Deon Marquiest Kiles v. William Hutchings, et al.

• Court: District Court, D. Nevada
• Decided: January 28, 2026
• Docket: 2:21-cv-01437
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 DEON MARQUIEST KILES, Case No. 2:21-cv-01437-ART-NJK 6 Petitioner, ORDER 7 v.

8 WILLIAM HUTCHINGS, et al.,

9 Respondents.

10 11 Before the Court for a decision on the merits is a petition for a writ of 12 habeas corpus filed by Deon Marquiest Kiles, a prisoner of the Nevada 13 Department of Corrections (“NDOC”). (ECF No. 6.) For reasons that follow, the 14 petition will be denied. 15 I. BACKGROUND 16 After a jury trial in the Eighth Judicial District Court for Nevada, Kiles 17 was convicted of two counts of burglary while in possession of a firearm and two 18 counts of robbery with use of a deadly weapon on a victim 60 years of 19 age or older. The facts established by evidence presented at trial can be 20 summarized as follows. 21 In the early morning of August 29, 2016, a masked man robbed at 22 gunpoint a 61-year-old employee working the graveyard shift at a grocery store 23 in Las Vegas. Approximately 15 minutes later, a 68-year-old attendant in the 24 casino area of another grocery store 2.4 miles away was also robbed at 25 gunpoint. The attendant described the individual, who was not wearing a mask, 26 as tall, thin, black, and wearing a beanie hat. A detective who reviewed 27 surveillance video from both locations determined that the robberies were 28 committed by the same individual. Upon receiving notification of a suspect 1 based on a fingerprint lifted from the scene of the second robbery, the detective 2 compared a photograph of Kiles to the surveillance video and determined that 3 Kiles was the person who committed both robberies. In executing a search 4 warrant of Kiles’s residence, the police found clothes and shoes similar to the 5 clothes worn by the suspect during the robberies. The police also found a semi- 6 automatic handgun small enough to be concealed in a pocket. 7 After a sentencing hearing, the trial court gave Kiles an aggregated 8 sentence of 16 to 40 years in the NDOC (with 261 days credit for time served). 9 The judgment of conviction was entered on June 21, 2017. Kiles appealed. 10 Kiles’s appeal was set for oral argument before the Nevada Supreme 11 Court, but his counsel filed a motion for continuance due to a scheduling 12 conflict. The case was subsequently reassigned to a reconfigured panel that 13 concluded oral argument was unnecessary and ordered the case submitted on 14 the briefs. In January 2019, the court entered a decision affirming Kiles’s 15 judgment of conviction. 16 In August 2019, Kiles filed a petition for writ of habeas corpus in the state 17 district court. The court denied the petition on the merits. Kiles appealed. In 18 February 2021, the Nevada Court of Appeals affirmed the lower court's decision. 19 Kiles initiated this federal habeas proceeding on June 27, 2021. His 20 petition for habeas relief (ECF No. 6) contains six grounds for relief, all of which 21 have been fairly presented to the Nevada courts in his direct appeal and state 22 post-conviction proceeding. Respondents filed an answer to the petition (ECF 23 No. 9); Kiles, with assistance of counsel, filed a reply (ECF No. 32); and 24 Respondents filed a reply in support of their answer (ECF No. 36). Thus, the 25 case is ready for a decision on the merits. 26 II. STANDARD OF REVIEW 27 This action is governed by the Antiterrorism and Effective Death Penalty 28 Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the standard of review under 1 AEDPA: 2 An application for a writ of habeas corpus on behalf of a 3 person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on 4 the merits in State court proceedings unless the adjudication of the claim – 5 (1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 7 (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in the State court proceeding. 9 10 A decision of a state court is "contrary to" clearly established federal law if the 11 state court applies a rule that contradicts the governing law set forth in 12 Supreme Court cases or if the state court decides a case differently than the 13 Supreme Court has on a set of materially indistinguishable facts. Williams v. 14 Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs 15 when "a state-court decision unreasonably applies the law of [the Supreme 16 Court] to the facts of a prisoner's case." Id. at 409. "[A] federal habeas court 17 may not "issue the writ simply because that court concludes in its independent 18 judgment that the relevant state-court decision applied clearly established 19 federal law erroneously or incorrectly." Id. at 411. 20 The Supreme Court has explained that "[a] federal court's collateral 21 review of a state-court decision must be consistent with the respect due state 22 courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 23 The "AEDPA thus imposes a 'highly deferential standard for evaluating state- 24 court rulings,' and 'demands that state-court decisions be given the benefit of 25 the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 26 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per 27 curiam)). "A state court's determination that a claim lacks merit precludes 28 federal habeas relief so long as 'fairminded jurists could disagree' on the 1 correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 2 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme 3 Court has emphasized "that even a strong case for relief does not mean the 4 state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. 5 Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 6 181 (2011) (describing the AEDPA standard as "a difficult to meet and highly 7 deferential standard for evaluating state-court rulings, which demands that 8 state-court decisions be given the benefit of the doubt") (internal quotation 9 marks and citations omitted). 10 "[A] federal court may not second-guess a state court's fact-finding 11 process unless, after review of the state-court record, it determines that the 12 state court was not merely wrong, but actually unreasonable." Taylor v. 13 Maddox, 366 F.3d 992, 999 (9th Cir. 2004), overruled on other grounds by 14 Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).; see also Miller-El, 15 537 U.S. at 340 ("[A] decision adjudicated on the merits in a state court and 16 based on a factual determination will not be overturned on factual grounds 17 unless objectively unreasonable in light of the evidence presented in the state- 18 court proceeding, § 2254(d)(2)."). 19 Because de novo review is more favorable to the petitioner, federal courts 20 can deny writs of habeas corpus under § 2254 by engaging in de novo review 21 rather than applying the deferential AEDPA standard. Berghuis v. Thompkins, 22 560 U.S. 370, 390 (2010). 23 III. DISCUSSION 24 A. Ground One 25 In Ground One, Kiles alleges that the process used to select the jury in 26 his case violated his constitutional rights because the trial court, in violation of 27 state law, required him to use peremptory challenges against seated jurors 28 without the opportunity to question unseated jurors who would potentially 1 replace excused jurors. He further alleges that the trial court erred in denying 2 his motion to strike a potential juror who indicated that his refusal to testify 3 would be a “red flag” for her and that innocent people cannot be tricked into 4 saying incriminating things on the witness stand. As a result, Kiles was 5 required to use one of his peremptory challenges to remove that juror. 6 In addressing the issue on direct appeal, the Nevada Supreme Court held 7 that the trial court abused its discretion by forcing the parties to exercise 8 peremptory strikes before passing the venire for cause, but concluded the error 9 did not violate due process because Kiles failed to show prejudice:

10 Kiles contends that the district court unreasonably restricted voir dire before all the potential jurors were seated, thereby 11 depriving Kiles of the ability to meaningfully use his peremptory challenges. We agree that the district court abused its discretion by 12 requiring Kiles to utilize his peremptory challenges against seated jurors without the district court first questioning unseated jurors to 13 elicit whether they could be fair and impartial; however, we conclude that the restriction on voir dire does not warrant reversal 14 under the circumstances. Johnson v. State, 122 Nev. 1344, 1354- 55, 148 P.3d 767, 774 (2006) (providing that the method by which 15 voir dire is conducted "rests within the sound discretion of the district court, whose decision will be given considerable deference 16 by this court"); Whitlock v. Salmon, 104 Nev. 24, 27, 752 P.2d 210, 212 (1988) ("The purpose of voir dire examination is to determine 17 whether a prospective juror can and will render a fair and impartial verdict on the evidence presented and apply the facts, as he or she 18 finds them, to the law given.").

19 Pursuant to NRS 16.030(6), "[t]he judge shall conduct the initial examination of prospective jurors and the parties or their 20 attorneys are entitled to conduct supplemental examinations which must not be unreasonably restricted." Each side is also entitled to 21 four peremptory challenges. NRS 16.040(1). Here, while Kiles was given the correct number of peremptory challenges and was 22 permitted to question the jurors, the district court did not examine potential unseated jurors before requiring Kiles to use those 23 peremptory challenges against seated jurors. This process created a situation where Kiles was unaware of the comparative fairness of 24 the replacement jurors before exercising his peremptory challenges.

25 Thus, even though the court permitted Kiles to question potential jurors, the court's voir dire process unreasonably 26 restricted the purpose and effectiveness of that questioning.1 See NRS 16.030(6). Such an error does not warrant reversal, however, 27 where, as here, the appellant fails to show that an impartial jury was not empaneled or any resulting prejudice. See Ross v. 28 Oklahoma, 487 U.S. 81, 88 (1988) (recognizing that, so long as an 1 challenges do not warrant a reversal of the underlying conviction); see also Rivera v. Illinois, 556 U.S. 148, 160-61 (2009) (holding 2 that, depending on the circumstances, errors regarding state- provided peremptory challenges do not warrant a reversal of the 3 underlying conviction unless they render the criminal trial fundamentally unfair). Indeed, Kiles does not even argue that the 4 impaneled jury was partial or that any prejudice resulted from this error and reversal is therefore not warranted. 5 ____________

6 1 In multiple previous decisions, this court has determined that the district court judge presiding over the trial in this case committed 7 similar errors in the jury selection process. We caution the district court that the continued failure to follow established rules regarding jury 8 selection may result in sanctions and a referral to the Nevada Commission on Judicial Discipline. 9 10 (ECF No. 6-1 at 49-51.) 11 The Nevada Supreme Court correctly cited Ross as the controlling federal 12 law. The U.S. Supreme Court in Ross held that, while the Constitution 13 guarantees a defendant the right to an impartial jury, the fact that a defendant 14 is required to use a peremptory challenge to cure a trial court’s error in denying 15 a challenge for cause does not constitute a constitutional violation. The Court 16 stated:

17 We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of 18 an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve 19 that result does not mean the Sixth Amendment was violated. 20 Ross, 487 U.S. at 88 (citations omitted). 21 The Court in Ross also rejected petitioner’s argument that he was 22 deprived of his Fourteenth Amendment right to due process because the trial 23 court’s erroneous challenge-for-cause ruling deprived him of the full 24 complement peremptory challenges allowed under state law. Id. at 89. 25 “[B]ecause no member of the jury as finally composed was removable for cause, 26 [the Court] found no violation of Ross's Sixth Amendment right to an impartial 27 jury or his Fourteenth Amendment right to due process.” Rivera, 556 U.S. at 28 158 (citing Ross, 487 U.S. at 86-91); see also United States v. Martinez-Salazar, 1 528 U.S. 304, 307 (2000) (holding that that “if the defendant elects to cure [trial 2 court] error by exercising a peremptory challenge, and is subsequently 3 convicted by a jury on which no biased juror sat, he has not been deprived of 4 any . . . constitutional right”). The Court in Rivera explicitly rejected the notion 5 that a state law error depriving a defendant of a peremptory challenge 6 constitutes structural error requiring automatic reversal. 556 U.S. at 161. 7 Here, no prospective juror Kiles challenged for cause was seated on his 8 jury. Because he has not shown that a biased or unqualified juror served on his 9 jury, he has not shown that his voir dire did not meet constitutional 10 requirements. See Skilling v. United States, 561 U.S. 358, 395 n.31 (2010) 11 (citing Martinez-Salazar, 528 U.S. at 307). Thus, the Nevada Supreme Court’s 12 application of Ross was not objectively unreasonable, nor was its decision based 13 on an unreasonable determination of the facts. Accordingly, this Court must 14 defer to the state court decision and deny Ground One. 15 B. Ground Two 16 In Ground Two, Kiles alleges that he is entitled to habeas relief under 17 Batson v. Kentucky, 476 U.S. 79 (1986), because the State used a peremptory 18 challenge to remove the only Black male seated in the jury box. In responding to 19 Kiles’s Batson challenge during voir dire, the prosecutor stated that the juror 20 gave only one-word answers, did not volunteer any information, and was “the 21 only person who looked completely disinterested in the process.” (ECF No. 11-1 22 at 231.) According to Kiles, two other jurors who also gave one-word answers 23 and volunteered little information were not challenged by the State. He argues 24 that the trial court failed to conduct the proper analysis under Batson. 25 The United States Supreme Court in Batson established a three-step 26 procedure for a trial court determine if the State’s use of peremptory challenges 27 violates the Equal Protection Clause of the Fourteenth Amendment: (1) the 28 petitioner must make out a prima facie case “by showing that the totality of the 1 relevant facts gives rise to an inference of discriminatory purpose;” (2) once the 2 petitioner has made out a prima facie case, the “burden shifts to the State to 3 explain adequately the racial exclusion” by offering permissible race-neutral 4 justifications for the strikes; (3) “[i]f a race-neutral explanation is tendered, the 5 trial court must then decide ... whether the opponent of the strike has proved 6 purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765, 767 (1995). 7 With respect to the first step, the defendant must “raise [an] inference of 8 purposeful discrimination,” also referred to as “a prima facie case of purposeful 9 discrimination,” based on three elements. Batson, 476 U.S. at 96-97. The Court 10 in Batson stated:

11 [T]he defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised 12 peremptory challenges to remove from the venire members of the defendant's race[;] [s]econd, the defendant is entitled to rely on the 13 fact … that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to 14 discriminate[;] [and] [f]inally, the defendant must show that these facts and any other relevant circumstances raise an inference that 15 the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. 16 17 Id. at 96 (internal quotation and citations omitted); see Boyd v. Newland, 467 18 F.3d 1139, 1143 (9th Cir. 2006) (breaking down Batson's first step as these 19 three separate elements: “(1) [T]he prospective juror is a member of a 20 cognizable racial group, (2) the prosecutor used a peremptory strike to remove 21 the juror, and (3) the totality of the circumstances raises an inference that the 22 strike was motived by race”). 23 In addressing the issue on direct appeal, the Nevada Supreme Court held 24 that Kiles failed at step one by failing to make a prima facie showing of a 25 discriminatory strike. The Court stated:

26 Kiles contends that the State exercised a peremptory challenge in violation of Batson v. Kentucky, 476 U.S. 79 (1986). 27 Proving a Batson violation involves three steps. Hawkins v. State, 127 Nev. 575, 578, 256 P.3d 965, 967 (2011); see Purkett v. Elem, 28 514 U.S. 765, 767 (1995) (summarizing the three-step Batson 1 Kiles made a prima facie case of racial discrimination. Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006) (providing that, under 2 a Batson analysis, "the opponent of the peremptory challenge must make out a prima facie case of discrimination" before the 3 production burden shifts to the challenge's proponent to provide a neutral explanation for the challenge). 4 We conclude that Kiles' arguments that the juror in question 5 did not do or say anything to set him apart from the other jurors, aside from being African American, fail to make the required prima 6 facie showing. See Watson v. State, 130 Nev. 764, 776, 335 P.3d 157, 166 (2014) ("[T]he mere fact that the State used a peremptory 7 challenge to exclude a member of a cognizable group is not, standing alone, sufficient to establish a prima facie case of 8 discrimination under Batson's first step; 'something more' is required."). The district court therefore did not clearly err in 9 denying Kiles' Batson challenge and no relief is warranted on this claim. See id. at 775, 335 P.3d at 165 (reviewing the district court's 10 decision on a Batson challenge for clear error). 11 (ECF No. 6-1 at 51-52.) 12 Kiles argues that the Nevada Supreme Court’s decision denying his 13 Batson claim at step one is contrary to Miller–El v. Dretke, 545 U.S. 231 (2005) 14 (Miller–El II ). (See ECF No. 32 at 28-30.) The Court in Miller-El II noted that 15 “side-by-side comparisons of some black venire panelists who were struck and 16 white panelists allowed to serve” provided relevant evidence in its analysis of 17 Miller-El’s Batson claim. Miller-El II, 545 U.S. at 241. The Court held that “[i]f a 18 prosecutor's proffered reason for striking a black panelist applies just as well to 19 an otherwise-similar nonblack who is permitted to serve, that is evidence 20 tending to prove purposeful discrimination to be considered at Batson's third 21 step.” Id. According to Kiles, the Nevada Supreme Court erred by not 22 conducting a comparative juror analysis, which means that this Court must 23 review his Batson claim de novo. Kiles is mistaken. 24 Following the decision in Miller-El II, the Ninth Circuit held that, “because 25 comparative juror analysis assists a court in determining whether the totality of 26 the circumstances gives rise to an inference of discrimination,” it “is called for 27 on appeal even when the trial court ruled that the defendant failed to make a 28 prima facie showing at the first step of the Batson analysis.” Boyd, 467 F.3d at 1 1149. However, the court also declined to “hold that comparative juror analysis 2 always is compelled at the appellate level,” instead holding only that it “is an 3 important tool that courts should use on appeal.” Id. at 148-49 (9th Cir. 2006) 4 (emphasis in the original). 5 Later, in Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013), the court 6 recognized the need to conduct a comparative juror analysis that was not 7 conducted in state court, but still held that the state court's finding that the 8 prosecutor did not engage in purposeful discrimination is reviewed under the 9 deferential standard set forth in 28 U.S.C. § 2254(d)(2). 713 F.3d at 1224. The 10 court included the following footnote:

11 Jamerson argues that the California Court of Appeal decision should be evaluated under 28 U.S.C. § 2254(d)(1) and that this 12 court should review his claim de novo because the state courts unreasonably applied clearly established federal law when they 13 declined to conduct a comparative juror analysis. This court has already addressed and rejected that argument. See, e.g., Cook v. 14 LaMarque, 593 F.3d 810, 816 & n. 2 (9th Cir. 2010) (“[E]ven if the trial court and the California Court of Appeal did not engage in 15 comparative juror analysis, where the relevant evidence is found in answers to juror questionnaires and a transcript of voir dire ... 16 [s]ection 2254(d)(2) ... applies.” (second alteration in original)). Although the magistrate judge believed that an intra-circuit split 17 existed on this question, he was mistaken. Compare id. at 815–16 & n. 2, and [Ali v. Hickman, 584 F.3d 1174, 1180–81 (9th Cir.2009)] 18 (affording deference under § 2254(d)(2) where the state courts reached Batson 's third step but erred in evaluating purposeful 19 discrimination), with Johnson v. Finn, 665 F.3d 1063, 1068–69 (9th Cir.2011) (evaluating purposeful discrimination de novo where the 20 California court applied the wrong legal standard at Batson 's first step and thus never reached the factual question of purposeful 21 discrimination at Batson 's third step). 22 Id., n. 1. Thus, even if the state court did not conduct a comparative juror 23 analysis, “the state court's decision will be upheld unless it was ‘based on an 24 unreasonable determination of the facts in light of the evidence presented in the 25 State court proceeding.’” Id. at 1225 (quoting 28 U.S.C. § 2254(d)(2)); see also 26 Mayes v. Premo, 766 F.3d 949, 960 (9th Cir.2014) (“Though we conduct the 27 comparative juror analysis ourselves, we are still constrained by § 2254(d)(2).” 28 (citing Jamerson, 713 F.3d at 1225–26)). 1 For reasons that follow, this Court concludes that it was not 2 unreasonable for the Nevada Supreme Court to find insufficient facts to raise an 3 inference that the State struck the juror in question, Kyree Grayson, on account 4 of his race.1 There is no dispute that Grayson is a member of a cognizable racial 5 group and that the prosecutor used a peremptory strike to remove him. Thus, 6 Kiles satisfied the first two elements of the first Batson step. As for the third 7 element, however, the only other facts argued by his counsel in the trial court 8 were that Grayson did not say anything on voir dire “that was out of the 9 ordinary from any other [prospective juror],” that there was nothing about him 10 that suggested he could not “be a fair and impartial like every other juror,” and 11 that the State waived two strikes just prior to striking him, then waived again. 12 (ECF No. 11-1 at 230-31.) Without the trial court ruling on whether Kiles had 13 made a prima facie case, the prosecutor offered the aforementioned reasons for 14 the challenge and, to support his claim that Grayson was the only panel 15 member who appeared “completely disinterested” stated: “I watched him as he 16 sat with his head on his – or chin in his hand essentially the entire time after 17 we were done questioning him.” (Id. at 231.) The prosecutor also noted that 18 there were three other Black jurors on the 14-person jury panel. (Id. at 231-32 19 )(stating with reference to the first 14 jurors, “there are three other African- 20 Americans on the jury panel”). The only response from Kiles’s counsel was that 21 she never saw Grayson put his head down. (Id. at 232.) On direct appeal, Kiles 22 argued that the State did not seek to remove two other jurors—Jackeline 23 Espinoza and Wanda Chiscolm—who also gave one-word answers and 24 volunteered little information. (ECF No. 14-19 at 43-46.) 25 The mere fact that Grayson was the only Black male on the panel does 26 1 To the extent Kiles is basing his Batson claim on an allegation that Grayson was 27 excluded because he was a Black male, neither the Supreme Court nor the Ninth Circuit has recognized a combined gender and race class as a cognizable group for the 28 purposes of Batson. See Nguyen v. Frauenheim, 45 F.4th 1094, 1100 (9th Cir. 2022). 1 not, without more, raise an inference of discrimination. See United States v. 2 Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994). The trial court “must consider 3 the relevant circumstances surrounding a peremptory challenge.” Id. (citing 4 Batson, 476 U.S. at 96-97). A review of the voir dire transcript confirms that 5 Grayson, Espinoza, and Chiscolm all responded in a similar manner to 6 questions posed to them by the trial court, the prosecutor, and defense counsel. 7 (ECF No. 11-1 at 172-87.) None of Grayson’s answers raise a concern that he 8 would be more likely to lean toward the defendant if selected as a juror. In 9 addition, the responses from the three potential jurors do not disclose any 10 personal attributes or experiences that suggest that Grayson might have been a 11 less desirable juror, from the State’s perspective, than the other two. 12 However, the State cited not only Grayson’s responses to questioning, but 13 also his body language in arguing that he was the only potential juror who 14 appeared “completely disinterested in the process.” When a prosecutor proffers 15 a juror’s demeanor as a race-neutral reason for a peremptory challenge, “the 16 trial court must evaluate not only whether the prosecutor's demeanor belies a 17 discriminatory intent, but also whether the juror's demeanor can credibly be 18 said to have exhibited the basis for the strike attributed to the juror by the 19 prosecutor.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008). “[T]hese 20 determinations of credibility and demeanor lie peculiarly within a trial judge's 21 province,” and “in the absence of exceptional circumstances,” the reviewing 22 court must defer to the trial court. Id. (internal quotation marks and citations 23 omitted). When defense counsel claimed that she never saw Grayson put his 24 head down, the trial court stated: “He did so. And I saw him put his head down. 25 But I don’t see that as a racial bias and the Batson challenge is denied….” Id. at 26 232. Thus, the record shows that the trial judge accepted the prosecutor’s 27 assessment of Grayson’s demeanor and concluded that it was a valid race- 28 neutral reason for the peremptory challenge. Kiles does not cite any exceptional 1 circumstances showing that the conclusion is unworthy of deference. 2 The fact that there were three Black jurors on the 14-member panel when 3 Kiles made his Batson challenge is another factor supporting the state court’s 4 denial of the challenge. See Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th Cir. 5 2009) (“The fact that African–American jurors remained on the panel may be 6 considered indicative of a nondiscriminatory motive.”) (internal quotation marks 7 and citation omitted). At that point, the prosecutor had waived three 8 peremptory strikes, any of which could have been used to remove another Black 9 juror. (ECF No. 11-1 at 183, 189, 220.) 10 Finally, returning to the comparative juror analysis, the court must 11 “compar[e] African American panelists who were struck with those non-African 12 American panelists who were allowed to serve.” Briggs v. Grounds, 682 F.3d 13 1165, 1170 (9th Cir.2012). While three of the jurors on the panel were Black, it 14 is unclear from the record who they were and whether any of them were 15 ultimately empaneled. (See ECF Nos. 14-18, 14-19, 15-1.) The record does not 16 indicate the race of either Espinoza or Chiscolm, who, Kiles argued on direct 17 appeal, gave similar answers but were not stricken. It is unclear from the record 18 if Espinoza and Chiscolm are appropriate candidates for comparative juror 19 analysis. 20 In summary, the State court’s decision to deny Kiles’s Batson claim is 21 entitled to deference under § 2254(d). Even if there are reasons to question the 22 credibility of the State’s proffered reasons for striking Grayson, that alone is not 23 enough for this Court to grant habeas relief. See Rice v. Collins, 546 U.S. 333, 24 341–42 (2006) (“Reasonable minds reviewing the record might disagree about 25 the prosecutor's credibility, but on habeas review that does not suffice to 26 supersede the trial court's credibility determination.”). Instead, the state court’s 27 rejection of Kiles’s Batson claim needs to be “so lacking in justification that 28 there was an error well understood and comprehended in existing law beyond 1 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. That not 2 being the case here, the AEDPA standard of review dictates that federal habeas 3 relief on this claim must be denied. 4 C. Ground Three 5 In Ground Three, Kiles contends that his rights under the Confrontation 6 Clause were violated when the trial court admitted the testimony of a 7 fingerprint analyst. Prior to the analyst (Sahota) testifying, Kiles’s counsel 8 lodged an objection under Bullcoming v. New Mexico, 564 U.S. 647 (2011), 9 arguing that Sahota was not “the actual analyst in this case who prepared the 10 print for the AFIS review, who submitted it to AFIS, returned a candidate from 11 AFIS, reviewed the AFIS match and determined that it was a match.” (ECF No. 12 12-1 at 44.) Kiles argues that, because Sahota did not conduct or participate in 13 any of the crucial steps of the fingerprint analysis, he (Kiles) was unable to 14 cross-examine him about whether other candidates were potential matches or 15 about the bias, subjectivity, or unreliability of the analyst (Gouldthorpe) who 16 mapped the minutia of the fingerprint and compared it to the candidate list that 17 resulted in a match to Kiles. According to Kiles, this deprived him of his 18 constitutional right to cross-examine a witness who provided testimonial 19 evidence against him. 20 In addressing the issue on direct appeal, the Nevada Supreme Court 21 decided as follows:

22 Kiles argues that the district court allowed a fingerprinting analyst to testify in violation of the Confrontation Clause because 23 the analyst did not conduct the initial examination of the prints, prepare the prints for database search, input the prints into the 24 database, or review or analyze the list of other candidates from the database. The State argues that the analyst offered his own 25 independent analysis of the prints and, thus, the testimony of the person who took the prints and input them into the database was 26 not required to satisfy the Confrontation Clause. An expert witness testifying about the contents of a report prepared by another person 27 who did not testify "effectively admit[s] the report into evidence," and violates the Confrontation Clause, unless the testifying expert 28 only presents independent opinions based on the report's data. 1 State v. Lui, 315 P.3d 493, 509 (Wash. 2014) (recognizing that Confrontation Clause precedent "guarantees the accused the right 2 'to be confronted with the analyst who made the certification,' . . . and not the analysts whose work might have contributed to that 3 certification" (quoting Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011)). 4 Here, the testifying analyst not only certified another 5 examiner's results, but in doing so conducted his own independent comparison of latent prints lifted with Kiles' known exemplars. 6 Thus, Kiles' Confrontation Clause rights were not violated. Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009) (observing 7 that this court reviews potential Confrontation Clause violations de novo). 8 9 (ECF No. 6-1 at 52-53.) 10 In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court 11 held that out-of-court testimonial statements could be “admitted only where the 12 declarant is unavailable, and only where the defendant has had a prior 13 opportunity to cross-examine.” 541 U.S. at 59. In Bullcoming and in Melendez– 14 Diaz v. Massachusetts, 557 U.S. 305 (2009), the U.S. Supreme Court ruled that 15 scientific reports could not be used as substantive evidence against a defendant 16 unless the analyst who prepared and certified the report was subject to 17 confrontation. 564 U.S. at 657-58, 557 U.S. at 311. In both cases, the report at 18 issue “contain[ed] a testimonial certification, made in order to prove a fact at a 19 criminal trial.” Id. Then, in Williams v. Illinois, 567 U.S. 50 (2012), the Court 20 addressed the constitutionality of allowing an expert witness to discuss the 21 testimonial statements of others if those statements are not themselves 22 admitted as evidence. 567 U.S. at 67. 23 In Williams, a case involving a sexual assault, robbery, and kidnapping, 24 the prosecution relied on a DNA profile prepared by an outside laboratory, 25 Cellmark, using vaginal swabs from the victim. Id. at 56. A police DNA analyst 26 took DNA information from Cellmark and searched the state's DNA database for 27 a match. Id. at 59. The police DNA analyst testified that the defendant's DNA 28 profile in the state database, taken in connection with an earlier arrest, 1 matched the male DNA profile Cellmark had developed from the victim's vaginal 2 swabs. Id. at 61-62. The Cellmark report on which the police DNA analyst based 3 her testimony was neither admitted into evidence nor shown to the jury. Id. at 4 62. 5 In a plurality opinion, the Court held that admission of the testimony of 6 the police DNA analyst did not violate the Confrontation Clause. Id. at 86. The 7 opinion provided “two independent reasons” for its conclusion: (1) the Cellmark 8 report was not “hearsay” material because it was not offered for the truth of the 9 matter asserted, but instead provided the underlying facts that formed the basis 10 of the expert’s testimony (id. at 70-81) and (2) even if the report had been 11 introduced into evidence for its truth, the report was not a testimonial 12 statement because it was “not prepared for the primary purpose of accusing a 13 targeted individual” (id. at 81–85). In his concurrence, Justice Thomas 14 concluded that the Cellmark report lacked sufficient formality or solemnity to 15 be considered testimonial. Id. at 103. 16 Several years later, and after the Nevada Supreme Court’s decision in 17 Kiles’s case, the Court abrogated Williams by holding that an out-of-court 18 statement presented as the basis for an expert opinion is presented “for the 19 truth” and, as such, is hearsay that implicates the Confrontation Clause. Smith 20 v. Arizona, 602 U.S. 779, 803, (2024). In Smith, a drug analyst relied on lab 21 reports and notes prepared by a different analyst to provide his independent 22 opinion at trial. Id. at 79. The Court held that, if a surrogate presents “out-of- 23 court statements as the basis for his expert opinion, … [t]hose statements … 24 come into evidence for their truth—because only if true can they provide a 25 reason to credit the substitute expert.” Id. at 803. Accordingly, “a defendant has 26 the right to cross-examine the person who made them.” Id. The Court 27 remanded the case for the Arizona court to determine whether the records the 28 expert relied upon were testimonial. Id. 1 In this case, the Nevada Supreme Court rejected Kiles’s Confrontation 2 Clause claim because Sahota, who testified at trial, conducted his own 3 independent comparison of latent prints based on the information provided by 4 Gouldthorpe, who did not testify. The court did not cite Williams in support of 5 its analysis. Even so, it cannot be said that the court's decision was contrary to 6 or an unreasonable application of clearly established federal law. 7 For one, the decision does not run afoul of either Bullcoming or Melendez– 8 Diaz because those cases focused on the admissibility of scientific reports 9 prepared by analysts who were not available for cross-examination. See 10 Bullcoming (questioning the admissibility of “a forensic laboratory report … 11 made for the purpose of proving a particular fact”), Melendez-Diaz, 557 U.S. at 12 310–11 (noting that the reports (“certificates”) the state sought to present were 13 “functionally identical to live, in-court testimony”). Here, the State did not 14 attempt to present Gouldthorpe’s report, and Sahota testified that, rather than 15 rely on Gouldthorpe’s findings, he conducted his own independent analysis of 16 the “original evidence” – i.e., “the latent fingerprint cards.” (ECF No. 12-1 at 64.) 17 Because no testimonial statement from Gouldthorpe was presented as 18 evidence, Williams and Smith are more on point than Bullcoming or Melendez– 19 Diaz in determining whether Kiles’s rights under the Confrontation Clause were 20 violated. Similar to what occurred in Smith, Sahota’s testimony relied upon the 21 material provided from another analyst, Gouldthorpe, who conducted the initial 22 examination of the prints, mapped the minutia for the AFIS search, obtained a 23 list of several candidates from the search, and determined which candidate 24 matched the latent prints lifted from the crime scene. (ECF No. 12-1 at 44, 63, 25 71-72.) Unfortunately for Kiles, the phrase “clearly established Federal law, as 26 determined by the Supreme Court of the United States” in § 2254(d) refers to 27 the holdings of the Supreme Court's decisions “as of the time of the relevant 28 state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). 1 At the time it was issued, the Nevada Supreme Court’s decision was 2 consistent with the majority of justices in Williams v. Illinois who agreed that 3 there was no Confrontation Clause violation even though an expert relied on 4 and disclosed evidence developed by another expert when testifying about his 5 conclusions. And, even if it cannot be considered clearly established federal law 6 for AEDPA purposes, the fractured decision in Williams shows that the law was 7 at least unsettled when the Nevada Supreme Court decided Kiles’s case. See 8 Smith, 602 U.S. at 789 (“Our opinions in Williams have sown confusion in 9 courts across the country about the Confrontation Clause's application to 10 expert opinion testimony.” (internal quotation marks omitted)).2 That being the 11 case, this Court cannot conclude that the state court’s resolution of Kiles’s 12 Confrontation Clause claim is not entitled to deference. See Carey v. Musladin, 13 549 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court regarding 14 [the issue] involved here, it cannot be said that the state court ‘unreasonabl[y] 15 appli[ed] clearly established Federal law.’”). Consequently, Ground Three must 16 be denied. 17 D. Ground Four 18 In Ground Four, Kiles contends that his rights under the Confrontation 19 Clause were violated when the trial court limited his cross-examination of 20 Sahota. He notes that the testimony of Sahota was a crucial part of the State’s 21 case, so it was imperative that he have an opportunity to examine Sahota 22 regarding the reliability of his testimony. He argues that the trial court

23 2 In a case decided just prior to Williams, the Ninth Circuit noted that, even after 24 Bullcoming and Melendez-Diaz, unresolved Confrontation Clause questions included “the treatment of experts testifying to their opinions based on reports not admitted into 25 evidence, as well as the degree of proximity the testifying witness must have to the scientific test.” See Flournoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012). The court 26 in Flournoy held that, at that time, there “does not appear to be clearly established federal law that would make the admission of [the expert’s] testimony unreasonable 27 under the standard set under AEDPA.” Id. In his reply brief, Kiles argues at length as to why the Nevada Supreme Court’s decision runs afoul of Crawford, Bullcoming and 28 Melendez-Diaz; but he fails to mention Williams at all. (ECF No. 32 at 30-40.) 1 erroneously prevented him from questioning Sahota on the following topics: 1) 2 the “Madrid training bombing” as an example of how latent fingerprints can 3 result in the identification of the wrong person; 2) “the FBI’s revamping” that 4 occurred as a result of inaccurate fingerprint analysis in the past; and 3) the 5 “President’s Council of Advisors on Science and Technology” (PCAST) report 6 dated September 20, 2016, which called into question the reliability of 7 fingerprint analysis. (ECF No. 6 at 12-13.) 8 In addressing the issue on direct appeal, the Nevada Supreme Court 9 decided as follows:

10 Kiles argues that the district court abused its discretion in limiting his cross-examination of the fingerprint analyst. We 11 conclude that the district court's limitation of Kiles' cross- examination was not an abuse of discretion as the information Kiles 12 sought to illicit was irrelevant. See Bushnell v. State, 95 Nev. 570, 572, 599 P.2d 1038, 1039 (1979) (reviewing a district court's 13 evidentiary ruling for an abuse of discretion). Testimony regarding individuals being misidentified based on fingerprint evidence in 14 other, unrelated cases had no relevancy to the fingerprint analysis in the case at hand or to the analyst's qualifications, and irrelevant 15 evidence is not admissible. See NRS 48.015 (providing that evidence is only relevant if it "make [s] the existence of any fact that 16 is of consequence . . . more or less probable"); NRS 48.025(2) (deeming irrelevant evidence to be inadmissible). Furthermore, the 17 district court allowed Kiles to reframe his questions to address the fact that fingerprint identification is fallible, which the analyst 18 acknowledged, such that the issue was still presented to the jury via Kiles' cross-examination. 19 20 (ECF No. 6-1 at 53.) 21 The Sixth Amendment entitles a criminal defendant to conduct 22 reasonable cross-examination of prosecution witnesses. Davis v. Alaska, 415 23 U.S. 308, 315 (1974). Even so, “trial judges retain wide latitude insofar as the 24 Confrontation Clause is concerned to impose reasonable limits on such cross- 25 examination based on concerns about, among other things, harassment, 26 prejudice, confusion of the issues, the witness' safety, or interrogation that is 27 repetitive or only marginally relevant ...” Delaware v. Van Arsdall, 475 U.S. 673, 28 679 (1986). “[T]he Confrontation Clause guarantees an opportunity for effective 1 cross-examination, not cross-examination that is effective in whatever way, and 2 to whatever extent, the defense might wish.” Id. A Sixth Amendment violation 3 occurs only if the prohibited cross-examination might have caused a reasonable 4 jury to “receive[] a significantly different impression of [the witness'] credibility.” 5 Id. at 680. 6 When Kiles’s counsel attempted to question Sahota about the Madrid 7 train bombing, the trial court sustained the State’s objection by noting that 8 counsel had not laid a foundation and was “going into something that is not 9 part of direct examination.” (ECF No. 12-1 at 76.) Kiles’s counsel argued she 10 was “going into [Sahota’s] qualifications and knowledge of the fallibility of 11 fingerprint evidence.” (Id.) The trial judge responded: “No, you’re going into 12 something else. So ask a different question. Appropriate question [sic] would be 13 nice.” (Id.) 14 Kiles’s counsel then asked Sahota if he was familiar with the FBI’s 15 revamping that occurred as a result of false analysis that had occurred in the 16 past. (Id.) Sahota responded in the affirmative and noted the example of “the 17 Mayfield error from the FBI.”3 (Id.) When Kiles’s counsel attempted to elicit 18 additional information about the error, the State objected as to relevance 19 stating that the error was committed by a different department in a different 20 country. (Id.) Kiles’s counsel responded that the questions addressed “the 21 fallibility and the fact that fingerprint science is not a perfect science.” (Id. at 22 77.) The trial judge sustained the objection. (Id.) 23 Kiles’s counsel then asked Sahota if he was “familiar with the forensic 24 science in criminal courts ensuring the scientific validity of featured comparison 25 methods put out by the executive office of the President’s Council of Advisors on 26 Science and Technology dated September 20, 2016.” (Id.) Sahota indicated he 27 3 Brandon Mayfield was the suspect wrongfully detained in connection with the Madrid 28 train bombing based on a faulty fingerprint match. 1 was familiar with the report and acknowledged that it contained some criticisms 2 of forensic sciences. (Id.) Kiles then asked whether Sahota was “aware that 3 there is an open issue concerning accuracy of fingerprint comparisons and that 4 an average citizen might not be aware that the discipline … is not as reliable as 5 it may seem.” (Id.) The State objected, arguing Sahota could not have personal 6 knowledge of what the average person knew. (Id.) The trial judge sustained the 7 objection. (Id. at 78.) 8 Then the following exchange occurred:

9 Q: Okay. So you are aware that the PCAST report calls into question the reliability of fingerprint analysis? 10 A: There’s a number of sources that question the reliability, or 11 another way of describing it, is how we talk about the error rate, every method has an error rate. Everything from medical 12 diagnostics and forensics sciences is no different. Even when we do everything absolutely right, there’s always some small non-zero 13 probability that the results are in error.

14 Q: Okay. And the non-zero probability that you just mentioned, it’s actually – there are studies that suggest that false-positive rates are 15 as high as 1 in 18 or 1 in –

16 [Prosecution]: Objection, Your Honor. Counsel is testifying.

17 [Kiles’s counsel]: No, I’m asking a question.

18 The Court: No, you didn’t ask a question. Ask an appropriate question. 19 20 (Id.) 21 Kiles’s counsel then asked Sahota if he was familiar with a study 22 suggesting false positive rates were as high as 1 in 18. (Id. at 79.) Sahota 23 responded that he was not specifically aware of any such study, but if counsel 24 could tell him the author of the study it might refresh his recollection. (Id.) 25 Kiles’s counsel stated it was the Miami-Dade study, but Sahota responded that 26 he did not recall that study. (Id.) The trial judge then asked Kiles’s counsel if 27 she had the author of the study, to which counsel replied that it was referenced 28 in the PCAST report. (Id.) The trial judge gave Kiles’s counsel time to locate the 1 name of the author before telling her to move on. (Id. at 80.) Kiles’s counsel was 2 then permitted to question Sahota about the FBI’s attempts to set standards to 3 make fingerprint analysis more reliable. (Id. at 81.) 4 While it did not cite any U.S. Supreme Court cases in addressing Kiles’s 5 arguments, the Nevada Supreme Court’s decision is nonetheless entitled to 6 deference so long as neither the reasoning nor the result the decision 7 contradicts them. See Early v. Packer, 537 U.S. 3, 8 (2002) (noting that the 8 state court need not cite or even be aware of the controlling Supreme Court 9 cases). The trial judge’s restriction on questioning about the Madrid train 10 bombing was reasonable given Kiles’s counsel’s failure to establish how the 11 fingerprinting procedures used in that case related to the fingerprinting 12 procedures used in Kiles’s case. For the same reason, the trial judge had 13 adequate justification for cutting off Kiles’s counsel when she attempted delve 14 into the specific facts of the misidentification of Brandon Mayfield. With respect 15 to the PCAST report, the trial judge allowed enough questioning to establish 16 that fingerprint analysis is not infallible. As to the specific false positive rate 17 identified in the study, Sahota testified that he did know it but might be able to 18 recall it if counsel was able to point him to a specific study. Kiles’s counsel was 19 unable to provide that information. 20 In summary, the trial court imposed reasonable limits on cross- 21 examination, and Kiles has not demonstrated how more questioning on the 22 subjects at issue would have given the jury a significantly different impression 23 of Sahota’s credibility. Here again, the Nevada Supreme Court’s rejection of 24 Kiles’s claim was not “so lacking in justification that there was an error well 25 understood and comprehended in existing law beyond any possibility for 26 fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Ground Four 27 must be denied. 28 1 E. Ground Five 2 In Ground Five, Kiles contends that his rights under Brady v. Maryland, 3 373 U.S. 83 (1963), were violated when the trial court did not grant a mistrial 4 due to the State’s withholding of evidence related to his tattoos. Kiles alleges 5 that the State was in possession of photographs of his tattoos and a SCOPE 6 report mentioning the tattoos that it did not disclose until after it had rested its 7 case at trial. He claims the photographs were exculpatory because there were 8 no tattoos visible on the suspect in the surveillance videos shown to the jury 9 and both victims testified that they did not observe any tattoos on the person 10 who robbed them. 11 In addressing the issue on direct appeal, the Nevada Supreme Court 12 decided as follows:

13 Kiles argues that the district court erred by denying his motion for a mistrial based on Brady v. Maryland, 373 U.S. 83 14 (1963), because the State failed to disclose evidence of Kiles' visible tattoos when the witnesses stated that the robber had no visible 15 tattoos. To establish a Brady violation, Kiles must show that: "the evidence at issue is favorable to the accused; the evidence was 16 withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material." Mazzan v. 17 Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000) (citing Strickler v. Greene, 527 U.S. 263 (1999)). We review a district court's resolution 18 of a Brady claim de novo. Id. at 66, 993 P.2d at 36. We agree with Kiles that the information and evidence related to his tattoos was 19 favorable to him, as witnesses indicated that they did not see any visible tattoos on the perpetrator and, thus, information and 20 photographs of Kiles' visible tattoos that predated the robberies would have aided his defense. 21 The State's failure to turn over this material exculpatory 22 information absolutely violated Brady's principle of ensuring that an accused person is treated fairly in the administration of justice. 23 373 U.S. at 87. The district court cured the prejudice resulting from the failure to disclose, however, by allowing Kiles the opportunity to 24 reopen his case-in-chief to present the late-disclosed evidence and information regarding his visible tattoos. See United States v. 25 Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (concluding that no due process violation under Brady occurred where the 26 court agreed to allow defendants to recall witnesses and reexamine them regarding the new evidence, thus giving them a "substantial 27 opportunity to use the [evidence] and to cure any prejudice caused by the delayed disclosure"). Therefore, we conclude that the district 28 court did not abuse its discretion by denying Kiles' motion for a 1 194, 206-07, 163 P.3d 408, 417 (2007) (reviewing the denial of a motion for mistrial for an abuse of discretion). 2 3 (ECF No. 6-1 at 53-55) (footnote omitted). 4 Brady requires the government to disclose “material, exculpatory, or 5 otherwise helpful” evidence.“ United States v. Cano, 934 F.3d 1002, 1023 (9th 6 Cir. 2019). “Any evidence that would tend to call the government's case into 7 doubt is favorable for Brady purposes.” Milke v. Ryan, 711 F.3d 998, 1012 (9th 8 Cir. 2013) (citing Strickler, 527 U.S. at 290). As the Nevada Supreme Court 9 correctly noted, there are three elements to a Brady violation: (1) “the evidence 10 at issue must be favorable to the accused, either because it is exculpatory, or 11 because it is impeaching;” (2) “that evidence must have been suppressed by the 12 State, either willfully or inadvertently”; and (3) “prejudice must have ensued.” 13 Strickler, 527 U.S. at 281–82. To obtain relief – i.e., to show prejudice, a 14 petitioner “must convince [the court] that there is a reasonable probability that 15 the result of the trial would have been different if the suppressed [evidence] had 16 been disclosed to the defense.” Id. at 289 (internal quotation marks omitted). 17 At the conclusion of the State’s case, the defense sought “to admit the 18 non-testimonial evidence of our client's tattoos and have him display them to 19 the jury.” (ECF No. 12-1 at 172.) The State objected arguing that, without 20 benefit of cross-examination, merely displaying the tattoos would be highly 21 misleading to the jury because there would be no way to tell if the tattoos were 22 obtained after the robberies were committed. (Id.) The trial court denied Kiles’s 23 request but allowed the parties to brief the issue overnight. (Id. at 178-79.) 24 The next day Kiles’s counsel notified the trial court that the State had just 25 provided photographs showing Kiles’s tattoos, as well as the SCOPE report, and 26 moved for a mistrial due to the State’s failure to provide them before trial. (ECF 27 No. 13-2 at 3-5.) Not agreeing that the State had violated Brady, the trial court 28 denied the motion. (Id.) As an alternative to a mistrial, Kiles’s counsel proposed 1 that he be allowed to produce a witness to provide a foundation for the 2 exculpatory SCOPE report and photographs. (Id. at 5.) Counsel also informed 3 the court that it would accept a stipulation to the photographs being admitted 4 into evidence with the jury being informed that they were taken on the day Kiles 5 was arrested. (Id. at 9.) The prosecutor was willing to allow presentation of the 6 photographs but insisted that a witness be called to provide a foundation. (Id. 7 at 9-10.) Kiles’s counsel agreed to having a detective who was present when the 8 photographs were taken testify about the photographs, as long as he was 9 cooperative and willing state whether he saw additional tattoos on Kiles that 10 day that did not appear in the photographs. (Id. at 11-12.) When called to 11 testify, the detective confirmed that the photographs of the tattoos were taken 12 on the day Kiles was arrested. (Id. at 16.) He also confirmed that Kiles had 13 additional tattoos on his forearms and hands that were not depicted in the 14 photographs. (Id.) 15 The Ninth Circuit in Gordon, the case cited by the Nevada Supreme 16 Court, held that the material evidence must only be disclosed in time for its 17 effective use at trial. See Gordon, 844 F.2d at 1403 (9th Cir. 1988) (“Brady does 18 not necessarily require that the prosecution turn over exculpatory material 19 before trial. To escape the Brady sanction, disclosure must be made at a time 20 when disclosure would be of value to the accused.”). In addition, several Ninth 21 Circuit decisions instruct that, where a Brady violation is discovered before or 22 during a trial, the trial court has discretion to fashion a remedy other than 23 dismissing the case or granting a mistrial. The court has held that remedies for 24 Brady violations “should be tailored to the injury suffered from the 25 constitutional violation and should not unnecessarily infringe on competing 26 interests.” United States v. Struckman, 611 F.3d 560, 577 (9th Cir. 2010); 27 (quoting United States v. Morrison, 449 U.S. 361, 364 (1981) ). In one case, 28 where there was “no dispute … that the government failed to comply with the 1 requirements of Brady” when it failed to timely disclose evidence favorable to 2 the defense, the court concluded that dismissal was not warranted because “all 3 the late disclosed evidence … was given to the jury” and the jury was instructed 4 that it could “draw adverse inferences from the late disclosure.” United States v. 5 Garrison, 888 F.3d 1057, 1065 (9th Cir. 2018). In another case, the court noted 6 that “even when a district court finds substantial Brady violations, prejudice to 7 the defendants, and flagrant government misconduct, a district court has a 8 range of options before it” and that the trial court’s choice of a remedy is 9 reviewed “for abuse of discretion, a standard of review that is ‘limited and 10 deferential.’” United States v. Bundy, 968 F.3d 1019, 1043 (9th Cir. 2020) 11 (citation omitted). Although the court in Bundy affirmed the lower court’s 12 decision to dismiss the government’s case with prejudice, it recognized that 13 “simply showing a Brady violation—withholding of evidence that caused 14 prejudice—is not a sufficient basis to dismiss an indictment.” Id. at 1031; see 15 also, United States v. Cloud, 102 F.4th 968, 981 (9th Cir. 2024) (recognizing 16 that, rather than dismissing a case for a Brady violation, the court has “less 17 drastic supervisory option(s)”). 18 Here, the trial court refused to acknowledge that a Brady violation 19 occurred but nonetheless provided a means for limiting the prejudicial impact 20 of the State’s late disclosure of the tattoo evidence. The question for this Court 21 is whether it must defer to the Nevada Supreme Court’s determination that the 22 trial court’s remedy was sufficient to cure the Brady violation. Kiles contends 23 that, had the photographs and SCOPE report been disclosed earlier, he could 24 have used them more effectively by weaving them into his defense throughout 25 trial. While that may be the case, the defense was able to establish through the 26 testimony of the detective that Kiles had tattoos on his arms and hands at the 27 time of the robberies. So, the jury was made aware of Kiles’s tattoos; and 28 defense counsel emphasized in her closing argument that the victims did not 1 see any tattoos on the person who robbed them and that no tattoos were visible 2 on the person in the videos. (ECF No. 13-2 at 38-40, 45-50.) Defense counsel 3 could have questioned the detective more extensively about the tattoos on 4 Kiles’s forearms and hands (i.e., the ones not depicted in the photographs) but 5 failed (or chose not) to do so. 6 In addition, the totality of the evidence presented a trial weighs in favor 7 finding that the remedy provided by the trial court was adequate to cure the 8 Brady violation. As noted above, the evidence of Kiles’s guilt included the close 9 proximity in time and location of the robberies, surveillance video showing that 10 both robberies were committed by the same person, Kiles’s fingerprints at the 11 location of the second robbery, and clothes and shoes found at Kiles’s residence 12 matching the suspect. Neither victim testified that the person who robbed them 13 did not have any tattoos. Instead, they testified only that they did not see any 14 tattoos. (ECF No. 12-1 at 25, 94.) And, Kiles has not demonstrated that his 15 tattoos should have been visible on the surveillance videos shown to the jury if 16 he was the perpetrator. In sum, this Court concludes that Kiles’s defense would 17 have benefited from having the tattoo evidence before trial but is not convinced 18 that the Nevada Supreme Court’s decision denying relief under Brady was 19 contrary to or an unreasonable application of clearly established federal law or 20 based on an unreasonable determination of the facts. Ground Five is denied. 21 F. Ground Six 22 In Ground Six, Kiles alleges that he was deprived of his constitutional 23 right to effective assistance of counsel on direct appeal. He claims his appellate 24 counsel was ineffective by filing a motion to continue oral argument, which 25 resulted in oral argument being cancelled. According to Kiles, counsel 26 unreasonably passed up the opportunity to argue important issues before the 27 Nevada Supreme Court. The specific issue Kiles cites is the trial court's 28 restrictions on voir dire that deprived him of meaningful use of his peremptory 1 challenges. He contends that, but for the lack of oral argument, he had a 2 reasonable probability of prevailing on appeal. 3 In addressing the issue in Kiles’s state post-conviction proceeding, the 4 Nevada Court of Appeals decided as follows:

5 Kiles claimed his appellate counsel was ineffective for canceling oral argument before the Nevada Supreme Court. Kiles 6 contended counsel improperly missed an opportunity to present argument concerning the trial court's restrictions on questioning 7 potential jurors during voir dire.

8 However, counsel did not cancel oral argument, but rather moved for a continuance due to a scheduling conflict. The Nevada 9 Supreme Court granted counsel's motion. Kiles v. State, Docket No. 72726 (Order Vacating Oral Argument, October 2, 2018). The 10 Nevada Supreme Court subsequently notified the parties that the matter had been reassigned to a reconfigured panel and the 11 reconfigured panel concluded that oral argument was not warranted. Kiles v. State, Docket No. 72726 (Order Submitting for 12 Decision Without Oral Argument, November 26, 2018). Kiles contention that his appellate counsel canceled oral argument is 13 belied by the record, and he did not demonstrate that his appellate counsel's motion for a continuance fell below an objective standard 14 of reasonableness.

15 Moreover, the Nevada Supreme Court considered Kiles' contention on direct appeal that the trial court unreasonably 16 restricted voir dire before all the potential jurors were seated and concluded that the district court committed error. Kiles v. State, 17 Docket No. 72726 (Order of Affirmance, January 31, 2019). The Nevada Supreme Court concluded Kiles was not entitled to relief 18 because he failed to demonstrate the impaneled jury was not impartial or any resulting prejudice stemming from the district 19 court's error. Id. Kiles did not identify additional arguments that counsel failed to make or demonstrate a reasonable likelihood of 20 success on direct appeal had counsel been permitted to orally argue the issue. 21 Because Kiles failed to allege specific facts that are not belied 22 by the record and, if true, would have demonstrated deficiency and prejudice, we conclude the district court did not err by denying this 23 claim without conducting an evidentiary hearing. 24 (ECF No. 6-1 at 58-59.) 25 Prior to this analysis, the Nevada Court of Appeals correctly identified the 26 controlling federal law for ineffective assistance of counsel claims – i.e., 27 Strickland v. Washington, 466 U.S. 668 (1984). (Id. at 57.) In Strickland, the 28 Supreme Court propounded a two-prong test for analyzing claims of ineffective 1 assistance of counsel: a petitioner claiming ineffective assistance of counsel 2 must demonstrate (1) that the defense attorney’s representation “fell below an 3 objective standard of reasonableness,” and (2) that the attorney’s deficient 4 performance prejudiced the defendant such that “there is a reasonable 5 probability that, but for counsel’s unprofessional errors, the result of the 6 proceeding would have been different.” Strickland, 466 U.S. at 688, 694. 7 Here, the state court record supports a finding that counsel’s 8 performance did not fall below the Strickland standard. In moving to continue 9 oral argument, appellate counsel requested a postponement of 14 days due to a 10 scheduling conflict. (ECF No. 15-7.) He explained in his motion that, on the 11 same day set for oral argument, he was scheduled to represent another client in 12 an evidentiary hearing that had already been rescheduled twice due to witness 13 unavailability. (Id. at 3.) He further explained that he was scheduled to begin a 14 trial the following week. (Id.) In addition, he represented in his motion that Kiles 15 did not object to the continuance. (Id. at 4.) There is nothing in the record to 16 suggest that counsel had any reason to anticipate that the motion would result 17 in the Nevada Supreme Court deciding to forego oral argument or that the 18 motion factored into the court’s decision. See Nev. R. App. P. 34(f)) (giving the 19 appellate court discretion to “order a case submitted for decision on the briefs, 20 without oral argument”). Counsel’s conduct was eminently reasonable under 21 the circumstances. 22 In addition, Kiles cannot demonstrate a reasonable probability that oral 23 argument in support of claims on appeal would have resulted in a more 24 favorable outcome. All the points Kiles claims counsel could have raised in oral 25 argument were either included in counsel’s briefs or known by the Nevada 26 Supreme Court when it ruled upon his direct appeal. (ECF No. 14-19 at 31-35; 27 ECF No. 15-1 at 6-9; ECF No. 6-1 at 49-51.) Kiles does not specify how oral 28 argument would have had any impact on the Nevada Supreme Court’s decision. 1 The Nevada Court of Appeals’ rejection of Kiles’s ineffective assistance of 2 appellate counsel claim was neither an unreasonable application of clearly 3 established federal law, nor an unreasonable determination of the facts in light 4 of the evidence presented. 28 U.S.C. § 2254(d). Thus, Ground Six must be 5 denied. 6 IV. CONCLUSION 7 For the reasons set forth above, Kiles’s petition for habeas relief will be 8 denied. 9 Certificate of Appealability 10 This is a final order adverse to the petitioner. As such, Rule 11 of the 11 Rules Governing Section 2254 Cases requires this Court to issue or deny a 12 certificate of appealability (COA). Accordingly, the Court has sua sponte 13 evaluated the claims within the petition for suitability for the issuance of a 14 COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th 15 Cir. 2002). 16 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the 17 petitioner "has made a substantial showing of the denial of a constitutional 18 right." With respect to claims rejected on the merits, a petitioner "must 19 demonstrate that reasonable jurists would find the district court's assessment 20 of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 21 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For 22 procedural rulings, a COA will issue only if reasonable jurists could debate (1) 23 whether the petition states a valid claim of the denial of a constitutional right 24 and (2) whether the court's procedural ruling was correct. Id. Having reviewed 25 its determinations and rulings in adjudicating Kiles’s petition, the Court 26 declines to issue a certificate of appealability for its resolution of any procedural 27 issues or any of Kiles’s habeas claims. 28 IT IS THEREFORE ORDERED that Kiles’s petition for a writ of habeas 1 || corpus (ECF No. 6) is DENIED. The Clerk of Court is directed to enter judgment 2 || accordingly and close this case. 3 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 4 IT IS FURTHER ORDERED that respondents’ motion for post-hearing 5 || briefing (ECF No. 41) is DENIED as moot. 6 DATED THIS 28th day of January, 2026. 7 en Apo Waseed ? UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28