Hudson v. Oliver

• Court: District Court, D. Nevada
• Decided: June 24, 2025
• Docket: 2:22-cv-01377
• Status: Unknown

Opinion

1 2 3 4

5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 CLEMON HUDSON, Case No.: 2:22-cv-01377-GMN-BNW

9 Petitioner Order Denying Petition, Denying Certificate of Appealability and 10 v. Closing Case

11 WILLIAM HUTCHING,1 et al.,

12 Respondents.

13 In his 28 U.S.C. § 2254 Habeas Corpus Petition, Clemon Hudson challenges his 14 burglary, battery, and attempted murder convictions, including arguing that his trial 15 should have been severed and that the prosecutors engaged in misconduct. (ECF No. 16 5.) The Court has considered the merits of the Petition, and it is denied. 17 I. Background 18 19 In April 2018, a Nevada (Clark County) jury convicted Hudson of two counts of 20 Attempted Murder with Deadly Weapon, Conspiracy to Commit Burglary, Attempted 21

22 1 According to the Nevada Department of Corrections inmate locator page, Hudson is incarcerated at Southern Desert Correctional Center. The department’s website reflects Ronald 23 Oliver is the warden for that facility. At the end of this order, the Court directs the Clerk to substitute Ronald Oliver for prior respondent William Hutching, under, inter alia, Rule 25(d) of the Federal Rules of Civil Procedure. 1 Burglary while in Possession of a Firearm or Deadly Weapon, and Battery with Use of a 2 Deadly Weapon Resulting in Substantial Bodily Harm. (Exh. 54.)2 Hudson and Steven 3 Turner were convicted of trying to break into a Las Vegas house to steal marijuana and 4 shooting at responding police officers, seriously injuring one. (See ECF No. 22 at 2.)

5 The state district court sentenced Hudson to an aggregate term of 168 to 480 months. 6 (Exh. 58.) Judgment of conviction was entered on July 2, 2018. (Exh. 59.) Hudson’s 7 trial counsel did not file an appeal. Hudson filed a state postconviction petition through 8 new counsel that challenged, in part, his trial counsel’s failure to file an appeal. (Exh. 9 61.) After an evidentiary hearing, the district court found that Hudson was deprived of 10 his right to a direct appeal and granted him relief on that claim. (ECF Nos. 71, 72.) The 11 court denied the remaining claims. (ECF No. 72.) The Nevada Court of Appeals 12 affirmed the denial of his state postconviction petition in June 2022. (Exh. 90.) 13 Hudson dispatched his federal Petition for mailing about August, 2022. (ECF No. 5.) 14 He raises six grounds:

15 Ground 1: The district court abused its discretion by not granting Hudson’s motion to sever defendants. 16 Ground 2: The prosecutor committed misconduct at trial such that 17 the conviction must be reversed.

18 Ground 3: The district court erred by giving improper jury instructions. 19 Ground 4: The district court erred by allowing uniformed officers to 20 pack the courtroom.

21 Ground 5: Cumulative error in trial proceedings.

22 23

2 Exhibits referenced in this Order are found at ECF Nos. 18-19. 1 Ground 6: Hudson’s trial counsel was ineffective for failing to object to the jury instruction on flight. 2 (ECF Nos. 5, 1-2.) 3 Respondents have answered the Petition. (ECF No. 22.) Hudson did not file a 4 reply or respond to the answer in any way. 5 6 II. Trial Testimony

7 The Court summarizes trial evidence and related state-court record material and 8 proceedings as a backdrop to its consideration of the issues presented in the case.3 9 Eric Clarkson testified that he and Steven Turner had been friends and would smoke 10 marijuana frequently at Clarkson’s house. (Exh. 44 at 58-91; Exh. 45 at 65-69.) At 11 some point Clarkson and Turner had stopped communicating; they hadn’t been in touch 12 for almost a year before the incident. Clarkson’s best friend, Willoughby Potter de 13 Grimaldi also lived at the house. On the night in question, September 4, 2015, Clarkson 14 was getting ready to go to bed at about 3:30 in the morning. A few minutes after he 15 turned off his bedroom light, he heard a sound that he recognized as a chair on his patio 16 being moved across the bricks. He looked out his window and saw a young, black man 17 on the patio. He grabbed his phone, woke up his roommate, and called 911 to report 18 that someone was in his backyard. Grimaldi went to the front window and saw 19 someone outside the front door. Two police officers arrived, Robertson and Grego- 20 21 3 The Court makes no credibility findings or other factual findings regarding the truth or falsity of 22 evidence or statements of fact in the state court record. The Court summarizes the same solely as background to the issues presented in this case, and it does not summarize all such material. 23 No assertion of fact made in describing statements, testimony, or other evidence in the state court constitutes a finding by this Court. Any absence of mention of a specific piece of evidence or category of evidence does not signify the Court overlooked it in considering Hudson’s claims. 1 Smith; Clarkson let them in the front door. He and Grimaldi showed them that someone 2 was in the backyard and how to turn on the back lights and open the back door. When 3 Officer Robertson opened the back door, Clarkson saw two bullets fly across the living 4 room very close to Clarkson from outside the back door. The two roommates hid in a

5 bedroom while shots were exchanged. At some point later he saw Turner’s picture on 6 the news; he contacted detectives and said that he knew that man. 7 Grimaldi testified that on the night in question he was just falling asleep when 8 Clarkson woke him up. (Exh. 44 at 91-128.) He went to a back window and saw a black 9 man wearing a billed cap cocking what looked like a shotgun. Someone started 10 banging on the front door; he peeked out the window and saw a different individual at 11 the front door. The person had an afro, was about 6’1” and was shirtless with black 12 basketball shorts. Grimaldi looked out a back window and thought he saw a third 13 individual. He thought he saw someone running away from the house just before police 14 arrived. The moment police opened the back door, shots were fired into the house.

15 Grimaldi said he was familiar with the difference between different bullets, and one 16 bullet came from a shotgun and one from a “straight-shooting” firearm. 17 Las Vegas Metropolitan Police Department (“LVMPD”) Officer Malik Grego-Smith 18 testified that he and Officer Jeremy Robertson responded to a call about a prowler. 19 (Exh. 46 at 56-100.) When they approached the house, Smith heard someone in the 20 backyard. The residents opened the front door, and the officers went in the house 21 toward the backyard. Robertson opened the back door, Smith started to take a step 22 outside the door when two shots were fired from a high-powered rifle. Smith took a step 23 back behind cover and returned fire; he glimpsed a back man, shirtless, in purple 1 basketball shorts. He also heard Robertson fall to the ground behind him. Smith 2 reported officer down. Robertson reported over the radio that he had seen two 3 suspects. Later when the K-9 unit apprehended Hudson, Smith kept watch to see that 4 no one else was in the backyard.

5 Officer Jeremy Robertson testified that he and Smith responded to the prowler 6 call. (Exh. 46 at 102-135.) When they went to the back of the house, they couldn’t see 7 anyone in the backyard from the windows. The officers decided to clear the backyard. 8 He holstered his gun to open the backdoor so that Smith could go out the door. 9 Robertson was immediately shot in the leg from the backyard. Smith took a knee in 10 front of Robertson to protect him, radioed officer down, and was firing into the backyard. 11 Robertson knew that he told Smith there were two suspects, though he does not 12 remember anything that he saw. Responding officers pulled Robertson from the house 13 and he went by ambulance to the hospital. His femur was shattered, surgeons installed 14 a titanium rod, and his gluteus muscles and hip flexor muscle had to be reattached.

15 LVMPD K-9 Sergeant Joshua Bitsko testified that he is the handler for police dog 16 Loki. (Exh. 45 at 127-152.) He responded to the scene and organized his team to 17 apprehend the suspect who was still in the backyard. They moved through the house 18 toward the backyard; it was very dark, and Bitsko could not see anyone in the backyard. 19 An officer gave verbal commands to the suspect to put up his hands and crawl towards 20 the house. The suspect responded but the officers couldn’t understand what he said. 21 An air unit overhead communicated that the suspect was down on the ground, next to 22 him was a long gun. Bitsko deployed Loki, who bit the suspect on the wrist and began 23 1 to pull him toward the house. Bitsko could then see that the suspect didn’t have a gun 2 in his hands, so the team moved in to arrest the individual, Hudson. 3 Fingerprints recovered from the shotgun were later identified as Hudson’s. (Exh. 4 47 at 11-29.) A DNA profile obtained from a beanie that was in the backyard as well as

5 other DNA found at the scene was consistent with Hudson. (Exh. 47 at 29-53.) Turner 6 was excluded as a possible contributor. 7 LVMPD detective Jeremy Vance testified that he apprehended Turner in a 8 neighborhood about half a mile away. (Exh. 45 at 153-165.) Turner initially gave him a 9 fictitious name. When the officers asked Turner about his bloody leg, he said he hurt it 10 hopping over a friend’s fence. From Vance’s experience, it looked like a gun shot 11 wound. Turner was arrested and taken to the hospital for treatment for a gun shot 12 wound. (Exh. 50 at 8-9.) Surveillance video recovered by officers showed Turner 13 crossing yards, parking lots, and fences on foot immediately after the incident. 14 III. AEDPA Legal Standard and Analysis 15 16 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 17 Act (“AEDPA”), provides the legal standards for this Court’s consideration of the Petition 18 in this case: An application for a writ of habeas corpus on behalf of a person in 19 custody 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 20 proceedings unless the adjudication of the claim ―

21 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 22 determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable 23 determination of the facts in light of the evidence presented in the State court proceeding. 1 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner 2 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 3 convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 4 685, 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there

5 is no possibility fair-minded jurists could disagree that the state court’s decision conflicts 6 with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The 7 Supreme Court has emphasized “that even a strong case for relief does not mean the 8 state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 9 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 10 the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating 11 state-court rulings, which demands that state-court decisions be given the benefit of the 12 doubt”) (internal quotation marks and citations omitted). 13 A state court decision is contrary to clearly established Supreme Court precedent, 14 within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts

15 the governing law set forth in [the Supreme Court’s] cases” or “if the state court 16 confronts a set of facts that are materially indistinguishable from a decision of [the 17 Supreme Court] and nevertheless arrives at a result different from [the Supreme 18 Court’s] precedent.” Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 19 405-06 (2000), and citing Bell, 535 U.S. at 694. 20 A state court decision is an unreasonable application of clearly established Supreme 21 Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies 22 the correct governing legal principle from [the Supreme Court’s] decisions but 23 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 1 U.S. at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause 2 requires the state court decision to be more than incorrect or erroneous; the state 3 court’s application of clearly established law must be objectively unreasonable. Id. 4 (quoting Williams, 529 U.S. at 409).

5 To the extent that the state court’s factual findings are challenged, the 6 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 7 review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause 8 requires that the federal courts “must be particularly deferential” to state court factual 9 determinations. Id. The governing standard is not satisfied by a showing merely that the 10 state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires 11 substantially more deference: 12 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we 13 would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not 14 reasonably conclude that the finding is supported by the record.

15 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 16 F.3d at 972. 17 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 18 correct unless rebutted by clear and convincing evidence. The petitioner bears the 19 burden of proving by a preponderance of the evidence that he is entitled to habeas 20 relief. Cullen, 563 U.S. at 181. 21 Ground 1 22 Hudson alleges that the district court abused its discretion by not granting his 23 motion to sever defendants. (ECF No. 5-1 at 8-17.) He argues that there was not a way to redact Turner’s statements enough to not implicate Hudson, and that Turner’s 1 statements constituted a Bruton violation.4 He asserts that he was deprived of his Sixth 2 Amendment right to confrontation because Turner’s statements were admitted and 3 Turner didn’t testify, so Hudson couldn’t cross examine him. He also argues that his 4 defense was antagonistic to Turner’s and that Turner’s statement implicated Hudson for

5 the attempted murder. 6 A district court should only grant a severance “if there is a serious risk that a joint 7 trial would compromise a specific trial right of one of the defendants, or prevent the jury 8 from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 9 U.S. 534, 539 (1993). Consolidation rests in the sound discretion of the state trial 10 judge, and simultaneous trial of multiple offenses must actually render the state trial 11 fundamentally unfair and therefore violative of due process before federal relief is 12 available. Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). Policy benefits 13 of consolidated prosecutions also serve to “conserve state funds, diminish 14 inconvenience to witnesses and public authorities, and avoid delays in bringing those

15 accused of crime to trial.” Bruton v. United States, 391 U.S. 123, 134 (1968). 16 Here, the officers who testified about Hudson and Turner’s statements to them 17 were cautioned not to refer to the co-defendant when testifying about the other’s 18 statements. (Exh. 47 at 55-58.) They also had the redacted statements to refer to 19 during their testimony. The State did not play Hudson’s or Turner’s statement to the 20 jury because they were heavily redacted; the State had removed specific references by 21 22 4 See Bruton v. United States, 391 U.S. 123 (1968) (holding that a defendant is deprived of his 23 rights under the Confrontation Clause when his non-testifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant). 1 each co-defendant to the other. Craig Jex, a LVMPD Force Investigation Team (“FIT”) 2 detective, testified that FIT investigates officer-involved shootings and that he 3 interviewed Hudson after his arrest. (Exh. 47 at 58-95.) Jex testified that Hudson told 4 him that he and another individual went to the house that night to steal marijuana. They

5 drove to the house in Hudson’s mother’s Toyota Camry.5 The person that Hudson went 6 to the house with knew the homeowner and had said that it would be easy to steal 7 marijuana from the house. They had expected the door to be unlocked and the house 8 to be empty, but the doors were locked. They knocked on the front door; it appeared no 9 one was home. Hudson was carrying a shotgun and said that the plan was to break the 10 back window. He said he had been wearing a long sleeve camouflage shirt and a 11 beanie. Hudson said that when the police opened fire on them, he may have fired the 12 shotgun once toward the bottom of the back window, then he fell backwards over a 13 small wall in the backyard. He stayed behind the wall during the remainder of the 14 shooting. He told Jex that he didn’t initially know the shooters were police officers. He

15 thought the officers started shooting first and were shooting through the door. Hudson 16 said this was the first “heist” he’d ever been involved in. 17 LVMPD officer Eduardo Pazos testified that he interviewed Steven Turner. (Exh. 18 47 at 95-125.) When officers approached Turner, who was on foot several blocks from 19 the crime scene, he initially told the officer that his name was Devonte Turner. Turner 20 told Pazos that someone had called him to go for a ride. When Turner got in the car, he 21 saw two guns in the back. Turner specifically said that it was just he and one other 22

23 5 A detective testified that the Toyota Camry registered to Karen Hudson was parked near the house and officers found with Turner’s two dogs and cell phone inside. (Exh. 48 at 26-27.) 1 individual; no one else was in the car. They drove to the house of someone Turner 2 knew who sold marijuana. When they got to the house, the other person hopped over 3 the wall first into the backyard, then Turner hopped over the wall. He said someone 4 starting shooting from the house almost immediately; he said he hopped back over the

5 wall and fled. Turner maintained that he did not shoot at anyone. 6 The Nevada Court of Appeals rejected Hudson’s claims that his confrontation 7 rights were violated this claim: 8 … Turner’s statements did not facially incriminate Hudson. Rather, Turner’s statements were only incriminating when linked to other evidence 9 presented at trial. Hudson’s DNA and fingerprints were found on the baseball cap and shotgun recovered from Clarkson’s backyard. His DNA 10 was also found on Clarkson’s patio. Hudson himself confessed to going to Clarkson’s house to steal marijuana, carrying a shotgun and a handgun, 11 and firing the shotgun at least once. As such, there was no Bruton violation, and any prejudice against Hudson caused by admitting Turner’s 12 statements was minimal. Further, this prejudice was likely cured by the limiting instructions the district court gave alongside each admitted 13 statement. …

14 …Hudson’s and Turner’s defenses were not “mutually exclusive” so as to require severance. At closing arguments, Turner argued the State 15 had failed to prove that he was on Clarkson’s patio or that he had a gun. He further argued the State could not prove there were only two people 16 involved but rather that “there were likely four people involved.” On the other hand, even though Hudson did not testify, he argued that he merely 17 intended to go to an empty house to steal some marijuana. Hudson continued that once the gunfire started, he froze in fear because he did 18 not “have murder on the brain” and did not “sign up for a gun fight.” He argued it was not his intent to kill anyone and that there was “just no 19 motive to do so.”

20 These defenses were not mutually exclusive because the jury could have accepted either while still acquitting the other defendant. In other 21 words, the jury could have accepted both defenses and acquitted both defendants. Indeed, had the jury accepted Turner’s argument that more 22 individuals were involved, it would arguably have been more likely to acquit Hudson as well. On appeal, Hudson acknowledges this case does 23 not present “a typical ‘whodunnit’ where two defendants pointed fingers at each other and tried to escape criminal liability altogether.” Rather, both 1 defendants admitted they were at Clarkson’s house, near the patio, at the time of the crimes, and that they had arrived there together. Each then 2 pursued separate defenses to avoid criminal liability for the attempted murder charges. The district court therefore did not abuse its discretion in 3 denying Hudson’s motion to sever based on either Bruton or the codefendants’ separate defenses. 4 Finally, we consider Hudson’s own statements to determine 5 whether a Bruton violation, if any, was harmless. Here, Hudson admitted to going to Clarkson’s home to steal marijuana. He admitted to carrying 6 the shotgun and a small handgun. And he admitted to firing the shotgun at least once “at the bottom of the window” of the home moments after the 7 sliding backdoor was opened. These statements are more incriminating than Turner’s statements that “someone came to pick him up,” and “the 8 person he was with hopped over the wall first.” Therefore, any Bruton error was harmless considering Hudson’s own confession. 9 (Exh. 90 at 8-10.) 10 Hudson argues that Turner’s statement implicates Hudson in the attempted 11 murder and that he would not have been found guilty of attempted murder without 12 Turner’s statement. But sufficient evidence supported Hudson’s conviction. In his own 13 statement he admitted to going to the house to steal drugs and that he fired the shotgun 14 toward the bottom of a back window. He was apprehended at the scene, with a 15 shotgun close by him. His DNA was found at the scene and on the shotgun. The Court 16 is unpersuaded that a Bruton violation occurred. And any error was harmless. Hudson 17 cannot demonstrate that the Nevada Court of Appeals’ decision on federal ground 1 18 was contrary to, or involved an unreasonable application of, clearly established U.S. 19 Supreme Court law, or was based on an unreasonable determination of the facts in light 20 of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Habeas 21 relief on ground 1 is, therefore, denied. 22

23 1 Ground 2 2 Hudson contends that the State’s prosecutorial misconduct during closing 3 arguments warrants the reversal of his conviction. Prosecutorial misconduct may “‘so 4 infec[t] the trial with unfairness as to make the resulting conviction a denial of due

5 process.’” Greer v. Miller, 483 U.S. 756, 765 (1987), quoting Donnelly v. DeChristoforo, 6 416 U.S. 637, 643 (1974). The court reviews under the “narrow” standard of a due 7 process violation, “not the broad exercise of supervisory power.” Darden v. Wainwright, 8 477 U.S. 168, 181 (1986). A petitioner cannot prevail on such a claim by merely 9 showing “that the prosecutors’ remarks were undesirable or even universally 10 condemned.” Id. To constitute a due process violation, the prosecutorial misconduct 11 must be “‘of sufficient significance to result in the denial of the defendant’s right to a fair 12 trial.’” Greer, 483 U.S. at 765, quoting United States v. Bagley, 473 U.S. 667, 676 13 (1985). “Prosecutorial misconduct which rises to the level of a due process violation 14 may provide the grounds for granting a habeas petition only if that misconduct is

15 deemed prejudicial under the ‘harmless error’ test.” Shaw v. Terhune, 380 F.3d 473, 16 478 (9th Cir. 2004). An error is harmless unless it had a “substantial and injurious effect 17 or influence in determining the jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 623 18 (1993). 19 During closing argument, the prosecutor stated: “If I were to tell you [about the 20 incident] over a glass of whiskey, you would look at me and go, Good. I’m glad you 21 caught the two guys who shot the cops.” (Exh. 50 at 112.) He also said, “Now, they 22 could have been charged with four counts of attempt murder based on the transferred 23 intent instruction. They could have been—we could have charged them with four 1 counts.” (Id. at 122.) The trial court sustained the defense objection to the second 2 statement. 3 The Nevada Court of Appeals agreed that the prosecutor committed misconduct 4 with both statements but held that neither comment so infected the trial with unfairness

5 to warrant reversal: 6 Here, the prosecutor committed misconduct by inviting the jury to consider issues not in evidence when he said the State could have 7 charged Hudson with additional crimes, thereby implying the prosecutor believed Hudson to be guilty of additional, uncharged crimes. See 8 Pantano v. State, 122 Nev. 782, 793, 138 P.3d 477. 484 (2006) (holding that it is “always improper” for the prosecutor to give a personal opinion 9 regarding a defendant’s guilt); see also Valdez, 124 Nev. at 1192, 196 P.3d at 478 (recognizing that the prosecutor must “not inject [its] personal 10 opinion or beliefs” into the trial); Turner v. State, 136 Nev. 545, 556, 473 P.3d 438, 449 (2020) (concluding it was misconduct for the prosecutor to 11 reference the possibility of additional, uncharged crimes). However, the district court sustained Hudson’s objection to this comment and instructed 12 the jury to disregard it. See Rose v. State, 123 Nev. 194, 209, 163 P.3d 408, 418 (2007) (concluding the district court’s admonishment was 13 sufficient to cure any prejudice caused by a prosecutor’s improper comment); Summers v. State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 14 (2006) (“[T]his court generally presumes that juries follow district court orders and instructions.”). Further, the evidence—including Hudson’s 15 confession to firing the shotgun at the house moments after the sliding backdoor was opened—strongly inculpated Hudson. See Valdez, 124 16 Nev. at 1195, 196 P.3d at 480 (“This error . . . did not infect the trial with unfairness so as to affect the verdict and deny [appellant] his constitutional 17 right to a fair trial.”). Therefore, this misconduct does not warrant reversal of Hudson’s conviction. 18 The prosecutor also committed misconduct by inviting the jurors to 19 feel “good” about convicting a defendant who shot a police officer. See Pantano, 122 Nev. at 793, 138 P.3d at 484 (holding that it is improper to 20 “appeal[ ] to juror sympathies by diverting their attention from evidence relevant to the elements necessary to sustain a conviction”); see also 21 Turner, 136 Nev. at 556, 473 P.3d at 449 (concluding that it was misconduct to invite the jury to feel good about convicting defendants who 22 shoot police officers). However, Hudson did not object to this comment, and we therefore review it for plain error. See Valdez, 124 Nev. at 1190, 23 196 P.3d at 477. Under plain error review, Hudson has not demonstrated his substantial rights were affected by the prosecutor's comment. See 1 Jeremias, 134 Nev. at 50, 412 P.3d at 48. Although improper, two fleeting comments made near the end of a ten-day trial do not warrant the reversal 2 of a conviction that was otherwise supported by strong evidence implicating Hudson. [FN] 3 [FN: Hudson did not object below to the prosecutor’s comment 4 stating it did not matter that Turner and Hudson might not have known who they were shooting at so long as they attempted to kill two human 5 beings. Even assuming arguendo that the prosecutor’s statement constituted misconduct, Hudson has not demonstrated how that statement 6 impacted his substantial rights to a fair trial. See Jeremias, 134 Nev. at 50, 412 P.3d at 48. Therefore, the alleged misconduct would not warrant 7 reversal of Hudson’s conviction.]

8 (Exh. 90 at 17-18.) 9 The prosecutor’s statements were clearly improper. But, as discussed earlier, 10 strong evidence supported Hudson’s conviction, including that Hudson was 11 apprehended at the scene and his DNA was found on the shotgun and Hudson’s own 12 statement that he shot at the house when the back door was opened. The prosecutorial 13 misconduct cannot be said to have had a substantial injurious effect on the jury’s 14 decision. Hudson cannot demonstrate that the Nevada Court of Appeals’ decision on 15 federal ground 2 was contrary to, or involved an unreasonable application of, clearly 16 established U.S. Supreme Court law, or was based on an unreasonable determination 17 of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 18 2254(d). Habeas relief on ground 2 is, therefore, denied. 19 Ground 3 20 Hudson asserts that the trial court erred by giving four improper jury instructions. 21 (ECF No. 5.) Issues relating to jury instructions are not cognizable in federal habeas 22 review unless they infect the entire trial and establish a due process violation. Estelle v. 23 McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp 1 v. Naughten, 414 U.S. 141, 147 (1973). Demonstrating that an erroneous instruction 2 was so prejudicial that it will support a collateral attack on the constitutional validity of a 3 state court’s judgment requires the court to determine “whether the ailing instruction by 4 itself so infected the entire trial that the resulting conviction violates due process,” not

5 whether the instruction is “undesirable, erroneous, or even universally condemned.” 6 Henderson, 431 U.S. at 154 (citations omitted); Estelle, 502 U.S. at 72. 7 This Court evaluates whether there is a reasonable likelihood that the jury 8 applied the instruction in a way that violated the Constitution. Estelle, 502 U.S. at 72. 9 That a juror “could have” misinterpreted an instruction is different from the reasonable 10 likelihood that the juror did misinterpret the instruction. Tyler v. Cain, 533 U.S. 656, 658 11 n.1 (2001). 12 In reviewing jury instructions, the court inquires as to whether the instructions as 13 a whole are misleading or inadequate to guide the jury’s deliberation. United States v. 14 Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003) (citation omitted). An instruction may

15 not be judged in isolation, “but must be considered in the context of the instructions as a 16 whole and the trial record.” Estelle, 502 U.S. at 72. And jurors are presumed to follow 17 the instructions that they are given. Weeks v. Angelone, 528 U.S. 225, 234 (2000). 18 Even if instructional error is found, the court must apply harmless error. Calderon v. 19 Coleman, 525 U.S. 141, 146 (1998) (per curiam), citing Brecht v. Abrahamson, 507 U.S. 20 619, 637-38 (1993). The question is whether the instructional error “had a substantial 21 and injurious effect or influence in determining the jury’s verdict.” Id. 22 23 1 Hudson argued that the court erroneously gave the jury an instruction on 2 transferred intent. (ECF No. 5-1 at 19-20.) The court gave the jury the following 3 instruction: 4 Jury Instruction No. 29 (transferred intent)

5 During an attack upon a group, a defendant’s intent to kill need not be directed at any one individual. It is enough if the intent to kill is directed 6 at the group. The State is not required to prove that a Defendant intended to kill a specific person in the group. 7 (Exh. 52 at 33, ECF No. 19-2.) 8 The instruction is derived from Ewell v. State, 785 P.2d 1028 (Nev. 1989); 9 Hudson asserts that Ewell is distinguishable from the facts of his case because there 10 the defendant shot at a group of officers, while Hudson only went to the home with the 11 intent to burglarize the home and steal marijuana, not the intent to kill. (Id. at 20.) 12 The appellate court held that the transferred intent instruction correctly stated 13 Nevada law: 14 . . . . Hudson argues the district court erred in giving, over his 15 objection, jury instruction number 29 because the facts of his case are dissimilar to the facts of Ewell v. State,[FN4] from which the instruction is 16 derived. The State counters that Ewell stands for the proposition that the prosecution is not required to prove a defendant intended to kill a specific 17 member of a group when he fired at the group. The State argues that it is irrelevant whether the “group” in this case was comprised of Officers 18 Richardson and Grego-Smith in the doorway of Clarkson's home or of the officers in addition to Grimaldi and Clarkson. . . . 19 Here, like the jury instruction in Ewell, the jury instruction given by 20 the district court “merely inform[ed] the jury that the state did not have to prove that [Hudson] intended to kill a specific person in the group” that he 21 fired upon to be found guilty of attempted murder. See Ewell, 105 Nev. at 899, 785 P.2d at 1029. This accurately and fairly states Nevada law. Id. In 22 addition, Hudson admitted to firing the shotgun at the house. Furthermore, Clarkson testified that he was close enough to the back door to see the 23 bullets “fly across [his] living room.” The district court relied on this evidence in allowing the jury instruction. A “group” is defined as “a number 1 of individuals assembled together or having some unifying relationship.” See Group, Merriam-Webster's Collegiate Dictionary (11th ed. 2007). 2 Therefore, Hudson fired into a group of either the two police officers or the two police officers plus Grimaldi and Clarkson. As such, jury instruction 3 number 29 was correct under the law and the district court’s decision to give the instruction was not arbitrary or capricious and therefore did not 4 constitute an abuse of discretion. See Jackson, 117 Nev. at 120, 17 P.3d at 1000. 5 [FN4: 105 Nev. 897, 785 P.2d 1028 (Nev. 1989)] 6 (Exh. 90 at 10-11.) 7 Respondents argue that Jury Instruction Nos. 286 and 29, when read together, 8 instruct the jury about the legal doctrine of transferred intent. Hudson does not argue 9 that it incorrectly states the law on transferred intent. Instead, Hudson argues that the 10 court should not have given the jury the instruction because the facts of his case differ 11 from the facts in Ewell. (ECF No. 5-1 at 20.) But Hudson’s initial intent when he went to 12 the house is not the issue. The instructions instead explain that, once the intent to kill is 13 formed, the doctrine of transferred intent does not require the State to prove an intent to 14 kill a specific individual when shooting at a group. So Hudson’s challenge to the 15 transferred intent instruction lacks merit. 16 Hudson did not object to the next three jury instructions that he challenged on 17 direct appeal. The Nevada Supreme Court thus reviewed the instructions for plain error. 18 (Exh. 90 at 12.) First, Hudson challenged the flight instruction because he did not flee 19 20

21 6 Jury Instruction No. 28: 22 If you believe that at the time of the shooting in this case a defendant intended to kill any person, or to aid and abet his co-defendant with the deliberate intention to 23 unlawfully kill any person, it is of no legal consequence that he or his co- defendant mistakenly injured a different person. His intent to kill transfers to the person actually harmed. 1 the scene of the crime. (ECF No. 5-1 at 20-21.) He insists that the court should have 2 instructed the jury that the instruction only applied to Turner. The court instructed: 3 Jury Instruction No. 38 (flight) 4 The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his 5 guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of his guilt or innocence. The 6 essence of flight embodies the idea of deliberately going away with consciousness of guilt and for the purpose of avoiding apprehension or 7 prosecution. Whether or not evidence of flight shows a consciousness of guilt and the significance to be attached to such a circumstance are 8 matters for your deliberation.

9 (Exh. 52 at 42.) 10 The Nevada Court of Appeals held that because Hudson never left the scene, 11 the jury couldn’t have mistakenly applied the instruction to Hudson: 12 Hudson has not demonstrated there was any error because he never left the scene and therefore there was no “going away that could 13 have been misconstrued by the jury as flight to begin with. In other words, the district court’s flight instruction was inapplicable to Hudson altogether. 14 Hudson has cited no legal authority, nor has he cogently argued why it was plain error for the district court to give the flight instruction—which 15 applied to his codefendant—without a limiting instruction. In the absence of legal authority indicating otherwise, any error on the district court’s part 16 in giving the flight instruction was not clear under current law from a casual inspection of the record. 17 Nevertheless, even assuming arguendo that the district court 18 committed plain error by giving the flight instruction to the jury without a limiting instruction, Hudson has not demonstrated that any such error 19 affected his substantial rights. The testimony given at trial made clear that, rather than flee, Hudson remained at and was apprehended at the scene. 20 Turner, on the other hand, fled the scene and was only apprehended after a three-and-a-half-hour search. Hudson has not pointed to anything in the 21 record that might suggest the jury would mistakenly apply the flight instruction to him. Indeed, the jury could not have done so because there 22 was no “going away” on Hudson’s part that might have been misinterpreted as flight. Therefore, even if the district court had committed 23 plain error in giving a flight instruction that did not apply to Hudson, without 1 a limiting instruction, such error was neither prejudicial nor did it cause a “grossly unfair” outcome. See Jeremias, 134 Nev. at 51, 412 P.3d at 49. 2 (Exh. 90 at 13-14.) 3 Hudson is correct that the flight instruction clearly did not apply to him and only 4 applied to Turner. Trial testimony was clear that Hudson dropped his guns and laid 5 down on the ground, where he was arrested. Testimony also showed that officers 6 arrested Turner blocks away as he walked toward a friend’s house and that Turner 7 initially gave police a fake name. This Court agrees that there was no error, but any 8 error would be harmless. Hudson cannot show a reasonable likelihood that the jury 9 applied the instruction in a way that violated the Constitution. See Estelle, 502 U.S. at 10 72. 11 Finally, Hudson contends that instruction nos. 40 and 50 on reasonable doubt 12 and equal and exact justice were improper. (ECF No. 5-1 at 22.) His brief argument is 13 that the wording of the instructions minimized the State’s burden of proof and violated 14 his due process rights because the State is required to prove every element against a 15 defendant beyond a reasonable doubt. 16 The court instructed as follows: 17 Jury Instruction No. 40 (reasonable doubt) 18 The Defendant is presumed innocent unless the contrary is proved. 19 This presumption places upon the State the burden of proving beyond a reasonable doubt every element of the crime charged and that the 20 Defendant is the person who committed the offense.

21 A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more 22 weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can 23 say they feel an abiding conviction of the truth of the charge, there is not a 1 reasonable doubt. Doubt to be reasonable must be actual, not mere possibility or speculation. 2 If you have a reasonable doubt as to the guilt of the Defendant, he 3 is entitled to a verdict of not guilty.

4 (Exh. 52 at 44.) 5 The State counters that Hudson failed to support his allegations that the two 6 instructions violate due process violation whatsoever. (ECF No. 22 at 16-17.) 7 The Nevada Court of Appeals pointed out that the language of the reasonable 8 doubt instruction is prescribed by statute: 9 Here, the district court gave Nevada’s statutory reasonable doubt instruction as set forth and mandated by NRS 175.211. The instruction 10 explicitly stated Hudson was presumed innocent until proven guilty. Additionally, the jury instructions made clear that the State bore the 11 burden of proving Hudson guilty. The supreme court has upheld this precise reasonable doubt instruction on multiple occasions. See, e.g., 12 Belcher v. State, 136 Nev. 261, 276, 464 P.3d 1013, 1029 (2020) (“[W]e have repeatedly upheld the constitutionality of [the reasonable doubt] 13 instruction.”). Therefore, the district court did not err in giving the reasonable doubt jury instruction, plainly or otherwise. 14 (Exh. 52 at 14-15.) 15 The reasonable doubt instruction comes verbatim from NRS 175.211, which also 16 prohibits any other definition of reasonable doubt from being presented to a jury. NRS 17 175.211(2). See Belcher, 464 P.3d at 1029; see also Ramirez v. Hatcher, 136 F.3d 18 1209, 1211-15 (9th Cir. 1998) (concluding that Nevada’s reasonable-doubt instruction is 19 constitutional). Hudson’s claim is wholly unsupported and also lacks merit. 20 The court also instructed the jury: 21 Jury Instruction No. 50 (equal and exact justice) 22 Now you will listen to the arguments of counsel who will endeavor 23 to aid you to reach a proper verdict by refreshing in your minds the evidence and by showing the application thereof to the law; but, whatever 1 counsel may say, you will bear in mind that it is your duty to be governed in your deliberation by the evidence as you understand it and remember it 2 to be and by the law as given to you in these instructions, with the sole, fixed and steadfast purpose of doing equal and exact justice between the 3 Defendant and the State of Nevada.

4 (Exh. 52 at 54.) 5 The Court of Appeals disagreed that the instruction was improper: 6 Finally, Hudson argues the district court’s “equal and exact justice” instruction improperly minimized the prosecution’s burden of proof. The 7 State counters that the district court’s “equal and exact justice” instruction did not deal with the presumption of innocence at all. It further argues that 8 the jury instructions explaining the presumption of innocence correctly stated Nevada law. 9 Here, the district court gave a jury instruction specifically stating 10 Hudson was presumed innocent unless proven guilty. It also gave multiple instructions making clear that the jury was required to find Hudson guilty 11 beyond a reasonable doubt. The jury instructions also made clear that the State bore the burden of proving Hudson guilty. The supreme court has 12 upheld this “equal and exact justice” instruction on multiple occasions. See, e.g., Belcher, 136 Nev. at 276, 464 P.3d at 1029 (“This court has 13 upheld the language used in the . . . equal and exact justice instruction.” (internal citations omitted)). Therefore, the district court did not err in 14 giving the equal and exact justice jury instruction, plainly or otherwise.

15 (Exh. 90 at 15-16.) 16 The state courts have found this jury instruction does not concern presumption of 17 innocence or burden of proof. Belcher, 464 P.3d at 1029 citing Leonard v State, 114 18 Nev. 1196, 1209, 969 P.2d 288, 296 (1998). The jury was also instructed on 19 reasonable doubt and the presumption of innocence. While the phrase “equal and 20 exact justice” does appear to be unusual, Hudson has not shown that the instruction 21 conflicts with clearly established federal law. Hudson’s claim is unsupported and 22 therefore lacks merit. 23 1 Hudson has not shown that the Nevada Court of Appeals’ decision that the four 2 jury instructions accurately stated the law and were properly given was contrary to, or 3 involved an unreasonable application of, clearly established U.S. Supreme Court law, or 4 was based on an unreasonable determination of the facts in light of the evidence

5 presented in the state court proceeding. 28 U.S.C. § 2254(d). The Court, therefore, 6 denies habeas relief on ground 3. 7 Ground 4 8 Hudson claims that the district court erred by allowing uniformed police officers to 9 attend closing arguments. (ECF No. 5-1 at 22-23.) He argues that officers in full 10 uniform would have intimidated the jury and affected their impartiality, rendering the 11 proceedings fundamentally unfair. 12 Right before closing arguments, counsel for Turner stated that it was his 13 understanding that a lot of law enforcement were going to attend closing arguments. 14 (ECF No. 50 at 40-42.) Defense counsel acknowledged that it was an open, public

15 courtroom but argued that “the idea that numerous, numerous officers are going to 16 come into this gallery and stare at this jury immediately before a case involving an . . . 17 officer that was shot goes to the jury is extremely prejudicial.” (Id. at 40.) Counsel for 18 Hudson joined in the objection, stating that it was a “huge intimidation factor.” (Id. at 42.) 19 The court noted that the courtroom is a public forum, and that the proceedings must be 20 transparent, and allowed the officers to attend. 21 The State points out that Hudson fails to even allege how many officers in full 22 uniform attended closing arguments. (ECF No. 22 at 17.) They argue that he doesn’t 23 1 allege, and the record doesn’t show, any actions or intimidation by officers to intimidate 2 jurors. 3 The Nevada Court of Appeals addressed this claim in a footnote: 4 Hudson argues the district court erred by allowing “several” armed, uniformed officers to “pack” the courtroom during closing arguments. 5 However, “the mere presence of officers in the courtroom does not demonstrate prejudice.” Turner v. State, 136 Nev. 545, 549 n.3, 473 P.3d 6 438, 444 n.3 (2020). Apart from Hudson’s brief objection to the officers’ presence below there is nothing else to suggest the number of officers 7 present nor that their presence had any impact on the proceedings. Therefore, the record is insufficient to determine the officers’ presence 8 deprived Hudson of a fair trial. See Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997) (“We cannot properly consider matters not 9 appearing in [the] record.”).

10 (Exh. 90 at 20, n.9.) 11 While the defense objected before closing arguments, there is simply nothing in 12 the record to indicate how many officers were actually in the courtroom for closing 13 arguments. And there is nothing to indicate any action or inaction by any officers or any 14 impact of their presence on the jury. Hudson cannot demonstrate that the Nevada 15 Court of Appeals’ refusal to consider the claim because the record was insufficient was 16 contrary to, or involved an unreasonable application of, clearly established U.S. 17 Supreme Court law, or was based on an unreasonable determination of the facts in light 18 of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Habeas 19 relief is denied as to ground 4. 20 Ground 6 21 Hudson argues that the district court abused its discretion by failing to find that 22 his trial counsel was ineffective for failing to object to the jury instruction regarding flight. 23 (ECF No. 5.) The State counters that Hudson failed to show he suffered prejudice 1 because the court issued the flight instruction without an instruction limiting it to Turner. 2 (ECF No. 22 at 21.) So they argue that this claim that counsel was ineffective 3 necessarily fails. 4 Ineffective assistance of counsel (“IAC”) claims are governed by the two-part test

5 announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the 6 Supreme Court held that a petitioner claiming ineffective assistance of counsel has the 7 burden of demonstrating that (1) the attorney made errors so serious that he or she was 8 not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the 9 deficient performance prejudiced the defense. Williams, 529 U.S. at 390-91 (citing 10 Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show 11 that counsel’s representation fell below an objective standard of reasonableness. Id. To 12 establish prejudice, the defendant must show that there is a reasonable probability that, 13 but for counsel’s unprofessional errors, the result of the proceeding would have been 14 different. Id. A reasonable probability is “probability sufficient to undermine confidence

15 in the outcome.” Id. Additionally, any review of the attorney’s performance must be 16 “highly deferential” and must adopt counsel’s perspective at the time of the challenged 17 conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 U.S. at 689. 18 It is the petitioner’s burden to overcome the presumption that counsel’s actions might be 19 considered sound trial strategy. Id. 20 Ineffective assistance of counsel under Strickland requires a showing of deficient 21 performance of counsel resulting in prejudice, “with performance being measured 22 against an objective standard of reasonableness, . . . under prevailing professional 23 norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations 1 omitted). When the ineffective assistance of counsel claim is based on a challenge to a 2 guilty plea, the Strickland prejudice prong requires a petitioner to demonstrate “that 3 there is a reasonable probability that, but for counsel’s errors, he would not have 4 pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

5 59 (1985). 6 If the state court has already rejected an ineffective assistance claim, a federal 7 habeas court may only grant relief if that decision was contrary to, or an unreasonable 8 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). 9 There is a strong presumption that counsel’s conduct falls within the wide range of 10 reasonable professional assistance. Id. 11 The United States Supreme Court has described federal review of a state supreme 12 court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.” 13 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). 14 The Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s

15 performance . . . through the ‘deferential lens of § 2254(d).’” Id. (internal citations 16 omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim 17 is limited to the record before the state court that adjudicated the claim on the merits. 18 Cullen, 563 U.S. at 181-84. The United States Supreme Court has specifically 19 reaffirmed the extensive deference owed to a state court's decision regarding claims of 20 ineffective assistance of counsel: 21 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards 22 created by Strickland and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review 23 is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at 124. Federal habeas courts must guard against the danger of 1 equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is 2 any reasonable argument that counsel satisfied Strickland's deferential standard.

3 Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of 4 counsel must apply a ‘strong presumption’ that counsel’s representation was within the 5 ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 6 U.S. at 689). “The question is whether an attorney’s representation amounted to 7 incompetence under prevailing professional norms, not whether it deviated from best 8 practices or most common custom.” Id. (internal quotations and citations omitted). 9 Here, the Nevada Court of Appeals held that, even assuming arguendo that giving 10 the flight instruction without a limiting instruction was error, 11 Hudson has failed to demonstrate that the error affected his substantial rights. He has likewise failed to demonstrate that any failure to object to 12 the instruction prejudiced him for purposes of his ineffective assistance of counsel claim. See [Strickland v. Washington, 466 U.S. 668, 705]. Hudson 13 has not pointed to anything in the record that might suggest the jury mistakenly applied the flight instruction to him, and the jury could not have 14 done so because there was no “going away” on Hudson’s part that might have been misinterpreted as flight. As such, Hudson has not 15 demonstrated “there is a reasonable probability that the verdict would have been different” but for counsel’s failure to object to the flight 16 instruction. Id. We need only determine that Hudson has failed as to at least one of the prongs of his ineffective assistance of counsel claim to 17 dispose of it. Id. Because Hudson has failed to demonstrate prejudice, we cannot conclude that the district court abused its discretion in finding that 18 Hudson had not received ineffective assistance of counsel based on his counsel’s failure to object to the flight instruction. 19

(Exh. 90 at 21-22.) 20 Hudson has not demonstrated that any error in not limiting the flight instruction to 21 Turner violated due process. His argument that he was prejudiced by his counsel failing 22 to object to the omission when the instruction very clearly did not apply to him belies 23 common sense. Hudson has not shown that the Nevada Court of Appeals’ decision on 1 federal ground 6 was contrary to, or involved an unreasonable application of, Strickland, 2 or was based on an unreasonable determination of the facts in light of the evidence 3 presented in the state court proceeding. 28 U.S.C. § 2254(d). The Court denies habeas 4 relief on ground 6.

5 Ground 5 6 Hudson contends that cumulative error in trial proceedings violated his 7 constitutional rights. The Ninth Circuit has held that the combined effect of multiple trial 8 court errors violates due process where it renders the resulting criminal trial 9 fundamentally unfair. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007), citing 10 Chambers v. Mississippi, 410 U.S. 284, 298 (1973). The cumulative effect of multiple 11 errors can violate due process even where no single error rises to the level of a 12 constitutional violation or would independently warrant reversal. Chambers, 410 U.S. at 13 290 n.3. The fundamental question in determining whether the combined effect of trial 14 errors violated a defendant’s due process rights is whether the errors rendered the

15 criminal defense “far less persuasive,” and thereby had a “substantial and injurious 16 effect or influence” on the jury’s verdict. Parle, 505 F.3d at 928 (citing Chambers, 410 17 U.S. at 294); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 18 The Nevada Court of Appeals held that the two instances of prosecutorial 19 misconduct did not warrant reversal of Hudson’s conviction: 20 Even if every error below fails to provide grounds for reversal alone, the cumulative effect of those errors may provide such grounds. 21 Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). When reviewing a cumulative error claim, this court looks to three factors: “(1) 22 whether the issue of guilt is close, (2) the quantity and character of the error, and (3) the gravity of the crime charged.” Mulder v. State, 116 Nev. 23 1, 17, 992 P.2d 845, 854-55 (2000). Here, as to the first Mulder factor, the prosecution presented substantial evidence of Hudson’s guilt including his DNA on the shotgun, and his own confession to having gone to Clarkson’s 1 house to steal marijuana and to shooting the shotgun at the house. We also note Hudson was charged under alternative theories of liability 2 including aiding or abetting Turner and conspiring with Turner. As to the second factor, two errors occurred during Hudson’s trial. Each was an 3 incident of prosecutorial misconduct. Although troubling, these two instances of misconduct were brief comments made near the end of a ten- 4 day trial, and they do not warrant the reversal of Hudson’s conviction considering the strong evidence that otherwise implicated him, even 5 considering the gravity of the crimes of which he was convicted, under the third Mulder factor. Therefore, we decline to reverse Hudson’s conviction 6 based on the two instances of prosecutorial misconduct.

7 (Exh. 90 at 19-20.) 8 Considering the extensive evidence presented, including Hudson’s statements 9 that he went to the house to steal marijuana and that he fired the shotgun, and that his 10 DNA was on the shotgun, the Court of Appeals reasonably concluded that two brief 11 instances of prosecutorial misconduct during closing arguments, even assessed 12 cumulatively, did not warrant reversal of his conviction. This Court agrees Hudson has 13 not shown that the Nevada Court of Appeals’ decision on federal ground 5 was contrary 14 to, or involved an unreasonable application of, clearly established U.S. Supreme Court 15 law, or was based on an unreasonable determination of the facts in light of the evidence 16 presented in the state court proceeding. 28 U.S.C. § 2254(d). The Court denies habeas 17 relief on ground 5. 18 The Petition, therefore, is denied in its entirety. 19 IV. Certificate of Appealability 20 21 This is a final order adverse to the Petitioner. As such, Rule 11 of the Rules 22 Governing Section 2254 Cases requires this Court to issue or deny a Certificate of 23 Appealability (COA). Accordingly, the court has sua sponte evaluated the claims within the Petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 2|| Calderon, 281 F.3d 851, 864-65 (9" Cir. 2002). 3 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” With respect to 5|| claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists 6|| would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable 9|| jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. /d. 11 Having reviewed its determinations and rulings in adjudicating Hudson’s petition, the court finds that none of those rulings meets the S/ack standard. The Court therefore declines to issue a certificate of appealability for its resolution of Hudson’s Petition. V. Conclusion is therefore ordered that the Petition (ECF No. 5) is DENIED. 16 It is further ordered that a Certificate of Appealability will not issue. 7 The Clerk of the Court is directed to:

13 e Substitute Ronald Oliver for Respondent William Hutchings; and e Enter judgment accordingly and close this case. 19 20 DATED: 24 June 2025. 21 ‘yy Yf

23 UNITED/STATES DISTRICT JUDGE