1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 JAMES ERIC FINIAS, Case No. 3:19-cv-00142-LRH-CLB 5 Petitioner, 6 ORDER v. 7
8 RENEE BAKER, et al.,
9 Respondents.
10 11 12 I. INTRODUCTION 13 This action is a petition for writ of habeas corpus by James Eric Finias, an 14 individual incarcerated at Nevada’s Lovelock Correctional Center. Finias is represented 15 by appointed counsel. Respondents have filed an answer to Finias’ amended habeas 16 petition and Finias has filed a reply. The case is before the Court for resolution on the 17 merits of Finias’ claims. The Court will deny Finias’ petition, will deny Finias a certificate 18 of appealability, and will direct the Clerk of the Court to enter judgment accordingly. 19 II. BACKGROUND 20 On October 25, 2010, around 9:35 pm, the Henderson, Nevada, Police 21 Department responded to a 911 call regarding shots fired and a man lying in the middle 22 of a roadway. See Trial Testimony of Troy Starr, Exh. 132, pp. 116–23 (ECF No. 48-1, 23 pp. 117–24). An ambulance transported the man, identified as Chad Coleman, to a 24 hospital, where he was later pronounced dead. See Trial Testimony of Gerard Collins, 25 Exh. 132, pp. 148–49 (ECF No. 48-1, pp. 149–50). Coleman died from a gunshot 26 wound to the chest; a medical examiner ruled the manner of death to be homicide. See 27 Trial Testimony of Dr. Lary Simms, Exh. 130, pp. 293–99 (ECF No. 47-1, pp. 137–43). 1 About a week after the murder, detectives interviewed Diane Robinson, who was 2 in a romantic relationship with Finias when Coleman was killed. See Trial Testimony of 3 Diane Robinson, Exh. 133, pp. 5–6, 55–62 (ECF No. 49-1, pp. 6–7, 56–63). Robinson 4 told the detectives—and later testified at trial—that she saw Finias shoot Coleman. Id. 5 at 16–19, 34 (ECF No. 49-1, pp. 17–20, 35). 6 Finias was arrested and charged with murder with use of a deadly weapon, 7 discharging a firearm out of a motor vehicle, and possession of a firearm by an ex-felon. 8 Information, Exh. 3 (ECF No. 36-3). Finias pled not guilty. Transcript of Arraignment, 9 Exh. 5 (ECF No. 36-5). On November 26, 2012, the State filed a second amended 10 information to bifurcate the charges of murder with use of a deadly weapon and 11 discharging a firearm out of a motor vehicle from the charge of possession of a firearm 12 by an ex-felon. See Second Amended Information, Exh. 84 (ECF No. 40-3). 13 Finias’ jury trial commenced on November 26, 2012. On the fourth day of trial, on 14 a motion by the defense, the court declared a mistrial on account of a discovery issue. 15 Transcript of Trial, November 29, 2012, Exh. 95, pp. 29–46 (ECF No. 43-6, pp. 30–47). 16 Finias’ re-trial commenced on December 9, 2013, and it lasted seven days. Trial 17 Transcripts, Exhs. 129, 130, 132, 133, 134, 136, 142 (ECF Nos. 44-34, 45-1, 46-1, 47- 18 1, 48-1, 49-1, 50-1, 51-1, 52-2, 53-6). The jury found Finias guilty of first-degree murder 19 with use of a deadly weapon and discharging a firearm out of a motor vehicle. Verdict, 20 Exh. 144 (ECF No. 53-8). Finias was then tried before the same jury on the charge of 21 possession of a firearm by an ex-felon. Transcript of Trial, December 17, 2013, Exh. 22 142, pp. 102–06 (ECF No. 53-6, pp. 103–07). The jury found Finias guilty of that crime 23 as well. Verdict, Exh. 143 (ECF No. 53-7). 24 Finias’ sentencing was held on June 16, 2014. Transcript of Sentencing, Exh. 25 148 (ECF No. 53-12). Finias was sentenced to life in prison without the possibility of 26 parole for the murder, plus a consecutive term of 96 to 240 months for use of the deadly 27 weapon; to 60 to 150 months in prison for discharging a firearm out of a motor vehicle, 1 prison on the ex-felon in possession of a firearm charge, to run concurrent to the other 2 sentences. Id. at 10 (ECF 53-12, p. 11). The judgment of conviction was filed on June 3 20, 2014. Judgment of Conviction, Exh. 150 (ECF No. 53-14). 4 Finias appealed, and the Nevada Supreme Court affirmed on September 10, 5 2015. Order of Affirmance, Exh. 172 (ECF No. 56-5). 6 Finias filed a pro se petition for writ of habeas corpus in the state district court on 7 August 17, 2016. Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 175 (ECF 8 No. 56-8). Counsel was appointed, and, with counsel, Finias filed supplemental points 9 and authorities in support of his petition. Supplemental Points and Authorities, Exh. 183 10 (ECF No. 57-6). The state district court held an evidentiary hearing. Transcript of 11 Evidentiary Hearing, Exh. 188 (ECF No. 58-1). The state district court then denied 12 Finias’ petition in a written order filed on January 22, 2018. Findings of Fact, 13 Conclusions of Law and Order, Exh. 189 (ECF No. 58-2). Finias appealed, and the 14 Nevada Supreme Court affirmed on January 17, 2019. Order of Affirmance, Exh. 206 15 (ECF No. 59-13). 16 This Court received Finias’ original pro se habeas petition, initiating this action, 17 on March 11, 2019 (ECF No. 4). The Court appointed counsel to represent Finias (ECF 18 No.3), and, with counsel, Finias filed “Supplemental Claims to Petitioner’s 19 Pro Se Petition for Writ of Habeas Corpus” (ECF No. 11) on June 7, 2019, and an 20 amended petition on February 11, 2020 (ECF No. 25). Finias’ amended petition, his 21 operative petition, includes the following claims:
22 Ground 1: The trial court violated Finias’ federal constitutional rights “by prohibiting the cross-examination of a pivotal prosecution witness [Diane 23 Robinson] regarding criminal charges and a cooperation agreement.”
24 Ground 2: The trial court violated Finias’ federal constitutional rights “by deciding as a matter of law that Diane Robinson was not an accomplice 25 and refusing to give an instruction that accomplice testimony be corroborated.” 26 Ground 3: The trial court violated Finias’ federal constitutional rights “by an 27 instruction that required the jury find the prosecution prove only ‘material’ Ground 4: Finias’ federal constitutional rights were violated on account of 1 ineffective assistance of his trial counsel because his trial counsel “[failed] to adequately investigate Debra Williams and impeach the credibility of 2 Detective Benjamin.” 3 Amended Petition (ECF No. 25), pp. 12–23. 4 Respondents filed an answer on July 9, 2020 (ECF No. 35). Finias filed a reply 5 on January 22, 2021 (ECF No. 67). 6 III. DISCUSSION 7 A. Standard of Review 8 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a 9 federal court may not grant a petition for a writ of habeas corpus on any claim that was 10 adjudicated on its merits in state court unless the state court decision was contrary to, 11 or involved an unreasonable application of, clearly established federal law as 12 determined by United States Supreme Court precedent, or was based on an 13 unreasonable determination of the facts in light of the evidence presented in the state- 14 court proceeding. See 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly 15 established federal law if it either applies a rule that contradicts governing Supreme 16 Court law or reaches a result that differs from the result the Supreme Court reached on 17 “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per 18 curiam). A state-court ruling is “an unreasonable application” of clearly established 19 federal law under section 2254(d) if it correctly identifies the governing legal rule but 20 unreasonably applies the rule to the facts of the case. See Williams v. Taylor, 529 U.S. 21 362, 407–08 (2000). To obtain federal habeas relief for such an “unreasonable 22 application,” however, a petitioner must show that the state court’s application of 23 Supreme Court precedent was “objectively unreasonable.” Id. at 409–10; see also 24 Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). Or, in other words, habeas relief is 25 warranted, under the “unreasonable application” clause of section 2254(d), only if the 26 state court’s ruling was “so lacking in justification that there was an error well 27 understood and comprehended in existing law beyond any possibility for fairminded 1 B. Ground 1 2 In Ground 1, Finias claims that the trial court violated his federal constitutional 3 rights “by prohibiting the cross-examination of a pivotal prosecution witness [Diane 4 Robinson] regarding criminal charges and a cooperation agreement.” Amended Petition 5 (ECF No. 25), pp. 12–16. 6 Finias filed a motion in limine before trial, seeking permission to cross examine 7 Robinson regarding convictions of petty larceny and obtaining money under false 8 pretenses. Motion in Limine, Exh. 125 (ECF No. 44-30). Regarding the latter of two 9 convictions of obtaining money under false pretenses, Robinson was originally charged 10 with two counts of felony burglary, two counts of misdemeanor possession of stolen 11 property, and two counts of misdemeanor obtaining money under false pretenses, but, 12 apparently under a guilty plea agreement, was ultimately convicted of only one count of 13 misdemeanor obtaining money under false pretenses; Finias sought to cross-examine 14 Robinson regarding that negotiation. See id. The trial court entertained argument on the 15 motion. Trial Transcript, December 11, 2013, Exh. 132, pp. 79–94 (ECF No. 48-1, pp. 16 80–95); Trial Transcript, December 12, 2013, Exh. 133, pp. 36–48 (ECF No. 49-1, pp. 17 37–49); Trial Transcript, December 12, 2013, Exh. 133, pp. 203–04 (ECF No. 50-1, pp. 18 46–47). The court ruled that Finias’ counsel could inquire of Robinson regarding the 19 nature of her convictions and when they occurred but could not get into specific details 20 about those convictions. Id. The trial court denied Finias’ request to question Robinson 21 about the negotiation of the charges, concluding that Finias did not support that request 22 with any evidence that the negotiation was connected to Robinson’s cooperation in 23 Finias’ case. Id. 24 The prosecution brought out the fact of Robinson’s convictions during her direct 25 examination (Trial Transcript, December 12, 2013, Exh. 133, p. 35 (ECF No. 49-1, p. 26 36)), and then, on cross-examination, the defense briefly questioned her on that subject. 27 Id. at 64 (ECF No. 49-1, p. 65). 1 Finias raised this issue on his direct appeal (Appellant’s Opening Brief, Exh. 168, 2 pp. 26–37 (ECF No. 56-1, pp. 36–47)), and the Nevada Supreme Court ruled as follows:
3 … Finias contends that the district court violated his right to due process by limiting the cross-examination of Diane Robinson. We 4 disagree. The district court permitted Finias to develop evidence from which the jury could evaluate Robinson’s potential bias. See United States 5 v. Jenkins, 884 F.2d 433, 436 (9th Cir. 1989) (noting that the district court abuses its discretion when it denies the jury sufficient information to 6 evaluate a witness' bias). The district court permitted Finias to question Robinson about threats and inducements from police at the time of her 7 initial statement, how often she met with prosecutors, and whether she had charges against her pending during Finias' prosecution. The district 8 court correctly restricted Finias from making inquiries suggesting that Robinson received favorable treatment with respect to pending charges in 9 exchange for her testimony because he did not have a good faith basis to make such an inquiry in the circumstances presented. See Daniel v. State, 10 119 Nev. 498, 513, 78 P.3d 890, 900 (2003) (requiring party to have good- faith basis for inquiry about specific acts of misconduct). 11 12 Order of Affirmance, Exh. 172, pp. 1–2 (ECF No. 56-5, pp. 2–3). 13 The Confrontation Clause of the Sixth Amendment, made applicable to the 14 States by the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the 15 accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. 16 Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965). “The main and essential 17 purpose of confrontation is to secure for the opponent the opportunity of cross- 18 examination.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974) (quoting 5 J. Wigmore, 19 Evidence § 1395, p. 123 (3d ed. 1940)) (emphasis in original). The right to cross- 20 examine guaranteed by the Confrontation Clause includes not only the right “to delve 21 into the witness’ story to test the witness’ perceptions and memory,” but also the right to 22 impeach the witness by “cross-examination directed toward revealing possible biases, 23 prejudices, or ulterior motives.” Davis, 415 U.S. at 316. “[T]he exposure of a witness’ 24 motivation in testifying is a proper and important function of the constitutionally 25 protected right of cross-examination.” Id. at 316–17; accord Pennsylvania v. Ritchie, 26 480 U.S. 39, 51–52 (1987) (plurality opinion). Cross-examination need not be “certain to 27 affect the jury’s assessment of the witness’s reliability or credibility” to implicate the 1 (9th Cir. 2005). Rather, the Confrontation Clause protects the right to engage in cross- 2 examination that “might reasonably” lead a jury to “question[] the witness’s reliability or 3 credibility.” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). 4 The defendant’s right to cross-examine witnesses is not absolute, however:
5 It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense 6 counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation 7 Clause is concerned to impose reasonable limits on such cross- examination based on concerns about, among other things, harassment, 8 prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this 9 Term, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever 10 way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per 11 curiam) (emphasis in original). 12 Van Arsdall, 475 U.S. at 679. 13 In this federal habeas corpus action, applying the standard applicable under the 14 AEDPA, the question is whether the Nevada Supreme Court unreasonably applied 15 clearly established federal law—to wit, Davis and Van Arsdall—in holding that the 16 limitations imposed by the trial court on the cross-examination of Robinson did not 17 violate the Confrontation Clause. 18 In a case raising similar issues, the Ninth Circuit Court of Appeals recently 19 stated:
20 Under AEDPA, “the range of reasonable judgment can depend in part on the nature of the relevant rule.” Yarborough v. Alvarado, 541 U.S. 21 652, 664 (2004). In other words, “‘[t]he more general the rule’ at issue— and thus the greater the potential for reasoned disagreement among fair- 22 minded judges—‘the more leeway [state] courts have in reaching outcomes in case-by-case determinations.’” Renico v. Lett, 559 U.S. 766, 23 776 (2010) (alterations in original) (quoting Yarborough, 541 U.S. at 664). Here, the relevant standard is a general one: “[T]rial judges retain wide 24 latitude ... to impose reasonable limits on ... cross-examination,” and a defendant seeking to establish a Confrontation Clause violation must 25 show that the trial court exceeded that latitude. Van Arsdall, 475 U.S. at 679. It follows that “a state court has even more latitude to reasonably 26 determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); accord Watson v. Greene, 640 27 F.3d 501, 508–09 (2d Cir. 2011). 1 Here, where Finias did not offer any evidence to show that Robinson’s 2 cooperation was connected to the negotiation of criminal charges against her, and 3 where the trial court found that he did not have a good faith basis to question Robinson 4 about such a connection, this Court cannot say that the Nevada Supreme Court’s ruling 5 was an unreasonable application of Davis or Van Arsdall. 6 Moreover, even if there was Confrontation Clause error here—the Court 7 determines that there was not—the Court would conclude that the Nevada Supreme 8 Court reasonably could have ruled the error harmless beyond a reasonable doubt under 9 Chapman v. California, 386 U.S. 18 (1967). In Van Arsdall, the Supreme Court held:
10 Accordingly, we hold that the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other 11 Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging 12 potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable 13 doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These 14 factors include the importance of the witness' testimony in the prosecution’s case, whether the testimony was cumulative, the presence 15 or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise 16 permitted, and, of course, the overall strength of the prosecution’s case. Cf. [Harrington v. California, 395 U.S. 250, 254 (1969); Schneble v. 17 Florida, 405 U.S. 427, 432 (1972)]. 18 Van Arsdall, 475 U.S. at 684. 19 The cross-examination of Robinson based on favorable treatment in her criminal 20 case would have been weak because Finias did not proffer any evidence to show that 21 Robinson’s cooperation against Finias was connected to her treatment in that case. 22 Further, looking at the timing of the criminal charges against Robinson vis-à-vis 23 her cooperation in Finias’ case, the record indicates that Robinson was cooperating in 24 Finias’ case, and that she provided the police with the information most inculpatory of 25 Finias, before the subject criminal charges were brought against her. See Trial 26 Transcript, December 12, 2013, Exh. 133, pp. 41–48 (ECF No. 49-1, pp. 42–49). 27 Robinson did provide further details inculpatory of Finias after the criminal charges were 1 firearm in an attempt to thwart forensic testing (see id.)—but she had already, before 2 being charged in her criminal case, provided the police with the critical information: that 3 she was present and saw Finias murder Coleman. 4 Furthermore, Finias’ trial counsel did cross-examine Robinson extensively about 5 pressure the police put on her to cooperate against Finias, by threatening that she 6 would be a suspect in Coleman’s murder if she did not cooperate and that she could be 7 incarcerated and not see her daughter for a long time. See Trial Transcript, December 8 12, 2013, Exh. 133, pp. 56–61 (ECF No. 49-1, pp.57–62). That cross-examination was 9 much stronger than any potential cross-examination based on Robinson’s favorable 10 treatment in her comparatively minor criminal case. The impact of the potential cross- 11 examination based on Robinson’s criminal case would have been de minimus in 12 comparison to the cross-examination, actually done, based on the pressure the police 13 put on her when they interviewed her about Coleman’s murder. 14 Taking into consideration all the circumstances, the Court concludes that 15 reasonable jurists could find that any Confrontation Clause error as alleged in Ground 1 16 was harmless beyond a reasonable doubt. 17 In sum, the Court determines that the Nevada Supreme Court’s ruling on the 18 claim in Ground 1 was not contrary to, or an unreasonable application of, Davis, Van 19 Arsdall, or any other Supreme Court precedent. The Court will deny Finias habeas 20 corpus relief on Ground 1. 21 C. Ground 2 22 In Ground 2, Finias claims the trial court violated his federal constitutional rights 23 “by deciding as a matter of law that Diane Robinson was not an accomplice and 24 refusing to give an instruction that accomplice testimony be corroborated.” Amended 25 Petition (ECF No. 25), pp. 16–18. 26 Finias raised this issue on his direct appeal (Appellant’s Opening Brief, Exh. 168, 27 pp. 37–42 (ECF No. 56-1, pp. 47–52)), and the Nevada Supreme Court ruled as follows: … Finias argues that the district court erred in refusing to give an 1 instruction that Robinson was an accomplice and that her testimony should be corroborated. We disagree. The record does not indicate that 2 Robinson was ever charged with or was liable for any offense arising out of the shooting. See NRS 175.291(2) (defining an accomplice as "one who 3 is liable to prosecution, for the identical offense charged against the defendant on trial"). Moreover, Robinson's testimony was corroborated. 4 Phone records placed Finias in the area of the shooting and demonstrated that Finias was planning to meet the victim, Finias' DNA was recovered 5 from a cigarette at the scene, a weapon that was in Finias' possession matched the shell casings left at the scene, and the condition of the 6 weapon confirmed that Finias damaged it after the shooting to thwart forensic testing. Therefore, the district court did not err in refusing the 7 proposed instruction. [Rose v. State, 127 Nev. 494, 500, 255 P.3d 291, 295 (2011).] 8 9 Order of Affirmance, Exh. 172, p. 2 (ECF No. 56-5, p. 3). 10 A Nevada statute requires that an accomplice’s testimony be corroborated by 11 other independent evidence which tends to connect the defendant with the commission 12 of the offense. See Nev. Rev. Stat. § 175.291(1). The statute defines an accomplice as 13 ”one who is liable to prosecution, for the identical offense charged against the defendant 14 on trial in the cause in which the testimony of the accomplice is given.” Nev. Rev. Stat. § 15 175.291(2). The Nevada Supreme Court ruled that the evidence at trial was not such as 16 to warrant this jury instruction with respect to Robinson. 17 In his amended petition, Finias asserts that the Nevada Supreme Court’s ruling 18 was an unreasonable application of Kansas v. Ventris, 556 U.S. 586 (2009). Amended 19 Petition (ECF No. 25), p. 18. The Supreme Court’s holding in Ventris, though, has 20 nothing to do with the issue in this case; in Ventris, the Supreme Court held that 21 evidence obtained in violation of the Sixth Amendment is admissible for purposes of 22 impeachment of a defense witness. See Ventris, 556 U.S. at 594. Finias cites a footnote 23 in Ventris for the general proposition that it is the province of the jury to weigh the 24 credibility of competing witnesses. See Amended Petition at 18. However, Ventris does 25 not apply that principle to the evidentiary foundation necessary to require an accomplice 26 instruction to be given under state law. The Nevada Supreme Court’s ruling did not 27 unreasonably apply Ventris. 1 Finias changes course in his reply; there, his only citation to federal authority 2 supporting this claim is the following:
3 The Sixth and Fourteenth Amendments to the United States Constitution grant criminal defendants the right to a jury trial and to 4 present a defense, including the right to have the trial court instruct the jury on the defendant’s theory of defense upon request when the 5 instruction is “legally sound and evidence in the case makes it applicable.” See Byrd v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009); see also Bradley 6 v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002) (citing to Matthews v. United States, 485 U.S. 58 (1988)). “However, even if the failure to 7 provide a theory-of-defense instruction violates federal due process, the court must still apply the harmless-error analysis mandated by Brecht v. 8 Abrahamson, 507 U.S. 619 (1993), and ask whether that error had a “substantial and injurious effect or influence in determining the jury’s 9 verdict.” Calderon v. Coleman, 525 U.S. 141, 145-46 (1998). 10 Reply (ECF No. 67), p. 13. This argument, and the federal authority cited in support of 11 it, are plainly inapposite. The proposed jury instruction at issue here—an instruction 12 about how the jury is to treat testimony of an accomplice—is not a theory-of-defense 13 instruction. 14 In short, Finias makes no viable argument that the Nevada Supreme Court’s 15 ruling on this claim was contrary to, or an unreasonable application of, United States 16 Supreme Court precedent, or that it was based on an unreasonable determination of the 17 facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Finias 18 habeas corpus relief on Ground 2. 19 D. Ground 3 20 In Ground 3, Finias claims that the trial court violated his federal constitutional 21 rights “by an instruction that required the jury find the prosecution prove only ‘material’ 22 elements beyond a reasonable doubt.” Amended Petition (ECF No. 25), pp. 19–20. 23 Specifically, in this claim, Finias challenges a part of Jury Instruction No. 24, given at his 24 trial, which stated:
25 The Defendant is presumed innocent until the contrary is proved. This presumption places upon the State the burden of proving beyond a 26 reasonable doubt every material element of the crime charged and that the Defendant is the person who committed the offense. 27 1 Jury Instruction No. 24, Exh. 140 (ECF No. 53-4, p. 25). Finias argues that because the 2 instruction did not define “material element,” the jurors were free to speculate which 3 elements were material, and there is no way to determine whether the jury found all 4 elements of the charged crimes beyond a reasonable doubt. See Amended Petition 5 (ECF No. 25), pp. 19–20. 6 Finias raised this issue on his direct appeal (Appellant’s Opening Brief, Exh. 168, 7 pp. 46–52 (ECF No. 56-1, pp. 56–62)), and the Nevada Supreme Court ruled as follows:
8 … Finias argues that the given instruction on the presumption of innocence improperly reduced the State’s burden of proof because it did 9 not define what elements were "material." We disagree because other instructions defined the elements of each charged offense and the State’s 10 burden to prove those elements. [Burnside v. State, 131 Nev. 371, 352 P.3d 627 (2015)]; see also Nunnery v. State, [127 Nev. 749, 785–86, 263 11 P.3d 235, 259–60 (2011)]; Morales v. State, 122 Nev. 966, 971, 143 P.3d 463, 466 (2006); Crawford v. State, 121 Nev. 744, 751, 121 P.3d 582, 12 586–87 (2005); Leonard v. State, 114 Nev. 1196, 1209, 969 P.2d. 288, 296 (1998). Therefore, the district court did not abuse its discretion in 13 giving the challenged instruction. [Rose v. State, 127 Nev. 494, 500, 255 P.3d 291, 295.] 14 15 Order of Affirmance, Exh. 172, p. 2 (ECF No. 56-5, p. 3) (footnote, setting forth text of 16 challenged instruction, omitted). 17 Finias argues that the Nevada Supreme Court’s ruling was an unreasonable 18 application of In re Winship, 397 U.S. 358 (1970), in which the United States Supreme 19 Court held that the Due Process Clause of the Fourteenth Amendment “protects the 20 accused against conviction except upon proof beyond a reasonable doubt of every fact 21 necessary to constitute the crime with which he is charged.” See In re Winship, 397 22 U.S. at 364; see also Amended Petition (ECF No. 25), p. 20. 23 This Court finds that the Nevada Supreme Court’s ruling was reasonable. The 24 jury instructions explained, in clear terms, what elements had to be proven beyond a 25 reasonable doubt for the jury to find Finias guilty. Jury Instruction No. 5 defined 26 “murder;” Jury Instruction No. 8 set forth the elements of first-degree murder, and 27 stated: “All three elements—willfulness, deliberation, and premeditation—must be 1 murder.” Jury Instruction Nos. 5 and 8, Exh. 140 (ECF No. 53-4, pp. 6, 9). See also Jury 2 Instruction No. 18, Exh. 140 (ECF No. 53-4, p. 19) (defining “deadly weapon”); Jury 3 Instruction No. 19, Exh. 140 (ECF No. 53-4, p. 20) (explaining the crime of discharging 4 a firearm out of a motor vehicle); Jury Instruction No. 4, Exh. 139 (ECF No. 53-3, p. 5) 5 (defining “possession”); Jury Instruction No. 5, Exh. 139 (ECF No. 53-3, p. 6) 6 (explaining the crime of possession of a firearm by an ex-felon); Jury Instruction No. 6, 7 Exh. 139 (ECF No. 53-3, p. 7) (defining “firearm”). It was reasonable for the Nevada 8 Supreme Court to conclude that the jury instructions, read as a whole, made clear to the 9 jury that the “material elements” were those elements set forth in the instructions as 10 comprising the charged crimes. 11 The Court determines that the Nevada Supreme Court’s ruling, denying relief on 12 the claim in Ground 3, was not contrary to, or an unreasonable application of, In re 13 Winship, or any other United States Supreme Court precedent. The Court will deny 14 Finias habeas corpus relief on Ground 3. 15 E. Ground 4 16 In Ground 4, Finias claims that his federal constitutional rights were violated on 17 account of ineffective assistance of his trial counsel because his trial counsel “[failed] to 18 adequately investigate Debra Williams and impeach the credibility of Detective 19 Benjamin[s].” Amended Petition (ECF No. 25), pp. 21–23. 20 Finias appears to allege that Finias and Coleman had an amicable relationship 21 and that it was Robinson who killed Coleman, and that Williams had information 22 substantiating this. See id. Finias appears to contend, further, that law enforcement took 23 Williams’ statement but did not finalize it for evidentiary purposes. See id. Apparently, it 24 is Finias’ claim that had his counsel investigated Williams further and called her to the 25 witness stand, her testimony would have aided the defense by substantiating these 26 allegations and could have been used to impeach Detective Benjamins, who he alleges 27 lied on the witness stand about not interviewing Williams. See id. 1 Finias asserted this claim of ineffective assistance of counsel in his state habeas 2 action. Supplemental Points and Authorities in Support for Writ of Habeas Corpus for 3 Post Conviction Relief, Exh. 183, pp. 18– 20 (ECF No. 57-6, pp. 19–21). The state 4 district court held an evidentiary hearing, but not regarding this claim. Transcript of 5 Evidentiary Hearing, Exh. 188 (ECF No. 58-1). The state district court denied relief on 6 this claim. Findings of Fact, Conclusions of Law and Order, Exh. 189, p. 12 (ECF No. 7 58-2, p. 13). Finias appealed and asserted this claim on the appeal. Appellant’s 8 Opening Brief, Exh. 201, pp. 36–38 (ECF No. 59-8, pp. 47–49). The Nevada Supreme 9 Court affirmed, ruling as follows on this claim:
10 Finias … argues that trial counsel should have impeached Detective Benjamins' testimony that the police did not interview Ms 11 Williams. Benjamins testified that the police initially tried to talk with Williams but the efforts were abandoned and she was ultimately not 12 interviewed. The defense investigator's report includes Williams' statement that some unspecified police officers spoke with her but that she did not 13 give and they did not request a statement. Williams did not testify at trial, and postconviction counsel was unable to locate her. Decisions regarding 14 cross-examination of a witness are tactical matters that are virtually unchallengeable, and Finias has not shown extraordinary circumstances 15 warranting a challenge, particularly when the inaccuracy, if any, in Benjamins' testimony is how this apparently de minimis encounter 16 between Williams and police officers was characterized. Finias has further failed to show prejudice in this regard in light of the de minimis nature of 17 the potential inconsistency he highlights. The district court therefore did not err in denying this claim. 18 19 Order of Affirmance, Exh. 206 (ECF No. 59-13). 20 The Nevada Supreme Court’s ruling was reasonable. Finias has proffered no 21 evidence to show that Benjamins contacted or interviewed Williams, or that she was 22 aware that any law enforcement had done so. Nor does Finias proffer any evidence to 23 show that any further investigation of Williams would have been of any benefit to the 24 defense. 25 Finias points to a memorandum written by a defense investigator reporting on his 26 interview of Williams. See Petitioner’s Exh. 11 (ECF No. 27-1). In that memorandum, 27 the defense investigator wrote: I asked her [Williams] if she had ever given a statement to the police about 1 the murder. She said, “The cops came and talked to me and wanted me to do a report.” I asked if they had her fill out a Voluntary Statement. She 2 said, “They were going to give it to me, but took it back;” “I guess they didn’t like what I said.” 3 4 Id. This, though, does not show Benjamins to have lied. There is no mention of 5 Benjamins contacting Williams or knowing that any other officers had. Moreover, this 6 memorandum does not indicate that any law enforcement conducted an actual interview 7 of Williams. 8 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court 9 propounded a two prong test for analysis of claims of ineffective assistance of counsel: 10 the petitioner must demonstrate (1) that the attorney’s representation “fell below an 11 objective standard of reasonableness,” and (2) that the attorney’s deficient performance 12 prejudiced the defendant such that “there is a reasonable probability that, but for 13 counsel’s unprofessional errors, the result of the proceeding would have been different.” 14 Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of 15 counsel must apply a “strong presumption” that counsel’s representation was within the 16 “wide range” of reasonable professional assistance. Id. at 689. The petitioner’s burden 17 is to show “that counsel made errors so serious that counsel was not functioning as the 18 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to 19 establish prejudice under Strickland, it is not enough for the habeas petitioner “to show 20 that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 21 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a 22 trial whose result is reliable.” Id. at 687. 23 Where a state court previously adjudicated the claim of ineffective assistance of 24 counsel under Strickland, establishing that the decision was unreasonable is especially 25 difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court 26 instructed:
27 Establishing that a state court’s application of Strickland was [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 1 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111, 123 2 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. 3 Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under 4 § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable 5 argument that counsel satisfied Strickland’s deferential standard. 6 Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994–95 7 (2010) (acknowledging double deference required with respect to state court 8 adjudications of Strickland claims). 9 In analyzing a claim of ineffective assistance of counsel under Strickland, a court 10 may first consider either the question of deficient performance or the question of 11 prejudice; if the petitioner fails to satisfy one element of the claim, the court need not 12 consider the other. See Strickland, 466 U.S. at 697. 13 Here, Finias makes no showing that his trial counsel performed unreasonably in 14 not further investigating Williams or in not attempting, in cross-examination, to show that 15 Benjamins lied about law enforcement not contacting or interviewing Williams. Finias 16 has not made any showing what any further investigation of Williams would have turned 17 up. And, Finias has made no showing that his trial counsel had any information that 18 would have allowed for more effective cross-examination of Benjamins. Finias’ trial 19 counsel did not perform unreasonably, and, at any rate, Finias was not prejudiced. The 20 ruling of the Nevada Supreme Court was not an unreasonable application of Strickland. 21 The Court will deny Finias habeas corpus relief on Ground 4. 22 F. Certificate of Appealability 23 The standard for the issuance of a certificate of appealability requires a 24 “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The 25 Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows:
26 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 27 petitioner must demonstrate that reasonable jurists would find the district 1 || Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 2 || 1077-79 (9th Cir. 2000). Applying the standard articulated in Slack, the Court finds that 3 || a certificate of appealability is unwarranted. IV. CONCLUSION 5 It is therefore ordered that Petitioner's Amended Petition for Writ of Habeas 6 || Corpus (ECF No. 25) is denied. 7 It is further ordered that Petitioner is denied a certificate of appealability. 8 It is further ordered that the Clerk of the Court is directed to enter judgment 9 || accordingly. 10 11 DATED this 7th day of May, 2021. 12 - 13 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28