Allen S. Heusner v. William Hutchings, et al.

• Court: District Court, D. Nevada
• Decided: November 4, 2025
• Docket: 2:14-cv-01119
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

6 * * *

7 ALLEN S. HEUSNER,

8 Petitioner, Case No. 2:14-cv-01119-RFB-GWF

9 v. MERITS ORDER

10 WILLIAM HUTCHINGS, et al.,

11 Respondents.

12 13 Before the Court, for a decision on the merits, is a second amended petition for a writ of 14 habeas corpus (ECF No. 44), which was filed by Allen S. Heusner: a Nevada prisoner. For the 15 reasons discussed below, the Court denies the petition. 16 I. BACKGROUND1 17 After a trial in the Eighth Judicial District Court for Nevada, a jury found Heusner guilty 18 of: burglary while in possession of a deadly weapon, invasion of a home while in possession of a 19 deadly weapon, first-degree murder with use of a deadly weapon, and first-degree arson. 20 Evidence presented at trial established the following basic facts. In violation of a temporary 21 protective order (TPO), Heusner went to the home of his estranged wife, Tiffany, just after 22 midnight on June 13, 2007. Angered by finding an unfamiliar car in the driveway and seeing 23 only the master bathroom light on, Heusner drove to Walmart and bought a baseball bat. After 24 returning to the home and using the bat to break through a glass living room door, he confronted 25 Tiffany’s guest, Michael Clark. Heusner struck Clark with the bat at least 20 times, including at 26 1 The information in this section is drawn from the state court record—which is filed at ECF Nos. 26, 53, 62, 63, and 27 64—and this Court’s own docket. 1 least 12 times to the head. Heusner also turned on all the stove burners and lit a blanket on fire. 2 Clark died as a result of his injuries. 3 The court sentenced Heusner to consecutive terms of twenty-years-to-life for murder with 4 use of a deadly weapon and various other terms on the remaining counts. A judgment of 5 conviction was entered in June 2008. Heusner appealed. 6 In May 2010, the Nevada Supreme Court entered an order affirming Heusner’s judgment 7 of conviction. In June 2011, Heusner filed, pro se, a habeas corpus petition in the state district 8 court. He subsequently filed a supplement to the petition with the assistance of appointed 9 counsel. After an evidentiary hearing and additional briefing, the court entered a decision 10 denying relief. Heusner appealed. The Nevada Supreme Court affirmed the lower court’s 11 decision and issued a remittitur in December 2013. 12 In February 2014, Heusner filed another state habeas petition in the district court. That 13 petition was denied because his allegations involved the conditions of his confinement and not 14 the validity of his confinement. The Nevada Supreme Court denied Heusner’s appeal because his 15 claims were not cognizable in a petition for a writ of habeas corpus. 16 Heusner initiated this federal proceeding in July 2014. After resolving payment of the 17 filing fee, this Court directed Heusner to show cause why his petition should not be dismissed as 18 untimely. While awaiting the Court’s decision on his response, Heusner filed his third state 19 habeas petition in the district court in December 2015. The state district court dismissed the 20 petition as procedurally barred, and the Nevada Court of Appeals affirmed. 21 In 2017, this Court determined that Heusner was entitled to equitable tolling with respect 22 to his federal petition and issued a scheduling order. When Heusner filed a statement of 23 additional claims, the Court directed him to file an amended petition, which he did in August 24 2017. After screening the petition, the Court dismissed three grounds and ordered Respondents 25 to respond to Heusner’s remaining claims. Respondents filed a motion to dismiss raising 26 timeliness and lack-of-exhaustion defenses. The Court rejected the former but agreed that 27 Heusner’s petition contained several unexhausted claims. 1 Prior to this Court’s ruling on the motion to dismiss, Heusner had filed, pro se, a petition 2 for a writ of mandamus in the state district court, which the court denied as untimely, successive, 3 and without merit. The Nevada Court of Appeals subsequently affirmed the lower court’s 4 decision. 5 In April 2018, Heusner filed his fifth state petition in the district court. Once again, the 6 state district court dismissed the petition as procedurally barred, and the Nevada Court of 7 Appeals affirmed. 8 In May 2019, Heusner filed, with the assistance of appointed counsel, a second amended 9 federal petition containing seven grounds for relief. He also filed a motion for stay and abeyance 10 so he could present a claim based on McCoy v. Louisiana, 584 U.S. 414 (2018), to the state 11 courts. This Court granted the motion. Proceedings on Heusner’s state petition concluded with 12 the Nevada Supreme Court deciding that McCoy is distinguishable from Heusner’s case and 13 declining to resolve Heusner’s argument that McCoy applies retroactively. The Nevada Supreme 14 Court’s remittitur issued on April 5, 2021. 15 In July 2021, this Court granted Heusner’s motion to reopen federal proceedings. In 16 January 2022, Respondents filed a motion to dismiss the second amended petition. Granting the 17 motion, in part, the Court dismissed Grounds 3, 4, 5, and 6 from the petition. The Court now 18 addresses Heusner’s remaining claims: Grounds 1, 2, and 7. 19 II. STANDARDS OF REVIEW 20 This action is governed by the Antiterrorism and Effective Death Penalty Act 21 (“AEDPA”). The standard of review under AEDPA is set forth at 28 U.S.C. § 2254(d):

22 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 23 was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 24 (1) resulted in a decision that was contrary to, or involved an unreasonable 25 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 26 (2) resulted in a decision that was based on an unreasonable determination of the 27 facts in light of the evidence presented in the State court proceeding. 1 A decision of a state court is “contrary to” clearly established federal law if the state court 2 arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if 3 the state court decides a case differently than the Supreme Court has on a set of materially 4 indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405–406 (2000). An 5 “unreasonable application” occurs when “a state-court decision unreasonably applies the law of 6 [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may 7 not issue the writ simply because that court concludes in its independent judgment that the 8 relevant state-court decision applied clearly established federal law erroneously or incorrectly.” 9 Id. at 411. 10 The Supreme Court has explained that “[a] federal court’s collateral review of a state- 11 court decision must be consistent with the respect due state courts in our federal system.” Miller- 12 El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential 13 standard for evaluating state-court rulings,’ . . . and ‘demands that state-court decisions be given 14 the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 15 521 U.S. 320, 333 n.7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). “A 16 state court’s determination that a claim lacks merit precludes federal habeas relief so long as 17 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. 18 Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 19 The Supreme Court has emphasized “that even a strong case for relief does not mean the state 20 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 21 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA 22 standard as “a difficult to meet” and “highly deferential standard for evaluating state-court 23 rulings, which demands that state-court decisions be given the benefit of the doubt”) (quotation 24 marks and citations omitted). 25 “[A] federal court may not second-guess a state court’s fact-finding process unless, after 26 review of the state-court record, it determines that the state court was not merely wrong, but 27 actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), overruled on other 1 grounds by Cullen v. Pinholster, 563 U.S. 170, 185 (2011); see also Miller-El, 537 U.S. at 340 2 (“[A] decision adjudicated on the merits in a state court and based on a factual determination will 3 not be overturned on factual grounds unless objectively unreasonable in light of the evidence 4 presented in the state-court proceeding, § 2254(d)(2).”). 5 III. DISCUSSION 6 A. Ground 1 7 In Ground 1, Heusner alleges that the State committed multiple acts of prosecutorial 8 misconduct which, taken together, violated his constitutional rights to due process and a fair trial. 9 He contends that the prosecutor improperly disparaged him during cross-examination and during 10 closing arguments. He also claims that the prosecutor shifted the burden of proof to the defense 11 and injected her personal opinion. 12 1. Heusner’s testimony. 13 Heusner testified in his own defense at trial. To provide context for the Court’s analysis 14 of Heusner’s claims of prosecutorial misconduct, here is a summary of his testimony on direct 15 examination. 16 Heusner and Tiffany were married in August 2004. See ECF No. 26-34 at 6. By the 17 summer of 2006, problems with the marriage prompted them to see a marriage counselor. See id. 18 In the spring of 2007, he began sleeping in a separate room because he was upset that Tiffany 19 wanted a divorce but did not “give a good enough reason.” Id. at 7. Because they been going to 20 counseling and had just signed a lease to rent a house, a divorce felt “too sudden” to him and he 21 suspected that “there was something else going on.” Id. After seeing that she had been having 22 long conversations with a particular person identified as “Prince” on her phone, he asked Tiffany 23 if she was seeing someone else. See id. She claimed it was “just a friend from work.” ECF No. 24 26-34. Whenever he asked her if she was involved with another man, Tiffany would deny it. See 25 id. at 8. 26 Soon thereafter, Tiffany served Heusner with a TPO that required him to be out of the 27 house for 30 days. See id. His reason for going by the house on the night of the murder was to 1 check if his mail had been accumulating in the mailbox. See id. at 10. He had ordered a battery 2 for his laptop on Ebay and did not know whether the seller would be able to send it to any other 3 address. See id. at 9. When he noticed a strange car with a still-warm engine in the driveway, he 4 went into the backyard where he was able to see that the only light on in the house was the 5 bathroom light. See ECF No. 26-34 at 10. At that point, he became “quite angry and emotional 6 because it [was] obvious what was going on, even though [he] didn’t know who the car had 7 belonged to.” Id. 8 Unsure of who or what he would encounter if he tried to enter the house, he went to 9 Walmart where he bought a baseball bat, some wine, Chapstick, and a bottle of cleaner. See id. at 10 10–11. He bought the bat for protection in case there was a confrontation with whoever was in 11 the house. See id. at 11. Though he contemplated whether to return to the house, his emotions 12 became so overwhelming that he just had to find out what was going on. See id. Specifically, he 13 “wanted to catch them in the act.” ECF No. 26-34 at 11. 14 When he returned to the house, he discovered that the locks had been changed, so he used 15 the bat to smash through a glass door. See id. As he walked through the house, the man he later 16 learned was Michael emerged, said something to him, and then charged at him, with both of 17 them falling by the sliding glass door in the master bedroom. See id. He panicked and started 18 hitting Michael with the bat. See id. He kept hitting him and also noticed that Tiffany was either 19 naked or wearing a towel, which confirmed his suspicions. See id. at 12. He tried to walk out, but 20 instead of leaving, he came back through the house. See ECF No. 26-34 at 12. When Michael ran 21 at him again, he hit Michael again. See id. Feeling terrible about what had happened, he started 22 to drive away but realized he had nowhere to go. See id. So he returned to the house where he 23 tried to commit suicide by drinking the wine and the cleaner. See id. He put the blanket on the 24 stove and turned the stove on because he was angry after seeing pictures of Michael and Tiffany 25 on the entertainment center. See id. 26 /// 27 /// 1 2. Alleged misconduct on cross-examination. 2 The prosecutor began her cross-examination of this testimony by confirming that 3 Heusner’s two-and-half year marriage to Tiffany was beset with problems. See ECF No. 26-34 at 4 13. Then the cross-examination proceeded as follows:

5 Q: And she made it very clear that she no longer wanted to be married to you?

6 A: I couldn’t.

7 Q: But you just didn’t think she had a good enough reason.

8 A: Yes.

9 Q. So she owed you an explanation [about why she wanted a divorce] and you’re the one to determine whether her explanation is good enough for you? 10 [Defense counsel]: Objection. Argumentative, your Honor. 11 THE COURT: Sustained. 12 Q: So just, you didn’t like her reason? 13 A: Her reason didn’t make sense. 14 Q: And it has to make sense to you? 15 A: It had to make sense overall, that’s the way I would put it. 16 Q. So if somebody doesn’t want to be married, it is for you to say whether they have the 17 right to get out or not?

18 [Defense counsel]: Objection. Argumentative.

19 THE COURT: Sustained. 20 Id. at 13-14. 21 Then, later in the cross-examination, the following exchange occurred:

22 Q. So if somebody went into a residence where a husband and wife had once lived, they kind of deserve what happens to them? 23 [Defense counsel]: Objection. Argumentative, your Honor. 24 [Prosecutor]: I’m just trying to clarify what he said. 25 [Defense counsel]: She is not clarifying it. She is phrasing it the way she wants it to be 26 phrased.

27 THE COURT: I’m going to sustain the objection and ask you to rephrase the question. 1 Id. at 17. 2 Based on the foregoing, Heusner claims that the prosecutor “improperly badgered and 3 harassed [him] . . . by asking repetitive and inflammatory questions attacking [his] character and 4 blatantly ignored the court’s ruling on defense counsel’s objections.” ECF No. 107 at 11–12. He 5 further claims that the prosecutor also disparaged him in closing arguments by arguing: “We’re 6 in his world and anyone who tries to interfere with his marriage will suffer the [w]rath.” ECF 7 No. 26-32 at 19. 8 3. Alleged misconduct by shifting burden of proof and injecting personal 9 opinion. 10 Heusner claims that the prosecutor improperly suggested the defense had a burden to 11 establish that he attempted to kill himself and then injected her personal opinion by making the 12 following comments during closing argument:

13 Now, with regard to this alleged suicide attempt. I would submit there was no suicide attempt. If he had really drunk a bottle of Draino or draining cleaner, he probably would 14 [have] shown some symptoms. Remember, the police were with him for hours. He never threw up, never did anything. Wow, that’s pretty amazing. Never injured, never went to 15 the hospital. No after effects. So I guess we can all drink a bottle of Draino and nothing will happen to us. 16 And, 17 I think the suicide is an attempt to pla[y on] your sympathy to again portray himself as the 18 victim and to take your eyes off the true victim in this case, Michael Clark.

19 Id. at 22. 20 4. Analysis. 21 Heusner cites Darden v. Wainwright, 477 U.S. 168 (1986), as support for his claim that 22 the prosecutor’s misconduct entitles him to habeas relief. See ECF No. 44 at 10. In Darden, the 23 Court held that “it ‘is not enough that the prosecutors’ remarks were undesirable or even 24 universally condemned.’” Darden, 477 U.S. at 181 (quoting Darden v. Wainwright, 699 F.2d 25 1031, 1036 (11th Cir. 1983). Instead, on federal habeas review, “[t]he relevant question is 26 whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting 27 1 conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 2 (1974)). 3 Here, the Nevada Supreme Court concluded that the prosecutor’s questions were 4 improper, but that they “were not disparaging or harassing” when considered in context. See 5 ECF No. 26-52 at 9. The court further noted that the trial court sustained the defense’s objections 6 and Heusner did not answer the questions. See id. at 9–10. Accordingly, the court held that any 7 error was harmless and did not warrant reversal. See id. at 10. 8 With respect to the prosecutor’s comments about Heusner’s alleged suicide attempt, the 9 Nevada Supreme Court found them improper because a prosecutor is not permitted to comment 10 on a defendant’s failure to present witnesses. See id. at 12. Once again, however, the court 11 concluded the Heusner had failed to demonstrate sufficient prejudice to warrant reversal. See id. 12 This Court must defer to the Nevada Supreme Court’s rejection of Heusner’s 13 prosecutorial misconduct claims unless Heusner can show that the ruling “was so lacking in 14 justification that there was an error well understood and comprehended in existing law beyond 15 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Heusner has not met that 16 burden. Even if improper, the conduct he cites was relatively innocuous compared to the 17 misconduct in Darden that the Court determined was improper but still not sufficiently 18 prejudicial to warrant habeas relief. See Darden, 477 U.S. at 180 n.11 (prosecutor referred to the 19 defendant as an “animal”); id. at 180 n.12 (“I wish I could see [the defendant] with no face, 20 blown away by a shotgun.”). In addition, substantial evidence supported a finding of Heusner’s 21 guilt on all charges. See id. at 182 (reasoning that overwhelming evidence “reduced the 22 likelihood that the jury’s decision was influenced by” the prosecutor's misconduct). Thus, 23 Ground 1 is denied. 24 B. Ground 2 25 In Ground 2, Heusner alleges that the admission of testimony regarding his invocation of 26 his right to remain silent violated his constitutional rights. 27 1. Testimony allegedly implicating Heusner’s right to remain silent. 1 Heusner points to testimony from police officers describing his post-arrest conduct and 2 his own testimony on cross-examination in response to a question about his suicide attempt. 3 Michael Farage of the North Las Vegas Police Department testified as follows: 4 Q. Did you advise [Heusner] of his Miranda rights? 5 A. Yes, I did. 6 . . . . 7 Q. Okay. And what was his reaction to you reading them? 8 [Defense counsel]: Objection, and ask to approach, Your Honor. 9 THE COURT: Sure. 10 (Thereupon, a brief discussion was held at the bench). 11 THE COURT: I’m going to sustain the objection to that question. 12 ECF No. 26-31 at 25. 13 The prosecutor then asked Farage whether Heusner “inquire[d] as to the victim’s 14 condition,” to which Farage responded in the negative. See id. Later in his testimony, Farage 15 stated that Heusner “didn’t want to deal with the police” and was “defiant.” Id. 16 Michael Loyd, another officer with the North Las Vegas Police Department, testified that 17 Heusner “didn’t have any remorse . . . for what was going on . . . .” Id. at 30–31. The court 18 sustained defense counsel’s objection to that testimony and ordered that it be stricken and 19 disregarded by the jury. See id. at 31. Then, during Heusner’s cross-examination, the prosecutor 20 questioned Heusner about his suicide attempt:

21 Q. You never told anyone until today?

22 A. What do you mean?

23 [Defense counsel]: Objection. I ask to approach.

24 (A nonreported sidebar conference was held)

25 THE COURT: I’m going to sustain the objection. I am going to ask the jury to disregard the last question and the last answer. I am going to order it stricken. 26 27 ECF No. 26-34 at 25. 1 2. Analysis. 2 Heusner argues that the Nevada Supreme Court correctly concluded that the comments 3 on his post-arrest silence were improper but that the court’s decision that any error was harmless 4 was based on an unreasonable determination of the facts. The court concluded that the police 5 officer’s comments were “harmless beyond a reasonable doubt for two reasons: (1) the district 6 court sustained the defense’s objections when made and ordered one of the statements stricken 7 from the record, and (2) overwhelming evidence supports Heusner’s convictions.” ECF No. 26- 8 52 at 13 (citation omitted). Similarly, the court concluded that the prosecutor’s question about 9 Heusner’s suicide attempt was also harmless beyond a reasonable doubt “because the district 10 court sustained the objection, instructed the jury to disregard the objected-to answer and question 11 and ordered them stricken from the record, and Heusner's convictions are supported by 12 overwhelming evidence.” Id. at 14. 13 The Nevada Supreme Court’s harmless error determination was a merits decision for 14 section 2254(d)(1) purposes. See Davis v. Ayala, 576 U.S. 257, 269 (2015) (“There is no dispute 15 that the California Supreme Court held that any federal error was harmless beyond a reasonable 16 doubt under Chapman, and this decision undoubtedly constitutes an adjudication of Ayala's 17 constitutional claim ‘on the merits.’”) (citation omitted); see also Brown v. Davenport, 596 U.S. 18 118, 127 (2022) (“No one questions that a state court's harmless-error determination qualifies as 19 an adjudication on the merits under AEDPA.”) (citations omitted). In addition, federal habeas 20 petitioners “are not entitled to habeas relief based on trial error unless they can establish that it 21 resulted in ‘actual prejudice’” under Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Brecht, 22 “relief is proper only if the federal court has grave doubt about whether a trial error of federal 23 law had substantial and injurious effect or influence in determining the jury's verdict.” Ayala, 24 576 U.S. at 267–68 (quotation marks and citation omitted). In other words,“[t]here must be more 25 than a ‘reasonable possibility’ that the error was harmful,” because “a ‘State is not to be put to 26 th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was 27 prejudiced by trial error.’” Id. at 268 (citation omitted). The Ayala Court clarified that Brecht 1 “subsumes” the requirements of AEDPA. See id. at 270. Thus, if a state court has determined 2 that a trial error was harmless, then “‘a federal court may not award habeas relief under § 2254 3 unless the harmlessness determination itself was unreasonable.’” Id. (quoting Fry v. Pliler, 551 4 U.S. 112, 119 (2007)). 5 Under these standards, Heusner has not met his burden under § 2254(d) because the 6 Nevada Supreme Court’s harmless error decision was not objectively unreasonable. He argues 7 that the jury most likely found him guilty of first-degree murder under a felony murder theory 8 but that there was not overwhelming evidence of burglary—i.e., that he entered the house with 9 the intent to commit battery or assault. His argument ignores that the jury’s finding that he was 10 guilty of invasion of the home was also sufficient to support a finding of first-degree murder 11 under a felony murder theory. See NEV. REV. STAT. § 200.030(1)(b); ECF No. 26-33 at 24 (jury 12 instruction on the felony murder rule). That point aside, this Court is not convinced that the 13 Nevada Supreme Court’s harmless error determination with respect to the burglary conviction 14 was unreasonable. 15 In Nevada, assault includes “intentionally placing another person in reasonable 16 apprehension of immediate bodily harm.” NEV. REV. STAT. § 200.471. The jury was instructed 17 that Heusner’s intention upon entering the home is a question of fact “that may be inferred from 18 the Defendant’s conduct and all other circumstances disclosed by the evidence.” ECF No. 26-33 19 at 10. Heusner’s own testimony was that “it was obvious what was going on” between Tiffany 20 and whoever was in the house and that “he wanted to catch them in the act.” ECF No. 26-34. He 21 also admitted that, after returning from Walmart, he parked his car down the street from 22 Tiffany’s house to create an element of surprise. See id at 19. He further testified that he hopped 23 over a six-foot wall to get into the backyard and, when his key did not work, he used the baseball 24 bat he had just purchased to open the back door. See id. The undisputed testimony of the medical 25 examiner who conducted Michael’s autopsy was that Heusner struck Michael in the head with 26 the bat at least twelve times. See ECF No. 26-31 at 19. 27 1 In light of this evidence, there is not more than a reasonable possibility that the improper 2 references to Heusner’s post-arrest silence, which were relatively subtle, impacted the jury’s 3 decision to find him guilty of burglary. Put another way, there was ample evidence aside from 4 the improper references for the jury to infer that Heusner entered Tiffany’s house with the 5 intention of placing another person in reasonable apprehension of bodily harm. Thus, the Nevada 6 Supreme Court’s finding that any error was harmless was not objectively unreasonable under the 7 aforementioned section 2254(d) standards. Accordingly, the state court’s decision rejecting 8 Heusner’s claim must be accorded deference under section 2254(d), and Ground 2 must be 9 denied. 10 C. Ground 7 11 In Ground 7, Heusner alleges that he is entitled to habeas relief because of the cumulative 12 effect of errors alleged above. On direct appeal, the Nevada Supreme Court rejected Heusner’s 13 cumulative error claim, which included the errors at issue here, by concluding “that any error in 14 this case, when considered either individually or cumulatively, does not warrant relief.” ECF No. 15 26-52 at 21. Heusner does explain how this conclusion was contrary to, or involved an 16 unreasonable application of, clearly established Federal law, as determined by the Supreme 17 Court of the United States. See Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (“[T]he 18 law of this Circuit is that cumulative error claims are not cognizable on habeas because the 19 Supreme Court has not spoken on this issue.”). And, for reasons discussed above, the Nevada 20 Supreme Court’s decision was not based on an unreasonable determination of the facts. Thus. 21 Ground 7 is denied. 22 IV. CONCLUSION 23 For the reasons set forth above, Heusner’s petition for habeas relief is denied. 24 Certificate of Appealability 25 This is a final order adverse to a habeas petitioner. As such, Rule 11 of the Rules 26 Governing Section 2254 Cases requires this Court to issue or deny a certificate of appealability 27 (COA). Accordingly, the Court has sua sponte evaluated the claims within the petition for 1 || suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 2 || 851, 864-65 (9th Cir. 2002). 3 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made 4 || a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). With 5 || respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists 6 || would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 7 || v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & 893 n.4 8 || (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) 9 || whether the petition states a valid claim of the denial of a constitutional right and (2) whether the 10 || court’s procedural ruling was correct. See id. 11 Having reviewed its own determinations and its own rulings in adjudicating Heusner’s 12 || petition, the Court declines to issue a certificate of appealability for the resolution of any 13 || procedural issues or any of Heusner’s habeas claims. 14 Therefore, IT IS HEREBY ORDERED that Heusner’s second amended petition for writ 15 || of habeas corpus (ECF No. 44) is DENIED. The Clerk shall enter judgment accordingly and 16 || close this case. 17 IT IS FURTHER ORDERED that a certificate of appealability.is DENIED. 18 19 DATED: November 4, 2025. AK 20 RICHARD F. BOULWARE, I 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28