Jefferson v. The State of Nevada

• Court: District Court, D. Nevada
• Decided: August 8, 2022
• Docket: 3:18-cv-00064
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 BRANDON M. JEFFERSON, Case No. 3:18-cv-00064-HDM-CLB

6 Petitioner, v. ORDER 7 PERRY RUSSELL,1 et al., 8 Respondents. 9 10 Petitioner, Brandon M. Jefferson (“Jefferson”) filed a pro 11 se amended petition under 28 U.S.C. § 2254. (ECF No. 47.) The 12 respondents have answered (ECF No. 57) and Jefferson has replied 13 (ECF Nos. 58 and 63). 14 In 2012, a jury convicted Jefferson of three counts of 15 sexual assault and one count of lewdness involving his five- 16 year-old daughter, and he was sentenced to imprisonment for 17 seventy years to life. (Exhibit 65 and ECF No. 18–24.) 18 Jefferson’s amended petition asserts five grounds for relief, 19 one of which was previously dismissed as procedurally defaulted. 20 Two of the remaining claims – Grounds Three and Four – are 21 before the Court for review as to whether Jefferson can 22 establish cause and prejudice for their procedural default – and 23 the other two claims are before the court for merits review. For 24 the reasons discussed below, the petition will be denied. 25 1 According to the state corrections department’s inmate locator page, 26 Jefferson is incarcerated at Lovelock Correctional Center. The department’s website reflects Tim Garrett is the warden for that facility. 27 https://ofdsearch.doc.nv.gov/form.php. The Court will therefore direct the clerk to substitute Tim Garrett for respondent Perry Russell, under, inter 28 alia 1 Background2 2 At trial, Cindy Lamug testified she and Jefferson were 3 previously married and had a son, B.L., and daughter, C.J.3 4 (Exhibit 56 and ECF No. 62-5 at 12–14, 22.) She said that during 5 the summer of 2010, she worked from 4:00 p.m. to 10:00 p.m. 6 while Jefferson watched the children. (Id. at 14–16, 22.) 7 C.J. testified when she was seven years old that when she 8 was five years old, her father, Jefferson, stuck his penis 9 (“tee-tee”) in her vagina, butt, and mouth. (Exhibit 55 and ECF 10 No. 62-4 at 41–45, 49–67.) She said it occurred more than one 11 time in her parents’ bedroom while her mother was at work, and 12 on one occasion he stuck his penis in her vagina and mouth while 13 they were in C.J.’s bedroom. (Id. at 49–70.) She said she cried 14 on one occasion in her parents’ bedroom. (Id. at 66–67.) C.J. 15 said “green” pee came out of her father’s penis into her mouth, 16 and he told her to swallow it; but she pretended to do so and 17 spit it out in the toilet. (Id. at 70–71.) She said her father 18 told her not to tell anyone about their activities. (Id. at 61– 19 62.) 20 B.L. testified when he was ten years old that on more than 21 one occasion, while his mother was at work, Jefferson took his 22 sister C.J. into his parents’ bedroom, and on one occasion, he 23 heard C.J. crying from the bedroom. (Id.) He said C.J. came out 24

25 2 The Court summarizes the relevant state court record for consideration of the issues in the case. The Court makes no credibility findings or other 26 factual findings regarding the truth or falsity of evidence or statements of fact in the state court. 27 3 Pursuant to LR IA 6-1(a), the minor witnesses are referred to by their 28 1 of the bedroom looking like she was “hiding something” and on a 2 “few” occasions, he asked her what happened, and she said he did 3 not need to know. (Id. at 94–95.) B.L. never saw what happened 4 with his father and C.J. while they were in the bedroom. (Id. at 5 137.) He said his father would take his sister to the bedroom 6 “at least like every day my mother goes to work.” (Id. at 124– 7 25.) 8 Lamug testified that on September 14, 2010, she picked up 9 the children at school and told the children Jefferson was 10 “really being mean” and did not go to work that day. (Exhibit 56 11 and ECF No. 62-5 at 28–29.) She explained that Jefferson left 12 the apartment and that she tried, without success, to locate him 13 so she could drive him to work. (Id.) She said she told the 14 children that if Jefferson did not return, she was going to 15 leave him, and since it would just be the three of them, they 16 had to work together, could have “no secrets,” and that they 17 “did a pinky swear.” (Id. at 29–30.) On cross-examination, Lamug 18 testified that when she told the children she was leaving the 19 marriage, she had determined she was going to keep custody of 20 their children. (Id. at 44.) C.J. testified that her parents 21 fought a lot, her mother told her that her father did not treat 22 her mother well, her mother told her she had to be on her 23 mother’s team and needed to tell her all the secrets, and they 24 made a pinky-promise. (Exhibit 55 and ECF No. 62-4 at 76–77.) 25 B.L. also testified their parents fought a lot, and their mother 26 said their father was gone and asked C.J. and B.L. to be on 27 their mother’s team. (Id. at 113–15.) 28 Shortly after Lamug made these comments, C.J. said, 1 “[M]ommy, I have a secret to tell you.” She told her mother that 2 her dad “makes [her] suck his tee-tee” and told her not to tell 3 anyone. (Exhibit 56 and ECF No. 62-5 at 31.) B.L. testified he 4 overheard C.J. tell their mother that Jefferson “made her suck 5 his penis” and explained that C.J. used the Tagalog word, “tee- 6 tee,” which means penis. (Exhibit 55 and ECF No. 62-4 at 97– 7 100.) Lamug testified she asked C.J. when it happened and C.J. 8 told her that it happened while Lamug was at work at night. 9 (Exhibit 56 and ECF No. 62-5 at 31–32.) Lamug said C.J. told her 10 that Jefferson pulls down her pants and puts his “tee-tee” “down 11 there” and C.J. pointed at her private. (Id. at 32–33.) B.L. 12 said his mother “seemed sort of shocked” and immediately called 13 the police, and that they went to hospital that night. (Exhibit 14 55 and ECF No. 62-4 at 100–01.) 15 According to Detective Todd Katowich with the Las Vegas 16 Metropolitan Police Department (“Metro”), he and Detective 17 Matthew Demas conducted individual interviews with C.J., B.L., 18 and Lamug. Then they arrested Jefferson and took him to the 19 detective bureau where they handcuffed him and questioned him 20 following Miranda warnings. (Exhibit 56 and ECF No. 62-5 at 77– 21 81, 83–86, 88–89.) The compact disc recording of Jefferson’s 22 statement to police was admitted into evidence and played for 23 the jury at trial. (Exhibit 1 and ECF No. 62-1 at 56; Exhibit 57 24 and ECF No. 18-16 at 54–57.) 25 Detectives Katovich and Demas each testified that Jefferson 26 initially denied inappropriate contact with C.J. (Exhibit 56 and 27 ECF No. 62-5 at 100–01, 123; Exhibit 57 and ECF No. 18-16 at 28 86.) However, according to Detective Katovich, about “25 1 minutes” into the interview, Jefferson admitted “his penis had 2 gone in his daughter’s mouth on at least one occasion, and 3 possibly as many as three occasions,” “that she had touched his 4 penis with her hand on at least one occasion, but possibly as 5 many as three occasions,” and that “she had climbed on top of 6 him and rubbed her vagina against his penis.” (Exhibit 56 and 7 ECF No. 62-5 at 99–100.) Katowich said Jefferson described 8 having “pre-cum,” but denied penetrating his daughter’s vagina 9 or anus or having a full orgasm with her. (Id. at 100–01.) 10 The defense, for its part, introduced expert testimony 11 regarding the relationship between the interview techniques the 12 detectives used to interview Jefferson and the occurrences of 13 false confessions. (Exhibit 57 and ECF No. 18-16 at 130 et seq.) 14 Pediatric emergency room physician, Theresa Vergara, 15 testified she conducted a “suspected child abuse and neglect” 16 (SCAN) examination for C.J. at Sunrise Children’s Hospital. 17 (Exhibit 55 and ECF No. 62-4 at 3–4, 13.) A rape kit examination 18 was not conducted because the abuse allegedly occurred more than 19 a few hours before the examination. (Id. at 14.) Vergara said 20 C.J. denied pain or burning when urinating and did not have a 21 urinary tract infection. (Id. at 26–27.) She testified C.J.’s 22 examination produced “normal” results as she found “no bruises 23 or redness,” “no active bleeding or localized redness,” and the 24 “rectum looked normal”; however, she did find a “hymenal mound.” 25 (Id. at 16–17, 25–26, 37.) She likened the mound to a callous on 26 a finger from writing with a pen, and said, although repeated 27 pressure to the hymen could cause the mound, it could also be 28 C.J.’s “normal anatomy.” (Id. at 18–20, 39, 41.) She agreed it 1 is sometimes possible to detect sustained long-term abuse, but 2 she found nothing concrete on C.J except the nonspecific hymenal 3 mound. (Id. at 33–34, 37, 40.) She said an examination will 4 often produce normal results where the abuse is disclosed days 5 or weeks afterward and is normal in most cases where the 6 perpetrator confesses to sexually abusing a child. (Id. at 15, 7 24–25.) 8 Metro Forensic scientist Julie Marschner testified she 9 conducted a DNA comparison analysis for the bedding taken from 10 Jefferson’s bedroom. (Exhibit 56 and ECF No. 62-5 at 47, 54–58, 11 70.) Marschner discovered semen that contained sperm cells 12 consistent with Jefferson’s DNA on a brown comforter and sheet, 13 and a non-sperm DNA mixture (DNA from more than one person) for 14 which Jefferson and Lamug could not be excluded as contributors, 15 but for which C.J. was excluded as a contributor. (Id. at 60–61, 16 63, 66–67, 76–77.) Marschner discovered no semen on a white 17 sheet and pink blanket taken from C.J.’s bed. (Id. at 67–69; 18 76.) 19 On or about December 31, 2010, Jefferson sent Lamug a 20 letter, part of which she read to the jury during her testimony. 21 It stated: 22 I want the truth about us. For now, I’d like to correct some statements about me that surfaced last 23 September. First, the whole thing was not my idea. I did not plan it. It happened, and I went along with 24 it. That may sound like a funny way of describing it with a so-called confession, obtained only after my 25 arresting officer coerced my innocent wife and daughter in an elaboration of acts beyond my character 26 or physical capabilities. 27 (Id. at 36–39.) 28 1 Standard 2 Under the Antiterrorism and Effective Death Penalty Act of 3 1996 (AEDPA), a federal court may not grant a petition for a 4 writ of habeas corpus on any claim that was adjudicated on the 5 merits in state court unless the state court decision was 6 contrary to, or involved an unreasonable application of, clearly 7 established federal law as determined by United States Supreme 8 Court precedent, or was based on an unreasonable determination 9 of the facts in light of the evidence presented in the state- 10 court proceeding. 28 U.S.C. § 2254(d). 11 A state court’s decision is contrary to clearly established 12 Supreme Court precedent, within the meaning of 28 U.S.C. 13 § 2254(d)(1), “if the state court applies a rule that 14 contradicts the governing law set forth in [the Supreme Court’s] 15 cases” or “if the state court confronts a set of facts that are 16 materially indistinguishable from a decision of [the Supreme] 17 Court and nevertheless arrives at a result different from 18 [Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 19 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000), 20 and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 21 court’s decision is an unreasonable application of clearly 22 established Supreme Court precedent within the meaning of 28 23 U.S.C. § 2254(d)(1) “if the state court identifies the correct 24 governing legal principle from [the Supreme] Court’s decisions 25 but unreasonably applies that principle to the facts of the 26 prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). 27 “The ‘unreasonable application’ clause requires the state court 28 decision to be more than incorrect or erroneous . . . [rather] 1 [t]he state court’s application of clearly established law must 2 be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 3 409–10, 412) (internal citation omitted). 4 The Supreme Court has instructed that “[a] state court’s 5 determination that a claim lacks merit precludes federal habeas 6 relief so long as ‘fairminded jurists could disagree’ on the 7 correctness of the state court’s decision.” Harrington v. 8 Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 9 541 U.S. 652, 664 (2004)). “[E]ven a strong case for relief does 10 not mean the state court’s contrary conclusion was 11 unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see 12 also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 13 the standard as “a difficult-to-meet” and “highly deferential 14 standard for evaluating state-court rulings, which demands 15 state-court decisions be given the benefit of the doubt.”) 16 (internal quotation marks and citations omitted)). Petitioner 17 carries the burden of proof. Pinholster, 563 U.S. at 181. 18 Where there is no clearly established federal law, i.e., no 19 holding from the Supreme Court, stating a particular standard or 20 rule at the time of the state court’s decision, then, by 21 definition, a petitioner cannot establish under AEDPA that the 22 state court’s decision was either contrary to or an unreasonable 23 application of clearly established federal law. See, e.g., Carey 24 v. Musladin, 549 U.S. 70, 76–77 (2006); see also Williams, 529 25 U.S. at 390, 412 (Interpreting “[t]he meaning of the phrase 26 ‘clearly established Federal law, as determined by the Supreme 27 Court of the United States’” contained in 28 U.S.C. § 2254(d)(1) 28 as referring to “the holdings, as opposed to the dicta, of the 1 [Supreme] Court’s decisions as of the time of the time of the 2 relevant state-court decision.”). A state court need not cite 3 Supreme Court cases nor even be aware of Supreme Court cases so 4 long as neither the reasoning nor the result of the state-court 5 decision contradicts them. Early v. Packer, 537 U.S. 3, 8, 6 (2003). 7 Under AEDPA, to conclude that a state court factual finding 8 is an unreasonable factual finding, the reviewing court “must be 9 convinced that an appellate panel, applying the normal standards 10 of appellate review, could not reasonably conclude that the 11 finding is supported by the record.” Taylor v. Maddox, 366 F.3d 12 992, 1000 (9th Cir. 2004). 13 Discussion 14 A. Ground 2 15 In ground 2, Jefferson alleges a violation of his right to 16 conflict-free counsel under the Sixth and Fourteenth Amendments 17 because a pretrial complaint to the state bar about one of his 18 attorneys created a per se conflict of interest for which he 19 need not demonstrate prejudice. (ECF No. 47 at 5.) 20 In October 2011, Jefferson sent the State Bar of Nevada a 21 letter in which he claimed his public defender, Bryan Cox, 22 “‘lightly’ verbally abuses [him] or ignores [his] outlook” and 23 told him, “People like you belong in hell not prison.” (Exhibit 24 105 and ECF No. 19-29 at 21–22.) Jefferson wrote that Cox’s 25 alleged comment “hurt,” and he did not know if Cox “meant that 26 because of the nature of [the] crime or simply because of 27 [Jefferson’s] African American heritage.” (Id. at 22.) 28 On October 19, 2011, Jefferson filed a pro se motion 1 asserting several complaints about Cox. (Exhibit 35 and ECF No. 2 17-35 at 3–4.) The motion did not mention the complaint to the 3 state bar, or the negative comment ascribed to counsel in that 4 complaint. (Id. at 1–8.) 5 On November 1, 2011, the state district court held a 6 hearing on the motion to dismiss. (Exhibit 36 and ECF No. 17-36 7 at 2–3.) At the outset of the hearing, Cox informed the state 8 district court he wanted “what’s best for my client.” (Id.) 9 Jefferson told the court he asked Cox “to do some things for 10 [him] and he . . . hasn’t come through,” that he did not have 11 his “full discovery yet,” and based on things counsel said to 12 him, he did not “feel comfortable” with him. (Id. at 3–4.) 13 Jefferson explained that despite his requests, Cox failed to 14 subpoena his employment records, call his family, or provide him 15 discovery. (Id. at 4.) Defense counsel explained “there’s been 16 lots of visits” during which Jefferson could view discovery, but 17 counsel was hesitant to leave him with copies as “nothing in the 18 jail is private” and doing so might create a conflict with other 19 inmates. (Id. at 4–6.) Counsel did not see Jefferson’s 20 employment records as “key” support for an alibi defense because 21 no specific time was alleged for the offenses. (Id. at 6–7.) The 22 state district court concluded the relief sought was unwarranted 23 and denied the motion. (Id. at 7.) 24 Two days later, the state bar advised Jefferson that his 25 grievance was sent to Cox with directions to respond in writing. 26 (Exhibit 99 and ECF No. 19-23 at 83.) The letter informed 27 Jefferson that the state bar’s function was “to determine 28 whether an attorney has violated the Rules of Professional 1 Conduct” and it could not “alter or affect in any way the 2 outcome of private legal matters in court.” (Id.) 3 Jefferson wrote letters dated March 28, 2012, and May 22, 4 2012, to Mr. Kohn at the Public Defender Office’s sexual assault 5 unit, complaining that Cox was not developing evidence to prove 6 his innocence, was not prepared for trial, was prejudiced 7 against him and “these types of cases,” and believed Jefferson 8 belonged in prison. (Id. at 74–75.) 9 On postconviction review, the state courts rejected 10 Jefferson’s claim that the filing of his state bar complaint 11 created a conflict of interest that prejudiced his trial. After 12 extensive legal and factual analysis, and discussions of cases 13 from various jurisdictions, the Court of Appeals held that the 14 filing of a bar complaint on its own did not create a 15 presumption of prejudice and that Jefferson had not otherwise 16 alleged any other actual conflict of interest resulting from the 17 filing of the complaint to support a finding of a Sixth 18 Amendment violation. The Court of Appeals explained in relevant 19 part: 20 Below, Jefferson did not assert that his counsel did anything in response to the filing of the bar 21 complaint that would independently entitle Jefferson to relief. Nor did Jefferson contend that his bar 22 complaint led to the imposition of any discipline upon his attorney that rendered his counsel ineffective. 23 Consequently, Jefferson’s contention was not that the complaint happened to trigger a chain of events that 24 ended up producing an irreconcilable conflict between him and his attorney, but rather that the filing of 25 the complaint, by itself; created an actual conflict without anything more happening. 26 Thus, Jefferson would have been entitled to 27 relief only if, as a matter of law, the mere filing of his bar complaint created a per se conflict of 28 interest rising to the level of a violation of the 1 … 2 We agree with the weight of authority and hold 3 that, as a matter of law, the mere filing of a bar complaint by a defendant against his attorney does not 4 create a per se conflict of interest rising to the level of a violation of the Sixth Amendment. The 5 filing of a bar complaint ought not become a routine method of forcing a change in appointed counsel after 6 a district court motion has failed, or of obtaining postconviction relief on manufactured or hypothetical 7 premises, when no actual conflict of interest otherwise existed. 8 9 (Exhibit 127 and ECF No. 20-16 at 2–10.) The state courts’ 10 determination was neither contrary to nor an unreasonable 11 application of Supreme Court authority and does not constitute 12 an unreasonable determination of the facts. 13 To establish ineffective assistance of counsel, the 14 petitioner must demonstrate (1) the attorney’s “representation 15 fell below an objective standard of reasonableness”; and (2) the 16 attorney’s deficient performance prejudiced the petitioner such 17 that “there is a reasonable probability that, but for counsel’s 18 unprofessional errors, the result of the proceeding would have 19 been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 20 694 (1984). “A reasonable probability is a probability 21 sufficient to undermine confidence in the outcome.” Id. at 694. 22 “Establishing that a state court’s application of 23 Strickland was unreasonable under § 2254(d) is all the more 24 difficult” because “[t]he standards created by Strickland and § 25 2254(d) are both ‘highly deferential,’” and when applied in 26 tandem, “review is ‘doubly so.’” See Richter, 562 U.S at 105 27 (internal citations omitted); see also Cheney v. Washington, 614 28 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a 1 state court’s Strickland determination under AEDPA, both AEDPA 2 and Strickland’s deferential standards apply; hence, the Supreme 3 Court’s description of the standard as ‘doubly deferential.’”) 4 (citing Yarborough v. Gentry, 540 U.S. 1, 6 (2003)). 5 The right to counsel includes the right to assistance by a 6 conflict-free attorney. Wood v. Georgia, 450 U.S. 261, 271 7 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980) 8 and Holloway v. Arkansas, 435 U.S. 475, 481 (1978)). “[T]he 9 possibility of conflict is insufficient to impugn a criminal 10 conviction. In order to demonstrate a violation of his Sixth 11 Amendment rights, a defendant must establish that an actual 12 conflict of interest adversely affected his lawyer’s 13 performance.” Sullivan, 446 U.S. at 350. 14 Prejudice may be presumed in a case where a “defendant 15 shows that his counsel actively represented conflicting 16 interests.” Id. at 166, 175 (quoting Sullivan, 446 U.S. at 350 17 (emphasis added)). There is no clearly established Supreme Court 18 precedent applying this presumption outside the context of joint 19 representation. Id. at 174–76. 20 To show an actual “conflict that affected counsel's 21 performance—as opposed to a mere theoretical division of 22 loyalties,” Id. at 171 (emphasis in original), a petitioner 23 “must demonstrate some plausible alternative defense strategy or 24 tactic might have been pursued but was not and the alternative 25 defense was inherently in conflict with or not undertaken due to 26 the attorney’s other loyalties or interests.” See Foote v. Del 27 Papa, 492 F.3d 1026, 1029–30 (9th Cir. 2007) (quoting Hovey v. 28 Ayers, 458 F.3d 892, 908 (9th Cir. 2006) (quotations 1 omitted)); see also McClure v. Thompson, 323 F.3d 1233, 1248 2 (9th Cir. 2003). 3 With respect to a breakdown in the attorney-client 4 relationship, the Supreme Court has made it clear that the Sixth 5 Amendment guarantee of counsel does not guarantee a meaningful 6 attorney-client relationship. See Morris v. Slappy, 461 U.S. 1, 7 14 (1983). The Ninth Circuit has compared a legal conflict of 8 interest, i.e., an incompatibility between a lawyer’s own 9 private interest and those of the client, with a “conflict” in 10 the sense that word is used in “common parlance” to describe a 11 personality conflict. Plumlee v. Masto, 512 F.3d 1204, 1211 (9th 12 Cir. 2008). As the Ninth Circuit explained: 13 [W]e are not aware of any [Supreme Court case] that stands for the proposition that the Sixth Amendment is 14 violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom 15 the defendant refuses to cooperate because of dislike or distrust. Indeed, Morris v. Slappy is to the 16 contrary.

17 Id. 18 The state courts here reasonably concluded that a 19 defendant’s filing of a bar complaint against counsel during his 20 criminal proceedings does not create a per se conflict of 21 interest. Indeed, there is no clearly established Supreme Court 22 authority holding as much. See Mickens, 535 U.S. at 168 23 (“Holloway ... creates an automatic reversal rule only where 24 defense counsel is forced to represent codefendants over his 25 timely objection, unless the trial court has determined that 26 there is no conflict.”); Brown v. Asuncion, 2019 WL 4509207, at 27 *19 (C.D. Cal. Apr. 12, 2019), report and recommendation 28 adopted, 2019 WL 7037768 (C.D. Cal. Dec. 19, 2019) (“[T]here is 1 no authority—let alone clearly established Supreme Court 2 authority—supporting the proposition that a conflict of interest 3 arises whenever a criminal defendant files a state bar complaint 4 against his trial counsel. On the contrary, courts routinely 5 reject that argument.”) (citing Grady v. Biter, 2014 WL 6 12684213, at *42 (S.D. Cal. Dec. 16, 2014) (“The trial judge’s 7 finding that Petitioner failed to show an actual conflict with 8 counsel by simply writing a letter to the state bar association 9 complaining about his trial counsel was correct, because 10 Petitioner failed to demonstrate any adverse effect on his 11 representation by the alleged conflict.”) and Harris v. Adams, 12 2009 WL 2705835, *5 (E.D. Cal. Aug. 25, 2009) (holding 13 petitioner’s complaint to state bar and threat to sue counsel 14 did not, in and of itself, give rise to conflict of interest)). 15 Further, the state courts reasonably determined that 16 Jefferson failed to “assert that the filing of the bar complaint 17 adversely affected his counsel’s behavior or caused his counsel 18 to defend him less diligently.” Moreover, the record repels any 19 such assertion, as Cox vigorously represented Jefferson 20 throughout pretrial and trial proceedings, and Jefferson has not 21 established that Cox, as a result of any conflict, failed to 22 pursue an avenue of defense that would have been more beneficial 23 to Jefferson. 24 During voir dire, Cox stressed the importance of presuming 25 Jefferson’s innocence and evaluating a child’s testimony 26 objectively, considering influences on the child and the bias of 27 others, such as police or a parent who desired custody of the 28 child during a divorce. (Exhibit 53 and ECF No. 18-12 at 16–34, 1 38–40, 42–43, 46–51, 66–70, 80–83, 89, 99.) Cox also inquired 2 whether race would bias the jurors against Jefferson. (Id. at 3 85–86.) In closing, Cox strenuously argued that Jefferson was 4 not guilty -- even utilizing an exhibit that stated “Brandon is 5 innocent.” (Exhibit 59 and ECF No. 18-18 at 88, 102, 120–26; 6 Exhibit 146 and ECF No. 51-9 at 219.) Cox challenged C.J.’s 7 credibility and the plausibility of her testimony and asserted 8 that the allegations were motivated and created by Jefferson’s 9 wife who wanted a divorce and custody of the children. (Exhibit 10 59 and ECF No. 18-18 at 88-90, 95-96.) And finally, Cox argued 11 that the detectives used interview techniques to find 12 Jefferson’s breaking point and entice him to admit things that 13 didn’t happen. (Id. at 102–03.) 14 In light of Cox’s vigorous representation, and Jefferson’s 15 failure to show that “some plausible alternative defense 16 strategy or tactic might have been pursued but was not,” 17 Jefferson has failed to establish any conflict between him and 18 counsel that prejudiced his defense. 19 Finally, Jefferson’s claim that a conflict of interest was 20 evident when Cox failed to appear at the July 26, 2012, calendar 21 call is belied by the record. (ECF No. 47 at 5.) Cox personally 22 appeared at four separate calendar calls for the case. (Exhibits 23 41 at 3, 44 at 3, 45 at 2–3, 48 at 2–3; ECF Nos. 18 at 3, 18-3 24 at 3, 18-4 at 2–3, 18-7 at 2–3.) While Cox and co-counsel Kevin 25 Speed both missed a calendar call and motion hearing scheduled 26 for July 26, 2012, the record reflects that both attorneys were 27 out of town on that date – and that the court was aware Cox 28 would be out of town -- and that the lack of coverage was due to 1 a mix-up and nothing more. (Exhibit 50 and ECF No. 18-9 at 3-5; 2 Exhibit 51 and ECF No. 18-10 at 3–7.) Cox, reached by the 3 prosecutor during a break in the hearing, apologized for the 4 mix-up and requested, and obtained, a continuation of the motion 5 hearing set for the date. These facts do not support a finding 6 that Cox labored under a conflict and do not support any finding 7 of prejudice. 8 Given Cox’s efforts before and during trial, and 9 Jefferson’s failure to point to specific actions that Cox took 10 or declined to pursue that adversely affected Jefferson’s 11 interests in favor of another party, Jefferson has failed to 12 establish a Sixth Amendment violation due to a conflict of 13 interest. Accordingly, Jefferson is not entitled to federal 14 habeas relief for ground 2. 15 B. Ground 3 16 In ground 3, Jefferson alleges trial counsel was 17 ineffective for failing to challenge the admissibility of 18 Jefferson’s confession on the grounds the police lacked probable 19 cause to arrest him. (ECF No. 47 at 7–8.) The Court previously 20 deferred ruling whether Jefferson can demonstrate cause and 21 prejudice to overcome the procedural default for this claim. 22 (ECF No. 56 at 16.) 23 Where a petitioner “has defaulted his federal claims in 24 state court pursuant to an independent and adequate state 25 procedural rule,” federal habeas review “is barred unless the 26 prisoner can demonstrate cause for the default and actual 27 prejudice as a result of the alleged violation of federal law, 28 or demonstrate that failure to consider the claims will result 1 in a fundamental miscarriage of justice.” Coleman v. Thompson, 2 501 U.S. 722, 750 (1991). To demonstrate cause, the petitioner 3 must establish that some external and objective factor impeded 4 efforts to comply with the state’s procedural rule. E.g., Murray 5 v. Carrier, 477 U.S. 478, 488 (1986); Hiivala v. Wood, 195 F.3d. 6 1098, 1105 (9th Cir. 1999). “[T]o establish prejudice, [a 7 petitioner] must show not merely a substantial federal claim, 8 such that ‘the errors . . . at trial created a possibility of 9 prejudice,’ but rather that the constitutional violation ‘worked 10 to his actual and substantial disadvantage.’” Shinn v. Ramirez, 11 ___ U.S. ___, 2022 WL 1611786, at *7 (May 23, 2022) (citing 12 Carrier, 477 U.S. at 494 and quoting United States v. Frady, 456 13 U.S. 152, 170 (1982) (emphasis in original)). 14 The Supreme Court has provided an alternative means to 15 overcome the cause requirement for purposes of overcoming a 16 procedural default for an ineffective assistance of trial 17 counsel claim where a petitioner can show that he received 18 ineffective assistance of counsel in his initial state habeas 19 proceeding. Martinez, 566 U.S. at 9. The Supreme Court outlined 20 the necessary circumstances as follows: 21 [W]here (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the 22 “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral 23 review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in 24 respect to the “ineffective-assistance-of-trial- counsel claim”; and (4) state law requires that an 25 “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.” 26 27 Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 28 566 U.S. at 14, 18). 1 A procedural default will not be excused if the underlying 2 ineffective-assistance-of-counsel claim “is insubstantial,” 3 i.e., lacks merit or is “wholly without factual support.” 4 Martinez, 566 U.S. at 14–16 (citing Miller-El v. Cockrell, 537 5 U.S. 322 (2003)). In Martinez, the Supreme Court cited the 6 standard for issuing a certificate of appealability as analogous 7 support for whether a claim is substantial. Martinez, 566 U.S. 8 at 14. A claim is substantial if a petitioner shows “reasonable 9 jurists could debate whether . . . the [issue] should have been 10 resolved in a different manner or that the issues presented were 11 ‘adequate to deserve encouragement to proceed further.’” Miller- 12 El, 537 U.S. at 336. 13 1. Additional Background 14 Prior to Jefferson’s arrest, C.J. told Detectives Demas and 15 Katowich that she understood the difference between the truth 16 and a lie and agreed she would speak only the truth. (Exhibit 17 146 and ECF No. 51-9 at 107, 109–111.) C.J. denied having any 18 secrets and told detectives, “[n]obody touches me at the 19 privates.” (Id. at 115, 120.) Demas told C.J. he heard something 20 a little different that day, and asked her, “Did you tell 21 somebody that somebody might have touched your private” and C.J. 22 replied “[n]obody touched my private.” (Id. At 120–21.) 23 Thereafter, the following conversation ensued: 24 Q: Oh.

25 Q: Have you ever had anybody make you touch their privates? 26 A: Mm-mm. 27 Q: Did you tell, did you tell somebody that? 28 1 Q: ‘Cause you know you’re not in trouble for 2 anything, right?

3 A: Somebody made me touched [sic] their private. 4 Q: Who did? 5 A: My mom called the police and said like mm 6 [sic] my dad made me touch all his privates.

7 Q: He did? How did he do that?

8 A: (no audible response)

9 Q: How did he do that?

10 A: Mm, I don’t know.

11 Q: You don’t know?

12 A: No.

13 Q: Well, how’d you know it happened?

14 A: He told me to keep it a secret.

15 Q: Who did?

16 A: My dad.

17 Q: Well when did this happen?

18 A: When my mom was at work.

19 Q: Yeah? Well where’d it happen at?

20 A: She goes to work at Sundays and he made me do it. 21 Q: Okay. But where? Where did he make you do 22 it?

23 A: Um, he made me do it like in his room.

24 Q: Yeah? Where in his room?

25 A: In his bed. 26 (Id. at 121–22.) 27 C.J. went on to tell the detectives her father wanted her 28 to suck one of his privates, and it hurt when her father “was 1 putting his private” in her private. (Id. At 122–23.) She told 2 the detectives that her father made her suck on one of his 3 privates, about seven times, and green liquid came out of her 4 father’s private. (Id. at 124–26.) She told them her father put 5 his private in her private seven times. (Id. at 129.) She told 6 them that one time in her bedroom, her father made her touch his 7 private with her hand like she was pulling a tree and 8 demonstrated the action for the detectives. (Id. at 128.) She 9 told them the last time it happened was on the Sunday one week 10 and two days prior to the interview and provided additional 11 details about how the crimes were committed. (Id. at 125–35.) 12 When asked why she told her mother about it, C.J. answered “I 13 just wanted to tell her just so she’d know,” and she denied 14 anything happened that day to make her tell her mother about it. 15 (Id. at 131.)4 16 Trial counsel filed a pretrial motion to suppress 17 Jefferson’s statement to police on the grounds that it was 18 involuntary but did not assert the detectives lacked probable 19 cause to arrest Jefferson. (Exhibit 12 and ECF No. 62-2.) During 20 the evidentiary hearing on the motion to suppress evidence, 21 Demas agreed he had no physical evidence at the time of 22 Jefferson’s interview, had only the words of C.J., B.L., and 23

24 4 At a hearing to determine whether C.J.’s statements to her mother or Detective Demas would be admissible should C.J. not testify, pursuant to NRS 25 § 51.385(2), the state district court determined C.J.’s statements to her mother were admissible due to factors that guaranteed trustworthiness, 26 including the spontaneity of the statements and that her mother did not repeatedly question C.J. (Exhibit 42 and ECF No. 62-3 at 66-67.) The court, 27 however, determined C.J.’s statements to Demas were not admissible because they lacked a guarantee of trustworthiness due to Demas’s repetitive 28 See 1 Lamug, and that the case boiled down to their word against 2 Jefferson’s word. (Exhibit 30 and ECF No. 17-30 at 26, 35.) 3 After listening to the tape and reading the transcript for 4 Jefferson’s interview with the detectives, the state district 5 court concluded Jefferson’s statement was voluntarily given and 6 denied the motion to suppress. (Id. at 46, 51.) 7 At trial, Demas admitted that, when he arrested and 8 interviewed Jefferson, he did not expect to receive DNA evidence 9 and the hospital had not confirmed the abuse. (Exhibit 57 and 10 ECF No. 18-16 at 54–57.) Demas said he interviewed Jefferson 11 because C.J.’s statements were corroborated by B.L. and C.J.’s 12 mother. (Id. at 104, 114–16.) 13 2. Applicable Legal Principles 14 An arrest without a warrant is valid if the arrest is 15 supported by probable cause. Dunaway v. New York, 442 U.S. 200, 16 216, (1979) (holding officers violated the Fourth and Fourteenth 17 Amendments when, without probable cause, they seized petitioner 18 and transported him to the police station for interrogation). 19 “Probable cause exists where the facts and circumstances 20 within [the officers’] knowledge and of which they had 21 reasonably trustworthy information [are] sufficient in 22 themselves to warrant a [person] of reasonable caution in the 23 belief that an offense has been or is being committed.” Stoot v. 24 City of Everett, 582 F.3d 910, 918 (9th Cir. 2009) (citing 25 Brinegar v. United States, 338 U.S. 160, 175–76, (1949) 26 (internal quotation marks omitted); Ornelas v. United 27 States, 517 U.S. 690, 696 (1996); and Illinois v. Gates, 462 28 U.S. 213, 238 (1983)). 1 Probable cause is an objective standard and the 2 determination of whether probable cause exists “depends upon the 3 reasonable conclusion to be drawn from the facts known to the 4 arresting officer at the time of the arrest.” Devenpeck v. 5 Alford, 543 U.S. 146, 152–53 (2004) (“Our cases make clear that 6 an arresting officer’s state of mind (except for the facts that 7 he knows) is irrelevant to the existence of probable cause.”) 8 (citations omitted). “[N]either certainty, nor proof beyond a 9 reasonable doubt, is required for probable cause to 10 arrest.” United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 11 2010) (citation omitted). 12 Under certain circumstances, courts have held police may 13 rely upon the statement of a child for purposes of determining 14 whether there is probable cause to make an arrest. See, e.g., 15 John v. City of El Monte, 515 F.3d 936, 940–41 (9th Cir. 2007) 16 (probable cause existed to arrest for molestation of a ten-year- 17 old where officer drew upon his experience and special training 18 in dealing with sexual abuse of children in evaluating the 19 child’s story); Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir. 20 1998) (three-year-old girl’s allegations of sexual abuse, along 21 with consistent medical evidence and her statements to her 22 mother, were sufficiently reliable and trustworthy “at their 23 core to form the basis for probable cause to arrest” the 24 defendant); Easton v. City of Boulder, Colo., 776 F.2d 1441, 25 1449–51 (10th Cir. 1985) (finding probable cause to arrest where 26 statements of three-year-old child was corroborated by five- 27 year-old child, who both identified the abuser and the location 28 of the abuse inside the abuser’s apartment). 1 On the other hand, courts have in some cases held no 2 probable cause existed when police failed to conduct further 3 investigation about a child’s allegations of sexual abuse. See, 4 e.g., Stoot, 582 F.3d at 918-22 (no probable cause to arrest 5 juvenile solely on four-year-old’s allegations where four-year- 6 old changed her allegations, confused the juvenile with another 7 boy, and recounted events that had occurred when she was three); 8 Cortez v. McCauley, 478 F.3d 1108, 1113, 1116–1118 (10th Cir. 9 2007) (no reasonably trustworthy information supported probable 10 cause to arrest where statement attributed to a barely-verbal 11 two-year-old child that her babysitter’s “boyfriend” “hurt her 12 pee pee” was relayed by telephone to the officers, from the 13 nurse, who heard it from the mother who ostensibly heard it from 14 the child, and officers neither spoke directly to the child or 15 her mother nor waited for medical results, before making the 16 arrest); United States v. Shaw, 464 F.3d 615, 624 (6th Cir. 17 2006) (holding sole reliance upon mother’s allegation that child 18 made a statement indicating possible abuse insufficient to 19 establish probable cause where officers did not speak with child 20 and made no effort to corroborate mother’s allegations before 21 arresting defendant). 22 In Nevada, there is no requirement that the testimony of a 23 child victim of sexual assault be corroborated, and the victim’s 24 testimony alone, if believed beyond a reasonable doubt, is 25 sufficient to sustain a guilty verdict. Gaxiola v. State, 121 26 Nev. 638, 647–50, 119 P.3d 1225, 1232 (2005) (“This court has 27 repeatedly stated that the uncorroborated testimony of a victim, 28 without more, is sufficient to uphold a rape conviction.”). 1 3. Disposition of Ground 3 2 Jefferson fails to meet his burden to overcome the 3 procedural default under Martinez because he fails to 4 demonstrate a substantial claim that trial counsel was 5 ineffective by failing to challenge probable cause for 6 Jefferson’s arrest or that postconviction counsel’s failure to 7 assert the claim of ineffective assistance of trial counsel was 8 deficient or prejudicial. 9 Trial counsel’s failure to challenge the arrest as lacking 10 probable cause did not fall below an objective standard of 11 reasonableness. At the time of Jefferson’s arrest, the 12 detectives did not rely on hearsay, but instead interviewed 13 C.J., and did so separately from her mother and brother shortly 14 after C.J. spontaneously disclosed the abuse to her mother in 15 B.L.’s presence. C.J. was five years old and was detailing 16 relatively recent abuse. The circumstances and timing of the 17 abuse were corroborated by her brother, B.L., who was present in 18 the house at the time of the abuse. And C.J. never accused 19 anyone other than her father of perpetrating the abuse. Although 20 C.J. initially denied anyone touched her privates, according to 21 the interview transcript, she did not simply regurgitate 22 specific details provided by the detectives; instead, she 23 provided core details about the abuse to the detectives after 24 she was told she was not in trouble. See Devereaux v. Abbey, 263 25 F.3d 1070, 1075 (9th Cir. 2001) (stating “[i]nterviewers of 26 child witnesses of suspected sexual abuse must be given some 27 latitude in determining when to credit witnesses’ denials and 28 when to discount them . . .”) Given the statements available to 1 the detectives when they arrested Jefferson, an objectively 2 reasonable trial attorney could determine that, under the 3 totality of the circumstances, the facts known to the detectives 4 were sufficiently reliable and trustworthy to support probable 5 cause and, thus, a motion to suppress on those grounds would 6 have been futile. 7 For the same reasons, Jefferson also fails to demonstrate 8 deficient performance by postconviction counsel or prejudice 9 therefrom. An objectively reasonable postconviction attorney 10 could determine the record failed to support a claim that trial 11 counsel was ineffective in failing to challenge probable cause 12 for Jefferson’s arrest. Further, there is no reasonable 13 probability the result of the postconviction proceedings would 14 have been different had postconviction counsel raised this 15 claim. 16 Accordingly, Jefferson has failed to establish cause and 17 prejudice to overcome the procedural default of this claim. 18 Ground 3 will therefore be dismissed. 19 C. Ground 4 20 In ground 4, Jefferson alleges trial counsel was 21 ineffective for failing to assert that Jefferson invoked his 22 right to silence during his interview with police when he 23 stated, “That’s all I can say.” (ECF No. 47 at 9.) The Court 24 previously deferred ruling whether Jefferson can demonstrate 25 cause and prejudice under Martinez to overcome the procedural 26 default of this claim. (ECF No. 56 at 16.) 27 1. Additional Background 28 According to the transcript of Jefferson’s interview with 1 the detectives following his arrest, Detective Demas read 2 Jefferson his rights under Miranda v. Arizona, 384 U.S. 436 3 (1966), and Jefferson confirmed he understood those rights. 4 (Exhibit 146 and ECF No. 51-9 at 54–55.) Jefferson was silent in 5 response to some of the questions addressed to him during the 6 interview but answered other questions. (Id. at 54–106.) At one 7 point, the following conversation occurred: 8 Q: So—we want to know is what’s causing this behavior. 9 A: I—what—I maybe—maybe um, what—what—me not having 10 money. You know, I having a beer every now and then. That’s about it. That’s all I can say. 11 Q: What goes through you— 12 A: __-- 13 Q: --when—when you ask her to come to your room? What 14 goes on?

15 A: I don’t ask her to come to my room, sir. I mean it’s—I mean I give her a little hug, a little kiss or 16 something like that . . . . 17 (Id. at 80.) 18 In the motion to suppress Jefferson’s statement, counsel 19 did not contend Jefferson invoked his rights to silence 20 following the Miranda warnings. (Exhibit 12 and ECF No. 62-2 at 21 4–11.) 22 At trial, Demas testified he read Jefferson his Miranda 23 rights from a card before beginning the interview, that 24 Jefferson stated he understood his rights, and that Jefferson 25 never invoked any of those rights. (Exhibit 57 and ECF No. 18–16 26 at 53, 97–98.) Defense witness Dr. Mark Chambers testified that 27 according to his review of Jefferson’s interview transcript, 28 1 Jefferson “did not” say he wished to cease questioning or stop 2 talking to the police. (Id. at 215.) 3 2. Applicable Legal Principles 4 Once Miranda warnings are given, “[i]f the individual 5 indicates in any manner, at any time prior to or during 6 questioning, that he wishes to remain silent, the interrogation 7 must cease.” Miranda, 384 U.S. at 473–74; see, e.g., Tice v. 8 Johnson, 647 F.3d 87, 107 (4th Cir. 2011) (holding a reasonable 9 police officer under the circumstances would have 10 understood Tice’s statement, “I have decided not to say any 11 more,” to mean he no longer wished to answer questions about the 12 crimes, and, therefore, the officer should have stopped asking 13 questions). 14 On the other hand, an ambiguous invocation of the right to 15 remain silent may not give rise to a Miranda violation. See 16 Berghuis v. Thompson, 560 U.S. at 375, 380–82 (2010) (where 17 defendant read out loud, but refused to sign, the form stating 18 Miranda warnings, his silence for two hours and forty-five 19 minutes of a three-hour interrogation was insufficient to invoke 20 his right to remain silent because he never stated he wished to 21 remain silent, that he did not want to talk with police, or that 22 he wanted an attorney). A statement may be ambiguous where it is 23 open to more than one interpretation or reference or has a 24 double meaning or reference. See United States v. Rodriguez, 518 25 F.3d 1072, 1075, 1077 (9th Cir. 2008) (holding that, following 26 Miranda warnings, defendant’s statement “I’m good for tonight” 27 in response to a question whether he wished to speak with park 28 rangers, was not an invocation of the right to silence because 1 the statement was ambiguous and could have meant he wished to 2 talk to the rangers or did not wish to talk to them). 3 3. Disposition of Ground 4 4 Jefferson fails to meet his burden to overcome the 5 procedural default of this claim under Martinez because he fails 6 to demonstrate a substantial claim that trial counsel was 7 ineffective in failing to challenge the admissibility of 8 Jefferson’s statements to the detectives on the grounds that 9 Jefferson invoked his right to silence or that postconviction 10 counsel’s failure to assert the claim of ineffective assistance 11 of counsel was deficient or prejudicial under Strickland. 12 The detectives read Jefferson the Miranda warning, and 13 Jefferson confirmed he understood. In his interview, Jefferson 14 never unambiguously stated he wished to remain silent, that he 15 did not want to talk with the police, or that he wanted an 16 attorney. Jefferson contends his statement, “That’s all I can 17 say” constitutes an invocation of his right to silence. However, 18 an objectively reasonable trial attorney could determine that, 19 under the circumstances, Jefferson’s statement meant he could 20 not further explain why he committed the offenses, rather than 21 an expression of a desire to remain silent and not speak with 22 the detectives. The statement was, at best, ambiguous. 23 Therefore, counsel’s failure to challenge the statement as an 24 invocation of the right to silence that warranted suppression of 25 any part of Jefferson’s confession did not fall below an 26 objective standard of reasonableness. Moreover, given the 27 statement is not an unambiguous invocation of the right to 28 silence, Jefferson fails to demonstrate there is a reasonable 1 probability the result of the proceedings would have been 2 different had trial counsel asserted the claim. 3 By the same token, postconviction counsel did not perform 4 below an objective standard of reasonableness in failing to 5 pursue a claim that trial counsel was ineffective, as an 6 objectively reasonable postconviction attorney could determine 7 that under the totality of the circumstances such a claim would 8 have been futile. 9 Accordingly, Jefferson has failed to establish cause or 10 prejudice to overcome the procedural default of this claim. 11 Ground 4 will therefore be dismissed. 12 D. Ground 5 13 In ground 5, Jefferson alleges there is insufficient 14 evidence to support his convictions in violation of the 15 Fourteenth Amendment. (ECF No. 47 at 11.) 16 1. Additional Background 17 Jefferson was convicted of sexual assault with a minor 18 under the age of fourteen for penetrating C.J.’s vaginal opening 19 with his penis against her will, or under conditions in which he 20 knew, or should have known, C.J. was mentally or physically 21 incapable of resisting or understanding the nature of his 22 conduct, in violation of Nevada Revised Statutes § 200.364 and § 23 200.366. (Exhibit 39 and ECF No. 17-39 at 4; Exhibit 65 and ECF 24 No. 18-24 at 2.) 25 Jefferson was further convicted of sexual assault of a 26 minor under the age of fourteen for subjecting C.J. to sexual 27 penetration, by fellatio, for placing his penis on and/or into 28 C.J.’s tongue and/or mouth against her will, or under conditions 1 in which he knew, or should have known, C.J. was mentally or 2 physically incapable of resisting or understanding the nature of 3 his conduct. (Exhibit 39 and ECF No. 17-39 at 5; Exhibit 65 and 4 ECF No. 18-24 at 2.) 5 Finally, Jefferson was convicted of lewdness with a child 6 under the age of fourteen in violation of Nevada Revised 7 Statutes § 201.230, by willfully, lewdly, unlawfully, and 8 feloniously committing a lewd or lascivious act upon or with the 9 body, or any part or member, of C.J. by using his penis to touch 10 and/or rub and/or fondle the genital area of C.J. and/or causing 11 and/or directing C.J. to use her genital area to touch and/or 12 rub his penis with the intent of arousing, appealing to, or 13 gratifying the lust, passions, or sexual desires of Jefferson or 14 C.J. (Exhibit 39 and ECF No. 17-39 at 4–5; Exhibit 65 and ECF 15 No. 18-24 at 3.) 16 2. Applicable Legal Principles 17 According to Jackson v. Virginia, a jury’s verdict must 18 stand if, “after viewing the evidence in the light most 19 favorable to the prosecution, any rational trier of fact could 20 find the essential elements of the offense beyond a reasonable 21 doubt.” 443 U.S. 307, 319 (1979) (emphasis in original). A 22 federal habeas petitioner faces a “considerable hurdle” when 23 challenging the sufficiency of evidence to support his 24 conviction. Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 25 2004). The Jackson standard is applied “with explicit reference 26 to the substantive elements of the criminal offense as defined 27 by state law.” Id. (quoting Jackson, 443 U.S. at 324 n.16.) A 28 reviewing court, “faced with a record of historical facts that 1 supports conflicting inferences must presume—even if it does not 2 affirmatively appear in the record—that the trier of fact 3 resolved any conflicts in favor of the prosecution, and must 4 defer to that resolution.” Id. (quoting Jackson, 443 U.S. at 5 326.) 6 3. State Court’s Determination 7 On direct appeal, the Supreme Court of Nevada rejected 8 Jefferson’s claim that there was insufficient evidence to 9 support the jury’s verdict: 10 In this case, C.J. testified with specificity as to four separate occasions of sexual abuse—three in 11 Jefferson’s bedroom, and one in her bedroom. She testified that on each of the three occasions in the 12 master bedroom, Jefferson put his penis in her mouth, vagina, and anus, and on the fourth occasion, in her 13 bedroom, he put his penis in her mouth and vagina. Finally, Jefferson’s own confession also supports the 14 lewdness and sexual assault charges as he stated that on different occasions C.J. rubbed her vagina against 15 his penis, touched his penis, and put his penis in her mouth. Therefore, we conclude there was sufficient 16 evidence supporting the jury’s conviction because in viewing the evidence in the light most favorable to 17 the prosecution, a rational trier of fact could have found Jefferson guilty of three counts of sexual 18 assault and one count of lewdness beyond a reasonable doubt. Rose, 123 Nev. at 202, 163 P.3d at 414; see NRS 19 200.366(1); NRS 201.230. 20 (Exhibit 97 and ECF No. 19-21 at 12–13.) The state court’s 21 determination was neither contrary to, nor an unreasonable 22 application of, Supreme Court authority and was not based on an 23 unreasonable determination of the facts. 24 4. Disposition of Ground 5 25 a. Sexual Assault 26 Sexual assault is a general intent crime. Honeycutt v. 27 State, 118 Nev. 660, 670, 56 P.3d 362, 368 (2002), overruled on 28 other grounds by Carter v. State, 121 Nev. 759, 121 P.3d 592 1 (2005). 2 At the time of Jefferson’s crimes, Nevada Revised Statutes 3 § 200.366 defined sexual assault as follows: 4 A person who subjects another person to sexual penetration, or who forces another person to make a 5 sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under 6 conditions in which the perpetrator knows or should know that the victim is mentally or physically 7 incapable of resisting or understanding the nature of his or her conduct, is guilty of sexual assault. 8 9 Nev. Rev. Stat. § 200.366, as amended by Laws 2007, c. 528 § 7. 10 Sexual penetration meant “cunnilingus, fellatio, or any 11 intrusion, however slight, of any part of a person’s body or any 12 object manipulated or inserted by a person into the genital or 13 anal openings of the body of another, including sexual 14 intercourse in its ordinary meaning.” Id. § 200.364(4), as 15 amended by Laws 2009, c. 300, § 1.1. 16 “[T]he testimony of a sexual assault victim alone is 17 sufficient to uphold a conviction;” however, “the victim must 18 testify with some particularity regarding the incident in order 19 to uphold the charge.” LaPierre v. State, 108 Nev. 528, 531, 836 20 P.2d 56, 58 (1992) (emphasis in original) (citations omitted). 21 Separate and distinct acts of sexual assault committed as a part 22 of a single criminal encounter may be charged and convicted as 23 separate counts. Peck v. State, 7 P.3d 470, 116 Nev. 840 (2000). 24 Here, altho ugh Jefferson denied penetrating his daughter, 25 C.J. testified with particularity that Jefferson put his private 26 in her private on more than one occasion, in the master bedroom, 27 when she was five years old and while her mother was at work, 28 and one time while they were in C.J.’s bedroom, and that it hurt 1 when her father put his private inside her private. Viewing the 2 evidence in the light most favorable to the prosecution, the 3 state courts reasonably determined that a rational jury could 4 find beyond a reasonable doubt that Jefferson sexually abused 5 his daughter by penetrating her vaginal opening with his penis. 6 The state courts also reasonably determined the record 7 presented sufficient evidence for a rational trier of fact to 8 find Jefferson guilty of sexual assault by fellatio. C.J. 9 testified that her father put his penis in her mouth on more 10 than one occasion while they were in the master bedroom, when 11 she was five years old while her mother was at work, and on one 12 occasion while they were in C.J.’s bedroom. C.J. also said her 13 father told her to swallow “pee” that came out of his penis. 14 Jefferson admitted to the detectives that his daughter had her 15 mouth on his penis for two to three minutes on at least two, but 16 no more than three, occasions. Jefferson nonetheless claims 17 there is insufficient evidence because it is illogical that he 18 committed the crimes when C.J. testified she never saw his 19 penis. However, C.J.’s testimony was more specific:

20 [BY THE STATE:]

21 Q: When your dad would put his penis either in your mouth, or in your 22 vagina, or in your butt, did you ever – did you ever actually see his penis? 23 Did you ever actually look at it?

24 A: No.

25 Q: Did you ever see it?

26 . . . .

27 THE WITNESS: I can’t remember.

28 THE STATE: 1 Q: Okay. Can you remember – do you remember what it looked like at all? 2 A: Yes. 3 Q: You do? 4 A: Yes. 5 Q: What did it look like? 6 A: Brown. 7 8 (ECF No. 18-14 at 72.) Because C.J. said she saw that his penis 9 was brown, a rational trier of fact could infer that what C.J. 10 meant by her answer was that she did not see his penis when it 11 was inside her mouth, vagina, or anus. As stated, for purposes 12 of review of an insufficiency of evidence claim, a reviewing 13 court presumes the jury resolved conflicting inferences in favor 14 of the prosecution and must defer to that resolution. Jackson, 15 443 U.S. at 326. 16 Given that no corroboration was necessary if the jury 17 believed C.J. beyond a reasonable doubt, C.J.’s specificity in 18 her testimony, Jefferson’s confession, and Jefferson’s letter to 19 his wife, and viewing the evidence in the light most favorable 20 to the prosecution, a rational jury could find Jefferson 21 sexually abused C.J. by penetrating her mouth with his penis 22 beyond a reasonable doubt on at least two occasions. 23 b. Lewdness 24 At the time of Jefferson’s crimes, lewdness with a minor 25 under 14 years of age was proscribed as follows: 26 1. A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the 27 crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 28 years, with the intent of arousing, appealing to, or 1 that person or of that child, is guilty of lewdness with a child. 2 NRS 201.230(1), as amended by Laws, 2005, c. 507, § 33, eff. 3 July 1, 2005. 4 Here, the state courts reasonably determined there was 5 sufficient evidence for a rational trier of fact to find 6 Jefferson guilty of lewdness with a child under fourteen years 7 of age. According to Jefferson’s statement to the detectives, 8 which was played for the jury, C.J. touched his penis with her 9 hand on “not more than three” occasions, his penis touched 10 C.J.’s vagina but did not penetrate her, C.J. rubbed her vagina 11 against his penis, and, as a result of these activities, 12 Jefferson developed pre-cum. B.L. testified his father took C.J. 13 to the bedroom every time their mother was at work. Based on 14 Jefferson’s statement, and the testimony of Lamug, C.J., and 15 B.L., as well as all reasonable inferences that may be drawn 16 from that evidence, a rational jury could determine that 17 Jefferson was guilty of lewdness, separate from the sexual 18 assaults. 19 For the foregoing reasons, the state courts reasonably 20 applied Jackson in rejecting Jefferson’s claim that there was 21 insufficient evidence to support the verdicts, and its 22 determinations were not based on an unreasonable determination 23 of the facts. Therefore, Jefferson is not entitled to relief on 24 ground 5. 25 Certificate of Appealability 26 In order to proceed with an appeal, Jefferson must receive 27 a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. 28 1 App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 2 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 3 F.3d 550, 551-52 (9th Cir. 2001). Generally, a defendant must 4 make “a substantial showing of the denial of a constitutional 5 right” to warrant a certificate of appealability. Allen, 435 6 F.3d at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 7 473, 483-84 (2000). “The petitioner must demonstrate that 8 reasonable jurists would find the district court’s assessment of 9 the constitutional claims debatable or wrong.” Allen, 435 F.3d 10 at 951 (quoting Slack, 529 U.S. at 484). In order to meet this 11 threshold inquiry, Jefferson has the burden of demonstrating 12 that the issues are debatable among jurists of reason; that a 13 court could resolve the issues differently; or that the 14 questions are adequate to deserve encouragement to proceed 15 further. Id. 16 The court has considered the issues raised by Jefferson, 17 with respect to whether they satisfy the standard for issuance 18 of a certificate of appealability, and determines that none meet 19 that standard. Accordingly, Jefferson will be denied a 20 certificate of appealability. 21 Conclusion 22 IT THEREFORE IS ORDERED that the amended petition (ECF No. 23 47) is DENIED, and this action shall be DISMISSED with 24 prejudice. 25 IT FURTHER IS ORDERED that Jefferson is DENIED a 26 certificate of appealability. 27 IT IS FURTHER ORDREED that Jefferson’s requests for an 28 evidentiary hearing are DENIED. 1 IT IS FURTHER ORDERED the Clerk of Court is directed to 2 substitute Tim Garrett for Respondent Perry Russell. 3 The Clerk of the Court shall enter final Judgment 4 accordingly in favor of respondents and against Jefferson, 5 dismissing this action with prejudice. 6 DATED: this 8th day of August, 2022. 7 + Luin” S tt fMh> HOWARD D. MCKIBBEN 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28