenced to 10 to 25 years, and Schnueringer

22

and Jefferson were sentenced to 10 years to life. (ECF No. 18-15 at 57-58.) The Nevada

23

Supreme Court affirmed Kelsey’s judgment of conviction. (ECF No. 19-8.) Kelsey sought

24

post-conviction relief. (ECF No. 19-16.) Although the state district court granted Kelsey’s

25

petition on the claim that his trial counsel was ineffective in failing to give a closing

26

argument, the Nevada Court of Appeals reversed. (ECF Nos. 20-15; 21-17.)

27

///

28

///
5

1
2
3
4
5
6
7
8
9
10
11

III.

LEGAL STANDARDS
A.

Antiterrorism and Effective Death Penalty Act (“AEDPA”)

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in
habeas corpus cases under AEDPA:
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.

12

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

13

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

14

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

15

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

16

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

17

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

18

is an unreasonable application of clearly established Supreme Court precedent within

19

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

20

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

21

principle to the facts of the prisoner’s case.” Id. at 75. “The ‘unreasonable application’

22

clause requires the state court decision to be more than incorrect or erroneous. The

23

state court’s application of clearly established law must be objectively unreasonable.”

24

Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

25

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

26

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

27

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

28

(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
6

1

has stated “that even a strong case for relief does not mean the state court’s contrary

2

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

3

v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet”

4

and “highly deferential standard for evaluating state-court rulings, which demands that

5

state-court decisions be given the benefit of the doubt” (internal quotation marks and

6

citations omitted)).

7

B.

Effective Assistance of Counsel

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

result is reliable.” Id. at 687.

23

Where a state district court previously adjudicated the claim of ineffective

24

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

25

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

26

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

27

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

28

Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When
7

1

a federal court reviews a state court’s Strickland determination under AEDPA, both

2

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

3

description of the standard as doubly deferential.”). The Supreme Court further clarified

4

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

5

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

6

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

7

IV.

DISCUSSION
A.

8

Ground 1—Closing Argument

9

In ground 1, Kelsey argues that Edwards’ decision to waive closing argument was

10

ineffective assistance of counsel because he gave up any chance to (1) persuade the jury

11

to select a lesser-included offense, (2) explain the jury instructions counsel prepared, and

12

(3) distinguish Kelsey’s actions from Schnueringer and Jefferson’s. (ECF No. 44 at 18.)
1.

13

Information Reviewed During Initial Merits Review

14

The State tried Kelsey, Schnueringer, and Jefferson together. (ECF No. 17-4.)

15

Kelsey was represented by Scott Edwards, Schnueringer by John Ohlson, and Jefferson

16

by Richard Molezzo. (ECF No. 18 at 3.) The junior prosecutor gave the State’s first closing

17

argument, arguing that “the State [was] asking [the jury] to return a verdict for each of

18

these three defendants” for second-degree murder. (ECF No. 18-13 at 28, 31.) A lunch

19

break was taken following the junior prosecutor’s closing argument, and following that

20

break, Ohlson represented that “all three counsel have been discussing and we’re all in

21

unanimous agreement and each of the three defense lawyers waives closing arguments.”

22

(ECF No. 18-13 at 79.) Edwards then confirmed that he was waiving his closing argument.

23

(Id.)

24

During the post-conviction evidentiary hearing, Edwards testified that his theory of

25

defense was that Kelsey “was guilty at best of the lesser included offense of simple

26

battery” and that Kelsey was not the proximate cause of the victim’s death. (ECF No. 20-

27

9 at 177-78.) Edwards testified that by waiving his closing argument, he gave up the

28

opportunity to address his jury instructions on—and argue about—Kelsey’s lack of
8

1

proximate cause to Hyde’s death and Kelsey’s actions amounting to only a misdemeanor

2

battery or involuntary manslaughter. (Id. at 194-95, 200-01.) However, Edwards testified

3

that the decision was made to waive closing argument because he, Ohlson, and Molezzo

4

“didn’t want [the senior prosecutor], the number one prosecutor, to come in with an

5

argument that made a first degree [sic] murder conviction a possibility at all.” (Id. at 194,

6

197.) Edwards explained that Ohlson “floated” the idea of waiving closing argument, and

7

he and Molezzo “had the same kind of opinion.” (Id. at 231.) Edwards testified that the

8

junior prosecutor’s closing argument “wasn’t the most vigorous closing argument [he] had

9

ever seen in a prosecution.” (Id.) Conversely, Edwards explained that he would

10

characterize the senior prosecutor’s closing arguments as more vigorous; thus, the

11

decision to waive closing argument was “predicated in part on a desire to keep [the senior

12

prosecutor] from addressing the jury.” (Id. at 232.) Edwards, however, did testify that

13

Kelsey’s trial was the first time he had ever waived a closing argument and that “[i]t might

14

be the last.” (Id. at 244.)
2.

15

New Information

16

In his August 2015 deposition, which this Court did not possess for consideration

17

during its initial merits review, Ohlson confirmed that it was his idea for the three

18

defendants to waive closing argument and that he discussed this idea with Edwards

19

during the lunch break. (ECF No. 43-1 at 23.) Ohlson opined that the junior prosecutor’s

20

closing argument “was intentionally perfunctory in order to set us up for closing arguments

21

to which [the senior prosecutor] could give a blazing rebuttal argument.” (Id. at 24.) Ohlson

22

“wanted to cut [the senior prosecutor] off from arguing” because the senior prosecutor

23

was “[v]ery tough.” (Id.) When asked if he would have waived closing argument had he

24

represented Kelsey, Ohlson responded that he would not. (Id. at 26.) Ohlson’s deposition

25

was admitted as an exhibit at Kelsey’s post-conviction evidentiary hearing. (ECF No. 20-

26

9 at 171.)

27

///

28

///
9

3.

1

Legal Standard

2

“[C]losing argument for the defense is a basic element of the adversary factfinding

3

process in a criminal trial,” so “counsel for the defense has a right to make a closing

4

summation to the jury.” Herring v. New York, 422 U.S. 853, 858 (1975) (explaining that

5

“closing argument serves to sharpen and clarify the issues for resolution by the trier of

6

fact in a criminal case. For it is only after all the evidence is in that counsel for the parties

7

are in a position to present their respective versions of the case as a whole. Only then

8

can they argue the inferences to be drawn from all the testimony, and point out the

9

weaknesses of their adversaries’ positions”). As such, “[t]he right to effective assistance

10

[of counsel] extends to closing arguments,” but “counsel has wide latitude in deciding how

11

best to represent a client, and deference to counsel’s tactical decisions in his closing

12

presentation is particularly important because of the broad range of legitimate defense

13

strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). Accordingly,

14

“[j]udicial review of a defense attorney’s summation is therefore highly deferential-and

15

doubly deferential when it is conducted through the lens of federal habeas.” Id. at 6.
4.

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

State Court Determination

In its order affirming in part, reversing in part, and remanding, the Nevada Court of
Appeals held:
The State argues the district court erred by granting the postconviction
petition when it found trial counsel was ineffective for waiving respondent
Zachary Kelsey’s right to present a closing argument. In its order, the district
court concluded counsel’s decision to waive closing argument was deficient
and not a tactical decision and Kelsey demonstrated prejudice because
there was a possibility of a different outcome at trial had counsel presented
a closing argument.
We conclude the district court erred by granting Kelsey’s claim that
counsel was ineffective for waiving closing argument. To prove ineffective
assistance of counsel, a petitioner must demonstrate that counsel’s
performance was deficient in that it fell below an objective standard of
reasonableness, and resulting prejudice such that there is a reasonable
probability that, but for counsel’s errors, the outcome of the proceedings
would have been different. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984)
(adopting the test in Strickland). Both components of the inquiry must be
shown, Strickland, 466 U.S. at 697, and the petitioner must demonstrate the
underlying facts by a preponderance of the evidence, Means v. State, 120
Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the district
10

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

court’s factual findings if supported by substantial evidence and not clearly
erroneous but review the court’s application of the law to those facts de
novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
“A court considering a claim of ineffective assistance must apply a
strong presumption that counsel’s representation was within the wide range
of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86,
104 (2011) (internal quotation marks omitted). Tactical decisions of counsel
“are virtually unchallengeable absent extraordinary circumstances.” Ford v.
State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). The decision to waive
closing argument is a tactical decision. See Bell v. Cone, 535 U.S. 685, 701702 (2002). An appellate court is “required not simply to give the attorneys
the benefit of the doubt, but to affirmatively entertain the range of possible
reasons [an appellant’s] counsel may have had for proceeding as they did.”
Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks,
alterations, and citations omitted).
At the evidentiary hearing, counsel testified he decided to waive
closing argument because he did not believe the State’s closing argument
was very vigorous and believed the State’s rebuttal closing argument would
be much more persuasive. Counsel testified he was prepared to present a
closing argument, but decided not to after hearing the State’s closing
argument and discussing the strategy with Kelsey’s codefendants’
counsels, and all defense counsel agreed to waive closing argument. He
also testified he had observed the prosecutor’s rebuttal closing arguments
in other cases and found the prosecutor to be very vigorous and persuasive.
This was a tactical decision, and cannot be challenged outside of
extraordinary circumstances, which are not present here.
[FN1] The district court relied on Ex parte Whited, 180 So.3d
69 (Ala. 2015), to conclude Kelsey demonstrated counsel was
ineffective. Trial counsel in Whited, however, could not
articulate his strategic reason for waiving closing argument.
180 So.3d at 81-82. In the instant case, counsel articulated
his reason for waiving, and therefore, the instant case is
distinguishable.
While the choice to forgo closing argument may not have been the best
option, it was a tactical decision and did not place counsel’s representation
“outside the wide range of professional competent assistance.” Strickland,
466 U.S. at 690-91. Accordingly, we conclude the district court erred by
determining counsel was deficient for waiving his closing argument.
We also conclude the district court erred by determining Kelsey
suffered prejudice by counsel waiving closing argument. While the district
court found Kelsey “suggest[ed] a manner in which counsel could have
argued in closing that could have affected a reasonable probability of a
different outcome for the Petitioner at trial,” the district court also stated
there were “arguments available to the Petitioner from which the jury could
possibly conclude the Petitioner was guilty of the lesser charged offenses
as offered in the jury instructions.” Based on the evidence presented at trial,
Kelsey failed to demonstrate a reasonable probability of a different outcome
at trial had counsel not waived closing argument. Kelsey punched the victim
in the head twice and may have kneed him the [sic] in the head as well.
After being pulled out of the fight, Kelsey continued to yell and try to get at
the victim. After the fight, the victim stood up, had blood streaming from his
mouth, and told his friend he had been “rocked.” An expert who testified at
11

1
2
3

trial stated the first blow to the victim’s head may have been the death blow
and another expert testified the injuries to the victim were likely cumulative.
Accordingly, we conclude the district court erred by granting this claim.
(ECF No. 21-17 at 2-5.)

4

Kelsey argues that this Court should review this ground de novo because the

5

Nevada Court of Appeals’ decision is based on an unreasonable determination of the

6

facts and an unreasonable application of Strickland. (ECF No. 44 at 26-27.) Specifically,

7

Kelsey argues that the Nevada Court of Appeals’ finding that Edwards’ decision to waive

8

closing argument was strategic is undermined by the record and the Nevada Court of

9

Appeals unreasonably gave deference to Edwards’ strategy without evaluating whether

10

that strategy was reasonable. (Id. at 27; ECF No. 52 at 8-10.) Regarding the latter

11

argument, this Court disagrees that the Nevada Court of Appeals simply acquiesced to

12

Edwards’ testimony about the strategy behind his waiver of closing argument; rather, the

13

Nevada Supreme Court determined that Edwards’ decision was tactical and was not

14

“outside the wide range of professional competent assistance.” (ECF No. 21-17 at 4

15

(citing Strickland, 466 U.S. at 690-91).)

16

And turning to the former argument, it is true, as Kelsey contends, that Edwards

17

testified that he waived closing argument, in part, to keep the senior prosecutor from

18

advocating that the jury should convict Kelsey of first-degree murder. (ECF No. 20-9 at

19

194.) However, this Court does not agree with Kelsey’s contention that this testimony was

20

undermined by Edwards’ alleged later testimony that the senior prosecutor could not have

21

made such an argument based on the facts of the case. Contrarily, Edwards testified he

22

“couldn’t say . . . for sure” that the senior prosecutor would not have contradicted the

23

junior prosecutor by advocating that the jury convict Kelsey of first-degree murder

24

because “we hadn’t been able to shake the causation issue.” (Id. at 198, 202.)

25
26

Consequently, this Court declines to review ground 1 de novo.
5.

Analysis

27

Due to the allegedly distinctive roles Schnueringer and Jefferson played in Hyde’s

28

death as compared to the role Kelsey played, it seems sensible that Edwards would have
12

1

taken the opportunity to present a closing argument to highlight the fact that Kelsey’s

2

actions towards the victim occurred prior in time to the, arguably, more severe beating

3

Hyde received from Schnueringer and Jefferson. Further, like his opening statement,

4

Edwards could have asked the jury to find Kelsey guilty of involuntary manslaughter or

5

misdemeanor battery instead of murder. (See ECF No. 18-1 at 66-68.)

6

However, while Edwards’ decision to forgo closing argument may have been

7

unexpected given the facts of the case, the Nevada Court of Appeals reasonably noted

8

that Edwards testified that he waived closing argument for a tactical reason: his belief that

9

the senior prosecutor would give a vigorous rebuttal closing whereby he may ask the jury

10

to find Kelsey guilty of first-degree murder. Evaluating this tactical decision from Edwards’

11

perspective at the time it was made and in light of the circumstances, the Nevada Court

12

of Appeals reasonably determined that Edwards’ decision fell within “the wide range of

13

professionally competent assistance.” Strickland, 466 U.S. at 689; see also Kimmelman

14

v. Morrison, 477 U.S. 365, 384 (1986) (“The reasonableness of counsel’s performance is

15

to be evaluated from counsel’s perspective at the time of the alleged error and in light of

16

all the circumstances.”).

17

Indeed, similarly, in Bell v. Cone, defense counsel faced two similar options: he

18

could give a closing argument and, thus, “give the lead prosecutor, who all agreed was

19

very persuasive, the chance to depict his client as a heartless killer just before the jurors

20

began deliberation” or he “could prevent the lead prosecutor from arguing by waiving his

21

own summation and relying on the jurors’ familiarity with the case and his opening plea.”

22

535 U.S. 685, 701-02 (2002). In Bell, the Supreme Court held that “[n]either option . . . so

23

clearly outweigh[ed] the other that it was objectively unreasonable for the Tennessee

24

Court of Appeals to deem counsel’s choice to waive argument a tactical decision about

25

which competent lawyers might disagree.” Id. at 702; see also Narvaez v. Scribner, 551

26

F.App’x 416, 418 (9th Cir. 2014) (“[T]he state court correctly noted that the decision to

27

waive closing argument was a reasonable strategic choice because the waiver denied

28

the prosecution the opportunity to argue in response.”).
13

1

Therefore, the Nevada Court of Appeals’ determination that the state district court

2

erred by determining counsel was deficient for waiving his closing argument constituted

3

an objectively reasonable application of Strickland’s performance prong. Strickland, 466

4

U.S. at 688; Yarborough, 540 U.S. at 5-6; Bell, 535 U.S. at 701-02. This Court’s previous

5

denial of ground 1 will not be amended.

6

B.

Ground 2—Consultation and Retention of Expert

7

In ground 2, Kelsey argues that Edwards was ineffective for failing to consult with

8

a forensic pathologist since the central issue at trial was the cause of Hyde’s death. (ECF

9

No. 44 at 28.)

10

1.

Information Reviewed During Initial Merits Review

11

Ellen Clark, M.D., the chief medical examiner and coroner for Washoe County,

12

testified at Kelsey’s trial that she performed Hyde’s autopsy and that “[t]he cause of death

13

was bleeding into the brain . . . due to blunt force trauma.” (ECF No. 18-1 at 213-14, 216,

14

218.) Dr. Clark explained that “a cumulative effect of the blows to the head” could have

15

resulted in death, or a single blow to the head could have caused tearing of the veins and

16

arteries that supply blood to the brain and that additional blows to the head exacerbated

17

those tears. (Id. at 227-28.) Dr. Clark explained that “[t]here were multiple injuries to

18

different parts of the brain” such that she could not “identify one fatal impact site” because

19

“based upon the cumulative effect or the compounding injury, any and all of the blows

20

may have contributed to causing death.” (Id. at 238, 259.)

21

Bennet Omalu, M.D., a forensic pathologist, neuropathologist, and “recognized

22

and leading expert in brain trauma,” testified that Dr. Clark consulted with him regarding

23

his opinion of Hyde’s cause of death. (ECF No. 18-8 at 5, 10, 16.) Dr. Omalu testified

24

about “repetitive traumatic brain injury,” meaning “each and every repeated blow

25

accentuates the totality of all the blows” such that it cannot be determined “which blow

26

was the fatal blow.” (Id. at 29; see also id. at 48 (“Science cannot tell you or isolate the

27

single punch which resulted in his death.”), 61 (“Each blow you receiving [sic] increases

28

the severity of injury and the risk of death.”).) Dr. Omalu further testified that each hit to
14

1

Hyde cannot be isolated, so he must conclude that “each and every blow contributed to

2

his death.” (Id. at 30; see also id. at 67 (“The guideline of the science indicates and

3

dictates that each and every impact to the head contributed to his eventual fatality. The

4

more blows you receive, the greater the risk of death.”).) Dr. Omalu explained that “after

5

receiving the first injury, the first rupture, he may still be lucid, he may still be talking, but

6

maybe symptoms will start coming up gradually.” (Id. at 32-33.) And “[i]f he receives a

7

second impact or force, he may drop nonresponsive almost instantaneously.” (Id. at 33.)

8

Edwards did not call an expert witness to rebut Dr. Clark and Dr. Omalu’s

9

testimonies, and Edwards testified at the post-conviction hearing that he “did not contact

10

a forensic pathologist as an expert witness.” (ECF No. 20-9 at 179.) Instead, Edwards

11

explained that he spoke to Ohlson about an expert who Ohlson had contacted and that

12

Ohlson indicated to Edwards that his expert’s opinion “wasn’t good,” meaning that his

13

expert could not contradict Dr. Clark or Dr. Omalu’s findings. (Id. at 182.) Edwards testified

14

that he “didn’t have any reason to distrust what [Ohlson] was saying to [him].” (Id. at 187.)

15

Edwards also testified that he “[p]erhaps” would have been able to better cross-examine

16

Dr. Omalu by consulting with an expert, but he “didn’t feel like [he] was undermanned.”

17

(Id. at 249.)

18

Dr. Llewellyn, a pathologist, testified at Kelsey’s post-conviction hearing that she

19

reviewed Hyde’s autopsy report and photographs, Dr. Clark and Dr. Omalu’s trial

20

testimonies, and various witness statements. (ECF No. 20-9 at 24, 29-30.) Dr. Llewellyn

21

testified that it is possible that Kelsey’s blows to Hyde’s face caused Hyde’s death, but,

22

based on a reasonable degree of medical certainty, the second attack by Schnueringer

23

and Jefferson were the blows that killed Hyde. (Id. at 31-32). Dr. Llewellyn further testified

24

that it is “more probable” that the disruption of Hyde’s blood vessels on the base of his

25

brain was due to the actions of Schnueringer and Jefferson if the facts were that, following

26

Kelsey’s two or three punches, Schnueringer and Jefferson blindsided Hyde and then

27

repeatedly kicked him in the head. (Id. at 34; see also id. at 43 (testifying it is “more likely

28

than not that the injuries identified in Dr. Clark’s autopsy protocol c[a]me from attacks
15

1

from the second group of assailants”) and 44 (testifying that “it’s much more probable that

2

most, if not all, injuries were from the second assault”).) On cross-examination, Dr.

3

Llewellyn testified that if the facts were that Hyde were knocked to the ground or fell to

4

his knees and was kneed in the head by Kelsey, then those would be further injuries that

5

could possibly cause his brain to bleed. (Id. at 56.) Dr. Llewellyn also testified that she

6

agreed with much of Dr. Clark and Dr. Omalu’s reports; however, she did not agree with

7

Dr. Omalu’s opinion “that every single hit would have necessarily contributed to [Hyde’s]

8

death” because “not every hit is equal.” (Id. at 60-61.)

9

Dr. Clark testified at Kelsey’s post-conviction hearing that she “cannot exclude the

10

initial fight or the initial exchange of blows involving [Kelsey] . . . from causing severe and

11

potentially lethal injury to [Hyde’s] brain.” (ECF No. 20-9 at 69, 72.) Dr. Clark also testified

12

that Kelsey’s blows to Hyde’s head could have caused tearing that was exacerbated by

13

the subsequent attack and that Kelsey’s blows to Hyde’s head, even if they were less

14

severe than the blows delivered by Schnueringer and Jefferson, could have caused

15

Hyde’s brain to bleed. (Id. at 73-74, 86.)

16

2.

New Information

17

In his August 2015 deposition, which, as stated above, the Court did not possess

18

for consideration during its initial merits review, Ohlson testified that “it was clear that the

19

pathology and the testimony of expert pathologists would be critical,” so he consulted with

20

Dr. Terri Haddix, a forensic pathologist. (ECF No. 43-1 at 11-12.) Dr. Haddix “identified

21

the primary injury that was the factual cause of death of the deceased,” which “was a

22

rupture or severing of the cranial artery” from “the torquing motion of the head that

23

resulted from a blow that the deceased received.” (Id. at 12-13.) Ohlson “thought Dr.

24

Haddix’ information . . . would have been devastating to the prosecution [sic] . . . [b]ecause

25

she went further than either of the State’s pathologists went” in “describ[ing] the effects

26

of a blow that was sufficient to cause the torque to the head to rupture the cranial artery.”

27

(Id. at 17-18.) Ohlson did not share Dr. Haddix’ findings with Edwards or Molezzo because

28

he “felt the information, while possibly exculpatory to Mr. Edwards’ client, was inculpatory
16

1

to Mr. Molezzo’s and more particularly to [his] client.” (Id. at 14.) Ohlson only “volunteered

2

to [Edwards and Molezzo] that [he] had consulted Terri Haddix, and that she did not have

3

information that [he] deemed to be helpful, and [he] wasn’t going to be using her.” (Id.) As

4

noted in ground 1, Ohlson’s deposition was admitted as an exhibit at Kelsey’s post-

5

conviction evidentiary hearing. (ECF No. 20-9 at 171.)

6

In her January 2016 report prepared for Kelsey’s postconviction proceedings,

7

which the Court also did not possess for consideration during its initial merits review, Dr.

8

Llewellyn reported that “[w]hile it is possible that” Kelsey’s blows to Hyde “could have

9

been fatal or contributed to the death of [Hyde], it is [her] opinion to a reasonable degree

10

of medical probability that the blows administered by . . . Schnueringer and Jefferson[ ]

11

were in fact fatal in nature and resulted in the death of the victim.” (ECF No. 43-2 at 4-5.)

12

Dr. Llewellyn’s finding was based, in part, on her opinion that “in [the] face-to-face

13

encounter between Kelsey and Master [sic] Hyde, it is possible but unlikely that two jabs

14

to Hyde’s cheek, which Hyde would have seen coming, would have created the motion

15

necessary to the torquing/rotational injury (i.e., the fatal injury).” (Id. at 5.) Contrarily, “[t]he

16

most significant areas injury [sic] to Jared Hyde’s head and face are consistent with acts

17

of kicking on the side of his head, possibly falling to the ground, and punching from an

18

angle where Master [sic] Hyde would not see the assailant.” (Id.) Dr. Llewellyn concluded

19

that she could not “agree with the opinion that each and every blow contributed to Master

20

[sic] Hyde’s death” because “the more reasonable cause of the rotational forces causing

21

disruption of Master [sic] Hyde’s blood vessels, which caused his death, came from the

22

second fight as opposed to the first one (involving Kelsey).” (Id. at 6.) Notably, Dr.

23

Llewellyn’s report was not admitted as an exhibit at Kelsey’s post-conviction evidentiary

24

hearing. (ECF 20-9 at 29.)
3.

25
26
27
28

State Court Determination

In its order affirming in part, reversing in part, and remanding, the Nevada Court of
Appeals held:
First, Kelsey claims the district court erred by denying his claim counsel was
ineffective for failing to consult with and present an expert at trial to provide
17

1
2
3
4
5
6

a contrary and exculpatory opinion regarding the probable cause of the
victim’s death. After holding an evidentiary hearing, the district court
concluded Kelsey failed to demonstrate a reasonable probability of a
different outcome at trial had counsel presented an expert because the
expert presented at the evidentiary hearing could not establish which
arteries caused the hemorrhaging in the victim’s brain and her testimony
could not be differentiated from that of the experts presented by the State
at trial. Substantial evidence supports the decision of the district court, and
we conclude the district court did not err in denying this claim.
(ECF No. 21-17 at 5.)

7

Kelsey argues that the Nevada Court of Appeals’ decision is based on an

8

unreasonable determination of the facts, making this Court’s review de novo, because

9

Dr. Llewellyn’s testimony at the post-conviction evidentiary hearing could be differentiated

10

from the experts presented by the State at trial. (ECF No. 44 at 32-33.) Dr. Llewelyn

11

testified that she did not agree with Dr. Omalu’s opinion that every hit Hyde suffered

12

necessarily contributed to his death. (See ECF No. 20-9 at 60-61.) However, Dr. Llewelyn

13

also testified that it was possible that Kelsey caused Hyde’s death, which is consistent

14

with Dr. Clark and Dr. Omalu’s testimonies. (Id. at 31-32.) Accordingly, this Court

15

disagrees that the Nevada Court of Appeals’ decision was based on an unreasonable

16

determination of the facts and declines to review ground 1 de novo.5
4.

17

Analysis

18

Dr. Llewellyn’s testimony that it was more probable that the disruption of Hyde’s

19

blood vessels was due to the actions of Schnueringer and Jefferson was based on

20

Kelsey’s self-serving version of the facts: that he only punched Hyde whereas

21

Schnueringer and Jefferson blindsided Hyde and then repeatedly kicked him in the head.

22

Importantly, during cross-examination, Dr. Llewellyn’s opinion as to the role Kelsey played

23

in Hyde’s death changed based on the State’s version of the facts: that Kelsey punched

24

and kneed Hyde in the head, causing him to be knocked to the ground.

25

At the trial, there were three individuals who testified about Kelsey’s attack on

26

Hyde: Opperman, Hawkinson, and Kelsey. Opperman testified that Kelsey hit Hyde twice

27
28

5And

even if this Court were to review ground 2 de novo, Kelsey would still not be
entitled to relief because he fails to demonstrate prejudice as discussed below.
18

1

in the head, and as Hyde “was going down,” Kelsey “grabbed his head and kneed him

2

twice in the head.” (ECF No. 18-2 at 283.) And Hawkinson testified that she saw Kelsey

3

“grab[ Hyde] by the shirt and knee[ ] him in the face and hit him a couple times.” (ECF No.

4

18-4 at 275.) Contrarily, Kelsey testified that he only punched Hyde twice after Hyde

5

“came forward with his fists balled up” and only tried to kick Hyde because Hyde had

6

grabbed his shirt. (ECF No. 18-9 at 38.)

7

Based on (1) the evidence presented at the trial, which demonstrates that Dr.

8

Llewelyn’s testimony would have only been helpful if the jury believed Kelsey’s testimony

9

over Opperman and Hawkinson’s testimonies; and (2) Dr. Llewelyn’s testimony that—

10

notwithstanding Schnueringer and Jefferson’s actions—it was possible that Kelsey

11

caused Hyde’s death, which did not directly challenge the conclusions made by Dr. Clark

12

and Dr. Omalu, Kelsey establishes nothing more than a theoretical possibility—not a

13

reasonable probability—that the result of his trial would have been different had Edwards’

14

retained an expert like Dr. Llewellyn. See Strickland, 466 U.S. at 694; see also Richter,

15

562 U.S. at 112 (“It was also reasonable to find Richter had not established prejudice

16

given that he offered no evidence directly challenging other conclusions reached by the

17

prosecution’s experts.”); Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland

18

prejudice is not established by mere speculation.”). As such, the Nevada Court of

19

Appeals’ determination that substantial evidence supports the state district court’s

20

decision that Kelsey failed to demonstrate a reasonable probability of a different outcome

21

at trial had counsel presented an expert constituted an objectively reasonable application

22

of Strickland’s prejudice prong. See Strickland, 466 U.S. at 694. The Court’s previous

23

denial of ground 2 will not be amended.

24

V.

CERTIFICATE OF APPEALABILITY

25

This is a final order adverse to Kelsey. Rule 11 of the Rules Governing Section

26

2254 Cases requires this Court to issue or deny a certificate of appealability (COA). This

27

Court has sua sponte evaluated the claims within the petition for suitability for the

28

issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65
19

1

(9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the

2

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

3

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

4

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

5

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

6

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

7

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

8

right and (2) whether this Court’s procedural ruling was correct. See id.

9

Applying these standards, the Court finds that a certificate of appealability is

10

warranted for grounds 1 and 2. First, reasonable jurists could debate whether Edwards’

11

decision to waive closing argument amounted to ineffective assistance of counsel

12

because (1) he gave up the opportunity to argue for a lesser-included offense by

13

highlighting the distinctive role that Kelsey played in Hyde’s death as compared to

14

Schnueringer and Jefferson, and (2) his tactical decision, at least in part, to keep the

15

senior prosecutor from advocating for first-degree murder is somewhat illogical given that

16

the junior prosecutor only advocated for second-degree murder. And second, reasonable

17

jurists could debate whether prejudice ensued from Edwards’ failure6 to consult with a

18

forensic pathologist.

19

///

20

///

21

///

22
23
24
25
26
27
28

is fairly irrefutable that Edwards’ “representation fell below an objective standard
of reasonableness” due to (1) his failure to attempt to contact an expert pathologist since
the central issue at trial was the cause of Hyde’s death, and (2) his misguided reliance on
Ohlson’s representation that a defense expert was unobtainable. See Strickland, 466 U.S.
at 691 (explaining that defense counsel has a “duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary”);
Richter, 562 U.S. at 106 (“Criminal cases will arise where the only reasonable and
available defense strategy requires consultation with experts or introduction of expert
evidence.”); Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir. 2008) (“[W]hen the
prosecutor’s expert witness testifies about pivotal evidence or directly contradicts the
defense theory, defense counsel’s failure to present expert testimony on that matter may
constitute deficient performance.”).
20
6It

1

VI.

It is therefore ordered that the petition for a writ of habeas corpus pursuant to 28

2
3

U.S.C. § 2254 (ECF No. 6) remains denied.
It is further ordered that a certificate of appealability is granted for grounds 1 and

4
5

CONCLUSION7

2.

6

The Clerk of Court is directed to substitute Tim Garrett for respondent Renee

7

Baker. The Clerk of Court shall not amend the judgment previously entered on August

8

22, 2019. The Clerk of Court is directed to close this case.

9

DATED THIS 29th Day of March 2022.

10
11
12

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

7This

Court previously denied grounds 3, 4, and 5 of the Petition in its original
merits order on August 22, 2019. (See ECF No. 27.) Because (1) the Ninth Circuit did not
grant a certificate of appealability as to grounds 3, 4, and 5; and (2) the basis of the Ninth
Circuit’s remand—the consideration of Ohlson’s deposition testimony and Dr. Llewellyn’s
report—do not particularly concern grounds 3, 4, and 5, this Court does not reconsider
them. (See ECF No. 43-1 at 26-27 (Ohlson’s deposition discussing, briefly, his crossexamination of Kelsey, which tangentially corresponds with ground 4, Edwards’ failure to
object to Ohlson’s racist philosophies).) As such, they remain denied as provided in this
Court’s original merits order. (ECF No. 27.)
21