Bradford v. Bean

• Court: District Court, D. Nevada
• Decided: July 20, 2021
• Docket: 2:13-cv-01784
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 JULIUS BRADFORD, Case No. 2:13-cv-01784-RFB-EJY 6 Petitioner, ORDER 7 v. 8 CALVIN JOHNSON, et al., 9 Respondents. 10 11 12 I. Introduction 13 This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, 14 by Julius Bradford, an individual incarcerated at Nevada’s High Desert State Prison. 15 Bradford is represented by appointed counsel. He is serving prison sentences that in their 16 aggregate amount to life with the possibility of parole after forty years on convictions in 17 Nevada’s Eighth Judicial District Court (Clark County) of murder with use of a deadly 18 weapon and attempted robbery with use of a deadly weapon. Bradford’s second amended 19 habeas petition is before the Court for adjudication of his claims on their merits. The Court 20 held an evidentiary hearing relative to one of Bradford’s claims—Ground 2—and will grant 21 Bradford relief on that claim. The Court will deny Bradford’s other claims, without 22 prejudice, as moot. 23 24 II. Background 25 The following facts are as described in the Second Amended Petition:

26 …. On the morning of June 8, 2003, Benito Zambrano-Lopez was walking toward a grocery store near his house [in Las Vegas]. He had just 27 over $100 cash on him and he was wearing a watch. Tyrone Williams, a Bradford, who had just turned eighteen, were walking nearby. At some 1 point, they both stepped in to assist Mr. Williams, who was losing the fight. Soon afterward, Mr. Williams pulled out a gun and shot Mr. Zambrano- 2 Lopez four times. Mr. Bradford and Mr. Perry ran away immediately after the first shot was fired, and Mr. Williams followed soon after. None of Mr. 3 Zambrano-Lopez’s belongings, including the cash or his watch, were taken from him. Mr. Zambrano-Lopez died the next day, and the state charged 4 Mr. Bradford with felony murder.

5 * * *

6 Only one eyewitness testified at trial. Tracy Jimenez testified that she was walking down the street with her young daughter when she saw the 7 three men surround Mr. Zambrano-Lopez, hitting and kicking him. She said that Mr. Zambrano-Lopez fought back to defend himself. She testified that 8 Mr. Williams then pulled out a gun and shot Mr. Zambrano-Lopez, while Mr. Bradford and Mr. Perry immediately fled. At the preliminary hearing, Ms. 9 Jimenez testified she did not see the men try to take anything from Mr. Zambrano-Lopez. At trial five years later, she testified that, after Mr. 10 Bradford had fled, Mr. Williams “pat[ted]” down Mr. Zambrano-Lopez’s body. 11 Two other state’s witnesses provided equivocal testimony about 12 what they heard Mr. Williams and Mr. Perry say about the murder. Neither testified that Mr. Bradford said anything about it. Chetique Vercher testified 13 that after the shooting, she was in the same house as Mr. Williams, Mr. Perry, and Mr. Bradford. She testified that the crime was “supposed to be 14 robbery,” but did not say that she actually heard anyone say that. She also testified that she heard Mr. Perry say that Mr. Bradford had told Mr. Williams 15 to shoot Mr. Zambrano-Lopez. Nelson Rodgers, a friend of Mr. Bradford’s, testified he was in the house with Ms. Vercher and the others after the 16 shooting. Mr. Rodgers testified that he heard Mr. Perry and Mr. Williams talk about a robbery, but that Mr. Bradford was not present during that 17 discussion.

18 .... [T]he state presented a recorded conversation between Mr. Bradford and Ms. Vercher, which took place shortly before Mr. Bradford’s 19 preliminary hearing. During the call, Mr. Bradford told Ms. Vercher to say “nothing about the rees-obbery”: 20 Look, come to court, right come to court, ah just tell them. Cuz, 21 don’t say nothing about the rees-obbery, cuz. Don’t say nothing about that, cuz. All right. I am tell you cuz don’t 22 because that’s what they got me on. That’s why they are trying to stick me with the hezour. 23 Ms. Vercher testified that she understood Mr. Bradford was asking her not 24 to say anything about a robbery. Mr. Bradford testified that he told her not to say anything about a robbery because there had, in fact, been no robbery, 25 and the state was trying to make the fight look like one. Mr. Bradford’s former counsel, Sean Sullivan, also testified at trial about the phone call, 26 after counsel convinced Mr. Bradford to waive the attorney-client privilege. Mr. Sullivan testified that, just before Mr. Bradford’s call to Ms. Vercher, he 27 met with Mr. Bradford and “broke down” the felony murder rule.... Ashton Parker, a jailhouse snitch who got a deal in exchange for his 1 testimony, testified about conversations he claimed he had with Mr. Bradford while they were incarcerated in the same module. He testified that 2 Mr. Bradford admitted both that the crime was a robbery and that he directed Mr. Williams to “smoke” Mr. Zambrano-Lopez. Mr. Parker also 3 testified that Mr. Bradford gave him a map to Ms. Vercher’s house, and asked him to shoot into Ms. Vercher’s house to intimidate her. The state 4 admitted a copy of the map, and other evidence established that Mr. Bradford’s fingerprints were on the map and that it matched his handwriting. 5 To counter the jailhouse informant’s allegations, the defense focused 6 on his incentive for lying — a plea deal with the state involving a closed conviction.... 7 .... Although Mr. Bradford confirmed [in his testimony at trial] that 8 neither he nor the other two men tried to rob Mr. Zambrano-Lopez, and testified that he had no idea Mr. Williams intended to shoot Mr. Zambrano- 9 Lopez, his testimony on collateral issues left the jury with the impression that Mr. Bradford was the type of man who deserved to go to prison. 10 .... Trial counsel elicited an admission that Mr. Bradford had drawn 11 the map and given it to Mr. Parker. While he denied the map actually directed Mr. Parker to Ms. Vercher’s house, her address was written on it. 12 Likewise, while Mr. Bradford testified that he was actually giving Mr. Parker directions to his ex-girlfriend’s house, which was near Ms. Vercher’s, he 13 also testified that he provided the directions so that Mr. Parker could rob her.... 14 .... On cross, the state elicited [evidence] that Mr. Bradford was a 15 gang member who earned his stripes by selling drugs for his gang. The state also played for the jury a surveillance videotape from a 7-11 from an 16 unrelated case, which the state argued depicted Mr. Bradford using an ATM card that he had stolen at gunpoint. 17 18 Second Am. Pet. at 2–5, ECF No. 67 (argument and citations to record omitted). 19 At Bradford’s first trial in 2004, the jury found him guilty of murder with use of a 20 deadly weapon and attempted robbery with use of a deadly weapon. On June 3, 2004, 21 the trial court sentenced Bradford to two consecutive life sentences for murder with use 22 of a deadly weapon, with parole eligibility after twenty years, and two consecutive 23 sentences of six years for the attempted robbery with use of a deadly weapon, with parole 24 eligibility after two years, to be served concurrently with the life sentences. See Judgment 25 of Conviction, Ex. 54, ECF No. 25-11. 26 Bradford appealed, and on April 18, 2006, the Nevada Supreme Court reversed 27 and remanded for a new trial, ruling that the trial court gave the jury improper instructions 1 regarding accomplice and co-conspirator liability as well as adoptive admissions. See 2 Order of Reversal and Remand, Ex. 60, at 2–9, ECF No. 25-17. 3 On remand, the trial court initially reappointed Sean Sullivan as Bradford’s counsel. 4 However, Sullivan notified the court that he had a conflict of interest because he was a 5 potential witness in the retrial, and he was permitted to withdraw. The court then 6 appointed another attorney, Mace Yampolsky, to represent Bradford in the retrial. See 7 Order Appointing Counsel, Ex. 63, at 2, ECF No. 25-20; Tr. of Proceedings, Ex. 65, at 2– 8 15, ECF No. 25-22; Tr. of Proceedings, Ex. 66, at 3–4, ECF No. 25-23; Order Appointing 9 Counsel, Ex. 67, at 2, ECF No. 25-24. At a pretrial hearing on July 27, 2007, Bradford 10 waived the attorney-client privilege as to the subject of Sullivan’s testimony and Sullivan 11 testified; his testimony was video recorded. See Tr. of Trial, Ex. 74, ECF No. 25-31. 12 Bradford’s retrial commenced on July 30, 2007. See Tr. of Trial, Exs. 77, 78, 82, 13 87, 90, ECF Nos. 26, 26-1, 27, 28, 28-3. Bradford was again found guilty of murder with 14 use of a deadly weapon and attempted robbery with use of a deadly weapon. See Tr. of 15 Trial, Ex. 90, at 8, ECF No. 28-3; Verdict, Ex. 94, at 2–3, ECF No. 28-7. He was again 16 sentenced to two consecutive life sentences for murder with use of a deadly weapon, with 17 parole eligibility after twenty years, and two consecutive sentences of six years in prison 18 for the attempted robbery with use of a deadly weapon, with parole eligibility after two 19 years, to be served concurrently with the life sentences. See Tr. of Sentencing Hr’g, Ex. 20 100, at 5, ECF No. 28-13; Am. J. of Conviction, Ex. 102, at 2–4, ECF No. 28-15. 21 Bradford appealed from the amended judgment, and the Nevada Supreme Court 22 affirmed on June 30, 2009. See Order of Affirmance, Ex. 111, at 2–12, ECF No. 29-4. 23 Bradford filed a petition for rehearing and a petition for en banc reconsideration, both of 24 which were denied. See Order Den. Rehearing, Ex. 113, at 2, ECF No. 29-6; Order Den. 25 En Banc Recons., Ex. 115, at 2, ECF No. 29-8. 26 Bradford then filed a Petition for Writ of Habeas Corpus in the state district court. 27 See Pet. for Writ of Habeas Corpus (Post Conviction), Ex. 123, ECF No. 29-18. The state 1 Law and Order, Ex. 127, at 3–9, ECF No. 29-22. Bradford appealed, and the Nevada 2 Supreme Court affirmed on July 23, 2013. See Order of Affirmance, Ex. 154, at 2–6, ECF 3 No. 34. 4 On May 4, 2012, Bradford filed a second Petition for Writ of Habeas Corpus in the 5 state district court. See Petition for Writ of Habeas Corpus (Post-Conviction), Ex. 138, 6 ECF No. 30-3. The state district court dismissed that petition on July 30, 2012, upon a 7 motion by the State, ruling Bradford’s claims to be time-barred and successive. See Order 8 Grant’g State’s Resp. and Mot. to Dismiss Def’s Pet. for Writ of Habeas Corpus (Post- 9 Conviction), Ex. 141, at 2–3, ECF No. 31-2. Bradford appealed, and the Nevada Supreme 10 Court affirmed on October 16, 2014. See Order of Affirmance, Ex. 174, at 2–6, ECF No. 11 42-3. Bradford filed a petition for rehearing, which was denied. See Order Den. Reh’g, 12 Ex. 186, at 2–3, ECF No. 62-4. 13 This Court received Bradford’s federal Petition for Writ of Habeas Corpus initiating 14 this action on September 27, 2013. ECF No. 1. On December 3, 2013, the Court 15 appointed the Federal Public Defender to represent Bradford. See ECF No. 16. With 16 counsel, Bradford filed an amended habeas petition on August 12, 2014. ECF No. 22. On 17 March 31, 2015, this action was stayed upon a motion by Bradford pending further 18 proceedings in state court. ECF No. 53. 19 Bradford filed a third state-court habeas petition on August 29, 2014. See Pet. for 20 Writ of Habeas Corpus (Post-Conviction), Ex. 172, ECF No. 42-1. The state district court 21 dismissed that petition on March 25, 2015, upon a motion by the State, ruling Bradford’s 22 claims to be time-barred. See Findings of Fact, Conclusions of Law and Order, Ex. 189, 23 at 2–9, ECF No. 62-7. Bradford appealed, and the Nevada Court of Appeals affirmed on 24 July 27, 2016. See Order of Affirmance, Ex. 197, at 2–8, ECF No. 62-15. 25 The stay of this action was lifted on January 13, 2017, ECF No. 66, and Bradford 26 filed a Second Amended Petition for Writ of Habeas Corpus, ECF No. 67, which is the 27 operative petition in this matter. In the second amended petition, Bradford asserts the 1 Ground 1: Bradford’s federal constitutional rights were violated because his trial counsel was ineffective “for presenting inculpatory testimony from Mr. 2 Bradford’s former attorney, Sean Sullivan, about a privileged conversation Mr. Sullivan had with Mr. Bradford regarding the felony murder rule.” 3 Ground 2: Bradford’s federal constitutional rights were violated because his 4 trial counsel was ineffective “for failing to advise Mr. Bradford that he faced the death penalty if he did not accept the state’s plea bargain offers.” 5 Ground 3: Bradford’s federal constitutional rights were violated because his 6 trial counsel was ineffective for improperly advising him to testify in his own defense. 7 Ground 4: Bradford’s federal constitutional rights were violated because 8 “[t]he trial court improperly admitted irrelevant and prejudicial evidence that Mr. Bradford was a member of the Crips gang who sold drugs to benefit his 9 gang.”

10 Ground 5: Bradford’s federal constitutional rights were violated because his trial counsel was ineffective “for opening the door to the damaging gang 11 affiliation evidence during direct examination.”

12 Ground 6: Bradford’s federal constitutional rights were violated because “[t]he trial court improperly admitted a videotape purportedly showing 13 Mr. Bradford using an ATM card he stole at gunpoint.”

14 Ground 7: Bradford’s federal constitutional rights were violated because his trial counsel was ineffective “for opening the door to damaging videotape 15 evidence of an unrelated robbery during direct examination.”

16 Ground 8: Bradford’s federal constitutional rights were violated because “[t]he trial court failed to provide the jury with a limiting instruction regarding 17 improperly admitted bad act evidence.”

18 Ground 9: Bradford’s federal constitutional rights were violated because his trial counsel was ineffective “for failing to request a limiting instruction once 19 he opened the door to damaging bad act evidence.”

20 Ground 10: Bradford’s federal constitutional rights were violated because “[t]he trial court failed to accurately describe the elements of murder with a 21 deadly weapon and robbery with a deadly weapon, relieving the prosecution of its burden to prove every element of the charges beyond a reasonable 22 doubt.”

23 Ground 11: Bradford’s federal constitutional rights were violated because his trial counsel was ineffective “for failing to ensure the jury received the 24 proper instructions regarding the meaning of ‘use of deadly weapon.’”

25 Ground 12: Bradford’s federal constitutional rights were violated because “[t]he trial court failed to properly instruct the jury on adoptive admissions.” 26 Ground 13: Bradford’s federal constitutional rights were violated because 27 his trial counsel was ineffective “for failing to request an adequate Ground 14: Bradford’s federal constitutional rights were violated because 1 his trial counsel was ineffective “for failing to request and review recordings of phone calls of a key prosecution witness.” 2 Ground 15: Bradford’s federal constitutional rights were violated because 3 “[t]he prosecution withheld material exculpatory evidence that a state [witness] received a material benefit in exchange for his testimony.” 4 Ground 16: Bradford’s federal constitutional rights were violated because 5 “[t]here was insufficient evidence to support Mr. Bradford’s murder with a deadly weapon and [attempted] robbery with a deadly weapon convictions.” 6 Ground 17: Bradford’s federal constitutional rights were violated as a result 7 of the “cumulative effect of the constitutional errors in his case.” 8 ECF No. 67 at 14–65. 9 On September 11, 2017, the Respondents filed a Motion to Dismiss, ECF No. 73, 10 and on November 27, 2017, Bradford filed a Motion for Evidentiary Hearing, ECF No. 77. 11 The Court denied both of those motions without prejudice on April 12, 2018, determining 12 that the issues raised in the Motion to Dismiss would be better considered in conjunction 13 with the merits of Bradford’s claims after Respondents filed an answer and Bradford a 14 reply. ECF No. 88. 15 The Respondents filed an Answer on March 25, 2019, ECF No. 98, and Bradford 16 filed a Reply, ECF No. 116, and a further Motion for Evidentiary Hearing, ECF No. 117, 17 on August 7, 2019. The Court granted the Motion for Evidentiary Hearing, with respect to 18 Ground 2, on May 27, 2020. ECF No. 124. The evidentiary hearing was held on June 11, 19 2021. 20 21 III. Discussion 22 A. Procedural Default 23 In Coleman v. Thompson the Supreme Court held that a state prisoner who fails 24 to comply with state-law procedural requirements in presenting his claims is barred by the 25 adequate and independent state ground doctrine from obtaining a writ of habeas corpus 26 in federal court. Coleman v. Thompson, 501 U.S. 722, 731–32 (1991) (“Just as in those 27 cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who 1 has deprived the state courts of an opportunity to address those claims in the first 2 instance.”). Where such a procedural default constitutes an adequate and independent 3 state ground for denial of habeas corpus, the default may be excused only if “a 4 constitutional violation has probably resulted in the conviction of one who is actually 5 innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting 6 from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 7 In this case, on Bradford’s direct appeal, and on the appeal in his first state habeas 8 action, the Nevada Supreme Court generally ruled on his claims on their merits. See 9 Order of Affirmance, Ex. 111, ECF No. 29-4; Order of Affirmance, Ex. 154, ECF No. 34. 10 On the other hand, on the appeal in Bradford’s second state habeas action, the Nevada 11 Supreme Court ruled that Bradford’s petition was procedurally barred under state 12 procedural rules:

13 Appellant filed his petition on May 4, 2012, more than two years after this court issued the remittitur from his direct appeal on December 15, 2009. 14 Bradford v. State, Docket No. 50630 (Order of Affirmance, June 30, 2009). Thus, appellant’s petition was untimely filed. See NRS 34.726(1). Moreover, 15 appellant’s petition was successive because he had previously filed a post- conviction petition for a writ of habeas corpus [footnote: Bradford v. State, 16 Docket No. 58529 (Order of Affirmance, July 23, 2013)], and it constituted an abuse of the writ because he raised claims new and different from those 17 raised in his previous petition. See NRS 34.810(1)(b)(2); NRS 34.810(2). 18 Order of Affirmance, Ex. 174, at 1, ECF No. 42-3. The Nevada Supreme Court went on 19 to rule that Bradford did not show cause and prejudice, actual innocence, or any other 20 ground to overcome the procedural bars. See id. at 1–4. The Nevada Supreme Court, 21 therefore, affirmed the denial of Bradford’s second state habeas petition on state 22 procedural grounds. And, similarly, on the appeal in Bradford’s third state habeas action, 23 the Nevada Court of Appeals ruled Bradford’s petition to be time-barred and successive 24 under state procedural rules:

25 Appellant Julius Bradford filed his petition on August 29, 2014, more than four years after issuance of the remittitur on direct appeal on December 26 15, 2009. Bradford v. State, Docket No. 50630 (Order of Affirmance, June 30, 2009). Thus, Bradford’s petition was untimely filed. See NRS 34.726(1). 27 Moreover, Bradford’s petition was successive because he had previously those raised in his previous petitions. [Footnote: Bradford v. State, Docket 1 No. 61559 (Order of Affirmance, October 16, 2014); Bradford v. State, Docket No. 58529 (Order of Affirmance, July 23, 2013).] See NRS 2 34.810(1)(b)(2); NRS 34.810(2). 3 Order of Affirmance, Ex. 197, at 1, ECF No. 62-15. The Nevada Court of Appeals went 4 on to rule that Bradford did not show cause and prejudice, actual innocence, 5 nondisclosure of information by the State, or any other ground to overcome the procedural 6 bars. See id. at 1–7. Therefore, the Nevada Court of Appeals affirmed the denial of 7 Bradford’s third state habeas petition on state procedural grounds. 8 Consequently, claims asserted by Bradford in his second or third state habeas 9 action but not on his direct appeal or in his first state habeas action are subject to denial 10 as procedurally defaulted, unless he can overcome the procedural default. 11 A petitioner can overcome a procedural default by making a showing of cause and 12 prejudice. To demonstrate cause for a procedural default, the petitioner must “show that 13 some objective factor external to the defense impeded” his efforts to comply with the state 14 procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment 15 must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 16 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden 17 of showing not merely that the errors [complained of] constituted a possibility of prejudice, 18 but that they worked to his actual and substantial disadvantage, infecting his entire 19 [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 20 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). 21 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective 22 assistance of post-conviction counsel may serve as cause, to overcome the procedural 23 default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court 24 noted that it had previously held, in Coleman, that “an attorney’s negligence in a 25 postconviction proceeding does not establish cause” to excuse a procedural default. 26 Martinez, 566 U.S. at 15. The Martinez Court, however, “qualif[ied] Coleman by 27 recognizing a narrow exception: inadequate assistance of counsel at initial-review 1 of ineffective assistance at trial.” Id. at 9. A showing of cause and prejudice under Martinez 2 consists of four elements: (1) the underlying claim must be “substantial;” (2) the “cause” 3 for the procedural default consists of there being “no counsel” or only “ineffective” counsel 4 in the state postconviction proceeding; (3) the state postconviction proceeding was the 5 “initial” collateral review proceeding where the claim could have been brought; and (4) 6 state law requires that the claim be raised in an initial collateral review proceeding, or by 7 “design and operation” such claims must be raised that way, rather than on direct appeal. 8 See Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013). The failure to meet any of these 9 four prongs renders the Martinez exception unavailable to excuse a procedural default. 10 To show that a claim is “substantial” under Martinez, a petitioner must demonstrate 11 that the underlying ineffectiveness claim has “some merit.” See Martinez, 556 U.S. at 14. 12 That is, the petitioner must submit at least some evidence tending to show that trial 13 counsel performed deficiently, and that the deficient performance harmed the defense. 14 See Strickland v. Washington, 466 U.S. 668, 695–96 (1984). 15 Bradford argues that he can overcome the procedural default of his claims of 16 ineffective assistance of trial counsel—including Ground 2—under Martinez. 17 B. Standard of Review of Merits of Claims 18 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a 19 federal court may not grant a petition for a writ of habeas corpus on any claim that was 20 adjudicated on the merits in state court unless the state court decision was contrary to, 21 or involved an unreasonable application of, clearly established federal law as determined 22 by United States Supreme Court precedent, or was based on an unreasonable 23 determination of the facts in light of the evidence presented in the state-court proceeding. 24 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly established federal law if 25 it either applies a rule that contradicts governing Supreme Court law or reaches a result 26 that differs from the result the Supreme Court reached on “materially indistinguishable” 27 facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an 1 correctly identifies the governing legal rule but unreasonably applies the rule to the facts 2 of the case. See Williams v. Taylor, 529 U.S. 362, 407–08 (2000). To obtain federal 3 habeas relief for such an “unreasonable application,” however, a petitioner must show 4 that the state court’s application of Supreme Court precedent was “objectively 5 unreasonable.” Id. at 409–10; see also Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). 6 Or, in other words, habeas relief is warranted, under the “unreasonable application” 7 clause of section 2254(d), only if the state court’s ruling was “so lacking in justification 8 that there was an error well understood and comprehended in existing law beyond any 9 possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 10 With respect to a claim that the state courts did not address on its merits, the 11 federal habeas court reviews such a claim de novo, rather than under the deferential 12 AEDPA standard. See, e.g., Cone v. Bell, 556 U.S. 449, 472 (2009); Stanley v. Cullen, 13 633 F.3d 852, 860 (9th Cir. 2011) (“When it is clear ... that the state court has not decided 14 an issue, we review that question de novo.”). 15 C. Ground 2 16 In Ground 2, Bradford claims that his federal constitutional rights were violated 17 because his trial counsel was ineffective “for failing to advise Mr. Bradford that he faced 18 the death penalty if he did not accept the state’s plea bargain offers.” Second Am. Pet. at 19 23–26, ECF No. 67. 20 Before the first trial in the Zambrano-Lopez case, the State offered Bradford a plea 21 deal whereby Bradford would have pleaded guilty to second-degree murder with use of a 22 deadly weapon and conspiracy to commit robbery in this case, the Zambrano-Lopez case, 23 and second-degree murder with use of a deadly weapon and conspiracy to commit 24 robbery in another case, the Limongello case, and the State would have recommended 25 concurrent prison sentences with parole possible after twenty years. See Tr. of 26 Proceedings, Ex. 49, at 13–15, ECF No. 25-6. Sean Sullivan, the attorney who 27 represented Bradford at his first trial in the Zambrano-Lopez case, advised Bradford to 1 No. 67; Decl. of Julius Bradford, Ex. 167, at 1, ECF No. 34-13. Bradford claims, though, 2 that Sullivan did not sufficiently investigate the Limongello case before advising him about 3 the plea offer, and that Sullivan did not advise him that if he declined the offer and was 4 convicted in the Zambrano-Lopez case, the State could seek the death penalty in the 5 Limongello case and could use the conviction in the Zambrano-Lopez case as an 6 aggravating circumstance, and Bradford could be sentenced to death. See Second Am. 7 Pet. at 24–25, ECF No. 67; Decl. of Julius Bradford, Ex. 167, at 1, ECF No. 34-13. 8 Bradford went to trial in the Zambrano-Lopez case and was convicted, and later 9 he was charged with the Limongello murder, was tried in that case, and was convicted of 10 first-degree murder; the conviction in the Zambrano-Lopez case was used as an 11 aggravating circumstance in the Limongello case, and he was sentenced to death. See 12 Judgment of Conviction, Ex. 165, ECF No. 34-11. The Nevada Supreme Court 13 subsequently reversed Bradford’s conviction in the Limongello case and remanded the 14 case for a new trial; Bradford’s retrial has not yet commenced. See Order of Reversal and 15 Remand, Ex. 244, ECF No. 148-43. Bradford represents that the State is seeking the 16 death penalty at the retrial. See Notice of Intent to Seek the Death Penalty, Ex. 223, ECF 17 No. 148-22; Reply at 29, ECF No. 116. Bradford claims that, if he had been advised that 18 there was a possibility that he could be sentenced to death in the Limongello case, he 19 would have accepted the plea agreement offered by the State before the first trial in the 20 Zambrano-Lopez case. See Second Am. Pet. at 26, ECF No. 67; Decl. of Julius Bradford, 21 Ex. 167, ECF No. 34-13. 22 In Strickland, the Supreme Court propounded a two-prong test for analysis of 23 claims of ineffective assistance of counsel: the petitioner must demonstrate (1) that the 24 attorney’s representation “fell below an objective standard of reasonableness,” and (2) 25 that the attorney’s deficient performance prejudiced the defendant such that “there is a 26 reasonable probability that, but for counsel’s unprofessional errors, the result of the 27 proceeding would have been different.” Strickland, 466 U.S. at 688, 694. A court 1 that counsel’s representation was within the “wide range” of reasonable professional 2 assistance. Id. at 689. The petitioner’s burden is to show “that counsel made errors so 3 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 4 the Sixth Amendment.” Id. at 687. To establish prejudice under Strickland, it is not enough 5 for the habeas petitioner “to show that the errors had some conceivable effect on the 6 outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to 7 deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 8 The constitutional right to effective assistance of counsel in criminal proceedings 9 extends to the plea-bargaining process. See Missouri v. Frye, 566 U.S. 134, 140–44 10 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). The Strickland standard applies. See 11 Lafler, 566 U.S. at 162–63. In the context of plea bargaining, with respect to the 12 performance prong of the Strickland standard, the habeas petitioner must show that his 13 trial counsel did not adequately advise him such that he had “the tools he need[ed] to 14 make an intelligent decision” regarding the plea offer. See Turner v. Calderon, 281 F.3d 15 851, 881 (9th Cir. 2002). With respect to the prejudice prong of the Strickland standard, 16 the petitioner must show “that but for the ineffective advice of counsel there is a 17 reasonable probability that the plea offer would have been presented to the court (i.e., 18 that the defendant would have accepted the plea and the prosecution would not have 19 withdrawn it in light of intervening circumstances), that the court would have accepted its 20 terms, and that the conviction or sentence, or both, under the offer’s terms would have 21 been less severe than under the judgment and sentence that in fact were imposed.” 22 Lafler, 566 U.S. at 163–64. 23 Bradford raised this claim for the first time in state court in his third state habeas 24 action, see Second Am. Pet. at 23, ECF No. 67, and, as is discussed above, it was ruled 25 procedurally barred in that action. Therefore, this claim is subject to dismissal as 26 procedurally defaulted unless Bradford can show that some exception to the procedural 27 default doctrine applies. Bradford argues that he can show cause and prejudice, such as 1 to excuse the procedural default under Martinez, because of ineffective assistance of his 2 counsel in his first state habeas action. See Reply at 10–16, ECF No. 116. 3 The Court held an evidentiary hearing regarding this claim on June 11, 2021. At 4 the evidentiary hearing, Bradford called Sullivan to testify, and Bradford testified himself. 5 Respondents called Giancarlo Pesci to testify; Pesci was one of the prosecutors on the 6 Zambrano-Lopez case when the plea offer was extended to Bradford prior to the first trial 7 in that case. 8 Sullivan confirmed that when he represented Bradford he had not before acted as 9 first-chair defense counsel in a murder trial. Sullivan testified that when the prosecution 10 made the plea offer, seven to ten days before the first trial in the Zambrano-Lopez case, 11 he, Sullivan, was aware of the Limongello case, knew that Bradford was a suspect in that 12 case, and knew the prosecution was threatening to charge Bradford in that case. Sullivan 13 confirmed that the prosecution’s plea offer was to resolve both the Zambrano-Lopez case 14 and the LImongello case, with concurrent sentences and parole possible after twenty 15 years. 16 Before advising Bradford regarding the plea offer, Sullivan did not do any 17 investigation regarding the Limongello case, other than following it in the media and 18 having an investigator sit in on a preliminary hearing. Perhaps most importantly, Sullivan 19 testified that he did not request from the prosecution, or otherwise obtain or view, any 20 court filings in the Limongello case. Sullivan understood that he could have obtained such 21 material and that it was highly relevant to his representation of Bradford but he chose not 22 to obtain and review this crucial information. This information was crucial because at the 23 time, two defendants had been charged in the Limongello case: Aaron Daniels and 24 Natasha Barker. See Tr. of Prelim. Hearing, Ex. 203, ECF No. 148-2; see also Justice 25 Court Records, Ex. 204, ECF No. 148-3. Also at the time, the file in the Limongello case 26 included a notice of the State’s intention to seek the death penalty against Daniels. See 27 Notice of Intent to Seek Death Penalty, Ex. 205, ECF No. 148-4; see also Notice of 1 also at the time, in the Limongello case file, material indicating that it was Daniels’ position 2 that Bradford was involved in the Limongello murder, that witnesses would provide 3 evidence that Bradford shot Limongello, and that video evidence showed Bradford using 4 Limongello’s ATM card shortly after his murder. See Motion for Additional Discovery, Ex. 5 208, ECF No. 148-7; Motion to Admit Evid. of Murder Committed by Julius Bradford and 6 Others, Ex. 209, ECF No. 148-8; Transcript of Proceedings, December 30, 2003, Ex. 212, 7 ECF No. 148-11. In short, it is plain from the record that even a cursory look at the court 8 file in the Limongello case, at the time when the State extended the plea offer to Bradford, 9 would have revealed that there was a significant possibility that Bradford would be 10 charged with the Limongello murder, that there was significant evidence against Bradford 11 for this murder and that the death penalty would be sought against him, but Sullivan did 12 not take the simple investigatory step of obtaining and viewing the Limongello case court 13 file before advising Bradford regarding the plea offer. 14 Sullivan admitted that he was, at the time, focused on trying his first murder trial. 15 Sullivan did speak with Bradford a few times about the prosecution’s offer. He admitted, 16 however, that, while he did advise Bradford nominally to accept the prosecution’s offer 17 because of the unpredictability of trial, he emphasized to a greater degree with Bradford 18 his confidence that Bradford would prevail at trial in the Zambrano-Lopez case. He 19 therefore did not review substantively and carefully the details of the prosecution’s offer 20 and the consequences for Bradford if Bradford declined the offer. Significantly, when 21 Sullivan spoke with Bradford about the plea offer he did not discuss with Bradford the 22 possibility that he could face the death penalty in the Limongello case. Given his 23 inexperience at the time, Sullivan himself did not fully appreciate or understand that, if 24 Bradford did not enter the plea deal and was convicted of murder in the Zambrano-Lopez 25 case, that conviction could be used as an aggravating circumstance and the State could 26 seek the death penalty against Bradford in the Limongello case. 27 Bradford took the stand at the evidentiary hearing and testified that before the first 1 to settle both the Zambrano-Lopez and Limongello cases. Bradford confirmed that the 2 offer was for him to plead guilty to second-degree murder in both cases, and for the State 3 to recommend sentences with parole possible after twenty years. At the time, he had just 4 turned 19 years old, and had a 9th or 10th grade education. Bradford liked Sullivan and 5 trusted him. Sullivan seemed confident about his chances in the Zambrano-Lopez case. 6 Sullivan did not talk to him about the Limongello case at all. Sullivan did not review the 7 possible charges, the evidence, or other consequences in the Limongello case for 8 Bradford if he declined the offer. Rather, Sullivan suggested that Bradford did not have 9 much to worry about with the Limongello case. 10 Sullivan advised Bradford to accept the prosecution’s offer only because he was 11 young and, under the offered plea agreement, he could get out of prison while still young. 12 Sullivan did not, however, tell him what the maximum possible sentences would be if he 13 was convicted of first-degree murder in both the Zambrano-Lopez and Limongello cases. 14 Sullivan did not tell him that he could face the death penalty in the Limongello case. 15 Sullivan did not explain that a murder conviction in the Zambrano-Lopez case could be 16 used as an aggravating factor supporting imposition of the death penalty in the Limongello 17 case. In fact, Sullivan did not mention the death penalty at all in their discussions about 18 the plea offer. 19 Bradford testified credibly that if he had known that, if convicted in the Zambrano- 20 Lopez case, the State could charge him in the Limongello case and seek the death 21 penalty against him, he would have accepted the prosecution’s plea offer without 22 hesitation. The Court finds Bradford’s testimony to be credible. 23 Pesci was the only witness presented by the Respondents; Pesci’s testimony did 24 not contradict the testimony of Bradford or Sullivan regarding the plea offer made to 25 Bradford before the first trial in the Zambrano-Lopez case. Pesci did not recall whether or 26 not Sullivan asked for materials regarding the Limongello case when the plea offer was 27 under consideration, but Pesci testified that if Sullivan had asked, he would have provided 1 Bradford has made a compelling showing—and the Court finds—that Sullivan 2 performed unreasonably as Bradford’s counsel, because he did not sufficiently 3 investigate the Limongello case before advising Bradford regarding the State’s offer of a 4 plea agreement, and because Sullivan did not advise Bradford that the State could seek 5 the death penalty against him in the Limongello case. Sullivan did not understand, and 6 did not advise Bradford, that a conviction in the Zambrano-Lopez case could be used as 7 an aggravating circumstance in support of imposition of the death penalty in the 8 Limongello case. Sullivan did not advise Bradford about the maximum prison sentences 9 in each case, that he could face a death sentence in the Limongello case, and that 10 entering the offered plea agreement could eliminate that possibility. 11 Bradford also made a compelling showing—and the Court finds—that Bradford 12 was prejudiced by Sullivan’s unreasonable performance in that there is a reasonable 13 probability—a near certainty—that had he been advised that the State could seek the 14 death penalty against him in the Limongello case, he would have accepted the State’s 15 offer and pleaded guilty under the resulting plea agreement, the plea agreement would 16 have been presented to the court, and the court would have accepted its terms, resulting 17 in convictions of second-degree murder instead of first-degree murder, resulting in less 18 severe prison sentences, and removing the possibility of the death penalty in the 19 Limongello case. The Court finds that Bradford was unaware of the possibility of a 20 sentence of death in the Limongello case and how his conviction in the Zambrano-Lopez 21 case could make that more likely. 22 Furthermore, the Court finds that Bradford’s counsel in his state post-conviction 23 habeas action was ineffective for not asserting this claim. The plea offer was on the record 24 in this case. See Tr. of Proceedings, Ex. 49, at 13–15, ECF No. 25-6. It was unreasonable 25 for Bradford’s post-conviction counsel not to investigate the circumstances surrounding 26 the plea offer and the advice that Bradford received from Sullivan regarding it. Sullivan 27 testified that Bradford’s post-conviction counsel did not contact him to inquire about the 1 procedural default of this claim, under Martinez, allowing this Court to resolve the claim 2 de novo. The Court will grant Bradford habeas corpus relief on Ground 2. 3 The writ of habeas corpus is “at its core, an equitable remedy.” Schlup, 513 U.S. 4 at 319. The Supreme Court has instructed:

5 The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. 6 Its pre-eminent role is recognized by the admonition in the Constitution that: “The Privilege of the Writ of Habeas Corpus shall not be suspended * * *.” 7 U.S.Const., Art. I, § 9, cl. 2. The scope and flexibility of the writ—its capacity to reach all manner of illegal detention—its ability to cut through barriers of 8 form and procedural mazes—have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that 9 it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected. 10 11 Harris v. Nelson, 394 U.S. 286, 291 (1969). The equitable and flexible nature of habeas 12 corpus relief is reflected in 28 U.S.C. § 2243, which authorizes federal courts to resolve 13 habeas matters “as law and justice require.” See Hilton v. Braunskill, 481 U.S. 770, 775 14 (1987). Federal courts thus have broad authority, in the context of the unique facts and 15 circumstances of each case, to fashion a remedy tailored to the injury suffered from the 16 constitutional violation. See Braunskill, 481 U.S. at 775; Nunes v. Mueller, 350 F.3d 1045, 17 1056–57 (9th Cir. 2003). “[A]ny habeas remedy should put the defendant back in the 18 position he would have been if the Sixth Amendment violation never occurred.” Nunes, 19 350 F.3d at 1057 (quoting United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)). 20 Here, the Court’s intention is to grant Bradford relief that will put him in the position 21 he would be in had his counsel reasonably advised him regarding the plea offer made by 22 the State prior to the first trial in the Zambrano-Lopez case, had he accepted that offer, 23 and had the trial court approved it. This Court finds that, had he not received ineffective 24 assistance of counsel, Bradford would now be convicted, upon guilty pleas, of second- 25 degree murder with use of a deadly weapon and conspiracy to commit robbery in both 26 the Zambrano-Lopez case and the Limongello case, and he would be serving concurrent 27 prison sentences with parole possible after twenty years. Bradford seeks to have the 1 deal.” Pet’s Prehearing Brief, ECF No. 150, at 28. The Court determines that the remedy 2 requested by Bradford is appropriate, and that it should be adequate, and the Court will 3 grant such relief. See Lafler, 566 U.S. at 162–75. If this relief proves to be inadequate to 4 put Bradford in the position he would be in had he not received ineffective assistance of 5 counsel, Bradford may make an appropriate motion to modify the judgment. 6 D. Bradford’s Other Claims 7 The Court determines that granting Bradford relief on Ground 2 renders moot his 8 other claims in Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The Court 9 further determines that addressing those claims at this time is unnecessary and would 10 only delay the grant of habeas relief to Bradford. Therefore, the Court will deny the 11 remainder of Bradford’s claims—the claims in Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 12 13, 14, 15, 16, and 17—without prejudice, as moot. 13 E. Certificate of Appealability 14 The standard for the issuance of a certificate of appealability requires a 15 “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The 16 Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

17 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 18 petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The 19 issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as 20 follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 21 COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the 22 denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 23 24 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 25 1077–79 (9th Cir. 2000). 26 The Court finds that, with respect to the claims on which the Court denies 27 Bradford relief (without prejudice, as moot), applying the standard articulated in Slack, a 1 || certificate of appealability is unwarranted. The Court will deny Bradford a certificate of 2 || appealability relative to those claims. 3 IV. Conclusion 5 IT IS THEREFORE ORDERED that Petitioner’s Second Amended Petition for Writ 6 || of Habeas Corpus (ECF No. 67) is GRANTED IN PART AND DENIED IN PART. 7 || Petitioner is granted relief on his claim in Ground 2 of his second amended habeas 8 || petition. The Court denies relief, without prejudice, on all other claims in Petitioner's 9 || second amended habeas petition, as those claims are rendered moot by the grant of relief 10 || on the claim in Ground 2. 11 IT IS FURTHER ORDERED that Respondents shall, within 7 days from the date 12 || of this order, extend to Petitioner the same plea offer that he received before his first trial 13 || in the Zambrano-Lopez case and allow Petitioner at least 7 days to either accept or 14 || decline that offer. 15 IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability 16 || with respect to all claims on which the Court denies relief. 17 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 18 || judgment accordingly. 19 IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 20 || 25(d), Calvin Johnson is substituted for William Gittere, as the respondent warden. The 21 || Clerk of the Court is directed to update the docket to reflect this change. 22 23 DATED: July 20, 2021. 24 25 AS 26 UNITED STATES DISTRICT JUDGE 27 28