2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4
5 RONALD EUGENE ALLEN, Jr., Case No. 3:21-cv-00141-ART-CSD
6 Petitioner, ORDER
7 v.
8 NETHANJAH BREITENBACH, et al.,
9 Respondents.
10 11 I. SUMMARY 12 This habeas corpus action is brought by Ronald Eugene Allen, Jr., an 13 individual incarcerated at Nevada’s Ely State Prison. Allen is represented by 14 appointed counsel. The case is before the Court for resolution on the merits of 15 Allen’s claims. The Court denies Allen habeas corpus relief and denies him a 16 certificate of appealability. 17 II. BACKGROUND 18 In its ruling on Allen’s direct appeal, the Nevada Court of Appeals described 19 the factual background of the case as follows:
20 Ronald Eugene Allen, Jr., appeals from a judgment of conviction, pursuant to a jury verdict, of invasion of the home, 21 burglary while in possession of a deadly weapon, battery with use of a deadly weapon resulting in substantial bodily harm constituting 22 domestic violence, and battery with intent to kill constituting domestic violence. Eighth Judicial District Court, Clark County; 23 Jerry A Wiese, Judge.
24 Allen was arrested for breaking into his mother’s apartment and beating her with a baseball bat, seriously injuring her. The State 25 charged him with invasion of the home, burglary while in possession of a deadly weapon, attempted murder with use of a deadly weapon, 26 battery with use of a deadly weapon resulting in substantial bodily harm constituting domestic violence, and battery with intent to kill 27 constituting domestic violence. At trial, the State presented testimony from the victim and the victim’s daughter, who was on the 28 phone with the victim when Allen broke into the home and began to 1 testimony from those who were involved with the investigation or the victim’s healthcare. The Defense did not present any witnesses, 2 arguing that the State did not prove its case because only the victim’s testimony linked Allen to the crime. The jury found Allen guilty of all 3 charges except an alternative charge of attempted murder with use of a deadly weapon. 4 * * * 5 … [T]he victim testified that Allen broke into her home through 6 a window and beat her. The victim’s daughter testified that she overheard glass breaking, her mother exclaim “no, Ronnie, no,” and 7 her mother screaming. A police officer and a detective testified that the victim identified Allen as her attacker immediately following the 8 crime. The State also presented a portion of the victim’s 911 call, wherein she identified Allen as her attacker, as well as other evidence 9 of the victim’s injuries and the crime scene. 10 (ECF No. 33-23, pp. 2–4.) 11 Allen was sentenced, as a habitual criminal, to four concurrent sentences 12 of life in prison with the possibility of parole after ten years. (See ECF Nos. 32- 13 18, 32-20.) The judgment of conviction was entered on September 8, 2017. (ECF 14 No. 32-20.) 15 Allen appealed, and the Nevada Court of Appeals affirmed the judgment of 16 conviction on December 14, 2018. (ECF No. 33-23.) 17 Allen then filed a pro se petition for writ of habeas corpus in the state 18 district court. (ECF No. 33-26.) He requested appointment of counsel and an 19 evidentiary hearing, both of which were denied. (ECF Nos. 33-27, 33-29, 33-32, 20 34-3.) The state district court denied Allen’s petition in a written order filed on 21 May 6, 2020. (ECF No. 34-3.) Allen appealed, and the Nevada Court of Appeals 22 affirmed on January 22, 2021. (ECF No. 34-10.) 23 Allen initiated this federal habeas corpus action by submitting a pro se 24 petition for writ of habeas corpus for filing on March 29, 2021. (ECF Nos. 1, 4.) 25 The Court appointed counsel for Allen (ECF No. 3), and, with counsel, Allen filed 26 a first amended habeas petition on May 11, 2021 (ECF No. 11) and a second 27 amended habeas petition on November 5, 2021 (ECF No. 22). 28 // 1 Allen’s second amended petition—now his operative petition—asserts the 2 following claims for habeas corpus relief:
3 Ground 1: “Allen was convicted of all counts on insufficient evidence in violation of the Fifth, Sixth and Fourteenth Amendments 4 to the United States Constitution.”
5 Ground 2: “The trial court deprived Allen of due process and a fair trial when it did not allow Allen to present a full defense in violation 6 of the Fifth and Fourteenth Amendments to the United States Constitution.” 7 Ground 3: “Allen’s attorney ineffectively failed to investigate 8 potential defense witnesses in violation of the Sixth and Fourteenth Amendments to the United States Constitution.” 9 Ground 4: “Allen’s appellate attorney ineffectively failed to 10 challenge the jury instruction on implied malice in violation of the Sixth and Fourteenth Amendments to the United States 11 Constitution.”
12 Ground 5: “Allen’s appellate attorney ineffectively failed to challenge the notice requirement for a testifying witness in violation 13 of the Sixth and Fourteenth Amendments to the United States Constitution.” 14 Ground 6: “The trial court deprived Allen of due process and a fair 15 trial when it did not allow Allen to impeach the State’s main witness with her prior bad acts in violation of the Fifth and Fourteenth 16 Amendments to the United States Constitution.” 17 (ECF No. 22.) 18 Respondents filed a motion to dismiss (ECF No. 28), arguing that Grounds 19 2 and 3 of Allen’s second amended petition are unexhausted in state court, and 20 that Ground 6 is procedurally defaulted. On March 9, 2023, the Court granted 21 that motion in part, and dismissed Grounds 2 and 6 (ECF No. 45). 22 Respondents then filed an answer on May 8, 2023 (ECF No. 47), responding 23 to Allen’s remaining claims. Allen filed a reply on June 7, 2023 (ECF No. 48). 24 Respondents filed a response to Allen’s reply on June 30, 2023 (ECF No. 49). 25 III. DISCUSSION 26 A. Exhaustion and Procedural Default – Legal Principles 27 A federal court generally cannot grant a state prisoner’s petition for writ of 28 habeas corpus unless the petitioner has exhausted available state-court 1 remedies. 28 U.S.C. § 2254(b); see also Rose v. Lundy, 455 U.S. 509 (1982). This 2 means that a petitioner must give the state courts a fair opportunity to act on 3 each of his claims before he presents those claims in a federal habeas petition. 4 See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A claim remains 5 unexhausted until the petitioner has given the highest available state court the 6 opportunity to consider the claim through direct appeal or state collateral review 7 proceedings. See Casey v. Byford, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. 8 McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). The petitioner must “present the 9 state courts with the same claim he urges upon the federal court.” Picard v. 10 Connor, 404 U.S. 270, 276 (1971). A claim is not exhausted unless the petitioner 11 has presented to the state court the same operative facts and legal theory upon 12 which his federal habeas claim is based. See Bland v. California Dept. of 13 Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion requirement is 14 not met when the petitioner presents to the federal court facts or evidence which 15 place the claim in a significantly different posture than it was in the state courts, 16 or where different facts are presented to the federal court in support of the claim. 17 See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988). On the other hand, new 18 allegations that do not “fundamentally alter the legal claim already considered by 19 the state courts” do not render a claim unexhausted. Vasquez v. Hillery, 474 U.S. 20 254, 260 (1986); see also Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994). 21 The Supreme Court has recognized that in some cases it may be 22 appropriate for a federal court to anticipate a state-law procedural bar of a claim 23 never presented in state court, and to treat such a claim as technically exhausted 24 but subject to the procedural default doctrine. “An unexhausted claim will be 25 procedurally defaulted, if state procedural rules would now bar the petitioner 26 from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 1317 27 (9th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). 28 // 1 In this case, the parties appear to agree, and the Court concurs, that any 2 claims not yet presented in state court would now be procedurally barred—for 3 example, under Nev. Rev. Stat. § 34.726 (statute of limitations) and/or § 34.810 4 (successive petitions)—if Allen were to return to state court to exhaust those 5 claims. (See ECF No. 43 at 6–7 (Allen concedes as much regarding Ground 3 and 6 does not make any argument that the same should not apply to any of his other 7 claims); ECF No. 44 at 4 (Respondents’ position).) Therefore, the anticipatory 8 default doctrine applies to claims Allen has not presented in state court, and the 9 Court considers such claims to be technically exhausted but subject to the 10 procedural default doctrine. See Dickens, 740 F.3d at 1317. 11 Turning to the procedural default doctrine, a federal court will not review 12 a claim for habeas corpus relief if the decision of the state court denying the claim 13 rested—or, in the case of a technically exhausted claim, would rest—on a state 14 law ground that is independent of the federal question and adequate to support 15 the judgment. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). The Court in 16 Coleman described the effect of a procedural default as follows:
17 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state 18 procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual 19 prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a 20 fundamental miscarriage of justice. 21 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 22 To demonstrate cause for a procedural default, the petitioner must “show 23 that some objective factor external to the defense impeded” his efforts to comply 24 with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the 25 external impediment must have prevented the petitioner from raising the claim. 26 See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the question of 27 prejudice, the petitioner bears “the burden of showing not merely that the errors 28 [complained of] constituted a possibility of prejudice, but that they worked to his 1 actual and substantial disadvantage, infecting his entire [proceeding] with errors 2 of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), 3 (citing United States v. Frady, 456 U.S. 152, 170 (1982)). 4 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that 5 ineffective assistance of counsel or lack of counsel in state post-conviction 6 proceedings may serve as cause, to overcome the procedural default of a claim of 7 ineffective assistance of trial counsel. To establish cause and prejudice under 8 Martinez, the habeas petitioner must show: (1) the underlying claim of ineffective 9 assistance of trial counsel must be “substantial”; (2) the procedural default must 10 have been caused by state post-conviction counsel’s ineffectiveness or the lack of 11 counsel during the state post-conviction proceeding; (3) the post-conviction 12 proceeding was the “initial” collateral review proceeding where the claim of 13 ineffective assistance of trial counsel could have been brought; and (4) state law 14 or its practical procedures required that the claim of ineffective assistance of trial 15 counsel be raised in the initial post-conviction proceeding, rather than on direct 16 appeal. See Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013). The failure to satisfy 17 any prong of the Martinez analysis means that the procedural default is not 18 excused. 19 B. AEDPA Standard of Review 20 28 U.S.C. § 2254(d), enacted as part of the Antiterrorism and Effective 21 Death Penalty Act of 1996 (AEDPA), sets forth the standard of review generally 22 applicable to claims asserted and resolved on their merits in state court:
23 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall 24 not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 25 claim―
26 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 27 determined by the Supreme Court of the United States; or
28 // 1 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 2 State court proceeding. 3 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established 4 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d)(1), “if the 5 state court applies a rule that contradicts the governing law set forth in [the 6 Supreme Court’s] cases” or “if the state court confronts a set of facts that are 7 materially indistinguishable from a decision of [the Supreme Court] and 8 nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 9 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 10 362, 405–06 (2000)). A state court decision is an unreasonable application of 11 clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 12 2254(d)(1), “if the state court identifies the correct governing legal principle from 13 [the Supreme Court’s] decisions but unreasonably applies that principle to the 14 facts of the prisoner’s case.” Lockyer, 538 U.S. at 75 (quoting Williams, 529 U.S. 15 at 413). The “unreasonable application” clause requires the state court decision 16 to be more than incorrect or erroneous; the state court’s application of clearly 17 established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. 18 at 409). The analysis under section 2254(d) looks to the law that was clearly 19 established by United States Supreme Court precedent at the time of the state 20 court’s decision. Wiggins v. Smith, 539 U.S. 510, 520 (2003). 21 The Supreme Court has instructed that “[a] state court’s determination that 22 a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 23 could disagree’ on the correctness of the state court’s decision.” Harrington v. 24 Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 25 664 (2004)). The Supreme Court has also instructed that “even a strong case for 26 relief does not mean the state court’s contrary conclusion was unreasonable.” Id. 27 at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 28 181 (2011) (AEDPA standard is “a difficult to meet and highly deferential standard 1 for evaluating state-court rulings, which demands that state-court decisions be 2 given the benefit of the doubt” (internal quotation marks and citations omitted)). 3 C. Ineffective Assistance of Counsel - Legal Principles 4 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court 5 established a two-prong test for claims of ineffective assistance of counsel: the 6 petitioner must demonstrate (1) that the attorney’s representation “fell below an 7 objective standard of reasonableness,” and (2) that the attorney’s deficient 8 performance prejudiced the defendant such that “there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the 10 proceeding would have been different.” Strickland, 466 U.S. at 688, 694. A court 11 considering a claim of ineffective assistance of counsel must apply a “strong 12 presumption” that counsel’s representation was within the “wide range” of 13 reasonable professional assistance. Id. at 689. The petitioner’s burden is to show 14 “that counsel made errors so serious that counsel was not functioning as the 15 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. In 16 analyzing a claim of ineffective assistance of counsel under Strickland, a court 17 may first consider either the question of deficient performance or the question of 18 prejudice; if the petitioner fails to satisfy one element of the claim, the court need 19 not consider the other. See Strickland, 466 U.S. at 697. 20 Where a state court previously adjudicated a claim of ineffective assistance 21 of counsel under Strickland, establishing that the decision was unreasonable is 22 especially difficult. See Harrington, 562 U.S. at 104–05. In Harrington, the 23 Supreme Court explained that, in such cases, “[t]he standards created by 24 Strickland and § 2254(d) are both highly deferential … and when the two apply 25 in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (citing Knowles v. 26 Mirzayance, 556 U.S. 111, 123 (2009)); see also Cheney v. Washington, 614 F.3d 27 987, 994–95 (2010) (double deference required with respect to state court 28 adjudications of Strickland claims). 1 D. Analysis of Claims 2 1. Ground 1 3 In Ground 1, Allen claims that he “was convicted of all counts on 4 insufficient evidence in violation of the Fifth, Sixth and Fourteenth Amendments 5 to the United States Constitution.” (ECF No. 22 at 5–7.) Allen claims:
6 … The evidence against Allen was based only on the testimony of [the victim, his mother, Pamela Powell]. Although the State called 7 Nichelle Carter (Powell’s daughter) to testify that Allen was the person who committed crimes against Powell, Carter was not present 8 when the alleged incident occurred. Rather, she was on the phone with Powell. The State also called Officer John Bethard to testify Allen 9 was Powell’s attacker, but he too was not present when the alleged incident took place. Therefore, Allen’s conviction was based only on 10 the testimony of Powell.
11 Even though crime scene analyst Caitlan King responded to the scene, she collected no evidence for DNA testing, and she didn’t 12 dust for fingerprints. Rather, she simply took Powell’s word for it that Allen was the attacker. Furthermore, even though Powell said she 13 was attacked with a bat, no bat was ever recovered.
14 Thus, there was no independent evidence presented during Allen’s trial to corroborate Powell’s allegation that Allen was the 15 attacker.
16 Importantly, there was another possible suspect for the crime against Powell. Huey Peter Banks, Powell’s fiancé, lived in the 17 apartment with her. Banks was at the apartment where Powell was attacked on the day she was attacked. Based on their relationship, 18 Powell had motive to protect Banks had he been the one to attack her. But there was no police investigation into Banks. 19 Therefore, there was insufficient evidence, beyond a 20 reasonable doubt, to sustain the convictions against Allen. 21 (Id. at 5–6 (footnotes omitted); see also ECF No. 48 at 8-9.) 22 Allen asserted this claim on his direct appeal, and the Nevada Court of 23 Appeals denied relief on the claim, ruling as follows:
24 When reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution 25 and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 26 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). “[I]t is the function of the 27 jury, not the appellate court, to weigh the evidence and pass upon the credibility of the witness.” Walker v. State, 91 Nev. 724, 726, 542 28 P.2d 438, 439 (1975). Circumstantial evidence is enough to support 1 68 (1997), holding limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998). Moreover, so 2 long as the victim testifies with some particularity regarding the incident, the victim’s testimony alone is sufficient to uphold a 3 conviction. Rose v. State, 123 Nev. 194, 203, 163 P.3d 408, 414 (2007). 4 Here, the victim testified that Allen broke into her home 5 through a window and beat her. The victim’s daughter testified that she overheard glass breaking, her mother exclaim "no, Ronnie, no," 6 and her mother screaming. A police officer and a detective testified that the victim identified Allen as her attacker immediately following 7 the crime. The State also presented a portion of the victim’s 911 call, wherein she identified Allen as her attacker, as well as other evidence 8 of the victim’s injuries and the crime scene.
9 The jury could reasonably infer from the evidence presented that Allen committed the charged crimes. See, NRS 205.067 (defining 10 invasion of the home); NRS 205.060 (defining burglary); NRS 200.481 (defining battery); NRS 200.485 (defining battery constituting 11 domestic violence) NRS 200.400 (addressing battery with intent to kill); NRS 33.018 (defining acts which constitute domestic violence). 12 It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury’s verdict will not be disturbed on 13 appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also 14 McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). 15 (ECF No. 33-23 at 3–4 (emphasis in original).) 16 When federal courts “assess a sufficiency of evidence challenge in the case 17 of a state prisoner seeking federal habeas corpus relief subject to the strictures 18 of AEDPA, there is a double dose of deference that can rarely be surmounted.” 19 Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). First, the Jackson standard 20 is deferential. Id. And second, the state court’s determination of the sufficiency 21 of the evidence claim is entitled to deference under 28 U.S.C. 2254(d). Id. at 964– 22 65. 23 This Court determines that this claim is meritless. In this Court’s view, the 24 evidence against Allen was overwhelming; it certainly was not insufficient to 25 support the convictions. The Nevada Court of Appeals’ ruling on this claim was 26 not contrary to, or an unreasonable application of, Jackson, or any other 27 Supreme Court precedent. The Court will deny Allen habeas corpus relief on 28 Ground 1. 1 2. Ground 3 2 In Ground 3, Allen claims that his trial counsel “ineffectively failed to 3 investigate potential defense witnesses in violation of the Sixth and Fourteenth 4 Amendments to the United States Constitution.” (ECF No. 22 at 9–10.) Allen’s 5 claim in Ground 3 is, in its entirety, as follows:
6 Trial counsel failed to investigate, locate and subpoena potential witnesses that could have provided testimony at Allen’s trial 7 which would have called into question the credibility of the State’s main witness, Powell. Trial counsel was aware through police reports 8 and discovery that there were witnesses (with no motive to help Allen) who made statements that were exculpatory for Allen and that were 9 inconsistent with Powell’s statements to police and her testimony. For example, a witness, Laurie Arnold, told police that she heard 10 screaming and then saw a man leave Powell’s apartment and get into a four door car. But Allen drove a two door car. The name and 11 address of this witness was available to trial counsel, yet counsel failed to attempt to locate and interview this witness. This was 12 ineffective assistance of counsel which deprived Allen of his right to a fair trial and due process. There is a reasonable probability the 13 outcome of Allen’s trial would have been different had his attorney investigated witnesses. Allen was prejudiced by his attorney’s failure. 14 Any contrary decision by a state court would be contrary to, or 15 an unreasonable application of, clearly established federal law, and/or would involve an unreasonable determination of the facts. 16 See 28 U.S.C. 2254(d)(1) and (2). The writ should be granted and the conviction and sentence should be vacated. 17 This claim was presented to the Nevada Court of Appeals 18 during postconviction proceedings. 19 (Ibid. (footnotes omitted); see also ECF No. 48 at 11–12.) 20 In his state habeas action, Allen asserted a similar claim, as Ground 2 of 21 his petition in that case, but in that claim in state court he did not identify the 22 one witness he identifies in Ground 3 in this case. The Nevada Court of Appeals 23 denied relief on the claim, ruling as follows:
24 … Allen claimed trial counsel failed to investigate the crime charged, locate and subpoena certain witnesses, and present the 25 witnesses’ testimony. Allen’s bare claim did not identify the witnesses, specify what the outcome of the investigation would have 26 been, indicate what their testimony would have been, or explain how their testimony would have affected the outcome of the trial. We 27 therefore conclude the district court did not err by denying this claim without first conducting an evidentiary hearing. See Molina v. State, 28 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). 1 (ECF No. 34-10, p. 3.) 2 In the order resolving Respondents’ motion to dismiss in this case, this 3 Court stated the following about this claim:
4 The obvious difference between Ground 3 in this case and Ground 2 of Allen’s state petition is that in this case Allen identifies 5 a witness whom he believes his trial counsel should have investigated. That difference “place[s] the claim in a significantly 6 different posture than it was in the state courts.” See Nevius, 852 F.2d at 470. Indeed, Allen’s failure to identify any such witness in 7 his state petition was the reason for the state courts’ denial of relief on the claim. (See ECF No. 34-3, p. 4; ECF No. 34-10, p. 3.) 8 Therefore, the Court determines that this claim, as now 9 presented in Ground 3, was not exhausted in Allen’s state habeas action. The claim is, however, technically exhausted but subject to 10 the procedural default doctrine. (See ECF No. 43, p. 9 (Allen concedes that “[i]f this Court determines Allen has not presented the claim in 11 Ground Three to the Nevada state courts, the claim is technically exhausted and procedurally defaulted”).) Allen argues, though, that 12 he can overcome the procedural default under Martinez. (See id. at 10–11.) 13 The Court determines that the question whether Allen can 14 overcome this procedural default under Martinez is intertwined with the merits of the claim, such that it will be better addressed after the 15 parties brief the merits of the claim in Respondents’ answer and Allen’s reply. The Court will, therefore, deny Respondents’ motion to 16 dismiss with respect to this claim, without prejudice to Respondents asserting the procedural default defense to the claim—along with 17 their arguments on the merits of the claim—in their answer. 18 (ECF No. 45 at 10; see also ECF No. 48 at 13–14 (Allen conceding that “[h]ere, 19 the claim is technically exhausted because state procedural rules would bar 20 consideration of the claim,” and arguing that he can overcome the procedural 21 default of the claim under Martinez). 22 There is no question that Allen can show cause for the procedural default 23 of the claim in Ground 3, because he was not represented by counsel in his state 24 habeas action. See ECF No. 47 at 11 (Respondents conceding that “Allen was not 25 represented by counsel during his initial state post-conviction petition, so he 26 established cause”). The determinative questions, though, are whether Allen 27 shows prejudice—whether he was prejudiced by his trial counsel not 28 investigating witness Laurie Arnold and by his not raising the claim in his state 1 habeas action—and whether his ineffective assistance of trial counsel claim is 2 substantial within the meaning of Martinez. The Court determines that he does 3 not make either showing. 4 Arnold gave a voluntary statement to the police, in which she stated:
5 Heard a lady screaming then a loud sound of glass breaking, saw black male walk to car & leave/car gold or tan 4 dr. 6 7 ECF No. 23-1. Allen claims Arnold’s statement, and her testimony at trial, had it 8 been obtained, were exculpatory because she said she saw the suspect get into a 9 four-door car, whereas Allen drove a two-door car. 10 But Allen’s claim remains undeveloped. While Allen does now identify a 11 witness, he still does not “specify what the outcome of the investigation would 12 have been, indicate what [Arnold’s] testimony would have been, or explain how 13 [Arnold’s] testimony would have affected the outcome of the trial” (in the terms 14 used by the Nevada Court of Appeals, see ECF No. 34-10 at 3). Allen cites only 15 Arnold’s 25-word statement to the police as support for his claim. Allen does not 16 suggest that any investigation has yet been done regarding Arnold and her 17 observations, or regarding how Arnold would have testified if called as a witness 18 at Allen’s trial. There is no showing of the circumstances surrounding Arnold’s 19 observations or, more specifically, her certainty with respect to whether the car 20 in question had two or four doors. Allen’s claim remains “bare,” as the Nevada 21 Court of Appeals put it. 22 Furthermore, the detail regarding whether the car Arnold saw had two or 23 four doors is minor in the context of her statement to the police, and it is the only 24 inconsistency between her statement and the evidence against Allen at trial. The 25 screaming and the sound of glass breaking are consistent with testimony of 26 Powell and her daughter, Nichelle Carter; Allen is a black male; Allen’s car was 27 described at trial as being in the range of gold, bronze, brown or tan. See ECF 28 No. 31-4 at 113–20 (testimony of Powell); ECF No. 31-4 at 102–05 (testimony of 1 Carter); ECF No. 31-4 at 38–39 (testimony of Jessica Wert). Given that Arnold’s 2 brief statement to the police was largely consistent with other evidence at trial, 3 the Court determines that Allen does not show any reasonable probability that a 4 jury would have acquitted him if they knew that Arnold described the car the 5 suspect left in as a four-door car rather than a two-door car. 6 Allen does not show prejudice to overcome the procedural default of this 7 claim of ineffective assistance of trial counsel, and the claim is insubstantial 8 within the meaning of Martinez. The Court will deny the claim in Ground 3 as 9 procedurally defaulted. 10 3. Ground 4 11 In Ground 4, Allen claims that his appellate counsel “ineffectively failed to 12 challenge the jury instruction on implied malice in violation of the Sixth and 13 Fourteenth Amendments to the United States Constitution.” (ECF No. 22 at 10– 14 13.) More specifically, Allen claims that his appellate counsel should have claimed 15 that it was error to include the definition of implied malice in the instruction on 16 malice, because the malice element of attempted murder requires proof of express 17 malice, rendering the implied malice definition inapplicable. (See id.) 18 Allen asserted this claim in his state habeas action, and the Nevada Court 19 of Appeals denied relief on the claim, ruling as follows:
20 ... Allen claimed appellate counsel was ineffective for failing to challenge the response given to the jury regarding malice and the 21 associated jury instruction. Allen was acquitted of the only charge for which malice was an element. Because Allen was acquitted of the 22 relevant charge, any claim regarding the malice jury instruction would have been futile. See NRS 178.598. We therefore conclude the 23 district court did not err by denying this claim without first conducting an evidentiary hearing. 24 25 (ECF No. 34-10 at 4.) 26 The series of instructions given to the jury that related to attempted murder 27 was as follows: 28 // 1 Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be 2 effected by any of the various means by which death may be occasioned. 3 4 (Id. at 21 (Instruction No. 19).)
5 Malice aforethought means the intentional doing of a wrongful act without legal cause or excuse or what the law considers adequate 6 provocation. The condition of mind described as malice aforethought may arise, from anger, hatred, revenge or from particular ill will, spite 7 or grudge toward the person killed. It may also arise from any unjustifiable or unlawful motive or purpose to injure another, 8 proceeding from a heart fatally bent on mischief, or with reckless disregard of consequences and social duty. 9 Malice aforethought does not imply deliberation or the lapse of 10 any considerable time between the malicious intention to injure another and the actual execution of the intent but denotes an 11 unlawful purpose and design as opposed to accident and mischance. 12 (Id. at 22 (Instruction No. 20).)
13 Express malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external 14 circumstances capable of proof.
15 Malice may be implied when no considerable provocation appears, or when all the circumstances of the killing show an 16 abandoned and malignant heart. 17 (Id. at 23 (Instruction No. 21).)
18 Attempted Murder is the performance of an act or acts which tend, but fail, to kill a human being, when such acts are done with 19 express malice, namely, with the deliberate intention unlawfully to kill. 20 21 (Id. at 24 (Instruction No. 22).)
22 The intention to kill may be ascertained or deduced from the facts and circumstances of the killing, such as the use of a weapon 23 calculated to produce death, the manner of its use, and the attendant circumstances characterizing the act. 24 25 (Id. at 25 (Instruction No. 23).)
26 You are instructed that if you find the Defendant guilty of Attempt Murder, you must also determine whether or not the 27 Defendant used a deadly weapon during the commission of the Attempt Murder. 28 1 during the commission of the Attempt Murder, then you shall return the appropriate guilty verdict reflecting “With Use of a Deadly 2 Weapon.”
3 If you find that the State has failed to prove beyond a reasonable doubt that the Defendant committed Attempt Murder 4 with Use of a Deadly Weapon, then you must find the Defendant not guilty of Attempt Murder with Use of a Deadly Weapon, but you may 5 find him guilty of a lesser included offense. 6 (Id. at 26 (Instruction No. 24).) 7 During jury deliberations, the jury sent questions out to the court. On the 8 last day of the trial, just before receiving the jury’s verdict, the court and the 9 parties made a record regarding those communications from the jury:
10 THE COURT: … All right. So before we bring the jury back for the verdict, I thought it was important that we go—make a record on 11 what happened yesterday and—and today so far.
12 So yesterday afternoon, there was a question: Can you have malice aforethought without intent to kill? We all met. I think this 13 one was on the phone. We—I was on the phone; you folks were here, I believe. And I think that everybody agreed that the answer to this 14 question was: Yes, see Instruction No. 20.
15 Do we all agree to that?
16 MR. LEXIS [prosecutor]: Yes, Your Honor.
17 MS. BONAVENTURE [defense counsel]: Yes, Your Honor.
18 MR. HAUSER [defense counsel]: Yes, Your Honor.
19 THE COURT: Okay. And then subsequent to that, there was an indication from Curt that the jurors had told him that they were 20 stuck, that they had reached a decision on one count, but that they were stuck on the rest. So we—I asked them to reduce that to writing. 21 And the writing that we got says, We, the jury, are not in agreement on all charges. We are unanimous on Count I, guilty. Counts II 22 through V, we are not able to come to any unanimous vote. Two jurors cannot come to vote unanimous. Any Counts II through V, we 23 have tried for hours but are stuck. And then it's signed Juror 12, foreperson. 24 In response to that, contacted counsel, and we had a 25 discussion about that. My suggestion was that we ask them: Did they believe that additional time would help to resolve additional 26 charges? I know that the State objected to that. You wanted me to just send them back and tell them to keep working. 27 MR. LEXIS: That's correct, Your Honor, but since we have a 28 verdict now, I think it’s a moot point. 1
2 THE COURT: Okay. So the response that I gave them was, Do you believe that additional time will help you resolve additional 3 charges?
4 You guys were okay with that response, I think. The defense was. 5 MS. BONAVENTURE: Yes, Your Honor. 6 MR. HAUSER: Yes, Your Honor. 7 THE COURT: Okay. I believe the—did we get another response 8 back from that in writing?
9 MS. BONAVENTURE: We did. Or didn't they say no?
10 MR. HAUSER: I think we sent back the same note with our response, and then they sent back no on the same piece of paper, 11 but I'm not sure.
12 THE COURT: Yeah. It says, All 12 jurors state that additional time will not change their minds in this case. Okay. 13 So in response to that, I had Judge Barker come in and give 14 an Allen charge; right?
15 MS. BONAVENTURE: Yes, Your Honor.
16 MR. HAUSER: Yes, Your Honor.
17 THE COURT: Once he gave an Allen charge, we sent them back to deliberate. That was, I believe, around 4:30. We had them 18 deliberate till a little bit after 5:00, at which time we sent them home. They have come back this morning. This morning we got one 19 additional question from them which reads, Are express malice and implied malice different concepts? If so, please explain the difference. 20 We got on the phone once about this. We discussed it. The 21 State wanted to go back and do some additional research, and then we got back on the phone again this morning and talked about it 22 again. My response to the jury was, The Court is not at liberty to supplement the record. See Instructions No. 21 and 22 which deal 23 with—I think 21 dealt with express and implied malice being an issue as it relates to the murder charge. And then 22 was the instruction 24 that defined what attempt murder was, if I can—if I recall correctly.
25 And I know that the defense objected to this response. You wanted me to explain—I think you wanted me to tell them that—that 26 express—that you wanted me to eliminate the further—or the second part of Instruction No. 21. 27 MR. HAUSER: Yes, Your Honor. 28 1 telephone conversation, you wanted me to leave it alone because you said it was an accurate statement of the law. 2 MR. HAUSER: Yes, Your Honor. When the State went back and 3 did more research, so did we, which is why our answer changed in the meantime. And I can make a record on that whenever Your Honor 4 is ready. 5 (ECF No. 32-6 at 4–7.) See Farmer v. State, 95 Nev. 849, 853, 603 P.2d 700, 703 6 (1979) (explaining that “[a]n Allen ... charge is an instruction to a deadlocked jury 7 which contains an admonition that the case must at some time be decided or that 8 minority jurors should reconsider their positions in light of the majority view” and 9 stating that “[w]e have held, in reluctantly approving the Allen charge, that in 10 order for such an instruction to be valid, it must clearly inform the jurors that 11 each member has a duty to adhere to his own honest opinion and the charge 12 must avoid ‘creating the impression that there is anything improper, questionable 13 or contrary to good conscience for a juror to create a mistrial’”). The court then 14 allowed the parties to make a record of their arguments regarding its responses 15 to the jury’s questions, and, after that, received the jury’s verdict. (Id. at 7–12.) 16 The jury found Allen not guilty of attempted murder, but guilty of the four 17 other charged crimes: invasion of the home, burglary while in possession of a 18 deadly weapon, battery with use of a deadly weapon resulting in substantial 19 bodily harm constituting domestic violence, and battery with intent to kill 20 constituting domestic violence. (Id. at 13–14.) 21 In their arguments about Instruction No. 21, defense counsel never 22 mentioned any concern that the instruction would affect the jury’s consideration 23 of any charge other than attempted murder. (See id. at 7–12.) 24 Indeed, it was plain, from both the context and content of Instruction No. 25 21, that it concerned only the charge of attempted murder. As the Nevada Court 26 of Appeals pointed out, the only charge against Allen on which malice was an 27 element was attempted murder. (See ECF No. 32-5 at 12–31.) 28 // 1 Nevertheless, Allen argues:
2 When the jury finally reached a verdict, Allen was found guilty of all charges except the attempted murder, count 3. However, it is 3 not clear whether in their confusion, the jury applied the definition of implied malice to the intent element of other charges for which 4 Allen was found guilty. Afterall, why would the definition of implied malice be in the jury instructions if it wasn’t to be applied. And where 5 jury instruction no. 2 states, “The order in which the instructions are given has no significance as to their relative importance,” it stands 6 to reason the jury may have inferred that implied malice applied to the intent element of the other charges since it explicitly does not 7 apply to the attempted murder charge.
8 Circumstances surrounding the jury’s deliberation support the assertion that the jury applied the implied malice definition of 9 intent to other charges. Prior to asking the court about the difference between implied and express malice, the jury had only come to a 10 unanimous verdict on one count—invasion of a home—which does not list intent as one of the elements of the crime. Burglary and 11 assault and battery, on the other hand, explicitly list that the intent to commit the crime is a necessary element of the charges. After 12 asking the court to explain the difference between implied and express malice, and presumably reading the malice aforethought 13 definition, the jury found Allen guilty of all charges except the one that required express malice—attempted murder. This was after the 14 jury indicated it could only agree on one count—invasion of a home— which did not contain an intent requirement as one of the elements 15 of the crime. 16 (ECF No. 22 at 11–12 (footnotes omitted).) The Court finds this argument to be 17 meritless. The argument conflates malice and intent. Malice and intent are two 18 different things, and, of the charges against Allen, only attempted murder had 19 malice as an element. There was no mention of malice in any of the jury 20 instructions explaining the charges of invasion of the home, burglary while in 21 possession of a deadly weapon, battery with use of a deadly weapon resulting in 22 substantial bodily harm constituting domestic violence, and battery with intent 23 to kill constituting domestic violence. There simply is no evidence giving rise to 24 any reason to believe that Instruction No. 21 had any influence on the jury’s 25 consideration of any of the charges on which Allen was convicted. 26 The Court finds reasonable the Nevada Court of Appeals’ ruling that Allen 27 was not prejudiced by his appellate attorney not making the claim that 28 Instruction No. 21 was improperly given. The Nevada Court of Appeals’ ruling was 1 not contrary to, or an unreasonable application of, Strickland, or Douglas v. 2 California, 372 U.S. 353 (1963) (holding that criminal defendants have a right to 3 counsel for a first appeal), or any other Supreme Court precedent. The Court will 4 deny Allen habeas corpus relief on Ground 4. 5 4. Ground 5 6 In Ground 5, Allen claims that his appellate counsel “ineffectively failed to 7 challenge the notice requirement for a testifying witness in violation of the Sixth 8 and Fourteenth Amendments to the United States Constitution.” (ECF No. 22 at 9 13–14.) Here, Allen claims that he received inadequate notice disclosing Nichelle 10 Carter as a witness, that the prosecution was allowed to call Carter to testify over 11 his objection, and that his appellate counsel provided ineffective assistance of 12 counsel in not raising the issue on appeal. (Ibid.) 13 Allen asserted this claim in his state habeas action, and the Nevada Court 14 of Appeals denied relief on the claim, ruling as follows:
15 ... Allen claimed appellate counsel was ineffective for failing to argue that the State violated the notice requirement for witness 16 Nichelle Carter. NRS 174.234(1)(a) requires parties to file written notice of lay witnesses not less than five judicial days before the start 17 of trial. The State filed a supplemental notice of witnesses on February 24, 2017, and Allen’s trial began on March 6, 2017, at least 18 five judicial days later. Because the State provided notice of its intent to call the witness in accord with NRS 174.234(1)(a), any claim 19 regarding the notice requirements would have been futile. We therefore conclude the district court did not err by denying this claim 20 without first conducting an evidentiary hearing. 21 (ECF No. 34-10 at 4.) 22 The notice disclosing Carter as a witness was timely, but Allen objected to 23 the notice because it did not provide Carter’s address. (See ECF No. 29-16 (the 24 notice); ECF No. 31-4 at 90–98 (the objection).) The trial court interpreted the 25 operative statute, NRS 174.234, as requiring notice of a witness’s last known 26 address and found that the prosecution did not know Carter’s address when the 27 notice was given, but only learned of her whereabouts shortly before the trial 28 commenced. (Ibid.) The trial court allowed defense counsel to speak with Carter 1 for ten minutes prior to her testimony. (Ibid.) The Nevada Court of Appeals ruled 2 that under the circumstances, NRS 174.234 was satisfied. 3 The Nevada Court of Appeals’ construction of NRS 174.234 and its ruling 4 that the prosecution complied with that statute are matters of state law, within 5 the purview of the state court and not subject to review by this federal habeas 6 court. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). 7 Therefore, Allen’s appellate counsel did not perform deficiently by not 8 asserting a claim concerning the notice disclosing Carter as a witness, and Allen 9 was not prejudiced by his appellate counsel not doing so. Allen does not show 10 the Nevada Court of Appeals’ ruling on this claim to be contrary to, or an 11 unreasonable application of, Strickland, Douglas, or any other Supreme Court 12 precedent. The Court will deny Allen relief on Ground 5. 13 D. Certificate of Appealability 14 For a certificate of appealability (“COA”) to issue, a habeas petitioner must 15 make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 16 §2253(c). Where the district court denies a habeas claim on the merits, the 17 petitioner “must demonstrate that reasonable jurists would find the district 18 court’s assessment of the constitutional claims debatable or wrong.” Slack v. 19 McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas 20 petition on procedural grounds without reaching the prisoner’s underlying 21 constitutional claim, a COA should issue when the prisoner shows, at least, that 22 jurists of reason would find it debatable whether the petition states a valid claim 23 of the denial of a constitutional right and that jurists of reason would find it 24 debatable whether the district court was correct in its procedural ruling.” Ibid.; 25 see also James v. Giles, 221 F.3d 1074, 1077–79 (9th Cir. 2000). Applying these 26 standards, the Court finds that a certificate of appealability is unwarranted in 27 this case. 28 // 1 |) IV. CONCLUSION 2 It is therefore ordered that Petitioner’s Second Amended Petition for Writ of 3 || Habeas Corpus (ECF No. 22) is denied. 4 It is further ordered that Petitioner is denied a certificate of appealability. 5 It is further ordered that the Clerk of the Court is directed to enter 6 || judgment accordingly and close this case. 7 It is further ordered that, pursuant to Federal Rule of Civil Procedure 25(d), 8 || Nethanjah Breitenbach is substituted for William Reubart as the respondent 9 || warden. The Clerk of the Court is directed to update the docket to reflect this 10 || change. 11 Dated this 10 day of January 2025. 12 en 13 Ans jlosent 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28