Brock v. Renee Baker

• Court: District Court, D. Nevada
• Decided: February 1, 2022
• Docket: 3:20-cv-00220
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 DEMETRIUS LAMAR BROCK, Case No. 3:20-cv-00220-LRH-CSD

5 Petitioner, ORDER 6 v.

7 RENEE BAKER, et al.,

8 Respondents.

9 10 11 I. INTRODUCTION 12 This action is a petition for writ of habeas corpus by Demetrius Lamar Brock, an 13 individual incarcerated at Nevada’s Lovelock Correctional Center. Brock is represented 14 by counsel. The case is before the Court for resolution of Brock’s claims on their merits. 15 The Court will deny Brock’s petition, will deny Brock a certificate of appealability, and 16 will direct the Clerk of the Court to enter judgment accordingly. 17 II. BACKGROUND 18 Brock was convicted in Nevada’s Eighth Judicial District Court (Clark County), 19 after a jury trial, of second-degree murder with use of a deadly weapon and carrying a 20 concealed firearm or other deadly weapon. His convictions resulted from the murder of 21 his neighbor, Tyrollia Belt, in Las Vegas, on November 5, 2012. He is serving a 22 sentence of life in prison with minimum parole eligibility of ten years, plus a consecutive 23 term of life with minimum parole eligibility of eight years, on the murder conviction, and 24 a consecutive term of 36 months with minimum parole eligibility of twelve months on the 25 conviction of carrying a concealed firearm or other deadly weapon. 26 In its order on Brock’s direct appeal, the Nevada Court of Appeals described the 27 factual background of the case as follows: The jury heard testimony Brock approached the victim around 6:00 1 or 6:30 p.m. and told him to stop slamming his apartment door. The two engaged in a heated argument that lasted about 10 to 20 minutes, after 2 which the victim left the apartment complex with his wife and Brock discussed the incident with an apartment courtesy patrol officer. Later, 3 sometime after 8:30 p.m., Brock encountered the victim in the apartment complex’s parking lot and the two began to argue again. 4 Brock was carrying his handgun in a fanny pack and the handgun 5 was not visible to the victim. Brock removed the handgun from the fanny pack and moved towards the victim while shooting. Brock shot the victim 6 in the head and the chest, and he continued to shoot after the victim had fallen. The forensic evidence showed Brock fired a total of 15 rounds while 7 moving towards the victim and upwards of 5 of these rounds were fired into the victim as he lie dying on the ground. 8 9 Order of Affirmance, Exh. 63, pp. 1–2 (ECF No. 22-17, pp. 2–3). 10 On December 12, 2013, Brock was indicted by a grand jury and charged with 11 second-degree murder with use of a deadly weapon and carrying a concealed firearm 12 or other deadly weapon. See Transcript of Grand Jury Proceedings, Exh. 9, p. 70 (ECF 13 No. 18-9, p. 71). Brock’s jury trial commenced on February 18, 2014, and it lasted four 14 days. See Court Minutes, Exh. 1, pp. 7–14 (ECF No. 18-1, pp. 8–15); Trial Transcripts, 15 Exhs. 22 (day 2), 23 (day 3), and 26 (day 4) (ECF Nos. 19-1, 20-1, 21-1). The jury found 16 Brock guilty of all charges: second-degree murder with use of a deadly weapon and 17 carrying a concealed firearm or other deadly weapon. Verdict, Exh. 27 (ECF No. 21-2). 18 The judgment of conviction was filed on September 24, 2014. Judgment of Conviction, 19 Exh. 32 (ECF No. 21-7). 20 Brock appealed. See Appellant’s Opening Brief, Exh. 58 (ECF No. 22-12). The 21 Nevada Court of Appeals affirmed on April 20, 2016. Order of Affirmance, Exh. 63 (ECF 22 No. 22-17). 23 Brock then filed a petition for writ of habeas corpus in the state district court on 24 December 27, 2016. Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 66 25 (ECF No. 22-20). Brock later filed a supplemental brief in support of that petition. 26 Supplemental Brief in Support of Petition, Exh. 69 (ECF No. 22-23). The state district 27 court granted Brock’s motion to obtain an investigator and appointed an investigator for 1 Order for Appointment of Investigator, Exh. 73 (ECF No. 22-27). The court held an 2 evidentiary hearing on August 23, 2018. See Transcript of Evidentiary Hearing, Exh. 75 3 (ECF No. 23-1). At the conclusion of the evidentiary hearing, and after argument by 4 counsel, the judge stated he would deny Brock’s petition. Id. at 67–68 (ECF No. 23-1, 5 pp. 68–69). The state district court filed a written order denying Brock’s petition on 6 October 10, 2018. Findings of Fact, Conclusions of Law and Order, Exh. 84 (ECF No. 7 23-10). Brock appealed. See Appellant’s Opening Brief, Exh. 92 (ECF No. 24-1); 8 Appellant’s Reply Brief, Exh. 94 (ECF No. 24-3). The Nevada Supreme Court affirmed 9 on November 15, 2019. Order of Affirmance, Exh. 95 (ECF No. 24-4). 10 On April 9, 2020, Brock, represented by counsel, filed his habeas petition, 11 initiating this action (ECF No. 1). Brock’s petition includes the following claims:

12 Ground 1: Brock’s federal constitutional rights were violated because the evidence adduced at trial was insufficient to support his convictions. 13 Ground 2: Brock’s federal constitutional rights were violated on account of 14 ineffective assistance of his trial counsel because of his trial counsel’s “failure to introduce evidence of the deceased’s violent past.” 15 Ground 3: Brock’s federal constitutional rights were violated on account of 16 ineffective assistance of his trial counsel because of his trial counsel’s “failure to properly notice an expert witness.” 17 Ground 4: Brock’s federal constitutional rights were violated on account of 18 ineffective assistance of his appellate counsel because of his appellate counsel’s “failure to raise on direct appeal that the district court improperly 19 precluded a percipient [witness’s] statements articulating that Mr. Belt was the probable aggressor.” 20 Ground 5: Brock’s federal constitutional rights were violated on account of 21 ineffective assistance of his trial and appellate counsel because of their “failure to object to the State presenting testimony regarding the autopsy 22 from Dr. Lisa Gavin when she did not perform the autopsy.”

23 Ground 6: Brock’s federal constitutional rights were violated on account of ineffective assistance of his trial counsel “based upon trial counsel’s 24 closing wherein counsel conceded the defendant’s guilt without the defendant’s consent.” 25 Ground 7: Brock’s federal constitutional rights were violated on account of 26 ineffective assistance of his trial and appellate counsel because of their “failure to object and advise the jury not to consider unfounded prejudicial 27 character evidence.” Ground 8: Brock’s federal constitutional rights were violated on account of 1 ineffective assistance of his trial and appellate counsel because of trial counsel’s “failure to object” and appellate counsel’s failure “to raise on 2 appeal the district court’s giving of improper jury instructions.”

3 A. The Malice Instruction

4 B. The Premeditation and Deliberation Instruction

5 C. The Reasonable Doubt Instruction

6 D. The Equal and Exact Justice Instruction

7 Ground 9: “Mr. Brock is entitled to a reversal of his convictions based upon cumulative error.” 8 9 Petition for Writ of Habeas Corpus (ECF No. 25), pp. 15–47. 10 Respondents filed an answer on March 12, 2021 (ECF No. 17). Brock filed a 11 reply on June 16, 2021 (ECF No. 29). Respondents filed a response to Brock’s reply on 12 July 31, 2021 (ECF No. 34). 13 III. DISCUSSION 14 A. Standard of Review 15 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a 16 federal court may not grant a petition for a writ of habeas corpus on any claim that was 17 adjudicated on its merits in state court unless the state court decision was contrary to, 18 or involved an unreasonable application of, clearly established federal law as 19 determined by United States Supreme Court precedent, or was based on an 20 unreasonable determination of the facts in light of the evidence presented in the state- 21 court proceeding. See 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly 22 established federal law if it either applies a rule that contradicts governing Supreme 23 Court law or reaches a result that differs from the result the Supreme Court reached on 24 “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per 25 curiam). A state-court ruling is “an unreasonable application” of clearly established 26 federal law under section 2254(d) if it correctly identifies the governing legal rule but 27 unreasonably applies the rule to the facts of the case. See Williams v. Taylor, 529 U.S. 1 application,” however, a petitioner must show that the state court’s application of 2 Supreme Court precedent was “objectively unreasonable.” Id. at 409–10; see also 3 Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). Or, in other words, habeas relief is 4 warranted, under the “unreasonable application” clause of section 2254(d), only if the 5 state court’s ruling was “so lacking in justification that there was an error well 6 understood and comprehended in existing law beyond any possibility for fairminded 7 disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 8 B. Ground 1 9 In Ground 1, Brock claims that his federal constitutional rights were violated 10 because the evidence adduced at trial was insufficient to support his convictions of 11 second-degree murder and carrying a concealed firearm or other deadly weapon. 12 Petition for Writ of Habeas Corpus (ECF No. 25), pp. 15–17. 13 Brock asserted this claim on his direct appeal. See Appellant’s Opening Brief, 14 Exh. 58, pp. 7–9 (ECF No. 22-12, pp. 11–13). The Nevada Court of Appeals ruled as 15 follows:

16 Appellant Demetrius Brock claims there was insufficient evidence to support his convictions. He argues the evidence does not support the 17 finding of malice necessary for second-degree murder and his handgun was not concealed. We review the evidence in the light most favorable to 18 the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable 19 doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). 20 The jury heard testimony Brock approached the victim around 6:00 21 or 6:30 p.m. and told him to stop slamming his apartment door. The two engaged in a heated argument that lasted about 10 to 20 minutes, after 22 which the victim left the apartment complex with his wife and Brock discussed the incident with an apartment courtesy patrol officer. Later, 23 sometime after 8:30 p.m., Brock encountered the victim in the apartment complex’s parking lot and the two began to argue again. 24 Brock was carrying his handgun in a fanny pack and the handgun 25 was not visible to the victim. Brock removed the handgun from the fanny pack and moved towards the victim while shooting. Brock shot the victim 26 in the head and the chest, and he continued to shoot after the victim had fallen. The forensic evidence showed Brock fired a total of 15 rounds while 27 moving towards the victim and upwards of 5 of these rounds were fired We conclude a rational juror could reasonably infer from this 1 evidence Brock carried his handgun concealed upon his person and acted with malice when he shot and killed the victim. See NRS 200.010(1); NRS 2 200.020; NRS 200.030(2); NRS 202.350(1)(d)(4). It is for the jury to determine the weight and credibility to give conflicting testimony, and the 3 jury’s verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 4 P.2d 20, 20 (1981). 5 Order of Affirmance, Exh. 63, pp. 1–2 (ECF No. 22-17, pp. 2–3). 6 The Due Process Clause of the United States Constitution “protects the accused 7 against conviction except upon proof beyond a reasonable doubt of every fact 8 necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 9 358, 364 (1970). “[T]he relevant question is whether, after viewing the evidence in the 10 light most favorable to the prosecution, any rational trier of fact could have found the 11 essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 12 U.S. 307, 319 (1979) (emphasis in original); see also Payne v. Borg, 982 F.2d 335, 338 13 (9th Cir. 1992). “[F]aced with a record of historical facts that supports conflicting 14 inferences,” the court “must presume—even if it does not affirmatively appear in the 15 record—that the trier of fact resolved any such conflicts in favor of the prosecution, and 16 must defer to that resolution.” Jackson, 443 U.S. at 326; see also McDaniel v. Brown, 17 558 U.S. 120, 133 (2010) (reaffirming Jackson standard). The Supreme Court has 18 emphasized that claims of insufficiency of the evidence “face a high bar in federal 19 habeas proceedings ....” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). 20 Furthermore, because this claim was raised in state court and was ruled upon by 21 the Nevada Court of Appeals on Brock’s direct appeal, 28 U.S.C. § 2254(d) adds an 22 additional layer of deference; to prevail on the claim, Brock must demonstrate that the 23 state court's ruling was an unreasonable application of the Jackson standard. See Juan 24 H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). 25 Applying these standards, viewing the testimony at trial in its entirety in the light 26 most favorable to the prosecution, the Court determines that this claim is without merit. 27 There was ample evidence presented at trial upon which a rational trier of fact could 1 Brock carried a concealed firearm. See Trial Transcripts, Exhs. 22 (day 2), 23 (day 3), 2 and 26 (day 4) (ECF Nos. 19-1, 20-1, 21-1). The Nevada Court of Appeals’ ruling on 3 this claim was not contrary to, or an unreasonable application of, Jackson, or any other 4 Supreme Court precedent. The Court will deny Brock habeas corpus relief on Ground 1. 5 C. Ground 2 6 In Ground 2, Brock claims that his federal constitutional rights were violated on 7 account of ineffective assistance of his trial counsel because of his trial counsel’s 8 “failure to introduce evidence of the deceased’s violent past.” Petition for Writ of Habeas 9 Corpus (ECF No. 25), pp. 20–25. 10 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 11 analysis of claims of ineffective assistance of counsel, requiring the petitioner to 12 demonstrate (1) that the attorney’s “representation fell below an objective standard of 13 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the 14 defendant such that “there is a reasonable probability that, but for counsel’s 15 unprofessional errors, the result of the proceeding would have been different.” 16 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). A court considering a claim of 17 ineffective assistance of counsel must apply a “strong presumption that counsel’s 18 conduct falls within the wide range of reasonable professional assistance.” Id. at 689. 19 The petitioner’s burden is to show “that counsel made errors so serious that counsel 20 was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 21 Amendment.” Id. at 687. To establish prejudice under Strickland, it is not enough for the 22 habeas petitioner “to show that the errors had some conceivable effect on the outcome 23 of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 24 defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Where a state court 25 previously adjudicated the claim of ineffective assistance of counsel under Strickland, 26 establishing that the decision was unreasonable is especially difficult. See Harrington, 27 562 U.S. at 104–05. In Harrington, the Supreme Court instructed that Strickland and 1 is doubly so. Id. at 105; see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2 2010) (“When a federal court reviews a state court’s Strickland determination under 3 AEDPA, both AEDPA and Strickland’s deferential standards apply; hence, the Supreme 4 Court’s description of the standard as doubly deferential.” (internal quotation marks 5 omitted)). “When § 2254(d) applies, the question is not whether counsel’s actions were 6 reasonable. The question is whether there is any reasonable argument that counsel 7 satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 8 Brock asserted this claim of ineffective assistance of counsel on the appeal in his 9 state habeas action. See Appellant’s Opening Brief, Exh. 92, pp. 20–26 (ECF No. 24-1, 10 pp. 30–36). The Nevada Supreme Court ruled as follows:

11 … Brock argues that counsel should have introduced evidence of the victim's child abuse convictions to prove he was the likely aggressor 12 and support Brock's claim of self-defense. We conclude that counsel was not deficient. A defendant may “present evidence of a victim's character 13 when it tends to prove that the victim was the likely aggressor,” however, he may not prove that character evidence with specific instances of 14 conduct. Daniel v. State, 119 Nev. 498, 514, 78 P.3d 890, 901 (2003); see NRS 48.055(1). While a defendant may introduce specific acts of violence 15 if he was aware of those acts, Daniel, 119 Nev. at 515, 78 P.3d at 902, the record does not indicate that Brock was aware of any prior violent conduct 16 by the victim. Therefore, the district court did not err in denying this claim. [Footnote: The district court erroneously concluded counsel was deficient, 17 but denied the claim because Brock did not show prejudice. We conclude that the district court reached the correct result in denying this claim. See 18 Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970).] 19 Order of Affirmance, Exh. 95, p. 2 (ECF No. 24-4, p. 3). 20 The Nevada Supreme Court’s determination that the evidence that Brock 21 believes his trial counsel should have proffered at trial would have been inadmissible 22 was based purely on the Nevada Supreme Court’s interpretation of Nevada law. That 23 aspect of the Nevada Supreme Court’s ruling is authoritative and beyond the scope of 24 this federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 25 Given, then, that the subject evidence—the evidence of Belt’s child abuse 26 convictions—was inadmissible under state law, the Nevada Supreme reasonably ruled, 27 applying Strickland, that Brock’s trial counsel did not act unreasonably in not offering the 1 inadmissible evidence. The Nevada Supreme Court’s ruling on this claim was not 2 contrary to, or an unreasonable application of, Strickland, or any other Supreme Court 3 precedent. The Court will deny Brock habeas corpus relief on Ground 2. 4 D. Ground 3 5 In Ground 3, Brock claims that his federal constitutional rights were violated on 6 account of ineffective assistance of his trial counsel because of his trial counsel’s 7 “failure to properly notice an expert witness.” Petition for Writ of Habeas Corpus (ECF 8 No. 25), pp. 25–27. 9 Brock asserted this claim on the appeal in his state habeas action. See 10 Appellant’s Opening Brief, Exh. 92, pp. 26–28 (ECF No. 24-1, pp. 36–38). The Nevada 11 Supreme Court ruled as follows:

12 … Brock argues that counsel should have noticed potential firearm expert testimony. However, Brock did not identify the testimony he hoped 13 to elicit from an expert or describe how it would affect his trial. See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). 14 Therefore, the district court did not err in denying this claim. 15 Order of Affirmance, Exh. 95, p. 2 (ECF No. 24-4, p. 3). 16 The Nevada Supreme Court’s ruling was reasonable. With respect to the 17 prejudice prong of the Strickland standard, Brock’s claim is completely insubstantial. 18 Brock makes no showing what testimony an expert witness could have provided. See 19 Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (mere speculation that an expert 20 could have been found to testify at trial is not sufficient to establish prejudice); Grisby v. 21 Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (“Grisby has failed to establish how expert 22 testimony would have raised a ‘reasonable probability’ that the outcome of the trial 23 would have been different. Speculation about what an expert could have said is not 24 enough to establish prejudice.”). The Court will deny Brock habeas corpus relief on 25 Ground 3. 26 E. Ground 4 27 In Ground 4, Brock claims that his federal constitutional rights were violated on 1 counsel’s “failure to raise on direct appeal that the district court improperly precluded a 2 percipient [witness’s] statements articulating that Mr. Belt was the probable aggressor.” 3 Petition for Writ of Habeas Corpus (ECF No. 25), pp. 28–30. 4 Brock asserted this claim on the appeal in his state habeas action. See 5 Appellant’s Opening Brief, Exh. 92, pp. 28–31 (ECF No. 24-1, pp. 38–41). The Nevada 6 Supreme Court ruled as follows:

7 … Brock argues that appellate counsel should have challenged a district court ruling precluding a witness’s opinion that the victim was 8 responsible for the altercation during which he was shot. Brock asserts that it was admissible as a present sense impression. We disagree. The 9 declaration was a statement provided to police which was not made at the time the witness perceived the shooting or immediately thereafter. See 10 NRS 51.085. Additionally, it was the witness’s opinion about the victim’s blame and not a description of the event. Id. Therefore, Brock failed to 11 demonstrate that appellate counsel neglected to raise a meritorious claim. 12 Order of Affirmance, Exh. 95, pp. 2–3 (ECF No. 24-4, pp. 3–4). 13 The Nevada Supreme Court’s ruling regarding the evidentiary issue at the heart 14 of this claim was based purely on the Nevada Supreme Court’s interpretation of Nevada 15 law, and that aspect of the Nevada Supreme Court’s ruling is authoritative and beyond 16 the scope of this federal habeas action. See Estelle, 502 U.S. at 67–68. Therefore, 17 given that the Nevada Supreme Court ruled that the trial court’s evidentiary ruling was 18 correct under Nevada law, it inevitably follows that Brock’s appellate counsel did not 19 perform deficiently in not raising the issue on Brock’s direct appeal, and Brock was not 20 prejudiced. The Nevada Supreme Court reasonably denied relief on this claim. The 21 Nevada Supreme Court’s ruling was not contrary to, or an unreasonable application of, 22 Strickland, or any other Supreme Court precedent. The Court will deny Brock habeas 23 corpus relief on Ground 4. 24 F. Ground 5 25 In Ground 5, Brock claims that his federal constitutional rights were violated on 26 account of ineffective assistance of his trial and appellate counsel because of their 27 “failure to object to the State presenting testimony regarding the autopsy from Dr. Lisa 1 No. 25), pp. 30–34. More specifically, Brock claims that his constitutional right of 2 confrontation under the Sixth and Fourteenth Amendments was violated because the 3 trial court allowed the expert testimony of Dr. Lisa Gavin. Dr. Gavin’s testimony was 4 based in part on, and she drew conclusions in part from, an autopsy performed by 5 another doctor, Dr. Gary Telgenhoff. See id. Brock cites Crawford v. Washington, 541 6 U.S. 36 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); and Bullcoming 7 v. New Mexico, 564 U.S. 647 (2011) in support of his contention that there was a 8 confrontation clause violation. See id. Brock claims that his trial counsel was ineffective 9 for not objecting, and he claims that his appellate counsel was ineffective for not raising 10 this issue on his direct appeal. See id. 11 Brock asserted this claim on the appeal in his state habeas action. See 12 Appellant’s Opening Brief, Exh. 92, pp. 31–37 (ECF No. 24-1, pp. 41–47). The Nevada 13 Supreme Court ruled as follows:

14 … Brock argues that trial and appellate counsel should have challenged the medical examiner’s testimony about the autopsy as she did 15 not perform the autopsy, thus violating Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564 U.S. 647 (2011). 16 Brock did not demonstrate deficient performance or prejudice. The testifying medical examiner gave her independent expert opinion based on 17 the autopsy report and photographs and did not violate the Confrontation Clause because her judgment and methods were subject to cross- 18 examination. See Vega v. State, 126 Nev. 332, 340, 236 P.3d 632, 638 (2010). As a Confrontation Clause claim would have failed, trial and 19 appellate counsel were not deficient in declining to raise a futile objection or argument. See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 20 (2006). Therefore, the district court did not err in denying this claim. 21 Order of Affirmance, Exh. 95, p. 3 (ECF No. 24-4, p. 4). 22 The Confrontation Clause of the Sixth Amendment, applicable in state court by 23 virtue of the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused 24 shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. 25 amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965). The Confrontation Clause bars 26 “admission of testimonial statements of a witness who did not appear at trial unless he 27 was unavailable to testify, and the defendant had had a prior opportunity for cross- 1 which the Confrontation Clause applies includes a statement “made under 2 circumstances which would lead an objective witness reasonably to believe that the 3 statement would be available for use at a later trial.” See id. at 52. The Confrontation 4 Clause applies to reports of forensic analyses. See Melendez-Diaz, 557 U.S. at 315–24. 5 And, the Confrontation Clause applies where a forensic analysis was performed, and 6 the report of the analysis was produced, by one expert, and is presented in court 7 through the testimony of a different expert. See Bullcoming, 564 U.S. at 657–63. 8 However, Brock’s claim raises the question whether the autopsy report is a 9 testimonial statement within the meaning of Crawford, Melendez-Diaz, and Bullcoming. 10 Brock cites an opinion of the Eleventh Circuit Court of Appeals and an opinion of the 11 District of Columbia Court of Appeals for the proposition that autopsy reports are 12 testimonial statements. See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 32– 13 33, citing United States v. Ignasiak, 667 F.3d 1217, 1231–32 (11th Cir. 2012), and 14 United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011) (per curium), aff’d in part, 15 Smith v. United States, 133 S. Ct. 714 (2013). Brock also cites the rulings of state 16 courts to the same effect. See id. at 33. Brock does not cite any Supreme Court 17 precedent for this proposition. See id. at 30–34; see also Reply (ECF No. 29), p. 13. 18 The United States Supreme Court has never ruled that autopsy reports are 19 testimonial within the meaning of Crawford, Melendez-Diaz, and Bullcoming. Because 20 the United States Supreme Court has not, and had not at the time of the Nevada 21 Supreme Court’s ruling, established that autopsy reports are testimonial, the Nevada 22 Supreme Court’s ruling cannot be considered contrary to, or an unreasonable 23 application of, clearly established law as determined by the United States Supreme 24 Court. See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the 25 lack of holdings from this Court ..., it cannot be said that the state court ‘unreasonabl[y] 26 appli[ed] clearly established Federal law.’” (quoting 28 U.S.C. § 2254(d))); see also 27 Greene v. Fisher, 565 U.S. 34, 38 (2011) (§ 2254(d)’s “backward-looking language 1 requires an examination of the state-court decision at the time it was made” (quoting 2 Cullen v. Pinholster, 563 U.S. 170, 182 (2011))). 3 Because Brock does not show that the Nevada Supreme Court misapplied 4 clearly established United States Supreme Court precedent in determining that there 5 was no Confrontation Clause violation, it follows that Brock does not show that the 6 Nevada Supreme Court unreasonably ruled that his trial and appellate counsel 7 performed inadequately with respect to the issue, or that he was prejudiced, as required 8 under Strickland. 9 This Court, then, determines that the Nevada Supreme Court’s denial of relief on 10 this claim was not contrary to, or an unreasonable application of, Strickland, Crawford, 11 Melendez-Diaz, Bullcoming, or any other Supreme Court precedent. The Court will deny 12 Brock habeas corpus relief on Ground 5. 13 G. Ground 6 14 In Ground 6, Brock claims that his federal constitutional rights were violated on 15 account of ineffective assistance of his trial counsel “based upon trial counsel’s closing 16 wherein counsel conceded the defendant’s guilt without the defendant’s consent.” 17 Petition for Writ of Habeas Corpus (ECF No. 25), pp. 34–38. 18 In context, the argument of Brock’s trial counsel, in closing argument, that is the 19 subject of this claim, is as follows:

20 Now, second degree murder is any murder that’s not first degree. So if you believe a murder was committed, and you'll have the 21 instructions, and it was premeditated and it was deliberate and all of the elements were there, then it’s first degree murder. If you think all of those 22 elements aren’t there, it’s still murder, it’s second degree murder. But if you think that, well, no, that just – that’s really not correct, that' s not what 23 really happened, the next choice you have is voluntary manslaughter. Voluntary manslaughter is basically in between first degree murder and 24 self-defense, somewhere in between.

25 For the sudden violent impulse of passion to be irresistible resulting in a killing which is voluntary manslaughter, there must not have been an 26 interval between the assault or provocation and the killing sufficient for the voice of reason and humanity to be heard. There was no time. Mr. Brock 27 was confronted. He shot his 15 shots. Within three to five seconds there 1 But if you don’t think that this is a self-defense case, I would submit to you it has to be voluntary manslaughter. It’s not first degree. There’s no 2 way it’s first degree. Could you come up with second degree the way you look at it? I guess. The two—the two things in the middle, second 3 degree murder or voluntary manslaughter, if you get rid of the two that are farthest apart, that’s where your deliberation lies. And if that’s where 4 you are, if you haven’t considered or you don’t think it’s self-defense because of the provocation, because of the situation, because of what 5 happened, it would seem like this is a voluntary manslaughter case. 6 Trial Transcript, Exh. 26 (day 4), pp. 110–11 (ECF No. 21-1, pp. 111–12). 7 Brock asserted this claim on the appeal in his state habeas action. See 8 Appellant’s Opening Brief, Exh. 92, pp. 37–43 (ECF No. 24-1, pp. 47–53). The Nevada 9 Supreme Court ruled as follows:

10 … Brock asserts that trial counsel improperly conceded his guilt during closing argument. Brock fails to demonstrate that counsel’s 11 decision was unreasonable. Counsel argued that Brock acted in self- defense and, alternatively, his actions constituted second-degree murder 12 or voluntary manslaughter as opposed to first-degree murder. This strategy is entitled to deference and was reasonable under the 13 circumstances. See Armenta-Carpio v. State, 129 Nev. 531, 535–36, 306 P.3d 395, 398–99 (2013) (recognizing that “[a] concession of guilt is 14 simply a trial strategy—no different than any other strategy the defense might employ at trial” and counsel’s decision should be reviewed for 15 reasonableness); Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280–81 (1996) (observing that strategic decisions are virtually 16 unchallengeable under most circumstances). But cf. Jones v. State, 110 Nev. 730, 738, 877 P.2d 1052, 1057 (1994) (concluding that counsel’s 17 concession of guilt was improper where it contradicted defendant’s testimony). Given the evidence against him, Brock failed to demonstrate a 18 reasonable probability of a different outcome at trial had counsel not made the challenged argument. Brock and the victim argued on the day of the 19 shooting. Although security responded to the argument, Brock did not want police called, suggesting he did not consider the victim threatening. 20 The victim was unarmed and was talking on the phone to his girlfriend when the shooting began. Brock shot at the victim 15 times, emptying his 21 weapon. Eight shots struck the victim and the trajectory of some of the wounds and physical evidence at the scene suggested that Brock 22 advanced toward the victim and continued to shoot him after he fell. Therefore, the district court did not err in denying this claim. 23 24 Order of Affirmance, Exh. 95, pp. 3–4 (ECF No. 24-4, pp. 4–5). 25 Brock does not show the Nevada Supreme Court’s ruling to be contrary to, or an 26 unreasonable application of, Supreme Court precedent. The only Supreme Court cases 27 cited by Brock are: Strickland v. Washington, 466 U.S. 668 (1984); United States v. 1 Cronic, 466 U.S. 648 (1984); and Florida v. Nixon, 543 U.S. 175 (2004). See Petition for 2 Writ of Habeas Corpus (ECF No. 25), pp. 34–38; Reply (ECF No. 29), pp. 13–14. 3 Brock does not in this Court, and he did not in state court, cite McCoy v. 4 Louisiana, 138 S.Ct. 1500 (2018), in which the Supreme Court held it is structural error 5 if defense counsel concedes guilt over the defendant’s express objection—perhaps 6 because Brock does not allege, or offer any evidence to show, that he expressly 7 objected to his counsel’s argument. See Petition for Writ of Habeas Corpus (ECF No. 8 25), pp. 34–38; see also Appellant’s Opening Brief, Exh. 92, pp. 37–43 (ECF No. 24-1, 9 pp. 47–53). 10 Brock cites Strickland only regarding the general requirements for establishing a 11 claim of ineffective assistance of counsel. See Petition for Writ of Habeas Corpus (ECF 12 No. 25), p. 35; Reply (ECF No. 29), p. 14. 13 Regarding Brock’s reliance on Nixon, the Nevada Supreme Court’s ruling was 14 not inconsistent with that holding. In fact, the holding in Nixon, generally tends to 15 support the Nevada Supreme Court’s ruling, as it illustrates that a concession, in the 16 absence of express approval or objection from the client, may under some 17 circumstances be reasonable. See Nixon, 543 U.S. at 187–92. 18 Brock cites Cronic for the proposition that “[t]he right to the effective assistance of 19 counsel is thus the right of the accused to require the prosecution’s case to survive the 20 crucible of meaningful adversarial testing.” See Petition for Writ of Habeas Corpus (ECF 21 No. 25), p. 35; see also Cronic, 466 U.S. at 656. As the Court understands it, the point 22 of Brock’s citation of Cronic is that, if the attorney error alleged in this claim is like that in 23 Cronic—complete failure of counsel to function as the client’s advocate—there would be 24 a presumption that Brock was prejudiced. But, in this case, Brock’s counsel did not 25 cease to function as his advocate in making the argument Brock complains about. 26 In fact, in this Court’s view, Brock’s counsel’s argument was not a concession of 27 guilt at all, and it certainly was not a concession that had any impact on the jury’s 1 that this was voluntary manslaughter. He argues it was self-defense and that’s it. So 2 let’s talk about why this is not self-defense.” Trial Transcript, Exh. 26 (day 4), p. 87 (ECF 3 No. 21-1, p. 88). Brock’s counsel apparently responded to that argument when he 4 argued that, if the jury did not find self-defense, it should find voluntary manslaughter 5 rather than murder. Brock’s counsel did not concede that Brock did not act in self- 6 defense. Brock’s counsel said nothing to undermine Brock’s assertion that he acted in 7 self-defense. See, e.g., Trial Transcript, Exh. 26 (day 4), pp. 107, 118 (ECF No. 21-1, 8 pp. 108, 119) (defense counsel arguing self-defense). Nor did defense counsel concede 9 any fact necessary to the jury’s finding of second-degree murder. There was no issue at 10 trial as to whether Brock shot and killed Belt; it undisputed that he had. Trial counsel’s 11 argument was simply that if the jury did not find that Brock acted in self-defense, the jury 12 should not find that Brock acted with the malice necessary for murder. That was a 13 reasonable alternative argument, and the Nevada Supreme Court’s ruling to that effect 14 was itself reasonable. 15 Brock has not shown the Nevada Supreme Court’s ruling to be contrary to, or an 16 unreasonable application of, Strickland, Nixon, or any other Supreme Court precedent. 17 The Court will deny Brock habeas corpus relief on Ground 6. 18 H. Ground 7 19 In Ground 7, Brock claims that his federal constitutional rights were violated on 20 account of ineffective assistance of his trial and appellate counsel because of their 21 “failure to object and advise the jury not to consider unfounded prejudicial character 22 evidence.” Petition for Writ of Habeas Corpus (ECF No. 25), pp. 38–42. 23 The evidence that Brock refers to in this claim was a comment made by 24 prosecution witness Bryan Carbone, the courtesy patrol officer at the apartments where 25 Belt was killed. The following was Carbone’s testimony on direct examination about a 26 conversation Carbone had with Brock between the time of Brock’s first confrontation 27 with Belt and the time of the shooting: Q. What was his demeanor like when you made contact with 1 him at that time?

2 A. Over confident. He just would not stop repeating himself.

3 Q. So would you—he’s very repetitive. Would you say he was frustrated or what do you mean by "over confident"? 4 A. Over confident, there was no hostility. No signs of emotional 5 problems. No nothing. It was just him repeating himself.

6 Q. What was the first thing he said to you?

7 A. He--he 's a military law enforcement professional. Something about his tattoos. I—I couldn't make any sense of it. He progressed or 8 went onto the—what happened with him and Mr. Belt at the time.

9 Q. What did he tell you happened?

10 A. He claimed that Mr. Brock approached Mr. Belt in a talkative fashion about stop slamming the door. 11 Q. Okay. 12 A. Then he claimed that Mr. Belt came back with a hostile, 13 aggressive, threatening bully-type affect, but he did not identify whether the threatening was verbal or physical. 14 Q. Did you ask him? 15 A. Yes, ma'am. 16 Q. Okay. And he couldn’t—he couldn't verbalize anything? 17 A. No. 18 Q. Did you ask him if you should call the cops? 19 A. Yes. Later I asked, Should I call the cops upon any mention 20 of threat. He replied with, no, he does not want to look like a punk in front of the cops. 21 Q. Okay. And this is the Defendant saying he doesn't want to 22 look like a punk in front of the cops?

23 A. Yes, ma’am, Mr. Brock.

24 Q. Did you say he didn't want to look like a punk in front of anyone else? 25 A. Yes, ma'am. I asked if he notified the office of any of this. 26 And he replied with he does not want to look like a punk in front of the staff. 27 1 A. No history with the tenant. He didn’t identify if it was just that day, is that what you're asking? 2 Q. Right. 3 A. Yes, ma'am. 4 Q. Okay. Did you ask him if he had ever notified the office? 5 A. Yes, ma'am. 6 Q. And he indicated he did not? 7 A. No. 8 Q. At some point, did he calm down? 9 A. Yes. At that point I [inaudible], so I recommended one of the 10 two parties move to a separate part of the location complex. He replied with he does not feel he should move. 11 Q. So at that point did he get frustrated or upset with you? 12 A. Yes, ma'am 13 Q. And what did you tell him next? 14 A. Because he wouldn't stop repeating himself, I said, "Okay, I'll 15 recommend [redacted], Mr. Belt, relocate to another apartment."

16 Q. Okay. And did that appease the Defendant?

17 A. Yes, ma'am. He was content at that point.

18 Q. And did your conversation with him end at that point?

19 A. Yes, ma'am. I said, "If any further, just call my extension, we'll"—that’s it. Just walked away. 20 Q. Okay. And did he seem calm at that point? 21 A. Yes, ma'am. 22 23 Trial Transcript, Exh. 22 (day 2), pp. 38–41 (ECF No. 19-1, pp. 39–42). Then, on a re- 24 cross examination, Brock’s counsel asked Carbone about that conversation, as follows:

25 Q. Now, you—you said that he repeated himself several times when you spoke to him about the slamming of the door incident? 26 A. At 6:38 p.m., yes, sir. 27 A. No, sir. 1 2 Id. at 59 (ECF No. 19-1, p. 60). And then, on the prosecutor’s further redirect 3 examination of Carbone, the following exchange occurred:

4 Q. When he was repeating himself earlier at that earlier confrontation, what did he keep repeating? 5 A. Something about being a military law enforcement 6 professional, his tattoos, something about gang member. It was hard to identify. 7 Q. Is it fair to say he wanted to make sure you knew he had 8 prior military experience?

9 A. That had nothing to do with why he called me, but.

10 Q. Right. But is that what happened?

11 A. He just kept repeating himself, yes, but.

12 Q. About how many times do you think he told you he had prior military or law enforcement experience? 13 A: Within a half an hour, it was more than I can count, so. 14 15 Id. at 60 (ECF No. 19-1, p. 61) (emphasis added). It is the witness’s unsolicited 16 statement, “something about a gang member,” that Brock claims his trial counsel should 17 have objected to or requested instruction to the jury regarding, and his appellate 18 counsel should have raised on appeal. 19 Brock asserted this claim on the appeal in his state habeas action. See 20 Appellant’s Opening Brief, Exh. 92, pp. 43–45 (ECF No. 24-1, pp. 53–55). The Nevada 21 Supreme Court ruled as follows:

22 … Brock argues that trial and appellate counsel should have challenged improper character evidence and requested a limiting 23 instruction. We disagree. The State elicited testimony about Brock’s statements to a security officer in response to defense questioning about 24 how Brock spoke to the security officer after his initial argument with the victim. See State v. Gomes, 112 Nev. 1473, 1480, 930 P.2d 701, 706 25 (1996) (providing that error in admitting evidence was not reversible where defense invited the error). Moreover, it was not clearly indicative that the 26 statement made by Brock to this witness indicated any prior bad act or unfavorable character evidence about Brock. Therefore, the district court 27 did not err in denying this claim. 1 The Court finds the Nevada Supreme Court’s ruling to be reasonable. The 2 witness’s testimony that Brock said “something about gang member” was so vague as 3 to be meaningless. The witness did not indicate who Brock said was a gang member. 4 The witness did not say that Brock said he himself was a gang member. The witness 5 did not specify what gang, or even what kind of gang, was referred to. The witness did 6 not testify that Brock admitted to committing any prior crime or bad act. The witness did 7 not say that Brock’s statement, “something about gang member,” indicated bad 8 character on Brock’s part. The statement by the witness was too brief and vague to 9 support any determination that Brock’s trial or appellate counsel performed deficiently in 10 not taking any action regarding it. And, at any rate, the statement by the witness was 11 too brief and vague for Brock to satisfy the second prong of the Strickland analysis by 12 showing that he was prejudiced by either trial or appellate counsel’s failure to take any 13 action regarding it. Brock has not shown the Nevada Supreme Court’s ruling to be 14 contrary to, or an unreasonable application of, Strickland. The Court will deny Brock 15 habeas corpus relief on Ground 7. 16 I. Ground 8 17 In Ground 8, Brock claims that his federal constitutional rights were violated on 18 account of ineffective assistance of his trial and appellate counsel because of trial 19 counsel’s “failure to object” and appellate counsel’s failure “to raise on appeal the 20 district court’s giving of improper jury instructions.” Petition for Writ of Habeas Corpus 21 (ECF No. 25), pp. 42–46. 22 1. Ground 8A - The Malice Instruction 23 Brock claims that his trial and appellate counsel were ineffective for failing to 24 challenge the following jury instruction:

25 Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances 26 capable of proof.

27 Malice may be implied when no considerable provocation appears, 1 See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 42–44; Jury Instruction No. 7, 2 Exh. 25 (ECF No. 20-3, p. 8). More specifically, Brock claims that his trial and appellate 3 counsel should have argued that the phrase “abandoned and malignant heart” is vague. 4 See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 42–44. 5 The Nevada Supreme Court rejected this claim, citing Leonard v. State, 117 Nev. 6 53, 78–79, 17 P.3d 397, 413 (2001). Order of Affirmance, Exh. 95, p. 5 (ECF No. 24-4, 7 p. 6). In Leonard, in 2001, the Nevada Supreme Court held as follows regarding the 8 argument that Brock makes in this case:

9 … Leonard also claims that the instructions were insufficient to define malice. Leonard specifically asserts that the implied malice 10 instruction contains language “so vague and pejorative that [it] is meaningless without further definition, and it should have been eliminated 11 in favor of less archaic terms which define the conscious disregard for life from which malice may be implied.” Leonard notes that the California 12 Supreme Court has criticized similar language defining implied malice in California’s own statute. See, e.g., People v. Phillips, 64 Cal.2d 574, 51 13 Cal.Rptr. 225, 414 P.2d 353, 363–64 (1966), overruled on other grounds by People v. Flood, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869, 14 882 n. 12 (1998); Cal.Penal Code § 188 (West 1999).

15 However, the statutory language is well established in Nevada, and we conclude that the malice instructions as a whole were sufficient. This 16 court has characterized the statutory language “abandoned and malignant heart” as “archaic but essential.” Keys v. State, 104 Nev. 736, 740, 766 17 P.2d 270, 272 (1988). This court held that similar instructions “accurately informed the jury of the distinction between express malice and implied 18 malice.” Guy v. State, 108 Nev. 770, 777 & n. 2, 839 P.2d 578, 582–83 & n. 2 (1992). Further, this court has held that language in the malice 19 aforethought instruction is constitutional that refers to “a heart fatally bent on mischief” and acts done “in contradistinction to accident or mischance.” 20 See Leonard, 114 Nev. at 1208, 969 P.2d at 296. This court concluded that “[a]lthough these phrases are not common in today's general 21 parlance, ... their use did not deprive appellant of a fair trial.” Id. Absent some indication that the jury was confused by the malice instructions 22 (including the instruction on malice aforethought and express malice), a defendant’s claim that the instructions were confusing is merely 23 “speculative.” See Guy, 108 Nev. at 777, 839 P.2d at 583. Leonard has not shown that the jury was confused in the instant case. 24 25 Leonard, 117 Nev. at 78–79, 17 P.3d at 413. Plainly then, to the extent Brock’s position 26 is that his counsel should have challenged the instruction under state law, his claim is 27 foreclosed by Nevada Supreme Court precedent. And, beyond that, Brock does not 1 federal law, much less that the instruction was invalid under United States Supreme 2 Court precedent. See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 42–44. 3 Because Brock does not identify any legitimate challenge that either his trial 4 counsel or his appellate counsel could have posed to the malice instruction, he does not 5 show that either performed deficiently or that he was prejudiced. The Nevada Supreme 6 Court’s ruling on this claim was not contrary to, or an unreasonable application of, 7 Strickland, or any other Supreme Court precedent. The Court will deny Brock habeas 8 corpus relief on Ground 8A. 9 2. Ground 8B - The Premeditation and Deliberation Instruction 10 Brock claims that his trial and appellate counsel were ineffective for failing to 11 challenge the following jury instruction:

12 Premeditation is a design, a determination to kill, distinctly formed in the mind by the time of the killing. 13 Premeditation need not be for a day, an hour, or even a minute. It 14 may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has 15 been preceded by and has been the result of premeditation, no matter how rapidly the act follows the premeditation, it is premeditated. 16 17 See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 44–45; Jury Instruction No. 8, 18 Exh. 25 (ECF No. 20-3, p. 9). Brock argues that “[b]y approving the concept of 19 ‘instantaneous’ premeditation and deliberation, the giving of this instruction created a 20 reasonable likelihood that the jury would convict and sentence on a charge of first 21 degree murder without any rational basis for distinguishing its verdict from one of 22 second degree murder, and without proof beyond a reasonable doubt of “premeditation 23 and deliberation,” which are statutory elements of first degree murder.” Petition for Writ 24 of Habeas Corpus (ECF No. 25), p. 44. 25 This claim is wholly without merit. Brock was convicted of second-degree murder, 26 not first-degree murder. Even if this instruction was erroneous—and this Court does not 27 find that it was—Brock was not prejudiced by his counsel’s failure to challenge it. The 1 unreasonable application of, Strickland, or any other Supreme Court precedent. The 2 Court will deny Brock habeas corpus relief on Ground 8B. 3 3. Ground 8C - The Reasonable Doubt Instruction 4 Brock claims that his trial and appellate counsel were ineffective for failing to 5 challenge the following jury instruction:

6 A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more 7 weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can 8 say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere 9 possibility or speculation. 10 See Petition for Writ of Habeas Corpus (ECF No. 25), pp. 45–46; Jury Instruction No. 11 31, Exh. 25 (ECF No. 20-3, p. 32). Brock’s argument that this instruction was 12 objectionable is, in its entirety, as follows:

13 The trial court’s reasonable doubt instruction given improperly minimized the State’s burden of proof. 14 * * * 15 The instruction given to the jury minimized the State’s burden of 16 proof by including terms “It is not mere possible doubt, but is such a doubt as would govern or control a person in the more weighty affairs of life” and 17 “Doubt, to be reasonable, must be actual, not mere possibility or speculation.” This instruction inflates the constitutional standard of doubt 18 necessary for acquittal, and the giving of this instruction created a reasonable likelihood that the jury would convict and sentence based on a 19 lesser standard of proof than the constitution requires. See Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., concurring in part); Cage 20 v. Louisiana, 498 U.S.39, 41 (1990); Estelle v. McGuire, 502 U.S. 62, 72 (1991). Mr. Brock recognizes that the Nevada Supreme Court has found 21 this instruction to be permissible. See e.g. Elvik v. State, 114 Nev. 883, 985 P.2d 784 (1998); Bolin v. State, 114 Nev. 503, 960 P.2d 784 (1998). 22 However, Mr. Brock submits this instruction is in violation of clearly established federal law and mandates reversal. 23 24 Petition for Writ of Habeas Corpus (ECF No. 25), pp. 45–46. 25 Brock’s citations to Victor, Cage, and Estelle do not show Nevada’s reasonable 26 doubt instruction to be erroneous as a matter of federal law. In Victor, the Supreme 27 Court held constitutional a reasonable doubt instruction, and there is nothing in the 1 renders it unconstitutional. See Victor, 511 U.S. at 10–23. In Cage, the Supreme Court 2 ruled unconstitutional a reasonable doubt instruction, but that instruction was different 3 from the instruction in this case; the instruction at issue in Cage equated a reasonable 4 doubt with “a ‘grave uncertainty’ and an ‘actual substantial doubt.’” See Cage, 298 U.S. 5 at 41 (“It is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly 6 understood, suggest a higher degree of doubt than is required for acquittal under the 7 reasonable-doubt standard.”). Estelle did not involve a reasonable doubt instruction at 8 all. See Estelle, 502 U.S. at 70–75. Brock does not explain how the reasonable doubt 9 instruction given at his trial was inconsistent with the holding in any of those Supreme 10 Court cases. 11 Moreover, the Ninth Circuit Court of Appeals has ruled constitutional a 12 reasonable doubt instruction similar to that given at Brock’s trial. Ramirez v. Hatcher, 13 136 F.3d 1209, 1213–15 (9th Cir. 1998), cert. denied, 525 U.S. 967 (1998). 14 Furthermore, the Ninth Circuit Court of Appeals has ruled that this issue is not worthy of 15 a certificate of appealability. Nevius v. McDaniel, 218 F.3d 940, 944–45 (9th Cir. 2000) 16 (“That claim has been entirely undermined by our subsequent decision in [Ramirez].”). 17 Counsel’s “[f]ailure to raise a meritless argument does not constitute ineffective 18 assistance.” Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019) (quoting Boag v. 19 Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)). 20 The Nevada Supreme Court’s ruling on this claim was not contrary to, or an 21 unreasonable application of, Strickland, Victor, Cage, Estelle, or any other Supreme 22 Court precedent. The Court will deny Brock habeas corpus relief on Ground 8C. 23 4. Ground 8D - The Equal and Exact Justice Instruction 24 Brock claims that his trial and appellate counsel were ineffective for failing to 25 challenge the following jury instruction:

26 Now you will listen to the arguments of counsel who will endeavor to aid you to reach a proper verdict by refreshing in your minds the 27 evidence and by showing the application thereof to the law; but, whatever to be and by the law as given to you in these instructions, with the sole, 1 fixed and steadfast purpose of doing equal and exact justice between the Defendant and the State of Nevada. 2 3 See Petition for Writ of Habeas Corpus (ECF No. 25), p. 46; Jury Instruction No. 38, 4 Exh. 25 (ECF No. 20-3, p. 39). Brock’s entire argument that this instruction is 5 objectionable is as follows:

6 The trial court’s “equal and exact justice” instruction improperly minimized the State’s burden of proof. 7 * * * 8 By informing the jury that it must provide equal and exact justice 9 between the defendant and the State, this instruction created a reasonable likelihood that the jury would not apply the presumption of 10 innocence in favor of Mr. Brock, and would thereby convict and sentence based on [a] lesser standard of proof than the constitution requires. 11 Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). 12 Petition for Writ of Habeas Corpus (ECF No. 25), p. 46. 13 As far as state law goes, Brock’s argument that the equal and exact justice 14 instruction was erroneous is foreclosed by the Nevada Supreme Court’s ruling in 15 Leonard v. State, 114 Nev. 1196, 969 P.2d 288 (1998), in which that court held:

16 Appellant contends that the district court denied him the presumption of innocence by instructing the jury to do “equal and exact 17 justice between the Defendant and the State of Nevada.” This instruction does not concern the presumption of innocence or burden of proof. A 18 separate instruction informed the jury that the defendant is presumed innocent until the contrary is proven and that the state has the burden of 19 proving beyond a reasonable doubt every material element of the crime and that the defendant is the person who committed the offense. Appellant 20 was not denied the presumption of innocence. 21 Leonard, 114 Nev. at 1209, 969 P.2d at 296. And, with regard to federal law, Brock 22 does not make any showing that the equal and exact justice instruction was in conflict 23 with clearly established federal law. The Sullivan case, cited by Brock, did not involve 24 an equal and exact justice instruction; rather, Sullivan stands for the proposition that a 25 constitutionally deficient reasonable doubt instruction—a reasonable doubt instruction 26 essentially identical to the one given in Cage—cannot be harmless error because it 27 vitiates all the jury’s findings. See Sullivan, 508 U.S. at 277–82. Brock does not show 1 Brock’s trial and appellate counsel did not perform deficiently for not challenging 2 this jury instruction, and Brock was not prejudiced. The Nevada Supreme Court’s ruling 3 on this claim was not contrary to, or an unreasonable application of, Strickland, Sullivan, 4 or any other Supreme Court precedent. The Court will deny Brock habeas corpus relief 5 on Ground 8D. 6 J. Ground 9 7 In Ground 9, Brock claims that he “is entitled to a reversal of his convictions 8 based upon cumulative error.” Petition for Writ of Habeas Corpus (ECF No. 25), pp. 46– 9 47. The Court finds no error, and, therefore, there are no errors to be considered 10 cumulatively. Moreover, with regard to Brock’s claims of ineffective assistance of 11 counsel, the Court determines that Brock does not meet the prejudice part of the 12 Strickland standard, that is, he was not prejudiced by the alleged deficient performance 13 of his attorneys, whether the alleged errors of his counsel are considered individually or 14 cumulatively. The Court will deny Brock habeas corpus relief on Ground 9. 15 K. Certificate of Appealability 16 The standard for the issuance of a certificate of appealability requires a 17 “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The 18 Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:

19 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 20 petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. 21 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 23 1077–79 (9th Cir. 2000). Applying the standard articulated in Slack, the Court finds that 24 a certificate of appealability is unwarranted. 25 /// 26 /// 27 /// IV. CONCLUSION 2 IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus (ECF 3 || No. 1) is denied. 4 IT IS THEREFORE ORDERED that Petitioner is denied a certificate of 5 || appealability. 6 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 7 || judgment accordingly. 8 9 DATED THIS 1st day February, 2022. 10 - 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28