Eric L. Dale v. Brian E. Williams, et al.

• Court: District Court, D. Nevada
• Decided: December 12, 2025
• Docket: 3:20-cv-00031
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ERIC L. DALE, Case No. 3:20-cv-00031-MMD-CLB

7 Petitioner, ORDER v. 8 BRIAN E. WILLIAMS, 1 et al., 9 Respondents. 10

11 I. SUMMARY 12 This is a 28 U.S.C. § 2254 habeas corpus action brought by Petitioner Eric L. Dale, 13 a Nevada prisoner who is represented by the Federal Public Defender. The matter is 14 before the Court for adjudication on the merits of the remaining claims. Because the Court 15 concludes that two grounds are procedurally barred from federal review and that the other 16 remaining claims lack merit, the Petition is denied. The Court also denies a Certificate of 17 Appealability. 18 II. BACKGROUND 19 a. State Court Proceedings 20 A jury in Washoe County, Nevada convicted Dale of attempted murder with use of 21 a deadly weapon, battery with a deadly weapon, and discharging a firearm at or into an 22 occupied vehicle. (ECF No. 54-3.) The charges stemmed from a 2013 incident when Dale 23 got into a single-car accident in Reno, abandoned his car, and began walking down the 24 middle of a busy street. (See ECF No. 44 at 2.) He called 911 and told the operator that 25 15-20 people were chasing him. When a police car drove by, Dale tried to flag the officer 26

27 1According to the Nevada Department of Corrections inmate locator page, Dale is incarcerated at Southern Desert Correctional Center. The department’s website reflects 28 Manuel Portillo is the warden for that facility. At the end of this order, the Court directs the Clerk to substitute Manuel Portillo for prior respondent Brian Williams, under, inter alia, 2 and fired into the car. The driver survived. In September 2014, the state district court 3 declared Dale a habitual criminal and sentenced him to life in prison with the possibility 4 of parole after ten years. (ECF Nos. 54-6, 54-7.) 5 Dale appealed, and the Nevada Court of Appeals affirmed his convictions. (ECF 6 No. 55-18.) The Nevada Court of Appeals affirmed the denial of his state postconviction 7 habeas corpus petition in December 2019. (ECF No. 57-17.) 8 b. Federal Habeas Proceedings 9 In January 2020, Dale dispatched his pro se federal habeas petition for mailing. 10 (ECF No. 1-1.) Counsel was appointed, and the Court granted equitable tolling for the 11 period when COVID-19 protocols prevented Dale’s counsel from having a 12 neuropsychologist examine Dale and prepare a report. (ECF No. 15.) Dale ultimately filed 13 his Second Amended Petition (“Petition”) in July 2022. (ECF No. 44.) The Court granted 14 Respondents’ motion to dismiss in part and dismissed ground 2 as procedurally barred. 15 (ECF No. 73.) The following grounds for relief remain for the Court’s consideration: 16 Ground 1: Trial counsel ineffectively failed to investigate (A) a Not Guilty by Reason of Insanity defense and (B) a voluntary intoxication 17 defense in violation of the Sixth and Fourteenth Amendments.

18 Ground 3: Trial counsel failed to seek a psychiatric evaluation of Dale 19 concerning his competency during his trial.

20 Ground 4: Trial and appellate counsel were ineffective for failing to object to the sentencing enhancement based upon the State’s 21 presentation of incomplete court records.

22 Ground 5: Trial and appellate counsel failed to object to the 23 amendment to the indictment on count III after presentation of evidence and the conclusion of the State’s case. 24 Ground 6: Dale was convicted of all counts on insufficient evidence 25 in violation of the Fifth, Sixth, and Fourteenth Amendments.

26 Ground 7: Dale was denied his constitutional right to present a 27 complete defense in violation of his due process rights under the Fifth, Sixth, and Fourteenth Amendments. 28 mitigating evidence at Dale’s sentencing. 2 (ECF No. 44 at 8-29.) 3 Respondents have answered the remaining claims, and Dale replied. (ECF Nos. 4 84, 95.) 5 III. TRIAL TESTIMONY2 6 The victim, Robert Shontz, testified that, on May 7, 2013, at about 10:45 p.m., he 7 was leaving The Atlantis Casino parking lot in Reno and was stopped in his truck at a red 8 light. (ECF No. 52-11 at 27-70.) He saw a man wearing a hoodie walking towards the 9 intersection. Shontz reached down to turn on the radio and suddenly felt as if he’d been 10 hit in the head with a sledgehammer. He also felt pain in his arm. He pulled into the valet 11 area; his head was bleeding heavily. He had been shot in the head and in the arm. Shontz 12 told police he last saw the man when he was about 10 to 15 feet from the passenger side 13 of his truck, and he wasn’t certain if it was that person who shot him. 14 Maria Limon testified that she was working at The Atlantis that night. (Id. at 70-86.) 15 Her boyfriend Erick Reyes met her after her shift to walk her home. She saw Shontz’s 16 truck pull up to the stoplight. She saw a person in a hoodie walk up and try to open the 17 passenger door. The person then fired two shots into the truck; Limon thought it sounded 18 like a handgun, but she couldn’t see the weapon. She ran toward the casino; the victim 19 had driven over there and was bleeding from his head. 20 Reyes testified that he walked to the casino to pick up Limon after work. (Id. at 86- 21 97.) He saw a man approach the truck and try to open the passenger door. Reyes then 22 heard two gunshots and saw the truck jerk forward. He heard two more gunshots, and 23 the truck then pulled into the valet area. The shooter ran in the opposite direction. He 24 never saw the man’s face. 25 /// 26 27 2The Court makes no credibility or other factual findings regarding the truth or 28 falsity of this evidence from the state court. The Court’s summary is merely a backdrop to its consideration of the issues presented in the Petition. 2 footage showed a person walking down the middle of a busy main street. (ECF No. 53-2 3 at 39-101.) Before the shooting, the perpetrator had called 911 and reported that people 4 were chasing him; dispatch told officers it was a possible “1096,” the code for a mentally 5 unstable individual.3 The video showed that an officer drove by the casino but didn’t see 6 the caller, so the perpetrator called 911 again. The video then showed Shontz’s truck 7 stopped at the light and a person walking up to the passenger side and firing into the 8 truck. The shooter held onto the passenger door handle as the truck began to drive away. 9 The shooter ran across the street and another officer in a patrol car saw him. The shooter 10 ran behind a couple of trees then re-emerged and flagged down the second officer, who 11 made contact. A revolver and a bag of ammunition was found behind one of the trees. 12 Friberg identified Dale as the person with whom police made contact that night. Friberg 13 asked Dale at the scene if he was the shooter, which Dale denied. Dale told multiple 14 responding officers that people were chasing him. He acknowledged that he had been in 15 the middle of the street and then was in the intersection in question; he said he didn’t see 16 or hear any shooting. Dale was coherent and answered questions appropriately. 17 Washoe County Sheriff’s Deputy Victor Ruvalcaba investigated the scene and 18 testified that the passenger window of the truck had four bullet holes. (ECF No. 52-11 at 19 131-164; ECF No. 53-2 at 4-22.) Two bullets were recovered from the truck; doctors 20 removed the bullet from Shontz’s head but were unable to remove the bullet in his arm. 21 A gun and bag of ammunition were found underneath a pine tree near where Dale made 22 contact with police. Police had earlier arranged for the towing of a vehicle that had been 23 abandoned in the middle of an intersection that was registered to Eric Dale. (ECF No. 53- 24 2 at 131-152.) 25 /// 26 27 3As will be discussed with respect to ground 7, three defense witnesses testified 28 that, in the couple of days leading up to and on the day of the shooting, Dale acted paranoid and erratic and said that people were coming to get him. 2 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 3 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 4 An application for a writ of habeas corpus on behalf of a person in custody 5 pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 6 unless the adjudication of the claim — 7 (1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 9 (2) resulted in a decision that was based on an unreasonable 10 determination of the facts in light of the evidence presented in the 11 State court proceeding.

A state court decision is contrary to clearly established Supreme Court precedent, within 12 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 13 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 14 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 15 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 16 405-06 (2000)). A state court decision is an unreasonable application of clearly 17 established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the 18 state court identifies the correct governing legal principle from [the Supreme] Court’s 19 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. 20 at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires 21 the state court decision to be more than incorrect or erroneous. The state court’s 22 application of clearly established law must be objectively unreasonable.” Id. (quoting 23 Williams, 529 U.S. at 409-10) (internal citation omitted). 24 “A state court’s determination that a claim lacks merit precludes federal habeas 25 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 26 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 27 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for 28 2 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 3 (describing the standard as a “difficult to meet” and “highly deferential standard for 4 evaluating state-court rulings, which demands that state-court decisions be given the 5 benefit of the doubt”) (internal quotation marks and citations omitted). 6 V. DISCUSSION 7 a. Trial Court Error Claims 8 i. Ground 6: Insufficient Evidence 9 Dale asserts that insufficient evidence supported his convictions in violation of 10 his Fifth, Sixth, and Fourteenth Amendment due process rights. (ECF No. 44 at 22-24.) 11 He argues that the State failed to prove beyond a reasonable doubt that he had an intent 12 to kill. 13 “The Constitution prohibits the criminal conviction of any person except upon proof 14 of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 309 (1979) (citing 15 In re Winship, 397 U.S. 358 (1970)). On federal habeas corpus review of a judgment of 16 conviction under § 2254, the petitioner is entitled to relief if based on the evidence 17 presented no rational trier of fact could have found proof of guilt beyond a reasonable 18 doubt.” Id. at 324. “[T]he standard must be applied with explicit reference to the 19 substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. On 20 habeas review, the Court must assume that the trier of fact resolved any evidentiary 21 conflicts in favor of the prosecution and must defer to such resolution. Id. at 326. When 22 federal courts “assess a sufficiency of evidence challenge in the case of a state prisoner 23 seeking federal habeas corpus relief subject to the strictures of AEDPA, there is a double 24 dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 25 (9th Cir. 2011). First, the Jackson standard is itself deferential. See id. Second, the state 26 court’s determination of sufficiency of evidence claims is entitled to deference. See id. at 27 964-965. Generally, the credibility of witnesses is beyond the scope of a review of the 28 sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995). 2 attempted murder. See Keys v. State, 766 P.2d 270, 273-74 (Nev. 1988). The Nevada 3 Supreme Court has held that a person’s “intent to kill” may be deduced from the facts 4 and circumstances surrounding the alleged killing. See Dearman v. State, 566 P.2d 407, 5 409 (Nev. 1977). Intent is usually “inferred by the jury from the individualized, external 6 circumstances of the crime,” such as “the intentional use of a deadly weapon upon the 7 person of another at a vital part.” Sharma v. State, 56 P.3d 868, 874-75 (Nev. 2002). 8 Battery is a general intent crime, where “the prosecutor need only prove that ‘the 9 defendant actually intend[ed] to commit a willful and unlawful use of force or violence 10 upon the person of another.” Byars v. State, 336 P.3d 939, 949 (Nev. 2014). A conviction 11 for discharging a firearm into a vehicle requires that the defendant “willfully and 12 maliciously discharge[d] a firearm.” NRS § 202.285(1). 13 The Nevada Court of Appeals concluded that the State presented sufficient 14 evidence to prove the requisite intent: 15 Appellant Eric Dale contends the evidence presented at trial was insufficient to support the jury’s finding of guilt. Specifically, he asserts the 16 State failed to prove that he possessed the requisite intent to commit the crimes.[FN1] We disagree. 17

18 When reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution and 19 determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 20 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). “[I]t is the function of the jury, not the appellate court, to 21 weigh the evidence and pass upon the credibility of the witness.” Walker 22 v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975). And circumstantial evidence is enough to support a conviction. Lisle v. State, 113 Nev. 679, 23 691-92, 941 P.2d 459, 467-68 (1997), holding limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 24 (1998).

25 The jury heard testimony that an individual walked up to a truck 26 while it was stopped at a red light and tried to open the passenger door. When unsuccessful in opening the door, the individual fired two shots into 27 the truck, both of which struck the driver—one in the head and one in the arm. As the driver drove the truck across the intersection, the individual 28 continued to hold onto the truck and fired two additional shots into the area, where he stayed for a short period of time. The individual later ran 2 across the street to an area with a tree. A police officer contacted the individual when he was near the tree and the individual was identified as 3 Dale. During a search of the area near the tree, a police officer found a 4 revolver and a bag of ammunition. The entire event was captured on surveillance video and the video was shown to the jury. 5 The jury could reasonably infer from the evidence presented that 6 Dale willfully and maliciously discharged a firearm into the truck, see NRS 202.285, he willfully and unlawfully used force against the driver that 7 caused substantial bodily harm by shooting him in the arm, see NRS 8 200.481(1)(a), (2)(e)(2), and he intended to kill the driver when he shot him in the head with a gun, see NRS 193.330, NRS 200.010(1); NRS 9 200.020. It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury’s verdict will not be disturbed on appeal 10 where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 11 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). 12 [FN1: Dale does not challenge the conviction for felon in possession 13 of a firearm.]

14 (ECF No 55-18 at 2-4.) 15 The jury heard eyewitness testimony that Dale walked up to the truck, tried to open 16 the passenger door and then shot into the truck, striking Shontz in the arm and the head. 17 Dale also tried to hold onto the truck and continued shooting as the truck drove away. 18 Surveillance video footage captured the incident and showed Dale cross the street 19 afterwards, where police arrested him and found the gun and ammunition close by. The 20 jury also heard testimony that Dale had called 911 to report that people were chasing him, 21 he had abandoned his own vehicle in the middle of an intersection, and, at one point, he 22 was inexplicably standing in the middle of a very busy street. He had expressed to others 23 in the days prior to the shooting that people were out to get him, and his behavior was 24 erratic and paranoid. But he also discarded the gun and ammunition and denied shooting 25 anyone to police, suggesting he understood that his actions were wrong. The jury was 26 not unreasonable in finding that Dale intended to kill the victim when he shot him in the 27 head and continued firing on him. 28 /// 2 presented sufficiently supported the jury’s finding. So, Dale has not demonstrated that the 3 Nevada Court of Appeal’s decision on federal ground 6 was contrary to, or involved an 4 unreasonable application of, clearly established U.S. Supreme Court law, or was based 5 on an unreasonable determination of the facts in light of the evidence presented. See 28 6 U.S.C. § 2254(d). The Court accordingly will deny federal habeas relief on ground 6. 7 ii. Ground 7: Right to Present a Complete Defense 8 Dale argues that the trial court did not allow him to present a complete defense 9 in violation of his Fifth, Sixth, and Fourteenth Amendment due process rights. (ECF No. 10 44 at 24-27.) He argues that the Court improperly limited defense testimony. 11 Criminal defendants have a constitutional right to “a meaningful opportunity to 12 present a complete defense.” Crane v. Ky., 476 U.S. 683, 690 (1986) (citing Chambers 13 v. Mississippi, 410 U.S. 284, 302-303 (1973); and Wash. v. Tex., 388 U.S. 14, 22 14 (1967)). States have “broad latitude under the Constitution to establish rules excluding 15 evidence from criminal trials.” Nev. v. Jackson, 569 U.S. 505, 509 (2013) (“Only rarely 16 have we held that the right to present a complete defense was violated by the exclusion 17 of defense evidence under a state rule of evidence.”) (citing Holmes v. S.C., 547 U.S. 18 319, 324 (2006)). “The right to offer the testimony of witnesses, and to compel their 19 attendance, if necessary, is in plain terms the right to present a defense, the right to 20 present the defendant’s version of the facts as well as the prosecution’s to the jury so it 21 may decide where the truth lies.” Washington, 388 U.S. at 19. 22 Here, three defense witnesses testified that Dale’s mental state appeared to 23 deteriorate right before the shooting. The Court determined that testimony about Dale’s 24 behavior immediately before his arrest was relevant and not outweighed by unfair 25 prejudice. The Court limited the witnesses to testifying about how Dale seemed in the few 26 days before the incident. (ECF No. 53-2 at 158-179.) 27 Linda Bracken testified at trial that she was a manager at the apartments where 28 Dale lived. (ECF No. 53-2 at 154-158, 180-185.) She testified that a couple of days before 2 appeared fearful, paranoid, jumpy, and not his usual self. Bracken said that when the 3 mailman made a loud sound opening the mail bin in the next room: “…Mr. Dale actually 4 jumped out of his chair, turned around in a fighting stance, to defend himself. And I 5 thought that was very odd. And I was telling him, you know, calm down. It’s just the mail 6 person.” She said Dale responded: “Nobody – he said they’re coming to get me.” (ECF 7 No. 53-2 at 182.) Dale continued to look around as if someone was coming to get him. 8 He seemed confused when filling out the paperwork; Bracken had to continually explain 9 the forms and where he needed to sign. 10 Another witness testified that she knew Dale. (ECF No. 53-2 at 185-190.) Earlier 11 on the day of the shooting when she encountered him, he kept looking behind him and 12 seemed paranoid, frightened, or worried. Dale’s girlfriend testified that, the day before the 13 shooting, he called her. (ECF No. 53-2 at 191-195.) He seemed paranoid and was 14 rambling; he wasn’t himself. 15 The Nevada Court of Appeals held that Dale was able to introduce evidence that 16 he was acting strangely and was extremely paranoid in the days before the shooting: 17 Dale also contends the district court abused its discretion by limiting the testimony of his defense witnesses. Dale claims he should have been 18 allowed to elicit testimony from his witnesses that, within a month of the event, he had told the witnesses he believed he was being followed and 19 he believed someone had broken into his home. Dale asserts that this 20 testimony would have highlighted his paranoia leading up to the shooting and supported his defense that he did not have the requisite intent to 21 commit the crimes.

22 We review a district court’s decision to admit or exclude evidence for an abuse of discretion. Thomas v. State, 122 Nev. 1361, 1370, 148 23 P.3d 727, 734 (2006). 24 The district court found testimony regarding Dale’s behavior prior to 25 the event was relevant and admissible. However, the district court generally limited Dale’s witnesses’ testimony to their observations of his 26 behavior in the few days immediately preceding the event. Although the district court also ruled that Dale’s statement to one witness that he 27 thought he was being followed was admissible under NRS 51.105(1), Dale 28 did not elicit this testimony from the witness. Even with the limitations imposed by the court, Dale was able to present evidence that he was to the event. Having reviewed the record, we conclude the district court 2 did not abuse its discretion by limiting the testimony of the defense witnesses. NRS 50.115(1). 3

4 (ECF No. 55-18 at 4-5.)

5 Dale now argues that the trial court did not allow defense witnesses to testify about 6 anything Dale said in the days leading up to the shooting. (ECF No. 44 at 25.) But that is 7 belied by the testimony recounted above. Defense witnesses testified that Dale was 8 acting very strangely—seemed extremely paranoid—shortly before the shooting. One 9 witness testified that, a day or two prior, Dale appeared fearful and had told her that 10 people were coming to get him. He was jumpy and constantly looking around. The court 11 did limit the testimony to the witnesses’ interactions with Dale within a couple of days 12 before the shooting. The court reasonably limited the testimony to the most relevant 13 timeframe. Dale has not demonstrated that the Nevada Court of Appeals’ conclusion that 14 the district court did not abuse its discretion in limiting the testimony was contrary to, or 15 involved an unreasonable application of, clearly established U.S. Supreme Court law, or 16 was based on an unreasonable determination of the facts in light of the evidence 17 presented. See 28 U.S.C. § 2254(d). Thus, the Court denies federal habeas relief on 18 ground 7. 19 b. Ineffective Assistance of Counsel Claims 20 i. Standard for Ineffective Assistance of Counsel Claims 21 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 22 analysis of claims of ineffective assistance of counsel requiring the petitioner to 23 demonstrate (1) that counsel’s “representation fell below an objective standard of 24 reasonableness,” and (2) that counsel’s deficient performance prejudiced the defendant 25 such that “there is a reasonable probability that, but for counsel’s unprofessional errors, 26 the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 27 A court considering an ineffective assistance of counsel claim must apply a “strong 28 presumption that counsel’s conduct falls within the wide range of reasonable professional 2 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 3 the Sixth Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it 4 is not enough for the habeas petitioner “to show that the errors had some conceivable 5 effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious 6 as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 7 In reviewing a state court’s Strickland determination under AEDPA, both AEDPA 8 and Strickland’s deferential standards apply, so review is doubly deferential. See Richter, 9 562 U.S. at 104-05. Therefore, “[w]hen § 2254(d) applies, the question is not whether 10 counsel’s actions were reasonable. The question is whether there is any reasonable 11 argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. 12 ii. Ground 1(A): An Insanity Defense 13 Dale alleges that his trial counsel ineffectively failed to investigate a defense of Not 14 Guilty by Reason of Insanity (“NGRI”). (ECF No. 44 at 9-10.) Dale argues that counsel 15 had information from several witnesses who had observed drastic changes in Dale’s 16 mental health just before the incident. He had a prior diagnosis of PTSD, paranoid 17 schizophrenia, anxiety and bipolar disease, and the random shooting was bizarre and 18 appeared senseless. He contends that he wanted to enter a NGRI plea and lacked 19 understanding of what he did at the time of the actual shooting. 20 Nevada Courts have applied the M’Naghten4 test for insanity for more than a 21 century. See Miller v. State, 911 P.2d 1183, 1185-1186 (Nev. 1996); State v. Lewis, 22 22 P. 241 (Nev. 1889). Under the M’Naghten test, “the defense must show that the defendant 23 labors under such a mental defect that the defendant cannot understand the nature of his 24 actions or cannot tell the difference between right and wrong.” Miller, 911 P.2d at 1185. 25 Inability to tell the difference between right and wrong is not satisfied by mere diminished 26 capacity. See Crawford v. State, 121 P.3d 582, 591 (Nev. 2005). The “fact that a person 27 had mental health problems did not necessarily mean that he or she could meet the 28 4M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (1843). 2 v. State, 485 P.3d 750, 754 (Nev. 2021) (For alleged insanity to be a complete defense 3 to the charged crimes, a defendant’s condition must satisfy the “specific and demanding 4 M’Naghten test. . . .”). 5 Dale was evaluated three separate times for competency to participate in and 6 assist with his defense. (See ECF Nos. 29-2, 29-3, 29-4.) All three concluded that Dale 7 understood the charges and was capable of aiding in his own defense, and that his 8 reported symptoms were generally inconsistent with usual signs of mental illness. 9 Dale’s trial counsel, Marc Picker, testified at the evidentiary hearing on Dale’s state 10 postconviction petition that, at his request, Dale’s competency was evaluated multiple 11 times before trial. (ECF No. 56-6 at 17-23.) Picker “absolutely” considered a NGRI plea. 12 (Id. at 19.) He recalled that the defense had talked to a psychiatrist or psychologist; he 13 knew he discussed this issue with several other defense attorneys. The defense 14 investigated Dale’s version of events and tried to obtain evidence to corroborate it. They 15 got the police report from Dale’s auto accident shortly before the shooting, where he 16 believed he had been forced off the road by people who were trying to get him. They 17 reviewed video from the area. While Dale’s story remained consistent, counsel concluded 18 that Dale could not meet the strict legal standard for a NGRI plea in Nevada. Dale agreed 19 not to pursue that defense. Picker thought that the theory that Dale did not intend to harm 20 the victim was more likely to be successful. The defense tried to present evidence on 21 cross-examination and through defense witnesses that spoke of Dale’s delusional 22 behavior to demonstrate lack of intent. During trial, Dale appeared to understand the 23 proceedings, he behaved appropriately, took notes, and asked questions of his attorneys. 24 Dale understood that shooting into an occupied vehicle was wrong, and he expressed 25 great remorse that Shontz was injured. 26 Dale testified at the evidentiary hearing that he had been diagnosed with PTSD. 27 (ECF No. 56-6 at 57-63.) He said he had been off his prescribed mental health drugs for 28 2 California and hadn’t found a medical facility yet to prescribe the medications. 3 The Nevada Supreme Court denied this claim as follows: 4 Second, Dale argues trial counsel should have pursued a plea of not guilty by reason of insanity. Dale does not demonstrate deficient 5 performance or prejudice. Trial counsel testified that he considered an insanity defense, consulted with a mental health professional and other 6 defense attorneys, and discussed with Dale his view that there was 7 insufficient support for the defense. Counsel further testified that Dale agreed not to enter a plea of not guilty by reason of insanity, and Dale did 8 not testify that he told counsel or the district court that he wanted to enter such a plea. Substantial evidence supports the district court’s findings that 9 counsel’s decision as to what defense would be the most successful was strategic and sufficiently investigated. Accordingly, Dale does not 10 demonstrate trial counsel was ineffective in this regard. . . . . 11 (ECF No. 57-17 at 4.) 12 Defense counsel had three competency evaluations completed before Dale’s trial 13 that all concluded that he understood the proceedings and was able to assist in his own 14 defense. Notably, one evaluator concluded that it was likely that Dale was feigning some 15 symptoms. (ECF No. 29-2.) Counsel testified credibly that he thoroughly investigated a 16 NGRI plea and concluded that it would be futile because Dale did not meet the legal 17 standard for the plea. The defense did present evidence that Dale was delusional to try 18 to show that Dale lacked any intent to kill. Defense witnesses testified that Dale was 19 paranoid and believed he was being followed, and police officers testified that Dale told 20 them he was being followed. Dale also attempted to hide the gun and ammunition and 21 denied shooting anyone. Dale has not shown that counsel failed to sufficiently investigate 22 and consider a NGRI plea. He has not demonstrated that the Nevada Supreme Court’s 23 decision on federal ground 1(A) was contrary to, or involved an unreasonable application 24 of, Strickland, or was based on an unreasonable determination of the facts in light of the 25 evidence presented. See 28 U.S.C. § 2254(d). Habeas relief is therefore denied on 26 ground 1(A). 27 /// 28 /// 2 Dale contends that trial counsel was ineffective for failing to seek a psychiatric 3 evaluation of him. (ECF No. 44 at 15-17.) He argues that counsel should have doubted 4 Dale’s competency during trial because the jail was not giving Dale medications he had 5 taken in the past, and Dale stopped taking the Risperdal that the jail prescribed a couple 6 of weeks before trial. 7 The criminal prosecution of a defendant who is not competent to stand trial violates 8 due process. See Medina v. Cal., 505 U.S. 437, 439 (1992). In Nevada, an incompetent 9 defendant is defined as one who does not have the present ability to understand either 10 the nature of the criminal charges against him or the nature and purpose of the court 11 proceedings or is not able to aid and assist his counsel in the defense at any time during 12 the proceedings with a reasonable degree of rational understanding. See NRS § 13 178.400(2)(a). 14 Under Nevada’s competency procedure, if any “doubt arises as to the competence 15 of the defendant, the court shall suspend the proceedings, the trial or the pronouncing of 16 the judgment, as the case may be, until the question of competence is determined.” NRS 17 § 178.405(1). The trial court then holds a hearing to fully consider whether there is 18 reasonable doubt as to competency that warrant further competency proceedings under 19 See NRS 178.415; see also Olivares v. State, 195 P.3d 864 at 869 (Nev. 2008). 20 Competence is measured by the defendant’s ability to understand the nature of the 21 criminal charges and the nature and purpose of the court proceedings and by his or her 22 ability to aid and assist his or her counsel in the defense at any time during the 23 proceedings with a reasonable degree of rational understanding. See Calvin v. State, 147 24 P.3d 1097, 1100 (Nev. 2006); Dusky v. United States, 362 U.S. 402 (1960); see also NRS 25 § 178.400(2)(a)-(c). 26 As described above, Dale was evaluated and found competent in pre-trial 27 evaluations. Picker testified at the state postconviction hearing that, during trial, Dale 28 appeared to understand the proceedings, he behaved appropriately, and he took notes 2 shooting into an occupied vehicle was wrong, and he expressed great remorse that 3 Shontz was injured. 4 Dale testified at that hearing that he had been taking Seroquel, Paxil, and 5 Depakote but had stopped taking those about a month before the shooting. (Id. at 59-62.) 6 He stopped the medications “cold turkey” because he had recently re-located to Nevada 7 and had not found a provider to prescribe them. (Id. at 60.) In jail, he was prescribed 8 Risperdal. He asked the jail to change the medication or reduce the dose, but no change 9 was made. He stopped taking Risperdal about two weeks before trial. Dale said he 10 understood “certain things” during trial. (Id. at 61.) He maintained that he never intended 11 to the kill the victim. He said that Picker discussed the potential risks of a jury trial. Dale 12 wanted to go to trial because he didn’t intend to hurt anyone and only acted because he 13 felt that his life was in danger. 14 The Nevada Supreme Court denied this claim as follows: 15 To the extent Dale claims trial counsel should have known he was not competent to proceed to trial, he has not shown deficient performance 16 or prejudice. Dale was evaluated for competency at least three times before trial, with all evaluations concluding Dale was competent to proceed to trial. 17 The trial court agreed with the evaluations and made a finding of Dale’s 18 competency. Additionally, counsel testified that Dale appeared to understand the trial proceedings and that he was able to communicate and 19 assist by writing notes or asking questions. Accordingly, Dale has not shown he is entitled to relief on this claim. 20 (ECF No. 57-17 at 5-6.) 21 Nothing in the record suggests that there was reason to question Dale’s 22 competency during trial. Notably, while he testified at the state postconviction 23 proceedings that he stopped taking the Risperdal before the trial, he did not testify with 24 any specificity that he was unable to understand and participate in the trial. His counsel 25 asked him one question on the subject: “[W]hen you were in the actual trial setting could 26 you understand everything going on?” And he answered: “Not everything, but certain 27 things I understood.” (ECF No. 56-6 at 61.) Trial counsel reasonably relied on the 28 competency evaluations. Additionally, he testified to his personal observations that Dale 2 The Nevada Supreme Court’s determination constituted an objectively reasonable 3 application of Strickland’s performance prong and was not based on an unreasonable 4 determination of the facts. Accordingly, the Court will deny habeas relief on ground 3. 5 iv. Ground 4: Sentencing Enhancement 6 Dale alleges that trial and appellate counsel failed to object to the habitual criminal 7 sentencing enhancement. (ECF No. 44 at 17-20.) He argues that the State failed to 8 present certified copies of two of the convictions used to seek habitual criminal treatment. 9 He also asserts that one of the California convictions would not be a felony under Nevada 10 law. 11 The trial court sentenced Dale as a habitual criminal under NRS § 207.010. (ECF 12 No. 54-7 at 2-3.) At the time of Dale’s crimes, NRS § 207.010(b) provided that a defendant 13 convicted of any felony, “who has previously been three times convicted, whether in this 14 State or elsewhere, of any crime which under the laws of the situs of the crime or of this 15 State would amount to a felony is a habitual criminal.” NRS § 207.010(b). 16 In Nevada, when using a prior conviction to seek an enhanced sentence, “the state 17 must prove beyond a reasonable doubt: (1) the identity of the person; and (2) the 18 conviction of prior felonies.” Carr v. State, 620 P.2d 869, 871 (Nev. 1980); see also 19 Howard v. State, 422 P.2d 548, 550 (Nev. 1967). Documentation other than a certified 20 copy of a judgment of conviction can establish the existence of a prior conviction. See 21 Pettipas v. State, 794 P.2d 705, 706 (Nev. 1990) (state district court properly relied on 22 “certified copies of docket sheets and other documents from the courts in which the 23 convictions were entered”); see also English v. State, 9 P.3d 60, 64 (Nev. 2000) 24 (documents including a “criminal complaint, a signed waiver of rights form, and two pages 25 of handwritten notes” were sufficient evidence of defendant’s prior conviction); Isom v. 26 State, 776 P.2d 543, 546 (Nev. 1989) (documents including defendant’s pleadings of nolo 27 contendere to one offense and guilty to another, along with the complaint, were sufficient 28 to establish prior convictions). 2 verdict, he met with Dale several times to prepare for the sentencing hearing. (ECF No. 3 56-6 at 25-31.) He told Dale that the court might adjudicate him as a habitual criminal. 4 Picker said that if the court sentenced Dale as a habitual criminal and ran the sentences 5 concurrent, then Dale would likely serve less time than if he were sentenced on the 6 individual offenses. Picker reviewed the documentation of Dale’s prior judgments of 7 conviction that the State would present at sentencing. The convictions included three for 8 possession of a firearm and one for assault with a deadly weapon. (See ECF No. 54-6 at 9 43-44; see also ECF No. 84 at 21-23.) Dale agreed that they were all valid convictions. 10 Picker did not object to any of the documentation of the judgments of conviction because 11 he believed that it was all sufficient for the court to find valid prior felony convictions. (See 12 ECF No. 54-6 at 39-40.) 13 Dale testified that Picker never met with him after trial and before sentencing and 14 denied discussing or seeing the prior conviction documents. (ECF No. 56-6 at 62-63.) He 15 thought certain errors in the criminal history made it look worse than it actually was. 16 The Nevada Supreme Court concluded that Dale did not show deficiency by trial 17 or appellate counsel or prejudice: 18 First, Dale argues trial counsel should have objected to the State’s proof of prior felony convictions for the purposes of adjudicating him a 19 habitual criminal. Dale does not demonstrate deficient performance or prejudice. While a certified copy of a felony conviction is prima facie 20 evidence of a prior felony conviction, there are other means by which the 21 State can prove a prior felony conviction beyond a reasonable doubt. See NRS 207.016(5); Atteberry v. State, 84 Nev. 213, 217, 438 P.2d 789, 791 22 (1968). Additionally, Dale does not identify an objection that would have had a reasonable probability of successfully challenging the prior convictions 23 and changing the outcome of the sentencing hearing. He notes that at least one of the prior convictions mentions jail time of less than a year, but he 24 does not demonstrate he was convicted of something less than a 25 felony.[FN1] He also complains that the defense was not provided documentation of the fourth felony conviction presented to the district court 26 until sentencing but does not allege that the documentation was invalid. Substantial evidence supports the district court’s finding that Dale conceded 27 the veracity of his prior felony convictions to counsel. Accordingly, Dale does not demonstrate trial counsel was ineffective in this regard.[FN2] 28 sentence of less than a year would not constitute a felony in Nevada, such 2 a sentence demonstrates the crime was not a felony in “the situs of the crime.” NRS 207.010(1)(b).] 3

4 [FN2: Additionally, Dale does not demonstrate that appellate counsel was ineffective for omitting this argument on appeal. See Kirksey v. State, 5 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996) (applying Strickland to claims of ineffective assistance of appellate counsel and holding “[a]n 6 attorney’s decision not to raise meritless issues on appeal is not ineffective assistance of counsel”).] 7

8 (ECF No. 57-17 at 3-4.) 9 When it denied this claim, the state district court had explained: 10 Counsel for the Petitioner (“Ms. Butko”) represented at the hearing there is a case standing for the proposition certified copies of the judgments 11 of conviction are required for habitual criminal enhancement. Ms. Butko could not recall the case name, but was given time following the hearing to 12 submit the case name and citation for the Court’s review. Hearing 13 Transcript, 100:20-24. Ms. Butko submitted a list of cases to the Court on June 1, 2018. The Court has reviewed the cases and determined none of 14 them support Ms. Butko’s contention. Mr. Picker testified he reviewed the evidence of the Petitioner’s prior convictions and found nothing to indicate 15 the certified documents evincing prior convictions were insufficient. Hearing Transcript, 29:10-15. Mr. Picker further testified the Petitioner conceded the 16 veracity of the prior felony convictions. Hearing Transcript, 27:18-20. A 17 defendant may stipulate to specific prior felony convictions. Hodges v. State, 119 Nev. 479, 78 P.3d 67 (2003). Mr. Picker’s failure to object to the 18 use of Exhibit 37 and 38 on the basis they do not contain certified judgments of conviction does not constitute deficient performance. 19

20 (ECF No. 56-8 at 8-9.) 21 The State had to prove beyond a reasonable doubt that Dale committed the prior 22 felonies. But there is no requirement that the State provide certified copies of the 23 judgments of conviction. And the Nevada habitual criminal statute provided that any 24 previous conviction of a crime that would amount to a felony where it was committed is a 25 prior felony conviction for the purposes of habitual criminal treatment. Trial counsel had 26 no valid legal basis to object to the State’s proffer to support habitual criminal treatment. 27 So, any objection would have been futile. Notably, trial counsel had contemplated that 28 habitual treatment likely would result in a lesser sentence. And the judge made that 2 sentenced him to ten years to life on each of the four counts. (ECF No. 54-6 at 52-56.) 3 The trial court also agreed with defense counsel’s argument at sentencing that, while 4 none of the convictions were for lesser-included offenses, the four counts were all 5 basically one event spanning just several seconds. The court, therefore, ran Dale’s 6 sentences concurrently. Dale has not demonstrated that counsel was deficient or that he 7 was prejudiced. And appellate counsel was not ineffective for not raising this claim on 8 appeal. The Nevada Supreme Court’s decision on federal ground 4 was not contrary to, 9 nor did it involve an unreasonable application of, Strickland. The Court therefore denies 10 habeas relief on ground 4. 11 v. Ground 5: Sentencing Enhancement 12 Dale argues that trial and appellate counsel failed to object to the amendment to 13 the indictment on count III after the presentation of evidence and conclusion of the State’s 14 case. (ECF No. 44 at 20-22.) “The Sixth Amendment guarantees a criminal defendant a 15 fundamental right to be informed of the nature and the cause of the accusation.” Lincoln 16 v. Sunn, 807 F.2d 805, 812 (9th Cir. 1987) (internal citation omitted). The Court looks first 17 to the information or indictment of a defendant to determine whether there was fair notice. 18 See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Lincoln, 807 F.2d at 812. “An 19 information is not constitutionally defective if it sets forth ‘the elements of an offense 20 charged with sufficient clarity to apprise a defendant of what to defend against.” Miller v. 21 Stagner, 757 F.2d 988, 994 (9th Cir. 1985) (quoting Russell v. United States, 369 U.S. 22 749, 763-64 (1962)). The Nevada Supreme Court has held that a conviction will not be 23 set aside or a new trial granted unless it is affirmatively demonstrated that an information 24 is so insufficient that it results in a miscarriage of justice or actual prejudice with respect 25 to a substantial right. See Laney v. State, 466 P.2d 666, 669 (Nev. 1970). 26 When the court conducted voir dire of a defense witness, before the jury came 27 back, the prosecutor explained to the court that the State was making a minor amendment 28 to the indictment. (ECF No. 53-2 at 179.) Count III charged Dale with the felony of 2 vehicle. (ECF No. 51-9 at 3.) At the close of the evidence, the prosecutor told the court 3 that Count III had been corrected. (See ECF No. 54-3 at 4.) 4 Defense counsel Picker testified at the state postconviction evidentiary hearing 5 that he did not object to the amendment of Count III of the indictment. (ECF No. 56-6 at 6 23-25, 46-48.) He said that Nevada law permitted the State to amend the indictment as 7 long as it doesn’t substantially change what was presented to the grand jury. It didn’t 8 occur to him to object to the amendment because the facts presented to the grand jury 9 and at trial were always that the truck was occupied. Picker hadn’t noticed that the word 10 “occupied” was not in the body of the indictment. 11 Dale’s appellate counsel testified that she did not raise the issue of the corrected 12 language in the charging document on appeal. (Id. at 8-16.) She noted that it had been 13 charged as a felony and nothing had changed. She said: “In my opinion it just changed 14 the language, that it was a felony, and it stayed a felony.” (Id. at 10.) She agreed that the 15 only difference between the indictment and the amended indictment was that the word 16 “occupied” was inserted before the word “vehicle.” She said it did not change the theory 17 of liability because the whole case was about the State seeking to convict Dale of firing a 18 gun at a person in a vehicle. 19 The Nevada Supreme Court held that neither trial nor appellate counsel were 20 ineffective: 21 Third, Dale claims trial counsel should have objected to the State’s amendment of the indictment after resting its case. Dale does not 22 demonstrate deficient performance or prejudice. As noted by the district court, NRS 173.095(1) provides that “[t]he court may permit an indictment 23 or information to be amended at any time before verdict or finding if no 24 additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” After considering the grand jury proceedings 25 and the other counts in the indictment, the district court found that Dale was on notice that the State intended to charge him with discharging a firearm 26 at or into an occupied vehicle. Further, counsel testified that the defense was aware of the State’s theory that Dale fired a gun into an occupied 27 vehicle, that he attempted to defend against that theory throughout the trial, 28 and that he did not object to the amendment because it did not change the was ineffective in this regard.[FN3] 2 [FN3: Additionally, Dale does not demonstrate that appellate counsel 3 was ineffective for omitting this argument on appeal. See Kirksey, 112 Nev. 4 at 998, 923 P.2d at 1114.

5 (ECF No. 57-17 at 4-5.) 6 Rejecting the challenge to the amendment of the indictment, the state district court 7 had explained: 8 A review of the grand jury proceedings makes clear the State intended to charge the Petitioner with discharging a firearm into an occupied 9 vehicle. GRAND JURY PROCEEDINGS, JUNE 26, 2013 (“Grand Jury Transcript”), 4:9-12. Furthermore the Court need not even look to the Grand 10 Jury Transcript to determine the Petitioner was on notice: an inquiry 11 confined to the four corners of the charging document leads to the conclusion the indictment provided the Petitioner with notice of the crime 12 charged. Count III of the INDICTMENT (“the Indictment”) is “DISCHARGING FIREARM AT OR INTO A VEHICLE, a violation of NRS 13 202.285, a felony.” Count II of the Indictment indicates the State was alleging the Petitioner “fir[ed] from short range into the cab of the victim’s 14 truck with substantial bodily harm” The Indictment 2:8-10. The indictment 15 put the Petitioner on notice of the State’s theory that the Petitioner fired a gun into an occupied vehicle. Mr. Picker testified there was “no question” 16 that the theory of the prosecution was the Petitioner shot at a person while that person was in their car. Hearing Transcript, 46:21-22. The Petitioner’s 17 counsel was aware of the theory and attempted to defend against the theory throughout the course of trial. 18

19 (ECF No. 56-8 at 16-17.) 20 The Court concludes that Dale has not demonstrated that counsel was deficient or 21 that he was prejudiced. A fair reading of the indictment as a whole made the State’s theory 22 clear. The defense team inarguably was on notice that the State’s theory of the case was 23 that Dale had fired into the truck with Shontz inside. So the amendment did not violate 24 Dale’s federal rights. Dale has not demonstrated that the Nevada Supreme Court’s 25 decision on federal ground 5 was contrary to, or involved an unreasonable application of, 26 Strickland. Accordingly, ground 5 is denied. 27 ///

28 /// 2 Grounds 1(B) and 8 are technically exhausted and procedurally defaulted from 3 federal habeas review. (See ECF No. 69 at 13-19; ECF No. 73 at 6.) Dale agrees that 4 these claims are procedurally defaulted but contends that he can demonstrate cause and 5 prejudice to excuse the default because his state postconviction counsel was ineffective 6 for failing to raise these claims. (ECF No. 69 at 13-19.) The Supreme Court has held that 7 ineffective assistance of counsel in postconviction proceedings does not establish cause 8 for the procedural default of a claim. See Coleman v. Thompson 501 U.S. 722, 750 9 (1991). However, the Court subsequently held that the failure of a court to appoint 10 counsel, or the ineffective assistance of counsel in a state postconviction proceeding, 11 may establish cause to overcome a procedural default in specific, narrowly defined 12 circumstances. See Martinez v. Ryan, 566 U.S. 1 (2012). Martinez established that: (1) 13 where an ineffective assistance of counsel claim must be raised in an initial-review 14 collateral proceeding under state law; (2) if petitioner had no counsel at the initial-review 15 collateral proceeding or postconviction counsel was ineffective under Strickland; (3) a 16 federal court will not be barred from considering a substantial claim of ineffective 17 assistance of trial counsel. See id. at 17; see also Trevino v. Thaler, 569 U.S. 413, 423 18 (2013). 19 i. Ground 1(B): A Voluntary Intoxication Defense 20 Dale alleges that his trial counsel failed to investigate a voluntary intoxication 21 defense. (ECF No. 44 at 10-13.) Dale contends that counsel should have presented 22 evidence that Dale had been extensively smoking methamphetamine before the shooting, 23 he had not been able to access his mental health medication, and he had exhibited 24 extremely paranoid behavior in the weeks prior to and on the night of the incident. 25 In Nevada, a person’s voluntary intoxication may be considered with respect to 26 intent: 27 No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, 28 but whenever the actual existence of any particular purpose, motive or crime, the fact of the person’s intoxication may be taken into consideration 2 in determining the purpose, motive or intent.

3 NRS § 193.220. 4 In support of this claim, Dale points to a 2022 evaluation that a psychiatrist 5 conducted when Dale was in prison. (ECF No. 37-1.) This report was never presented to 6 the state courts. In Shinn v. Ramirez, the U.S. Supreme Court reinforced the idea that a 7 federal court should not consider new evidence on habeas review. 596 U.S. 366 (2022). 8 Ramirez recognized the very high bar for excusing a petitioner’s failure to develop the 9 record in state court and explained that ineffective assistance of counsel claims under 10 Martinez do not serve to excuse a petitioner’s failure to develop the record in state court. 11 See also McLaughlin v. Oliver, 95 F.4th 1239 (2024). The Court cannot consider new 12 evidence, even where postconviction counsel was ineffective for failing to develop it in 13 state court, unless the petitioner can satisfy 28 U.S.C. 2254(e)(2). Ramirez, 596 U.S. at 14 382. Under § 2254(e)(2), the petitioner must show that his claim is based on a new, 15 retroactive constitutional law or a factual predicate that could not have previously been 16 discovered. Dale cannot satisfy these requirements, so the Court may not consider the 17 new expert report. 18 Even if the Court were permitted to consider the new expert report, it is 19 unpersuasive. The evaluation was conducted eight years after the shooting. Dale told the 20 psychiatrist that he “[t]ook meth a few days, or a couple of days” before the incident. (ECF 21 No. 37-1 at 4.) He “might have also been drinking alcohol.” (Id.) These fleeting references 22 to drug and alcohol use would not support a defense that his voluntary intoxication 23 prevented him from forming the intent to kill. And the defense presented their theory that 24 Dale had serious mental illness, had been off his medication at the time of the shooting, 25 and labored under the psychotic delusion that people were following him and trying to get 26 him. Ground 1(B) is not a substantial claim of ineffective assistance of counsel. The Court 27 therefore dismisses the claim as procedurally barred from federal review. 28 2 Dale alleges that counsel failed to investigate and present important mitigation 3 evidence at sentencing. (ECF No. 44 at 27-29.) He argues that counsel should have hired 4 a psychiatrist or psychologist to evaluate Dale to show that he could not form the intent 5 to commit attempted murder because he was suffering from psychotic paranoid 6 delusions. 7 “[T]he Strickland standard governs counsel’s obligation to investigate and present 8 mitigating evidence at sentencing.” Cox v. Del Papa, 542 F.3d 669, 678 (9th Cir. 2008) 9 (citing Wiggins v. Smith, 539 U.S. 510 (2003)). The Supreme Court has held that 10 counsel’s failure to uncover and present voluminous mitigating evidence at sentencing 11 could not be justified as a tactical decision because counsel had not “fulfilled their 12 obligation to conduct a thorough investigation of the defendant’s background.” See 13 Williams v. Taylor, 529 U.S. 362, 396 (2000). 14 Dale again points to the 2022 psychiatric evaluation, which the Court may not 15 consider. Moreover, trial counsel investigated a NGRI defense and determined that Dale 16 could not meet that strict standard. Counsel also presented witnesses at sentencing who 17 testified to Dale’s delusions and about how his mental state appeared to deteriorate 18 substantially right before the shooting. In imposing sentence, the judge stated that he had 19 no doubt that Dale had mental health issues, though he agreed with the competency 20 evaluations that he was competent to proceed with the trial. (ECF No. 54-6 at 50-56.) The 21 judge also explained that he was “gravely concerned” by Dale’s violent criminal history as 22 well as his convictions for driving under the influence. (Id. at 52.) However, the judge did 23 not view life without the possibility of parole as the appropriate sentence. He also agreed 24 with the defense position that concurrent sentences were warranted because the four 25 counts were essentially one event over a matter of seconds. Dale would not be able to 26 demonstrate that trial counsel was deficient for failing to present other evidence of Dale’s 27 mental health status at sentencing nor could he show a reasonable probability of a lesser 28 1 || sentence. Ground 8 is not a substantial claim of ineffective assistance of trial counsel. 2 || The Court dismisses ground 8 as procedurally barred from federal review. 3 The Petition, therefore, is denied in its entirety. || VI. CERTIFICATE OF APPEALABILITY 5 This is a final order adverse to the Petitioner. As such, Rule 11 of the Rules Governing 6 || Section 2254 Cases requires the Court to issue or deny a Certificate of Appealability 7 || (COA). Accordingly, the court has sua sponte evaluated the claims within the Petition for 8 || suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 Q || F.3d 851, 864-65 (9"" Cir. 2002). 10 Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has 11 || made a substantial showing of the denial of a constitutional right.” With respect to claims 12 || rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find 13 || the district court’s assessment of the constitutional claims debatable or wrong.” □□□□□□ v. 14 || McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 15 || (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 16 || (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) 17 || whether the court's procedural ruling was correct. /d. 18 Having reviewed its determinations and rulings in adjudicating Dale’s Petition, the 19 || Court finds that none of those rulings meets the Slack standard. The Court therefore 20 || declines to issue a certificate of appealability for its resolution of Dale’s Petition. 21 || Vil. CONCLUSION 22 It is therefore ordered that the Petition (ECF No. 44) is denied. 23 It is further ordered that a Certificate of Appealability will not issue. 24 The Clerk of the Court is directed to substitute Manuel Portillo for Respondent Brian 25 || Williams, enter judgment accordingly, and close this case. 26 DATED THIS 12" Day of December 2025. ALN 27 28 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 26