Jeffery Cooper v. Nethanjah Breitenbach

• Court: District Court, D. Nevada
• Decided: May 22, 2026
• Docket: 3:23-cv-00067
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JEFFERY COOPER, Case No. 3:23-cv-00067-MMD-CSD

7 Petitioner, ORDER v. 8 NETHANJAH BREITENBACH, 9 Respondents. 10 11 I. SUMMARY 12 This is a 28 U.S.C. § 2254 habeas corpus action brought by pro se Petitioner 13 Jeffery Cooper, a Nevada prisoner. The matter is before the Court for adjudication on the 14 merits of the remaining claims. Because the Court concludes that the remaining grounds 15 lack merit, the Petition is denied. The Court also denies a Certificate of Appealability. 16 II. BACKGROUND 17 A. State-Court Proceedings 18 A Las Vegas (Clark County) jury convicted Cooper of attempted murder with use 19 of a deadly weapon and battery with use of a deadly weapon. (ECF No. 28-17.) The 20 charges stemmed from an incident where DeQuandre Williams and Cooper bumped into 21 each other as they were walking in the crowd on the Las Vegas Strip. They exchanged 22 angry words; Cooper reached into his backpack, pulled the trigger of a gun that was in 23 the backpack, and shot Williams. In August 2017, the state district court sentenced 24 Cooper to 96 to 240 months, with a consecutive term of 48 to 120 months for the deadly 25 weapon enhancement. (ECF No. 28-22.) 26 Cooper appealed, and the Nevada Court of Appeals affirmed his convictions. (ECF 27 No. 28-41.) The Nevada Court of Appeals affirmed the denial of his state postconviction 28 habeas corpus petition in January 2023. (ECF No. 30-32.) 2 In February 2023, Cooper dispatched his pro se federal habeas petition for mailing. 3 (ECF No. 1-1.) The Court granted Respondents’ Motion to Dismiss in part. (ECF Nos. 27, 4 42.) The following grounds for relief remain for the Court’s consideration: 5 Ground 1: Trial counsel ineffectively failed to investigate and present a mens rea defense. 6 Ground 2: Trial counsel failed to provide more mitigating evidence at 7 sentencing. 8 Ground 3: Trial counsel failed to object to prosecutorial misconduct during 9 closing arguments.1

10 Ground 4: Appellate counsel failed to “raise preserved errors.”

11 Ground 5: The cumulative effect of counsel’s errors deprived Cooper of 12 effective assistance of counsel.

13 (ECF No. 13.) 14 Respondents have answered the remaining claims (ECF No. 51); Cooper did not 15 file a reply. 16 III. TRIAL TESTIMONY2 17 DeQuandre Williams and his girlfriend Eunique Boyd were walking the Las Vegas 18 strip with visiting family about 1:30 a.m. on August 28, 2016. (ECF No. 28-12 at 12-50.) 19 An old friend called out to Williams; he started walking toward the friend. Cooper bumped 20 into Williams. He “shoulder-checked” Williams, which Williams said was understood to 21 signal that you had a problem with the person. (Id. at 14.) Cooper had a “bullring” nose 22 piercing and a neck tattoo. (Id. at 43, 47.) They exchanged angry words, asking each 23 24 25 1Cooper repeats this claim as ground 7, so the Court will address the two claims 26 together.

27 2This Court makes no credibility or other factual findings regarding the truth or falsity of this evidence from the state court. This Court’s summary is merely a backdrop 28 to its consideration of the issues presented in the Petition. 2 front of him. He shot through his backpack, hitting Williams in the thigh and grazing his 3 stomach. Video surveillance showed the men exchanging words, Cooper taking his 4 backpack off, and a flash. 5 Las Vegas Metropolitan Police Department (“LVMPD”) patrol officer Nathan Rivera 6 responded to the scene. (ECF No. 28-14 at 71-89.) About a minute earlier he had noticed 7 a man with an “N” neck tattoo who seemed to be going around looking for a fight. (Id. at 8 72.) Officer Jeffrey Clark obtained surveillance video showing the altercation. (Id. at 37- 9 70.) Video showed the shooting by a man in a black hat, glasses, and purple hoodie 10 carrying a backpack. The shooter ran away through a casino and got into a red Chevy. 11 Clark was able to make out the license plate and radioed the plate number and a 12 description of the vehicle to dispatch. 13 LVMPD officer Eduardo Parayno went to the car’s registered address. (ECF No. 14 28-14 at 18-37.) He saw the car parked there, unoccupied. A female and two males came 15 out of the apartment, got in the car, and drove away. Parayno followed them to the 16 entrance to the apartments where another team of officers stopped the car. Officer Jeffrey 17 Kinsler was part of the team that stopped the Chevy. (ECF No. 28-14 at 105-184.) Officers 18 took the occupants into custody. The driver had an “N” neck tattoo and was wearing a hat 19 that looked like it bore the same logo or design as the one seen in surveillance video. 20 When officers searched the apartment, they found a backpack with holes in the bottom 21 as if something had been fired through it. It had a picture of an emoji on it that appeared 22 to match the surveillance images. (Id. at 118.) A plane ticket in the name of Jeffery Cooper 23 was inside the backpack. They recovered a gun from under a bed and found eyeglasses 24 and a purple hooded sweatshirt. (Id. at 120-22.) Police were unable to determine whether 25 the gun they found was the gun used in the shooting. At trial, Cooper was asked to turn 26 toward the jury so that they could see his “N” neck tattoo. 27 3See also testimony of Eunique Boyd, ECF No. 28-12 at 51-70; testimony of David 28 Hernandez, ECF No. 28-14 at 5-18. 2 A. AEDPA 3 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 4 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 5 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect 6 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — 7

8 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 9 determined by the Supreme Court of the United States; or

10 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 11 State court proceeding.

12 A state court decision is contrary to clearly established Supreme Court precedent, within 13 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 14 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 15 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 16 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (citation modified). A state court decision is 17 an unreasonable application of clearly established Supreme Court precedent within the 18 meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal 19 principle from [the Supreme] Court’s decisions but unreasonably applies that principle to 20 the facts of the prisoner’s case.” Id. at 75 (quoting Williams v. Taylor, 529 U.S. 362, 413 21 (2000)). “The ‘unreasonable application’ clause requires the state court decision to be 22 more than incorrect or erroneous. The state court’s application of clearly established law 23 must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal 24 citations omitted). 25 “A state court’s determination that a claim lacks merit precludes federal habeas 26 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 27 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 28 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a strong case for 2 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 3 (describing the standard as a “difficult to meet” and “highly deferential standard for 4 evaluating state-court rulings, which demands that state-court decisions be given the 5 benefit of the doubt” (citation modified)). 6 B. Ineffective Assistance of Counsel 7 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 8 analysis of claims of ineffective assistance of counsel requiring the petitioner to 9 demonstrate (1) that counsel’s “representation fell below an objective standard of 10 reasonableness,” and (2) that counsel’s deficient performance prejudiced the defendant 11 such that “there is a reasonable probability that, but for counsel’s unprofessional errors, 12 the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 13 A court considering a claim of ineffective assistance of counsel must apply a “strong 14 presumption that counsel’s conduct falls within the wide range of reasonable professional 15 assistance.” Id. at 689. The petitioner’s burden is to show “that counsel made errors so 16 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 17 the Sixth Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it 18 is not enough for the habeas petitioner “to show that the errors had some conceivable 19 effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious 20 as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 21 In reviewing a state court’s Strickland determination under AEDPA, both AEDPA 22 and Strickland’s deferential standards apply, so review is doubly deferential. See Richter, 23 562 U.S. at 104-05. Therefore, “[w]hen § 2254(d) applies, the question is not whether 24 counsel’s actions were reasonable. The question is whether there is any reasonable 25 argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. 26 V. DISCUSSION 27 A. Ground 1—Mens Rea Defense 28 2 defense against attempted murder and battery and failed to request a supporting jury 3 instruction. (ECF No. 13 at 9-15.) He further argues that counsel failed to obtain an expert 4 to evaluate his post-traumatic stress syndrome (“PTSD”), refused to allow Cooper to 5 testify and that ultimately there was a breakdown in attorney-client communication. (Id. at 6 10-13.) 7 Attempted murder in Nevada requires a specific intent to kill. Sharma v. State, 56 8 P.3d 868, 874-75 (Nev. 2002). Intent is usually “inferred by the jury from the 9 individualized, external circumstances of the crime,” such as “the intentional use of a 10 deadly weapon upon the person of another at a vital part.” Id., quoting Dearman v. State, 11 566 P.2d 407, 409 (Nev. 1977); see also Cooper v. State, 587 P.2d 1318, 1319 (Nev. 12 1978) (in a prosecution for attempted murder, a jury was free to draw reasonable 13 inferences of specific intent from the facts proved at trial, including the appellant’s overt 14 act of twice turning and firing gunshots in the direction of the victim, who was pursuing 15 the appellant). Nevada law does not recognize a technical diminished capacity defense. 16 Crawford v. State, 121 P.3d 582, 591 (Nev. 2005). 17 At Cooper’s state postconviction evidentiary hearing, Dr. Brian Leany testified that 18 he had administered cognitive tests to Cooper in connection with the state habeas 19 proceedings. (ECF No. 29-44 at 5-30.) Cooper exhibited symptoms of PTSD, reported 20 physical and sexual abuse as a child, and said that he had witnessed gang violence on 21 numerous occasions. He was also shot in a gang-related incident. Leany said he saw 22 signs of dissociation and hypervigilance in Cooper. 23 Cooper testified at the evidentiary hearing that he had been shot when he was 24 about 14 years old. (ECF No. 29-44 at 31-78.) He has been shot at several times since 25 and has witnessed several people get shot; some died. Earlier on the day that Williams 26 was shot Cooper had seen a group of people with whom he had had previous “run ins.” 27 (Id. at 44.) Cooper was smoking marijuana and had used other drugs that day. Williams 28 bumped into him hard, and Cooper thought Williams was acting aggressively toward him. 2 Cooper testified that Williams said,” I’ll smoke you,” and grabbed something black and 3 silver. (Id. at 53.) Cooper thought it was a gun, but it turned out to be a hair pick. Cooper 4 had wanted to testify at trial in order to explain the misunderstanding and that he never 5 intended to shoot anyone. 6 Cooper said that after he disagreed with his defense attorney about a mistaken- 7 identity defense, his counsel stopped visiting and sent an assistant instead. His lawyer 8 wouldn’t take calls from Cooper or his family, and he did not always respond to emails 9 from Cooper’s mother. On cross-examination Cooper acknowledged that he knew that he 10 had the right to testify and that the trial court had also informed him of that right. Cooper 11 said that his trial counsel told him that the State had offered a plea deal for 5 to 12 years, 12 but that it was up to the sentencing judge. Cooper said his counsel discouraged him from 13 taking a plea deal because, based on no identification, the “case is in the bag.” (Id. at 77.) 14 Cooper was recalled after his trial counsel testified. (Id. at 30-32.) Cooper said that both 15 he and his mother told defense counsel about Cooper’s PTSD prior to trial. 16 Trial counsel testified that he and his investigator had multiple pre-trial 17 conversations and visits with Cooper. (ECF No. 29-49 at 5-29.) He gave Cooper his 18 discovery. Counsel did not recall what particular plea deals the State offered but said that 19 it was “absolutely” his normal course to relay all offers to his client. (Id. at 10.) Counsel 20 thought they had a good defense based on lack of identification because the video of the 21 incident never showed the shooter clearly. (Id. at 12.) He said that Cooper is incredibly 22 intelligent and actively participated in his defense. The trial court had carefully kept any 23 gang history out of the trial. Defense counsel advised Cooper not to testify; he didn’t want 24 the jury to view Cooper solely as a gang member with a past, and Cooper had past 25 felonies. (Id. at 13.) But both defense counsel and the trial court made it clear to Cooper 26 that it was his decision whether to testify. In a letter to the sentencing court Cooper stated 27 that he had wanted to testify but decided not to because of his criminal history. (ECF No. 28 21 at 21 (“I understand that [whether to testify] was my final decision to make.”).) 2 diagnoses, but he and Cooper never discussed presenting PTSD to the jury as part of 3 their trial strategy. Counsel didn’t see how that would boost their defense because there 4 is no diminished capacity defense in Nevada. If the defense presented the theory that 5 Cooper’s gang activity caused the PTSD, that would have opened Cooper up to 6 questioning by the prosecution about his involvement in gangs and his past crimes. (ECF 7 No. 29-29 at 15-17.) Counsel noted that this theory that PTSD caused Cooper to act as 8 he did that night was new and not something he had discussed with Cooper. Counsel 9 testified: 10 . . . this PTSD notion is very new. This isn’t something that Mr. Cooper had said, hey, I got PTSD, man. That’s why I did this. Why don’t you present that? It was 11 absolutely not that cut and dry. This whole notion that the PTSD was causing his actions is new. It’s a new argument. It’s not something him and I discussed…. [T]o 12 say that I had an option between the PTSD defense and another defense if not fair to what the facts were at the time. 13

14 (Id. at 25-26.) Counsel said that the first time Cooper mentioned anything about PTSD 15 was in his state habeas proceedings. Counsel said that he never told Cooper that the 16 case was “in the bag,” and had never told any client that there was a guaranteed trial 17 outcome. (Id. at 29.) During trial the court informed Cooper that it was his right to elect 18 whether or not to testify. (ECF No. 28-14 at 99-101.) The court canvassed him about 19 whether he understood this right and whether he was aware that if he testified the 20 prosecution would be able to ask him about prior felonies. Cooper indicated that he 21 understood. (Id.) 22 The Nevada Court of Appeals held that Cooper failed to demonstrate that his 23 counsel was deficient or that he was prejudiced: 24 First, Cooper claimed that his trial counsel was ineffective for failing to investigate and present a defense to show that Cooper lacked the mens rea 25 for attempted murder or battery due to his post-traumatic stress disorder (PTSD) and other mental health issues. Cooper also asserted that his 26 counsel should have requested jury instructions concerning his mental state 27 and his inability to form the necessary intent to commit the crimes due to his mental state. 28 he reviewed the evidence and discussed potential defenses with Cooper. 2 Counsel testified that Cooper told him that the incident happened because he believed that the victim was a rival gang member. Counsel testified that 3 he was aware that Cooper had some mental health issues but that Cooper 4 did not say anything that would have caused him to believe that Cooper's mental health issues played a role in the shooting. Counsel was very 5 concerned that Cooper's gang history and criminal record would be presented to the jury, and he wished to avoid any defense that had the 6 potential of placing those issues before the jury. Counsel also stated that he reviewed the video surveillance recordings and believed that it would not 7 be easy for the jury to identify Cooper as the person depicted in those 8 recordings. He therefore concluded that a mistaken-identity defense was the best option Cooper had for a favorable result at trial. 9 The district court found that counsel’s testimony was credible, and 10 substantial evidence supports that decision. In light of the testimony presented at the evidentiary hearing, counsel’s investigation and 11 preparation were reasonable under the circumstances of this case. Cooper 12 also failed to demonstrate it was unreasonable for counsel to decline to request instructions concerning his mental issues and those issues’ effect 13 on his ability to form the mens rea for attempted murder and battery. Thus, Cooper failed to demonstrate his counsel’s performance fell below an 14 objective standard of reasonableness. See Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make reasonable investigations or to make a 15 reasonable decision that makes particular investigations unnecessary.”); 16 see also Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (stating that strategic decisions of counsel are “virtually unchallengeable absent 17 extraordinary circumstances”). Cooper also failed to demonstrate a reasonable probability of a different outcome had counsel performed 18 additional investigation or preparation in this matter or requested different 19 jury instructions. Therefore, we conclude the district court did not err by denying this claim. 20 21 (ECF No. 30-32 at 3-4.) 22 During closing arguments, defense counsel emphasized that it was impossible to 23 identify the shooter from the video. He highlighted how eyewitness testimony—including 24 that of at least one police officer—differed notably regarding what the shooter was 25 wearing. (ECF No. 28-14 at 206-220.) Cooper presented some testimony during the 26 postconviction evidentiary hearing that he likely suffered from PTSD. But no evidence 27 persuasively suggested that PTSD was a factor in the shooting, let alone that Cooper 28 lacked the mens rea to commit attempted murder because of his PTSD. 2 whether to testify. Cooper had explained in a letter he wrote to the sentencing court that 3 he had decided not to testify due to his criminal record. Defense counsel said that Cooper 4 actively participated in his defense. Counsel had explained to his client the potential 5 serious detriment of presenting Cooper as a gang member with a criminal history in an 6 effort to demonstrate that gang-related PTSD caused or heavily influenced Cooper to act. 7 Cooper has not shown that his counsel unreasonably presented a mistaken- 8 identity defense under these circumstances. So he has not demonstrated deficiency. Nor 9 has Cooper demonstrated a reasonable probability of a different result if counsel had 10 pursued a defense based on PTSD and requested a specific jury instruction. Cooper has 11 not demonstrated that the Nevada Court of Appeals’ decision on federal ground 1 was 12 contrary to, or involved an unreasonable application of, Strickland, or was based on an 13 unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 14 2254(d). Habeas relief is therefore denied on ground 1. 15 B. Ground 2—Mitigating Evidence at Sentencing 16 Cooper contends that trial counsel failed to present mitigation evidence at 17 sentencing, such as his PTSD. (ECF No. 13 at 17-18.) 18 Defense counsel testified at the state postconviction evidentiary hearing about the 19 memorandum he prepared for sentencing. (ECF No. 29-49 at 17-20.) Counsel stated that 20 he wanted to show the judge another side of Cooper: that he’s very intelligent, he had a 21 two-year-old daughter and a fiancé. (Id. at 17.) He noted in the memorandum Cooper’s 22 self-reported history of mental health problems and substance abuse and that he had 23 been diagnosed with stress disorders and bipolarism. Counsel focused mainly on 24 Cooper’s upbringing and family and church support. (ECF No. 28-21.) Counsel included 25 a letter from Cooper’s mother. (Id. at 10.) The jail chaplain wrote a letter stating that 26 Cooper was actively participating in weekly Bible study, showed real repentance, had an 27 excellent attitude for the future, and was a good example for other inmates. (Id. at 8.) 28 Cooper’s fiancé stressed in her letter that he was an active and loving father and role 2 his tumultuous upbringing, exposure to gang violence, and mental health problems 3 including PTSD and severe depression. (Id. at 13-23.) 4 The Nevada Court of Appeals rejected this claim:

5 Second, Cooper claimed that his trial counsel was ineffective for failing to present sufficient mitigation evidence concerning Cooper’s mental 6 health issues during the sentencing hearing. At the evidentiary hearing, 7 counsel testified that he was aware of Cooper’s PTSD and other mental health issues and that he mentioned those issues in his sentencing 8 memorandum. Counsel, however, decided it was in Cooper’s best interests to focus on Cooper’s positive side. Counsel therefore focused on Cooper’s 9 intelligence, his family life, and involvement in church. The district court found that counsel’s testimony was credible and substantial evidence 10 supports that decision. In light of the testimony presented at the evidentiary 11 hearing, counsel’s presentation of mitigation information to the sentencing court was reasonable under the circumstances of this case. Thus, Cooper 12 failed to demonstrate his counsel’s performance fell below an objective standard of reasonableness. See Lara, 120 Nev. at 180, 87 P.3d at 530. 13 Cooper also failed to demonstrate a reasonable probability of a different outcome had counsel presented additional information concerning Cooper's 14 mental health issues to the sentencing court. Therefore, we conclude the 15 district court did not err by denying this claim.

16 (ECF No. 30-2 at 4-5.) 17 Defense counsel reasonably made the strategic decision to focus on Cooper’s 18 strengths and desire for rehabilitation in the sentencing memo. Counsel also informed the 19 court of Cooper’s mental health issues, as did Cooper himself. It is unclear that additional 20 information regarding Cooper’s mental health was available. Cooper has not shown a 21 reasonable probability of a different result at sentencing had defense counsel focused 22 more on mental health issues. So Cooper has not demonstrated that the Nevada Court 23 of Appeals’ decision on federal ground 2 was contrary to, or involved an unreasonable 24 application of, Strickland, or was based on an unreasonable determination of the facts in 25 light of the evidence presented. 28 U.S.C. § 2254(d). The Court, therefore, denies habeas 26 relief on ground 2. 27 C. Grounds 3 and 7—Failing to Object to Prosecutorial Misconduct 28 2 prosecutor made improper comments during closing arguments. (ECF No. 13 at 20-25.) 3 He argues that the prosecutor vouched for the victim and his girlfriend. He repeats the 4 same claim as ground 7. (Id. at 29.) 5 Prosecutorial misconduct may “‘so infec[t] the trial with unfairness as to make the 6 resulting conviction a denial of due process.’” Greer v. Miller, 483 U.S. 756, 765 (1987), 7 quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The court reviews under 8 the “narrow” standard of a due process violation, “not the broad exercise of supervisory 9 power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). A petitioner cannot prevail on 10 such a claim by merely showing “that the prosecutors’ remarks were undesirable or even 11 universally condemned.” Id. To constitute a due process violation, the prosecutorial 12 misconduct must be “‘of sufficient significance to result in the denial of the defendant’s 13 right to a fair trial.’” Greer, 483 U.S. at 765, quoting United States v. Bagley, 473 U.S. 14 667, 676 (1985). “Prosecutorial misconduct which rises to the level of a due process 15 violation may provide the grounds for granting a habeas petition only if that misconduct 16 is deemed prejudicial under the ‘harmless error’ test.” Shaw v. Terhune, 380 F.3d 473, 17 478 (9th Cir. 2004). An error is harmless unless it had a “substantial and injurious effect 18 or influence in determining the jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 623 19 (1993). 20 “‘Vouching consists of placing the prestige of the government behind a witness 21 through personal assurances of the witness’s veracity, or suggesting that information not 22 presented to the jury supports the witness’s testimony.” United States v. Weatherspoon, 23 410 F.3d 1142, 1146 (9th Cir. 2005), quoting United States v. Necoechea, 986 F.2d 1273, 24 1276 (9th Cir. 1993). A prosecutor’s comment on a defendant’s exercise of his right to 25 remain silent is unconstitutional. United States v. Whitehead, 200 F.3d 634, 638 (9th 26 2000). 27 During closing arguments, the prosecutor commented on the credibility of the 28 victim and his girlfriend: about them for a quick second. Their credibility and their believability, well, 2 DeQuandre took that stand and he told you all what happened back on August 28, 2016. He told you it was a day that he will never forget for the 3 rest of his life. This was a traumatic experience for DeQuandre. He’d been 4 shot. His girlfriend had to witness him getting shot. What’s his motive? What interest does he have in this to come in here and to make up a story about 5 what happened if it wasn’t true?

6 . . . .

7 So let’s talk about the direct evidence. DeQuandre Williams. Well, for 8 the life of me, I can’t understand why a 20-year-old man who just got – who suffered two bullet wounds would be willing to come into the court, take the 9 stand, swear an oath, and point at the wrong guy. Why would he do that? We all know – we’ve all heard and I think even the defense say, they don’t 10 know each other. These two men do not know each other. And I think you can tell by Mr. Williams’ demeanor, he’s not happy about getting shot. He’s 11 not looking to pick out the wrong guy and I did the thing lawyers are not 12 supposed to do. I asked him in redirect: Well, how sure are you that it’s Mr. Cooper? I didn’t know what he was going to say. And he said: I’m certain. I 13 never forget a face and I won’t forget that face.

14 . . . .

15 I mean, short of [Cooper] confessing, I don’t know what else you could 16 have.

17 (ECF No. 28-14 at 193-194, 224, 227.) 18 The Nevada Court of Appeals disagreed that counsel was ineffective: 19 Third, Cooper claimed that his trial counsel was ineffective for failing to object when the State vouched for the credibility of the victim and his 20 girlfriend. “The prosecution may not vouch for a witness; such vouching 21 occurs when the prosecution places the prestige of the government behind the witness by providing personal assurances of [the] witness’s veracity.” 22 Browning v. State, 120 Nev. 347, 359, 91 P.3d 39, 48 (2004) (internal quotation marks omitted). However, the State is allowed “reasonable 23 latitude” to argue concerning the credibility of witnesses. Rowland v. State, 118 Nev. 31, 39, 39 P.3d 114, 119 (2002). During closing arguments, the 24 State contended that the victim and his girlfriend had no motive to fabricate 25 their version of events and urged the jury to find them credible. The State’s arguments did not provide personal assurances of the witnesses’ veracity 26 and, therefore, did not constitute improper vouching. Accordingly, Cooper failed to demonstrate his counsel’s performance fell below an objective 27 standard of reasonableness by failing to object to the challenged arguments. Cooper also failed to demonstrate a reasonable probability of a 28 court did not err by denying this claim. 2 Fourth, Cooper claimed that his trial counsel was ineffective for 3 failing to object to prosecutorial misconduct when the State commented on 4 Cooper’s post-arrest silence. “It is well settled that the prosecution is forbidden at trial to comment upon an accused’s election to remain silent 5 following his arrest.” Morris v. State, 112 Nev. 260, 263, 913 P.2d 1264, 1267 (1997) (internal quotation makes omitted). “[T]he prosecutor may . . . 6 assert inferences from the evidence and argue conclusions on disputed issues.” Truesdell v. State, 129 Nev. 194, 203, 304 P.3d 396, 402 (2013). 7 Improper comments on a defendant’s post-arrest silence will be harmless 8 beyond a reasonable doubt if it was a passing reference or there is overwhelming evidence of guilt. Morris, 112 Nev. at 264, 913 P.2d at 1267- 9 68.

10 During rebuttal argument, the State inventoried the testimony and evidence that indicated Cooper's guilt for the crimes. The State noted that 11 it had presented a substantial amount of circumstantial evidence indicating 12 that Cooper was the person that had shot the victim and then stated, “I mean, short of a - short of him confessing, I don't know what else you could 13 have.” The challenged statement was an argument concerning the nature and quality of the evidence indicating Cooper's guilt and was not a comment 14 on Cooper’s decision to remain silent. And to the extent it could have been a comment on Cooper’s decision, it was, at most, a passing reference to 15 Cooper’s post-arrest silence. Accordingly, Cooper did not demonstrate that 16 his counsel’s performance fell below an objective standard of reasonableness due to any failure to object to the challenged comment. 17 In addition, this court concluded on direct appeal that there was 18 overwhelming evidence of Cooper’s guilt presented at trial. Cooper v. State, 19 No. 7355 8-COA, 2018 WL 3603040 (Nev. Ct. App. July 20, 2018) (Order of Affirmance). Thus, even assuming the challenged statement was 20 improper, it was harmless. Accordingly, Cooper failed to demonstrate a reasonable probability of a different outcome had counsel objected to the 21 challenged statement. Therefore, we conclude the district court did not err by denying this claim. 22

23 (ECF No. 30-32 at 5-7.) 24 In closing argument, the prosecutor posed the common-sense question: why 25 would the victim lie about the shooting? The prosecutor did not personally assure that the 26 victim’s testimony was accurate, nor did he intimate that evidence outside of the trial 27 showed that the victim was credible. So the prosecutor did not engage in impermissible 28 vouching. The prosecutor reviewed the eyewitness, video, and circumstantial evidence 2 Nevada Court of Appeals reasonably interpreted that as an argument assessing the 3 “nature and quality” of the evidence of Cooper's guilt and not as a comment on Cooper’s 4 decision to remain silent. To the extent that it might be an improper statement on Cooper’s 5 silence, the prosecutor’s argument did not deprive Cooper of a fair trial. Cooper has not 6 shown that trial counsel was deficient by failing to object to the prosecutor’s comments, 7 nor has he shown a reasonable probability of a different result if counsel had objected. 8 The Nevada Court of Appeals reasonably applied Strickland and was not based on an 9 unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 10 2254(d). The Court, therefore, denies habeas relief on grounds 3 and 7. 11 D. Ground 4—Ineffective Assistance of Appellate Counsel 12 Here Cooper alleges only: “Appellate counsel, who was also trial counsel, failed to 13 include in the appeal errors that he himself had in fact objected to. Specifically, appellate 14 counsel failed to raise as error a separate instance of prosecutorial misconduct and the 15 district court’s unconstitutional abridgement of Cooper’s defense.” (ECF No. 13 at 28.) 16 The Court notes that appellate counsel does not have a constitutional obligation to 17 raise every nonfrivolous issue. Jones v. Barnes, 463 U.S. 745, 751 (1983). Experienced 18 appellate counsel recognize that it is important to focus on the strongest issue or a few 19 key issues. Id. at 751-52. A petitioner must demonstrate that but for counsel’s errors, he 20 would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000). Most 21 importantly here, however, Cooper does not describe the alleged instances of 22 prosecutorial misconduct at all or explain how the court allegedly interfered with his 23 defense. There are no specific allegations whatsoever. Ground 4 is, therefore, denied as 24 meritless. 25 E. Ground 5—The Cumulative Effect of Ineffective Counsel 26 Cooper argues that the cumulative effect of trial counsel’s errors prejudiced him. 27 (ECF No. 13 at 28.) The Ninth Circuit has held that the combined effect of multiple trial 28 court errors violates due process where it renders the resulting criminal trial fundamentally 2 410 U.S. 284, 298 (1973). The cumulative effect of multiple errors can violate due process 3 even where no single error rises to the level of a constitutional violation or would 4 independently warrant reversal. Chambers, 410 U.S. at 290 n.3. The fundamental 5 question in determining whether the combined effect of trial errors violated a defendant’s 6 due process rights is whether the errors rendered the criminal defense “far less 7 persuasive,” and thereby had a “substantial and injurious effect or influence” on the jury’s 8 verdict. Parle, 505 F.3d at 927 (citing Chambers, 410 U.S. at 294); Brecht v. Abrahamson, 9 507 U.S. 619, 627 (1993). 10 The Nevada Court of Appeals disagreed: 11 Cooper next argued he was entitled to relief due to the cumulative effect of counsels’ errors. Even assuming any such errors may be 12 cumulated, see McConnell v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 n.17 (2009) (noting the Nevada Supreme Court has never adopted a 13 standard to evaluate such claims in postconviction proceedings), Cooper 14 failed to demonstrate multiple errors to cumulate. Therefore, we conclude the district court did not err by denying this claim. See Burnside v. State, 15 131 Nev. 371, 407, 352 P.3d 627, 651 (2015).

16 (ECF No. 30-32 at 8.) 17 The Court concludes that the state appellate court reasonably rejected Cooper’s 18 claims of ineffective assistance of counsel. So there is no error to cumulate. Accordingly, 19 habeas relief is denied on ground 5. 20 The Petition, therefore, is denied in its entirety. 21 VI. CERTIFICATE OF APPEALABILITY 22 This is a final order adverse to the Cooper. As such, Rule 11 of the Rules Governing 23 Section 2254 Cases requires this Court to issue or deny a Certificate of Appealability 24 (COA). Accordingly, the court has sua sponte evaluated the claims within the Petition for 25 suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 26 F.3d 851, 864-65 (9th Cir. 2002). 27 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 28 “has made a substantial showing of the denial of a constitutional right.” With respect to 1 || claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would 2 || find the district court's assessment of the constitutional claims debatable or wrong.” Slack 3 || v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 &n.4 4 || (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 5 || (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 6 || whether the court's procedural ruling was correct. /d. at 478. 7 Having reviewed its determinations and rulings in adjudicating Cooper's Petition, 8 || the Court finds that none of those rulings meets the S/ack standard. The Court therefore 9 || declines to issue a certificate of appealability for its resolution of Cooper’s Petition. 10 || Vil. CONCLUSION 11 It is therefore ordered that the Amended Petition (ECF No. 13) is denied. 12 It is further ordered that a Certificate of Appealability will not issue. 13 The Clerk of the Court is directed to enter judgment accordingly and close this 14 || case. 15 DATED THIS 22" Day of May 2026. 16 17

19 MIRANDAM.DU tsi‘; □□□□□□□□ UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 17