Hidalgo v. Garrett

• Court: District Court, D. Nevada
• Decided: September 23, 2022
• Docket: 3:16-cv-00618
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 LUIS ALONSO HIDALGO, III Case No. 3:16-cv-00618-MMD-CSD 7 Petitioner, ORDER v. 8 9 TIM GARRETT,1 et al., 10 Respondents. 11 I. SUMMARY 12 Petitioner Luis Alonso Hidalgo III (“Petitioner Hidalgo”2) was sentenced in Nevada 13 state court to, inter alia, two consecutive life sentences with parole eligibility after an 14 aggregate of 20 years after being found guilty by a jury of conspiracy to commit battery 15 with a deadly weapon, second-degree murder with the use of a deadly weapon, and two 16 counts of solicitation to commit murder. (ECF No. 26-5.) This matter is before the Court 17 for adjudication of the merits of the remaining grounds3 in Petitioner Hidalgo’s counseled 18 third amended petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 67 19 20 1The state corrections department’s inmate locator page states that Petitioner 21 Hidalgo is incarcerated at Lovelock Correctional Center. Tim Garrett is the current warden 22 for that facility. At the end of this order, the Court directs the clerk to substitute Tim Garrett as a respondent for Respondent Robert LeGrand. See Fed. R. Civ. P. 25(d). 23 2As was noted in this Court’s previous order granting the motion to dismiss in part, 24 Luis Alonso Hidalgo III has the same name as his late father and co-defendant, Luis Alonso Hidalgo, Jr. At trial, and in some court-filed documents, their nicknames were 25 used: Luis Alonso Hidalgo, Jr. was referred to as “Mr. H.,” and Luis Alonso Hidalgo III was 26 referred to as “Little Lou.” Rather than using these nicknames, the Court will refer to Luis Alonso Hidalgo III as “Petitioner Hidalgo” and his father as “Hidalgo Sr.” 27 1 (“Petition”).) For the reasons discussed below, the Court denies the Petition and a 2 Certificate of Appealability. 3 II. BACKGROUND4 4 On May 19, 2005, around 11:30 p.m., three friends were driving home from Lake 5 Mead near Las Vegas, Nevada when they saw a dead body lying in the road. (ECF No. 6 23-2 at 26–27.) There were numerous advertisement cards for the Palomino Club, a strip 7 club in North Las Vegas, found near the body. (ECF No. 23-3 at 21.) The victim, identified 8 as Timothy Hadland, had been shot twice in the head. (ECF No. 23-4 at 70–71.) 9 Hadland’s girlfriend, Paijik Karlson, testified that she and Hadland had gone 10 camping at Lake Mead the evening of May 19, 2005, about two weeks after Hadland’s 11 job as a doorman at the Palomino Club ended. (ECF No. 23-2 at 48–49, 57–58.) Hadland 12 received a phone call while they were camping, and after that call, Hadland told Karlson 13 that he was going to meet “Angelo,” who Karlson knew as Hadland’s former coworker 14 from the Palomino Club, to get some marijuana. (Id. at 63–64.) Hadland left to meet 15 “Angelo” between 9:00 p.m. and 10:00 p.m. and never returned. (Id. at 65.) 16 Hidalgo Sr., Petitioner Hidalgo’s father, owned the Palomino Club; Anabel 17 Espindola, Hidalgo Sr.’s girlfriend, was the general manager of the Palomino Club; 18 Petitioner Hidalgo was a manager at the Palomino Club; and Deangelo Carroll did 19 promotions, helped DJ, and “helped on the floor” of the Palomino Club. (ECF No. 24-3 at 20 5, 9, 34–35.) There was testimony presented at the trial that, at one time or another, “all 21 the adult clubs [in Las Vegas] pa[id] taxi drivers to bring them customers.” (ECF No. 23- 22 5 at 60–61.) Front doormen of the clubs would count the number of people a taxi driver 23 brought to the adult club and give the taxi driver a slip, and the taxi driver would then use 24 the slip to get paid. (Id. at 62.) Espindola testified that about a week before Hadland’s 25

26 4The Court makes no credibility findings or other factual findings regarding the truth or falsity of this evidence from the state court. The Court’s summary is merely a backdrop 27 to its consideration of the issues presented in the Petition. Any absence of mention of a 1 murder, she heard a conversation between Hidalgo Sr. and Petitioner Hidalgo about how 2 “[t]hey believed that Mr. Hadland was . . . falsifying tickets and getting a kickback.” (ECF 3 No. 24-3 at 37.) Hidalgo Sr. told Petitioner Hidalgo to watch Hadland, and a day or two 4 later, Hidalgo Sr. indicated that Hadland needed to be fired. (Id. at 40, 42.) 5 Espindola, a prosecution witness, testified that on May 19, 2005, Carroll told her 6 that Hadland “was going to another strip club and bad mouthing the . . . Palomino.” (ECF 7 No. 24-3 at 44–45.) Espindola told Hidalgo Sr. and Petitioner Hidalgo what Carroll had 8 said, and although Hidalgo Sr. “didn’t really react,” Petitioner Hidalgo was angry. (Id. at 9 48.) Petitioner Hidalgo yelled to Hidalgo Sr., “[y]ou’re not going to do anything? That’s 10 why nothing ever gets done. You’ll never be like Gilardi and Rizzolo. They take care of 11 business.” (Id.) Petitioner Hidalgo then “mention[ed] that Rizzolo[, an owner of another 12 adult club in Las Vegas,] had sent one of his employees to beat up a customer.” (Id. at 13 50.) Hidalgo Sr. got angry and told Petitioner Hidalgo “to mind his own business.” (Id.) 14 Later that evening, according to Espindola, Carroll came to visit Hidalgo Sr. (ECF 15 No. 24-3 at 68.) After their conversation, Carroll and Hidalgo Sr. left the office. (Id. at 69.) 16 Eventually, Hidalgo Sr. came back with another person, “PK,” and told Espindola to “call 17 [Carroll] and tell him to go to plan B.” (Id. at 69–71.) Espindola called Carroll and told “him 18 to go to plan B,” but Carroll responded, “I’m already here.” (Id. at 74.) Espindola again 19 told Carroll to go to plan B, but the phone call was disconnected. (Id.) A little while later, 20 Carroll returned to Hidalgo Sr.’s office and tells Hidalgo Sr. “[i]t’s done.” (Id. at 79.) Hidalgo 21 Sr. ordered Espindola to get $5,000 from a safe, and Hidalgo Sr. gave the money to 22 Carroll. (Id. at 80, 82.) The next morning, as Espindola and Hidalgo Sr. were watching the 23 news, a story about “a death at Lake Mead” came on, and Hidalgo Sr. said, “he did it.” 24 (Id. at 87.) The following day, Petitioner Hidalgo came over and told Hidalgo Sr., “[d]on’t 25 worry, I already talked to [Carroll]. He said he’s not going to say anything. He’s dealt with 26 the police before.” (ECF No. 24-4 at 13.) 27 Rontae Zone, another prosecution witness, testified that Carroll got him a job 1 23-4 at 89–91.) On May 19, 2005, around noon, Zone was with Carroll and Taoipu, and 2 Carroll “said that [Petitioner Hidalgo] . . . said that [Hidalgo Sr.] wanted someone” to be 3 “dealt with,” meaning killed. (ECF No. 23-5 at 4, 7.) Carroll asked Zone if he was “into 4 doing it.” (Id. At 4.) Zone said that he was not, but Taoipu said he was interested. (Id. at 5 4–5.) When asked if there was “any discussion as to how this would happen,” Zone 6 testified that “[t]here was discussion of baseball bats and there was a discussion of trash 7 bags.” (Id. at 5.) Zone testified that Carroll said that Petitioner Hidalgo “spoke of baseball 8 bats and trash bags.” (Id.) Carroll then pulled out “a .22 revolver with a green pearl 9 handle,” and Taoipu took it. (Id. At 7–8.) Carroll told Zone and Taoipu that Hidalgo Sr. 10 “was going to pay $6,000 to the man who killed him.” (Id. at 11.) 11 According to Zone, later that day, he, Carroll, and Taoipu picked up Kenneth 12 Counts in a van and drove to Lake Mead. (ECF No. 23-5 at 14–16.) Carroll said that they 13 were going to meet Hadland to kill him. (Id. at 18.) Carroll called Hadland while they were 14 driving and told him that they were coming to smoke with him. (Id. at 19.) Hadland, who 15 had driven from his campground to the location of the van, parked his car, walked up to 16 the van, and started talking to Carroll, who was sitting in the driver’s seat. (Id. at 25–26.) 17 Meanwhile, Counts exited the van, shot Hadland in the head, and then shot Hadland in 18 the head again “after he hit the ground.” (Id. at 27.) Counts got back into the van, and 19 they drove to the Palomino Club. (Id. at 28, 30.) The next day Carroll changed the van’s 20 tires and “cleaned up the interior and he had washed the van.” (Id. at 33–34.) 21 Law enforcement located Hadland’s cell phone in his car, and the last call Hadland 22 received was from Carroll. (ECF No. 23-8 at 13.) Law enforcement contacted Carroll, and 23 to determine who orchestrated the killing, law enforcement asked Carroll to wear a 24 recording device. (Id. at 56.) Carroll agreed and recorded a conversation he had with 25 Espindola and Petitioner Hidalgo. (ECF No. 26-18 at 10.) After Carroll mentioned the 26 other two guys in the van, Zone and Taoipu, possibly snitching about the murder, 27 Petitioner Hidalgo said, “[c]ould you have fucking [Counts] kill them too, we’ll fucking put 1 something in their food so they die of rat poison or something.” (Id.) After Carroll replied, 2 “[w]e can do that too,” Petitioner Hidalgo said, “[a]nd we get [Counts] last.” (Id.) 3 Although Petitioner Hidalgo did not testify at the trial, Hidalgo Sr., who was tried 4 with Petitioner Hidalgo, testified. (ECF No. 25-6 at 60.) Hidalgo Sr. denied hearing that 5 Hadland was “badmouthing” the club from Espindola or Petitioner Hidalgo. (ECF No. 25- 6 7 at 7.) Rather, Hidalgo Sr. testified that he had yelled at Carroll about something 7 unrelated to Hadland, and then “maybe about 10” minutes later, Carroll came back to 8 report about Hadland’s “badmouthing.” (Id. at 8.) Hidalgo Sr. “said so what, you know, 9 what’s the big deal, you know? And . . . [Carroll] mumbled, murmured to [Espindola] 10 saying, well, job security.” (Id. at 11.) Carroll then said, “well, maybe I . . . should go talk 11 to him.” (Id.) Espindola replied, “if you’re going to go talk to him, you talk to him on your 12 own. That’s entirely up to you.” (Id.) As Carroll was leaving, Hidalgo Sr. said, “if you want 13 to talk to him, just tell him to stop it, you know what I mean.” (Id. at 12.) Hidalgo Sr. testified 14 that Petitioner Hidalgo was not in the room when this conversation occurred, and Hidalgo 15 Sr. never asked or insinuated that someone should harm Hadland. (Id. at 12, 14.) 16 According to Hidalgo Sr., Carroll came back later that night and told Espindola, “I 17 fucked up,” explaining that “the dude got out of the car and put the bullet in the guy’s 18 head.” (ECF No. 25-7 at 16.) Carroll said they were smoking dope on the way to Lake 19 Mead and the man who kill Hadland now wanted $5,000. (Id.) Carroll said, “and by the 20 way, he’s a Crip, a gang member with the Crips, and you better not fuck with my boy.” 21 (Id. at 18.) Hidalgo Sr. paid the $5,000 out of fear. (Id. at 19.) 22 The jury found Petitioner Hidalgo guilty of conspiracy to commit a battery with a 23 deadly weapon or battery resulting in substantial bodily harm, second-degree murder with 24 the use of a deadly weapon, and two counts of solicitation to commit murder as to Taoipu 25 and Zone. (ECF No. 25-13 at 4.) Petitioner Hidalgo appealed his judgment of conviction, 26 and the Nevada Supreme Court affirmed. (ECF No. 26-8.) Petitioner Hidalgo sought post- 27 conviction relief. (ECF No. 26-9.) The state district court denied relief, and the Nevada 1 III. GOVERNING STANDARD OF REVIEW 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 4 (“AEDPA”):

5 An application for a writ of habeas corpus on behalf of a person in custody 6 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 7 unless the adjudication of the claim —

8 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 9 determined by the Supreme Court of the United States; or 10 (2) resulted in a decision that was based on an unreasonable 11 determination of the facts in light of the evidence presented in the State court proceeding. 12 13 A state court decision is contrary to clearly established Supreme Court precedent, within 14 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 15 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 16 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 17 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 18 405–06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 19 is an unreasonable application of clearly established Supreme Court precedent within 20 the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing 21 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 22 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). 23 “The ‘unreasonable application’ clause requires the state court decision to be more than 24 incorrect or erroneous. The state court’s application of clearly established law must be 25 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409–10) (internal citation 26 omitted). 27 The Supreme Court has instructed that “[a] state court’s determination that a 1 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 2 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 3 Supreme Court has stated “that even a strong case for relief does not mean the state 4 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 5 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 6 a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, 7 which demands that state-court decisions be given the benefit of the doubt” (internal 8 quotation marks and citations omitted)). 9 IV. DISCUSSION 10 A. Ground 1—Jury Instruction No. 40 11 In ground 1, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 12 Amendment rights to due process of law and to a fair trial were violated because Jury 13 Instruction No. 40 erroneously instructed that the existence of a conspiracy and his 14 membership in it could be established by “slight evidence.” (ECF No. 67 at 81.) 15 Jury Instruction No. 40 provided as follows:

16 Whenever there is slight evidence that a conspiracy existed, and that the defendant was one of the members of the conspiracy, then the 17 statements and the acts by any person likewise a member may be considered by the jury as evidence in the case as to the defendant found to 18 have been a member, even though the statements and acts may have occurred in the absence and without the knowledge of the defendant, 19 provided such statements and acts were knowingly made and done during the continuance of such conspiracy, and in furtherance of some object or 20 purpose of the conspiracy. This holds true, even if the statement was made by the co- 21 conspirator prior to the time the defendant entered the conspiracy, so long as the co-conspirator was a member of the conspiracy at the time. 22 The statements of a co-conspirator after he has withdrawn from the conspiracy were not offered, and may not be considered by you, for the truth 23 of the matter asserted. They were only offered to give context to the statements made by the other individuals who are speaking, as or adoptive 24 admissions or other circumstantial evidence in the case. An adoptive admission is a statement of which a listener has 25 manifested his adoption or belief in its truth. 26 (ECF No. 26-17 at 44.) 27 /// 1. Standard for reviewing jury instructions 1 Issues relating to jury instructions are not cognizable in federal habeas corpus 2 unless they violate due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991); see also 3 Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“[W]e have never said that the possibility 4 of a jury misapplying state law gives rise to federal constitutional error.”). The question 5 is “‘whether the ailing instruction by itself so infected the entire trial that the resulting 6 conviction violates due process,’ . . . not merely whether ‘the instruction is undesirable, 7 erroneous, or even universally condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154 8 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). And significantly, 9 when reviewing a jury instruction, the Court considers that jury instruction “in the context 10 of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72. 11 2. State court determination 12 In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme 13 Court held: 14 Hidalgo first argues that Jury Instruction No. 40’s reference to “slight 15 evidence” is a misstatement of the applicable law because it provided the incorrect burden of proof for establishing a conspiracy. We disagree. 16 Whether a proffered jury instruction is an accurate statement of law 17 is a legal question for de novo review. Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007). NRS 51.035(3)(e) defines as nonhearsay the 18 statements uttered by coconspirators of the defendant during the course and in furtherance of the conspiracy. Preliminary questions concerning the 19 admissibility of evidence shall be determined by the judge. NRS 47.060. In determining the admissibility of coconspirator statements, the district court 20 may determine the existence of a conspiracy by a “slight evidence” standard. McDowell v. State, 103 Nev. 527, 529, 746 P.2d 149, 150 (1987). 21 Here, the instruction informed the jury on a permitted use of hearsay 22 under NRS 51.035(3)(e). Thus, it did not misstate the law, as it provided the relevant admissibility standard for consideration of coconspirator 23 statements under McDowell.

24 [FN2] Because the jury instruction did not actually reduce the State’s burden of proof, we reject Hidalgo’s argument that it 25 amounted to structural error. Cage v. Louisiana, 498 U.S. 39, 40 (1990) (finding structural error where a jury instruction 26 reduced the State’s burden by equating reasonable doubt with grave uncertainty). 27 admissibility of coconspirator statements with the standard of beyond a 1 reasonable doubt for convicting him of conspiracy.

2 “This court evaluates appellate claims concerning jury instructions using a harmless error standard of review.” Barnier v. State, 119 Nev. 129, 3 132, 67 P.3d 320, 322 (2003). An erroneous instruction “‘may not be judged in artificial isolation,’ but must be considered in the context of the 4 instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72, (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). As 5 such, Hidalgo must show a “reasonable likelihood” that the jury would have concluded that this jury instruction, when read in context with other 6 instructions, authorized a conviction based on slight evidence. See Boyde v. California, 494 U.S. 370, 381 (1990). 7 Here, the jury was repeatedly instructed regarding the applicable 8 burden of proof: guilt beyond a reasonable doubt. As the district court explained in denying Hidalgo’s motion for new trial, “it seems inconceivable 9 that the jury could have misunderstood those six (6) words in instruction 40 considering that the jury was instructed more than ten (10) times on the 10 State’s burden of proof.”

11 Thus, we conclude that any error in the Jury instruction’s reference to “slight evidence” was harmless. 12 13 (ECF No. 26-8 at 3–4.) 14 3. Analysis 15 The Nevada Supreme Court has held that “[t]he preliminary question of the 16 existence of a conspiracy for purposes of NRS 51.035(3)(e)[5] need only be 17 established . . . by ‘slight evidence.’” McDowell v. State, 746 P.2d 149, 150 (Nev. 1987); 18 see also Peterson v. Sheriff, Clark Cnty., 598 P.2d 623, 624 (Nev. 1979) (“[A]pplication 19 of the coconspirator exception is contingent upon a showing, by independent evidence, 20 that a conspiracy existed.”). Although it does not appear that it was necessary to instruct 21 the jury regarding this evidentiary threshold to determine whether a co-conspirator’s 22 statements should be admitted, the Nevada Supreme Court reasonably concluded that 23 Jury Instruction No. 40 did not misdescribe the prosecution’s burden of proof or confuse 24 the jury as to the State’s burden of proof. See Sullivan v. Louisiana, 508 U.S. 275, 281 25 (1993) (explaining that “the essential connection to a ‘beyond a reasonable doubt’ 26

27 5NRS § 51.035(3)(e) provides that a statement is hearsay unless “[t]he statement 1 factual finding cannot be made where the instructional error consists of a misdescription 2 of the burden of proof, which vitiates all the jury’s findings”). Indeed, rather than 3 instructing that the existence of a conspiracy could be established by “slight evidence,” 4 as Petitioner Hidalgo contends, Jury Instruction No. 40 merely outlined the preconditions 5 to the jury’s consideration of a coconspirator’s statements in furtherance of a conspiracy 6 as evidence against another member of the conspiracy.6 7 Further, as the Nevada Supreme Court reasonably noted, the jury was also 8 instructed in Jury Instruction No. 35 that Petitioner Hidalgo “is presumed innocent until 9 the contrary is proved,” and “[t]his presumption places upon the State the burden of 10 proving beyond a reasonable doubt every material element of the crime charged and 11 that the Defendant is the person who committed the offense.” (ECF No. 26-17 at 39.) 12 And Jury Instruction No. 15 instructed that “[t]o be guilty of conspiracy, a defendant must 13 intend to commit, or to aid in the commission of, the specific crime agreed to.” (Id. at 14 19.) 15 Therefore, because Jury Instruction No. 40 did not violate due process, especially 16 when considered in conjunction with Jury Instruction Nos. 15 and 35, Estelle, 502 U.S. 17 at 72, the Nevada Supreme Court’s determination constitutes an objectively reasonable 18 application of clearly established federal law and was not based on an unreasonable 19 application of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for 20 ground 1. 21 B. Ground 2—Carroll’s Recorded Statement 22 In ground 2, Petitioner Hidalgo alleges that the state district court erred and 23 violated his Fifth, Sixth, and Fourteenth Amendment rights when it failed to admit Carroll’s 24 25 6Petitioner Hidalgo also appears to assert that Jury Instruction No. 40 created an 26 improper barrier to the consideration of evidence. (ECF No. 67 at 82.) However, the case Petitioner Hidalgo cites in support of this assertion, Cool v. United States, 409 U.S. 100, 27 104 (1972), discusses the creation of “an artificial barrier to the consideration of relevant 1 recorded statement, which exculpated him, for the truth of the matter asserted and as 2 substantive evidence of his innocence. (ECF No. 67 at 83.) 3 1. Background information 4 While wearing a recording device following the murder and speaking with 5 Espindola and Petitioner Hidalgo, Carroll made the following comment, apparently 6 towards Petitioner Hidalgo: “what the fuck are you talking about[,] don’t worry about 7 it . . . you didn’t have nothing to do with it.” (ECF No. 48-24 at 65.) Neither Petitioner 8 Hidalgo nor Espindola commented on this statement. (Id.) 9 Petitioner Hidalgo’s trial counsel mentioned this statement at the beginning of his 10 opening statement, saying, “the man who was sent by the police to get incriminating 11 evidence . . . stopped [Petitioner Hidalgo] . . . when he first made a comment and he 12 said, [w]hat are you saying? You had nothing to do with this.” (ECF No. 23-1 at 73.) A 13 little later in opening arguments, counsel stated, “[o]ut of Deangelo Carroll’s mouth is 14 the best evidence in the case, [Petitioner Hidalgo], you had nothing to do with it.” (ECF 15 No. 23-2 at 3.) 16 During the trial, Petitioner Hidalgo’s counsel argued that Carroll’s statement was 17 admissible “under the hearsay exceptions.” (ECF No. 23-6 at 8.) Following the 18 prosecutor’s argument on the issue, the state district explained, “[t]hey’re not saying that 19 Deangelo Carroll’s statement is truthful. They’re saying . . . that the acquiescence in this 20 statement was a statement by a coconspirator, that the fact that they didn’t contradict it, 21 that it was adopted by failure to contradict.” (Id. at 10.) The state district court later ruled: 22 “the statements of Deangelo Carroll after he has withdrawn from the conspiracy were 23 not offered and may not be considered by you for the truth of a matter asserted.” (ECF 24 No. 25-9 at 76.) However, the state district court stated that “they may be considered to 25 give context to the statements made by the other individuals who are speaking as 26 adoptive admissions or as other circumstantial evidence.” (Id. at 80.) The state district 27 court’s ruling was encompassed in Jury Instruction No. 40. (ECF No. 26-17 at 44.) 1 2. Standard of review regarding right to present a defense 2 “The right of an accused in a criminal trial to due process is, in essence, the right 3 to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 4 410 U.S. 284, 294 (1973); see also Washington v. Texas, 388 U.S. 14, 19 (1967) 5 (explaining that an accused “has the right to present his own witnesses to establish a 6 defense” and that “[t]his right is a fundamental element of due process of law”); DePetris 7 v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (“The Supreme Court has made clear 8 that the erroneous exclusion of critical, corroborative defense evidence may violate both 9 the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to 10 present a defense.”). “[T]he Constitution [also] guarantees criminal defendants ‘a 11 meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 12 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). A 13 defendant’s opportunity to be heard “would be an empty one if the State were permitted 14 to exclude competent, reliable evidence . . . when such evidence is central to the 15 defendant’s claim of innocence.” Id. This is because, “[i]n the absence of any valid state 16 justification, exclusion of . . . exculpatory evidence deprives a defendant of the basic 17 right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful 18 adversarial testing.’” Id. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656 19 (1984)). That said, the United States Supreme Court has “never questioned the power 20 of States to exclude evidence through the application of evidentiary rules that 21 themselves serve the interests of fairness and reliability—even if the defendant would 22 prefer to see that evidence admitted.” Id. at 690. 23 3. State court determination 24 In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme 25 Court held:

26 In the days following Hadland’s murder, Deangelo Carroll, who was one of Hidalgo’s coconspirators but who also acted as a police informant, 27 was recorded as saying to Hidalgo in Anabel Espindola’s presence: “[D]on't truth. On hearsay grounds, the district court prohibited Hidalgo from 1 introducing the statement for its truth, but instead permitted Hidalgo to read the statement into the record and argue that Espindola believed it to be true 2 based on her silence.

3 On appeal, Hidalgo contends that he was improperly prohibited from introducing the statement as exculpatory evidence. This argument is two- 4 prong, as Hidalgo argues that: (1) Carroll’s statement should have been admitted for its truth as an admission of a party-opponent under NRS 5 51.035(3)(d); and (2) even if not, due process required it to be admitted regardless of its hearsay status. 6 The statement was properly excluded as hearsay 7 Hidalgo contends that because Carroll was operating as a State 8 agent, his statement should have been admitted for its truth as an admission of a party-opponent. We disagree. 9 Under NRS 51.035(3), an admission by a party is not hearsay and 10 is admissible for the truth of the matter asserted. This doctrine extends to statements made by the party’s “agent or servant concerning a matter within 11 the scope of the party’s agency or employment.” NRS 51.035(3)(d).

12 Nevada has never considered whether statements made by a police informant qualify under the agency exception to the hearsay rule. However, 13 even among other jurisdictions to consider this issue, “it appears fairly well- settled that statements by government agents at the investigative level are 14 not admissible” under the agency exception. State v. Asbridge, 555 N.W.2d 571, 576 (N.D. 1996) (emphasis added) (setting forth the majority view 15 among federal courts).

16 [FN3] Hidalgo cites U.S. v. Branham, 97 F.3d 835, 851 (6th Cir. 1996), for the proposition that the statements of a paid 17 informant are admissible against the government. We find this argument unpersuasive. The case at hand is markedly 18 distinguishable from Branham, which has not been extended beyond the scenario of paid informants. Moreover, Branham 19 stands in stark contrast to the majority of courts that have considered this narrow issue and concluded that the out-of- 20 court statements of a government informant are not admissible in a criminal trial as an admission by the agent of 21 a party-opponent. See U.S. v. Yildiz, 355 F.3d 80, 81-82 (2nd Cir. 2004); Lippay v. Christos, 996 F.2d 1490, 1499 (3rd Cir. 22 1993) (holding that statements by informers are generally not intended to fall under the agency exception given the tenuous 23 relationship between informers and police officers).

24 Thus, because Carroll’s statement occurred at the investigative level, the district court properly determined that it was only admissible for context and 25 impeachment purposes, and not for its truth as substantive evidence of innocence. 26 [FN4] Hidalgo makes two alternative arguments that are 27 unpersuasive. First, he argues that Carroll’s statement should unreliable nature. See NRS 51.315(1)(a) (requiring that the 1 “circumstances under which [the statement] was made offer strong assurances of accuracy”). 2 Second, Hidalgo contends that the statement should 3 have been admitted for its truth as an “adoptive admission” under NRS 51.035(3)(b) because Espindola’s silence was an 4 adoption of Carroll’s proclamation. We disagree, as the statute only allows for statements made by a party opponent, 5 and Espindola would not qualify as such. To the extent that Hidalgo also argues that a different portion of Jury Instruction 6 No. 40 improperly allowed the jury to consider Carroll’s tape- recorded statements as adoptive admissions but not for their 7 truth, we conclude that any error was harmless. The record shows that Hidalgo was permitted to read the statement to the 8 jury and argue that Espindola believed it to be true, implicitly arguing that he had nothing to do with the conspiracy. 9 Exclusion of the statement did not violate due process 10 Hidalgo argues that he was constitutionally entitled to have Carroll’s 11 statement admitted for its truth. See Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (“[W]hen a hearsay statement bears persuasive assurances 12 of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation.”). 13 Here, we conclude that the district court did not commit a due 14 process violation in excluding this evidence, as Carroll’s tape-recorded statement does not bear the requisite assurances of trustworthiness. 15 Although probative on the issue of whether Hidalgo was aware of the hit on Hadland prior to the killing, the circumstances surrounding Carroll’s 16 statement render the statement unreliable because he was acting as a police informant and had been prompted to make false statements to elicit 17 incriminating responses. Also, Carroll’s statement was not against his penal interest, as he had already provided a full confession and his apparent 18 purpose for meeting with Hidalgo was to gain favor with law enforcement. 19 (ECF No. 26-8 at 4–7.) 20 4. Analysis 21 “[W]hen a hearsay statement bears persuasive assurances of trustworthiness 22 and is critical to the defense, the exclusion of that statement may rise to the level of a 23 due process violation.” Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004). The Nevada 24 Supreme Court reasonably determined that Carroll’s statement did not bear these 25 requisite assurances of trustworthiness. In fact, as the Nevada Supreme Court 26 reasonably noted, at the time he made the statement that Petitioner Hidalgo “didn’t have 27 nothing to do with” the murder, Carroll was working as a police informant, wearing a wire 1 to obtain incriminating statements, and had been told to lie. Sergeant Michael McGrath 2 testified that prior to having Carroll wear the recording device, he “told [Carroll] some 3 prompts or things [he] wanted [Carroll] to say to gain information and reactions,” 4 including telling lies. (ECF Nos. 23-8 at 3, 24-2 at 18.) Further, as was also reasonably 5 noted by the Nevada Supreme Court, Carroll’s purpose in meeting with Petitioner 6 Hidalgo and Espindola was to gain favor with law enforcement and attempt to place the 7 blame on them. Thus, Carroll’s statement, which the jury heard during the trial, had 8 questionable reliability. Accordingly, the Nevada Supreme Court reasonably determined 9 that the state district court’s instruction that the jury could not consider the statement for 10 the truth of the matter asserted did not violate Petitioner Hidalgo’s right to due process. 11 See Chambers, 410 U.S. at 294. As such, Petitioner Hidalgo fails to demonstrate that 12 his right to a fair opportunity to defend against the State’s accusations or right to present 13 a complete defense were violated. See Chambers, 410 U.S. at 294; Crane, 476 U.S. at 14 690. Because the Nevada Supreme Court’s determination constitutes an objectively 15 reasonable application of clearly established federal law and was not based on an 16 unreasonable application of the facts, Petitioner Hidalgo is not entitled to federal habeas 17 relief for ground 2. 18 C. Ground 3—Admission of Former Testimony 19 In ground 3, Petitioner Hidalgo alleges that the state district court erred and 20 violated his Fifth, Sixth, and Fourteenth Amendment rights in denying admission of 21 Taoipu’s former testimony. (ECF No. 67 at 85.) 22 1. Background information 23 As a reminder, when asked if there was “any discussion as to how [the murder] 24 would happen,” Zone testified that “[t]here was discussion of baseball bats and there 25 was a discussion of trash bags.” (ECF No. 23-5 at 5.) When asked who spoke of these 26 items, Zone testified that Carroll said that Petitioner Hidalgo “spoke of baseball bats and 27 trash bags” in front of him and Taoipu. (Id.) Contrarily, during Counts’s trial, which 1 pick up [Counts],” Carroll “told [them] that he called [Espindola,] and [Espindola] was 2 talking about baseball bats and trash bags.” (ECF No. 27-1 at 31, 67.) 3 Petitioner Hidalgo’s trial counsel moved to admit Taoipu’s statement from 4 Counts’s trial, arguing that it was exculpatory evidence as to Petitioner Hidalgo. (ECF 5 No. 25-8 at 59.) Hidalgo Sr. objected on Confrontation Clause grounds. (Id. at 62.) The 6 state district court disallowed the statement to be introduced, explaining that “if you let 7 in the statement that’s inconsistent with what Rontae Zone testified to, . . . that opens 8 the door to other statements that Jason Taoipu made . . . that indicate that [Petitioner 9 Hidalgo] was involved and gave the order.” (Id. at 63.) The state district court further 10 explained: “you can’t just take the one exculpatory statement without looking and at least 11 having part of the transcript in that pertains to [Petitioner Hidalgo]’s involvement.” (Id.) 12 Later, Petitioner Hidalgo’s counsel requested that Zone’s “testimony related to 13 bats and bags be stricken from the record,” since “we weren’t allowed to put in the part 14 of [Taoipu’s] transcript which speaks directly to that point.” (ECF No. 25-10 at 19.) The 15 state district court disagreed, stating “they are allowed to comment on that.” (Id. at 20.) 16 2. State court determination 17 In affirming Petitioner Hidalgo’s judgment of conviction, the Nevada Supreme 18 Court held:

19 Hidalgo argues that the district court abused its discretion in excluding a portion of Jason Taoipu’s former testimony from the Kenneth 20 Counts murder trial, in which Taoipu stated that Espindola (instead of Hidalgo) had instructed Carroll to bring baseball bats and trash bags to the 21 Palomino on the night of Hadland’s murder.

22 [FN5] Hidalgo also challenges the district court’s determination that a partial admission of Taoipu’s former 23 testimony would allow the State to admit any other relevant portion. This argument lacks merit, as NRS 47.120 provides 24 that when a writing or recorded statement is admitted, any part of it that is relevant to the part introduced may be admitted as 25 well.

26 District court evidentiary rulings are reviewed for an abuse of discretion. Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131 27 (2008). NRS 51.325 provides that prior testimony is not excluded by the against whom the former testimony is offered was a party or is in privity with 1 one of the former parties, and (3) the issues are substantially the same.

2 Here, it is undisputed that Taoipu was unavailable in Hidalgo’s trial and that the State was a party in both trials. Thus, the relevant inquiry 3 becomes whether the issues were substantially the same. We conclude that they were not. Counts was the direct perpetrator of the murder and there 4 was abundant evidence of his conspiracy with Carroll and Taoipu. Accordingly, the State had no motive in the Counts trial to impeach Taoipu’s 5 statement for the superfluous goal of identifying further members of the conspiracy. Further, in the Counts trial, the origin of the statement Hidalgo 6 sought to admit was largely irrelevant for proving Counts’ culpability. In the instant case, the origin of the statement is at issue. Because the issues are 7 not substantially the same, the district court properly excluded Taoipu’s former testimony. 8 9 (ECF No. 26-8 at 7–8.) 10 3. Analysis 11 To be sure, introducing Taoipu’s prior testimony at Counts’s trial, which would 12 have contradicted Zone’s testimony that Petitioner Hidalgo was the one who spoke of 13 baseball bats and trash bags to Carroll, would have allegedly been helpful defense 14 evidence. However, even if Taoipu’s prior statement was exculpatory, the Court cannot 15 conclude that Petitioner Hidalgo’s constitutional rights were violated by the state district 16 court’s denial of his ability to admit the statement. The Nevada Supreme Court, the final 17 arbiter of Nevada law, determined that the state district court’s evidentiary ruling was 18 not an abuse of discretion according to Nevada law. Indeed, the Nevada Supreme Court 19 reasonably determined, under NRS § 51.325,7 that the issue surrounding Taoipu’s prior 20 testimony was not substantially the same as it would be at Petitioner Hidalgo’s trial 21 because Taoipu’s statement at Counts’s trial was superfluous, which was not the case 22 in the current action. 23 Consequently, because the state courts determined that the evidence did not 24 meet the standards required by NRS § 51.325, thereby constituting a valid state 25 justification for its exclusion, see Crane, 476 U.S. at 690-91, it cannot be concluded that 26 7NRS § 51.325 provides that “[t]estimony given as a witness at another hearing . . 27 . is not inadmissible under the hearsay rule if: (1) [t]he declarant is unavailable as a 1 Petitioner Hidalgo’s right to present a complete defense, right to due process, and right 2 to a fair trial were violated. See Chambers, 410 U.S. at 294; Trombetta, 467 U.S. at 485. 3 As such, because the Nevada Supreme Court’s determination constitutes an objectively 4 reasonable application of clearly established federal law and was not based on an 5 unreasonable application of the facts, Petitioner Hidalgo is not entitled to federal habeas 6 relief for ground 3. 7 D. Ground 4—Deadly Weapon Enhancement Jury Instruction 8 In ground 4, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 9 Amendment rights to a fair trial, to due process of law, and to effective assistance of 10 counsel at trial and on direct appeal were impinged when counsel did not tender a jury 11 instruction directing the jury not to find the deadly weapon enhancement if the jury were 12 to find him guilty of second-degree murder on a conspiracy theory, absent evidence of 13 use of a weapon as part of the conspiracy. (ECF No. 67 at 86.) Alternatively, Petitioner 14 Hidalgo alleges that his trial counsel was prejudicially ineffective in not making this attack 15 part of his motion for judgment of acquittal. (Id.) 16 1. Standard for ineffective assistance of counsel 17 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 18 analysis of claims of ineffective assistance of counsel requiring the petitioner to 19 demonstrate (1) that the attorney’s “representation fell below an objective standard of 20 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the 21 defendant such that “there is a reasonable probability that, but for counsel’s 22 unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 23 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel 24 must apply a “strong presumption that counsel’s conduct falls within the wide range of 25 reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that 26 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 27 guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish 1 errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. 2 Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial 3 whose result is reliable.” Id. at 687. 4 This standard is also utilized to review appellate counsel’s actions: a petitioner 5 must show “that [appellate] counsel unreasonably failed to discover nonfrivolous issues 6 and to file a merits brief raising them” and then “that, but for his [appellate] counsel’s 7 unreasonable failure to file a merits brief, [petitioner] would have prevailed on his 8 appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000). 9 Where a state district court previously adjudicated the claim of ineffective 10 assistance of counsel under Strickland, establishing that the decision was unreasonable 11 is especially difficult. See Richter, 562 U.S. at 104–05. In Richter, the United States 12 Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, and 13 when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. 14 Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state 15 court’s Strickland determination under AEDPA, both AEDPA and Strickland’s deferential 16 standards apply; hence, the Supreme Court’s description of the standard as doubly 17 deferential.”) (internal quotation marks omitted). The Supreme Court further clarified 18 that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were 19 reasonable. The question is whether there is any reasonable argument that counsel 20 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 21 2. State court determination 22 In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada 23 Supreme Court held:

24 Second, appellant contends that the district court erred by denying his claim that trial counsel were ineffective for failing to challenge the 25 deadly-weapon enhancement based on Moore v. State, 117 Nev. 659, 663, 27 P.3d 447, 450 (2001) (holding that “it is improper to enhance a sentence 26 for conspiracy using the deadly weapon enhancement.”). Because the deadly weapon enhancement was not applied to the conspiracy conviction, 27 appellant failed to demonstrate that counsel was ineffective. To the extent instruction complied with Brooks; moreover, appellant has challenged the 1 instruction for the first time on appeal. Therefore, we conclude that the district court did not err by denying this claim. 2 3 (ECF No. 26-16 at 3–4.) 4 3. Analysis 5 In Moore v. State, the Nevada Supreme Court “conclude[d] that it is improper to 6 enhance a sentence for conspiracy using the deadly weapon enhancement.” 27 P.3d 7 447, 450 (Nev. 2001). The Nevada Supreme Court reasoned that “[b]ecause an unlawful 8 agreement is the essence of the crime of conspiracy and because in Nevada conspiracy 9 is committed upon reaching the unlawful agreement,” a defendant can “not ‘use’ a 10 deadly weapon to commit the crime of conspiracy for purposes of the deadly weapon 11 enhancement.” Id. As the Nevada Supreme Court reasonably concluded here, the 12 deadly weapon was not used to enhance Petitioner Hidalgo’s conspiracy conviction. 13 Rather, it was only used to enhance his second-degree murder conviction. (ECF No. 14 26-17 at 35 (providing in Jury Instruction No. 31 that “if you find a defendant guilty of 15 Murder of the First Degree, or Murder of the Second Degree, you must also determine 16 whether or not a deadly weapon was used in the commission of this crime”).) 17 The Court now turns to Petitioner Hidalgo’s argument that a deadly weapon 18 cannot be used to enhance a murder conviction if that murder conviction is premised on 19 a conspiracy theory of liability. In Brooks v. State, the Nevada Supreme Court concluded 20 that a defendant “is subject to a sentence enhancement” if “the unarmed offender is 21 liable as a principal for the offense that is sought to be enhanced, another principal to 22 the offense is armed with and uses a deadly weapon in the commission of the offense, 23 and the unarmed offender had knowledge of the use of the deadly weapon.” 180 P.3d 24 657, 661 (Nev. 2008). As the Nevada Supreme Court reasonably concluded here, Jury 25 Instruction No. 33 complied with Brooks. (ECF No. 26-17 at 37 (providing in Jury 26 Instruction No. 33 that “[a]n unarmed offender ‘uses’ a deadly weapon when the 27 unarmed offender is liable for the offense, another person liable to the offense is armed 1 with and uses a deadly weapon in the commission of the offense, and the unarmed 2 offender had knowledge of the use of the deadly weapon”).) 3 Because the jury instructions given on the deadly weapon enhancement were 4 accurate recitations of Nevada law as reasonably determined by the Nevada Supreme 5 Court, the final arbiter of Nevada law, Petitioner Hidalgo fails to demonstrate that his 6 trial or appellate counsel were ineffective regarding the deadly weapon enhancement 7 jury instructions. Accordingly, the Nevada Supreme Court’s determination constitutes 8 an objectively reasonable application of federal law under Strickland and was not based 9 on an unreasonable determination of the facts. Petitioner Hidalgo is not entitled to 10 federal habeas relief for ground 4. 11 E. Ground 5—Out-of-Court Statement Instruction 12 In ground 5, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 13 Amendment rights to a fair trial, to due process of law, and to effective assistance of 14 counsel at trial and on direct appeal were impinged when counsel failed and refused to 15 tender a jury instruction that out-of-court statements made by co-conspirators may not 16 be considered against him if the statements themselves were the only evidence of his 17 participation in the conspiracy. (ECF No. 67 at 89.) 18 1. State court determination 19 In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada 20 Supreme Court held:

21 Third, appellant contends that the district court erred by denying his claim that trial counsel were ineffective for failing to proffer an instruction 22 regarding the admissibility of co-conspirator statements that was consistent with the Federal Rules of Evidence, and appellate counsel was ineffective 23 for failing to argue that the admission of his co-conspirator’s statements violated Crawford v. Washington, 541 U.S. 36, 56 (2004). Appellant failed 24 to demonstrate that the instructions given at trial were incorrect or that the statements should not have been admitted. See McDowell v. State, 103 25 Nev. 527, 529, 746 P.2d 149, 150 (1987) (adopting the “slight evidence” standard in Nevada); see also Crawford, 541 U.S. at 56 (recognizing that 26 statements made in furtherance of a conspiracy are nontestimonial); Lilly v. Virginia, 527 U.S. 116, 137 (1999) (recognizing that statements made in the 27 furtherance of a conspiracy are reliable). Therefore, he fails to demonstrate 1 (ECF No. 26-16 at 4.) 2 2. Analysis 3 Jury Instruction No. 40 was the jury instruction on out-of-court statements made 4 by co-conspirators: “Whenever there is slight evidence that a conspiracy existed, . . . 5 then the statements and the acts by any person likewise a member may be considered 6 by the jury as evidence in the case as to the defendant found to have been a member, 7 even though the statements and acts may have occurred in the absence and without 8 the knowledge of the defendant” if the “statements and acts were knowingly made and 9 done during the continuance of such conspiracy, and in furtherance of some object or 10 purpose of the conspiracy.” (ECF No. 26-17 at 44.) As the Nevada Supreme Court 11 reasonably determined, Jury Instruction No. 40 complied with Nevada law. 12 NRS § 51.035(3)(e) provides that a “statement by a coconspirator of a party 13 during the course and in furtherance of the conspiracy” is not hearsay. And Nevada 14 caselaw only requires the state district court to find that a conspiracy existed by “slight 15 evidence.” See McDowell v. State, 746 P.2d 149, 150 (Nev. 1987). Because Jury 16 Instruction No. 40’s slight evidence language was an accurate recitation of Nevada law 17 as reasonably determined by the Nevada Supreme Court, the final arbiter of Nevada 18 law, Petitioner Hidalgo fails to support his argument that under Nevada law out-of-court 19 statements made by co-conspirators may only be considered if there was other evidence 20 of his participation in the conspiracy. As such, Petitioner Hidalgo fails to demonstrate 21 that his trial or appellate counsel were ineffective for not making that argument, and the 22 Nevada Supreme Court’s determination constitutes an objectively reasonable 23 application of federal law under Strickland and was not based on an unreasonable 24 determination of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for 25 ground 5. 26 F. Ground 6—Jury Instruction Nos. 19, 20, and 22 27 In ground 6, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 1 counsel at trial and on direct appeal were impinged when trial counsel failed to object to 2 Jury Instruction Nos. 19, 20, and 22 and failed to tender instructions that more precisely 3 defined the concepts of “vicarious liability for a second degree murder.” (ECF No. 67 at 4 94.) Specifically, Petitioner Hidalgo argues that none of the instructions advised the jury 5 that it had to find that Petitioner Hidalgo had to act with implied malice or that the 6 underlying felony was the proximate cause of the death in question. (Id. at 95–96.) 7 1. Background information 8 Petitioner Hidalgo was charged with murder with the use of a deadly weapon 9 under two theories of criminal liability: (1) “by aiding and abetting the commission of the 10 crime by, directly or indirectly, . . . procuring . . . Carroll to beat and/or kill” Hadland, 11 and/or (2) “by conspiring to commit the crime of battery and/or battery with use of a 12 deadly weapon and/or battery resulting in substantial bodily harm and/or to kill” Hadland 13 “whereby each and every co-conspirator is responsible for . . . the natural and 14 foreseeable general intent crimes of each and every co-conspirator during the course 15 and in furtherance of the conspiracy.” (ECF No. 20-9 at 3–4.) The jury found Petitioner 16 Hidalgo guilty of second-degree murder with the use of a deadly weapon. (ECF No. 26- 17 1 at 3.) The jury’s reliance on a particular theory of liability is unclear. Jury Instruction 18 Nos. 19, 20, and 22 instructed, in part, the jury on these theories of liability. 19 Jury Instruction No. 19 provided:

20 Murder in the First Degree is a specific intent crime. A Defendant can not be liable under conspiracy and/or aiding and abetting theory for First 21 Degree Murder for acts committed by a co-conspirator, unless, Defendant also had a premeditated and deliberate specific intent to kill. 22 Murder in the Second Degree may be a general intent crime. As 23 such, Defendant may be liable under conspiracy theory or aiding and abetting theory for Murder of the Second Degree for acts committed by a 24 co-conspirator if the killing is one of the reasonably foreseeable probable and natural consequences of the object of the conspiracy or the aiding and 25 abetting. 26 27 (ECF No. 26-17 at 23.) 1 Where two or more persons are accused of committing a crime together, their guilt may be established without proof that each personally 2 did every act constituting the offense charged.

3 All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who 4 knowingly and with criminal intent aid and abet in its commission or, whether present or not, who advise and encourage its commission, with the intent 5 that the crime be committed, are regarded by the law as principals in the crime thus committed and are equally guilty thereof. 6 A person aids and abets the commission of a crime if he knowingly 7 and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advise, the commission of such crime with the 8 intention that the crime be committed.

9 The State is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted. 10 11 (Id. at 24.) 12 Jury Instruction No. 22 provides:

13 Where several parties join together in a common design to commit any lawful act, each is criminally responsible for the reasonably foreseeable 14 general intent crimes committed in furtherance of the common design. In contemplation of law, as it relates to general intent crimes, the act of one is 15 the act of all. Battery, Battery Resulting in Substantial Bodily Harm and Battery With A Deadly Weapon are general intent crimes. Second Degree 16 Murder can be a general intent crime.

17 Additionally, a co-conspirator is guilty of the offenses he specifically intended to be committed. First Degree Murder is a specific intent crime. 18 19 (Id. at 26.) 20 2. State court determination 21 In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada 22 Supreme Court held:

23 First, appellant contends that the district court erred by denying his claim that trial counsel were ineffective for failing to tender appropriate 24 instructions regarding second-degree murder. Specifically, appellant challenges the instructions relating to co-conspirator liability and second- 25 degree felony murder. Regarding the co-conspirator liability instructions, appellant failed to demonstrate that the instructions given at trial were 26 inaccurate. See Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191, 201 (2005) (holding that “vicarious coconspirator liability may be properly 27 imposed for general intent crimes only when the crime in question was a intent crime pursuant to Ho v. Carey, 332 F.3d 587, 592 (9th Cir. 2003), his 1 reliance on Ho is misplaced because Ho addressed California law. Regarding second-degree felony murder, even assuming that the jury was 2 not properly instructed pursuant to Labastida v. State, 115 Nev. 298, 307, 986 P.2d 443, 449 (1999), appellant failed to demonstrate that trial counsel 3 were deficient or that he was prejudiced given the evidence presented at trial and the theories of vicarious liability alleged in the charging document. 4 Therefore, we conclude that the district court did not err by denying this claim. 5 [FN1] For the same reasons, we conclude the district court did 6 not err by denying appellant's claim regarding appellate counsel. 7 8 (ECF No. 26-16 at 2–3.) 9 3. Analysis 10 The Nevada Supreme Court, the final arbiter of Nevada law, reasonably 11 determined that the jury was properly instructed about second-degree murder under 12 Nevada law. First, with respect to vicarious co-conspirator liability, the Nevada Supreme 13 Court has held that “vicarious coconspirator liability may be properly imposed for general 14 intent crimes only when the crime in question was a ‘reasonably foreseeable 15 consequence’ of the object of the conspiracy.” Bolden v. State, 124 P.3d 191, 201 (Nev. 16 2005), receded from on other grounds by Cortinas v. State, 195 P.3d 315, 324 (Nev. 17 2008). As the Nevada Supreme Court reasonably noted here, Jury Instruction No. 19 18 tracks this language. (ECF No. 26-17 at 23 (“Defendant may be liable under conspiracy 19 theory or aiding and abetting theory for Murder of the Second Degree for acts committed 20 by a co-conspirator if the killing is one of the reasonably foreseeable probable and 21 natural consequences of the object of the conspiracy or the aiding and abetting.”).) 22 Second, as to Petitioner Hidalgo’s argument that none of the instructions advised the 23 jury that it had to find he acted with malice, the record belies Petitioner Hidalgo’s 24 argument. Jury Instruction No. 6, which mirrors NRS § 200.010(1),8 provided that 25 “[m]urder is the unlawful killing of a human being, with malice aforethought, either 26 express or implied.” (ECF No. 26-17 at 10.) And Jury Instruction No. 13 provided, in 27 1 relevant part, that “[m]urder of the Second Degree is . . . [m]urder with malice 2 aforethought, but without the admixture of premeditation and deliberation.” (Id. at 17.) 3 Third, as to Petitioner Hidalgo’s argument that none of the instructions advised the jury 4 that the underlying felony must be the proximate cause of the death in question, the 5 Nevada Supreme Court reasonably noted that felony murder was not alleged as a theory 6 of liability. 7 Accordingly, the Nevada Supreme Court’s determination that Petitioner Hidalgo 8 failed to demonstrate that his trial and appellate counsel were ineffective regarding the 9 second-degree murder jury instructions constitutes an objectively reasonable 10 application of federal law under Strickland and was not based on an unreasonable 11 determination of the facts. Petitioner Hidalgo is not entitled to federal habeas relief for 12 ground 6. 13 G. Ground 7—Severance 14 In ground 7, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 15 Amendment rights to a fair trial, due process of law, and effective assistance of counsel 16 at trial and on direct appeal were impinged when counsel did not seek a partial 17 severance under Morales v. State in the middle of trial to gain the admission of Taoipu’s 18 former testimony, which the Court discussed in ground 3. (ECF No. 67 at 101.) 19 In Morales v. State, the Nevada Supreme Court concluded that the state district 20 courts may bifurcate, rather than completely sever, “where the State, in the indictment 21 or criminal information, joins a charge of unlawful possession of a firearm by an ex-felon 22 with other substantive criminal violations.” 143 P.3d 463, 464 (Nev. 2006). Citing 23 Morales, Petitioner Hidalgo argues that his trial counsel should have argued for the 24 following remedy: “allow [Hidalgo Sr.] to finish his case, have the jury deliberate and 25 reach a verdict as to him,” and “[t]hen, without discharging the jury,” let him “present the 26 sworn testimony of Mr. Taoipu, and then present the cause [sic] to the same jury for 27 return of the second verdict regarding” him. (ECF No. 67 at 103–04.) 1 1. Background information 2 Petitioner Hidalgo’s trial counsel testified at the post-conviction evidentiary 3 hearing that he “[v]ery much” wanted Taoipu to testify because Taoipu had made a 4 statement in Counts’s trial that “exonerated or was exculpatory for” Petitioner Hidalgo. 5 (ECF No. 26-12 at 17–18.) Counsel attempted to locate Taoipu, but “he had in essence 6 skipped town.” (Id. at 19.) Counsel sought to admit Taoipu’s prior testimony, but the 7 prosecution stated that if an excerpt of Taoipu’s former testimony would be admitted, 8 then all his former testimony would need to be admitted. (Id. at 19–20.) Hidalgo Sr.’s 9 counsel objected on Confrontation Clause grounds. (Id. at 20.) 10 Petitioner Hidalgo’s counsel argued that excluding the testimony violated 11 Petitioner Hidalgo’s due process rights, but he “did not move for a severance at that 12 time.” (Id. at 21.) Counsel testified that he “failed to request the severance which in 13 hindsight and going through the appeal and to this day [he] regret[s].” (Id. at 23.) Counsel 14 explained the basis of his regret: “[w]e would have moved for the severance and 15 preserved that issue for appeal regardless of how [the court] ruled” on the admissibility 16 of Taoipu’s testimony. (Id. at 35.) 17 Importantly, counsel testified that before trial Petitioner Hidalgo and Hidalgo Sr. 18 stipulated with the prosecution “to waive the death penalty in exchange for trying the 19 case[s] together.” (Id.) At the post-conviction evidentiary hearing, the state district court 20 stated, “the Court ruled that the . . . prior testimony of Mr. Taoipu wouldn’t come in 21 regardless for either defendant,” so it did not “see any point at that juncture to have 22 moved for severance.” (Id. at 49.) The state district court also explained: “[c]learly that 23 motion [to sever] would have been denied. And it would have exposed both defendants 24 . . . to the possibility of having the State seek the death penalty, which is a huge, huge 25 risk.” (Id.) Therefore, the state district court “f[ou]nd it curious . . . that for some sort of 26 attenuated appellate position [counsel] would have subjected his client to such a risk” 27 and found it incredible that counsel “would have moved for severance [during trial] based 1 2. State court determination 2 In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada 3 Supreme Court held:

4 Fourth, appellant contends that the district court erred by denying his claim that trial counsel were ineffective for failing to seek a severance during 5 trial to admit evidence that was favorable to him but unfavorable to his codefendant. We disagree because the trial court did not decline to admit 6 the evidence based on prejudice to appellant’s codefendant and therefore a severance would not have been granted on this basis. Because appellant 7 failed to demonstrate that a severance would have been granted under the circumstances, trial counsel were not ineffective. Therefore, we conclude 8 that the district court did not err by denying this claim. 9 (ECF No. 26-16 at 4-5.) 10 3. Analysis 11 The Nevada Supreme Court reasonably concluded that Petitioner Hidalgo failed 12 to demonstrate that his trial counsel was deficient for not moving to sever his trial from 13 Hidalgo Sr.’s trial to admit Taoipu’s testimony and his appellate counsel was deficient 14 for failing to include this issue in his direct appeal. See Strickland, 466 U.S. at 688. 15 Before trial, Petitioner Hidalgo agreed to the joinder of his trial with Hidalgo Sr.’s trial in 16 exchange for the prosecution waiving the death penalty. Consequently, the state district 17 court reasonably noted that it would have been risky to ask for a severance during trial 18 because a new trial could have exposed Petitioner Hidalgo to the death penalty. Further, 19 regarding a bifurcation during the trial, the state district court stated at the post- 20 conviction evidentiary hearing that she presided over the trial and (1) would not have 21 allowed Taoipu’s testimony to be admitted regardless of bifurcation, and (2) would have 22 denied any type of motion to sever or bifurcate. Thus, because seeking bifurcation would 23 have been futile, the Nevada Supreme Court’s determination that Petitioner Hidalgo 24 failed to demonstrate that his trial counsel and appellate counsel were ineffective 25 constitutes an objectively reasonable application of federal law under Strickland and 26 was not based on an unreasonable determination of the facts. Petitioner Hidalgo is not 27 entitled to federal habeas relief for ground 7. 1 H. Ground 8—Motion to Sever the Charges 2 In ground 8, Petitioner Hidalgo alleges that his Fifth, Sixth, and Fourteenth 3 Amendment rights to a fair trial, due process of law, and effective assistance of counsel 4 at trial and on direct appeal were violated when trial counsel failed to move to sever the 5 solicitation of murder counts, which regarded Petitioner Hidalgo’s solicitation of Carroll 6 to kill Taoipu and Zone with rat poison, from the murder and conspiracy to murder counts 7 regarding Hadland. (ECF No. 67 at 106.) 8 1. Background information 9 At a post-conviction hearing, the state district court judge, whoalso presided over 10 Petitioner Hidalgo’s trial, noted, “had [Petitioner Hidalgo’s trial counsel] filed that motion 11 [to sever counts 1 and 2 from counts 3 and 4] that would have been clearly denied” 12 because “all of the evidence would have essentially been the same even if you had tried 13 to sever it.” (ECF No. 26-11 at 11.) The state district court judge explained that the 14 prosecution was not using the solicitation counts, the stronger of the counts, to say 15 Petitioner Hidalgo was “a bad guy” so “he must have been involved in these other 16 things.” (Id. at 12.) Rather, the prosecution used the solicitation counts “to show 17 [Petitioner Hidalgo’s] involvement in this whole thing and his knowledge and his desire 18 to sort of clean it all up and tie it all together.” (Id. at 12.) As such, regarding any prejudice 19 Petitioner Hidalgo may have suffered from his counsel’s failure to move to sever the 20 counts, the state district court judge stated, “we don’t need to, you know, surmise what 21 would have happened. I can tell you what would have happened because I was the trial 22 judge.” (Id. at 13.) Later, at the continued post-conviction evidentiary hearing, Petitioner 23 Hidalgo’s post-conviction counsel reiterated the state district court’s previous comments 24 on this issue: “you stated in court about how you would not have granted a motion to 25 sever counts.” (ECF No. 26-12 at 6.) The state district court commented: “I can say I 26 wouldn’t have granted it . . . On this one I wasn’t on the line. Revisiting the issue, I 27 decided again, no, I wouldn’t have severed those.” (Id. at 10.) 1 2. Nevada law on severance 2 In relevant part, NRS § 173.115 provides that “[t]wo or more offenses may be 3 charged in the same indictment or information . . . if the offenses charged . . . are . . . 4 [b]ased on two or more acts or transactions connected together or constituting parts of 5 a common scheme or plan.” And NRS § 174.165(1) provides that “[i]f it appears that a 6 defendant or the State of Nevada is prejudiced by a joinder of offenses . . . in an 7 indictment or information, or by such joinder for trial together, the court may order an 8 election or separate trials of counts.” This determination is discretionary. See Jones v. 9 State, 899 P.2d 544, 547 (Nev. 1995). 10 3. State court determination 11 In affirming the denial of Petitioner Hidalgo’s state habeas petition, the Nevada 12 Supreme Court held:

13 Fifth, appellant contends that the district court erred by denying his claim that trial counsel were ineffective for failing to seek a severance of the 14 solicitation counts. Appellant failed to demonstrate that a severance would have been granted because the counts were clearly connected together. 15 See Weber v. State, 121 Nev. 554, 573, 119 P.3d 107, 120 (2005). Therefore counsel were not ineffective. Accordingly, we conclude that the 16 district court did not err by denying this claim. 17 (ECF No. 26-16 at 5.) 18 4. Analysis 19 The Nevada Supreme Court reasonably concluded that Petitioner Hidalgo failed 20 to demonstrate prejudice. See Strickland, 466 U.S. at 694. On post-conviction review, 21 the state district court judge, who also presided over Petitioner Hidalgo’s trial, stated that 22 she would not have granted a motion to sever the counts. Petitioner Hidalgo fails to 23 demonstrate that the result of the proceedings would have been different if his trial 24 counsel had filed such a motion or that he would have prevailed on appeal had his 25 appellate counsel included this claim on appeal. This is because (1) granting a motion 26 to sever is discretionary under NRS § 174.165(1), and (2) the same state district court 27 judge definitively stated that she would not have used her discretion to grant such a 1 agreed because the solicitation of murder counts were connected with the murder and 2 conspiracy counts under NRS § 173.115. Indeed, the solicitation of murder counts 3 demonstrated Petitioner Hidalgo’s knowledge of Hadland’s murder and desire to 4 eliminate witnesses to it. Accordingly, the Nevada Supreme Court’s determination 5 constitutes an objectively reasonable application of federal law under Strickland and 6 was not based on an unreasonable determination of the facts. Petitioner Hidalgo is not 7 entitled to federal habeas relief for ground 8. 8 I. Ground 16—Cumulative Error9 9 In ground 16, Petitioner Hidalgo alleges that his trial and appellate counsel’s 10 cumulative errors violated his right to equal protection, a fair trial, due process of law, 11 and effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments. 12 (ECF No. 67 at 154.) In affirming the denial of Petitioner Hidalgo’s state habeas petition, 13 the Nevada Supreme Court held: “appellant contends that cumulative error entitles him 14 to relief. Because we have found no error, there are no errors to cumulate.” (ECF No. 15 26-16 at 5.) 16 Cumulative error applies where, “although no single trial error examined in 17 isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple 18 errors may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 19 (9th Cir. 1996); see also Parle v. Runnels, 387 F.3d 1030, 1045 (9th Cir. 2004) 20 (explaining that the court must assess whether the aggregated errors “‘so infected the 21 trial with unfairness as to make the resulting conviction a denial of due process’” (citing 22 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Court has not identified any 23 errors on the part of Petitioner Hidalgo’s trial or appellate counsel, so there are no errors 24 to cumulate. Petitioner Hidalgo is not entitled to federal habeas relief for ground 16.10

25 9The Court previously partially dismissed ground 16 as it related to errors on his 26 direct appeal. (ECF Nos. 83 at 18, 84, 86.)

27 10Petitioner Hidalgo requests that the Court conduct an evidentiary hearing. (ECF 1 V. CERTIFICATE OF APPEALABILITY 2 This is a final order adverse to Petitioner Hidalgo. Rule 11 of the Rules Governing 3 Section 2254 Cases requires the Court to issue or deny a certificate of appealability 4 (COA). The Court has sua sponte evaluated the claims within the petition for suitability 5 for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 6 864–65 (9th Cir. 2002). Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the 7 petitioner “has made a substantial showing of the denial of a constitutional right.” With 8 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 9 jurists would find the district court’s assessment of the constitutional claims debatable or 10 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 11 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 12 could debate (1) whether the petition states a valid claim of the denial of a constitutional 13 right and (2) whether the Court’s procedural ruling was correct. Id. 14 Applying these standards, the Court finds that a certificate of appealability is 15 unwarranted. 16 VI. CONCLUSION 17 It is therefore ordered that Petitioner Hidalgo’s third amended petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254 (ECF No. 67) is denied. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 Hidalgo is not entitled to relief, and neither further factual development nor any evidence 26 that may be proffered at an evidentiary hearing would affect this Court’s reasons for denying relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes 27 the applicant’s factual allegations or otherwise precludes habeas relief, a district court is 1 It is further ordered that a certificate of appealability is denied. 2 The Clerk of Court is directed to substitute Tim Garrett for Respondent Robert 3 || LeGrand, enter judgment accordingly, and close this case. 4 DATED THIS 23" Day of September 2022. 5

7 MIRANDAM.DU,.. 3 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28