Kelsey v. Baker

• Court: District Court, D. Nevada
• Decided: March 29, 2022
• Docket: 3:18-cv-00174
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ZACHARY KELSEY, Case No. 3:18-cv-00174-MMD-CLB

7 Petitioner, ORDER v. 8 TIM GARRETT,1 et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Zachary Kelsey filed a petition for writ of habeas corpus under 28 U.S.C. 13 § 2254 on May 16, 2018. (ECF No. 6 (“Petition”).) This Court denied the Petition and a 14 certificate of appealability on August 22, 2019. (ECF No. 27.) Kelsey appealed on 15 September 4, 2019, and the United States Court of Appeals for the Ninth Circuit granted 16 a certificate of appealability with respect to the following issues: whether Kelsey’s trial 17 counsel provided ineffective assistance, including whether his counsel was ineffective for 18 (a) waiving closing argument, or (b) failing to consult with or retain an expert regarding 19 the victim’s cause of death.2 (ECF Nos. 29, 31.) 20 Kelsey moved for a remand because documents—namely, John Ohlson’s 21 deposition testimony and Amy L. Llewellyn, M.D.’s report—from the state court record 22 were not submitted to—and thus not reviewed by—this Court when it denied the Petition. 23 The United States Court of Appeals for the Ninth Circuit granted the motion on July 12, 24 25

26 1The state corrections department’s inmate locator page states that Kelsey is incarcerated at Lovelock Correctional Center. Tim Garrett is the current warden for that 27 facility. At the end of this order, this Court directs the clerk to substitute Tim Garrett as a respondent for the prior respondent Renee Baker. See Fed. R. Civ. P. 25(d). 28 1 2021, pursuant to Nasby v. McDaniel, and remanded the case for further proceedings. 2 Based on that order, this Court reopened this action. 3 Based on the foregoing, grounds 1 and 2 of the Petition are before this Court for 4 consideration of Ohlson’s deposition and Dr. Llewellyn’s report to determine whether this 5 Court’s previous judgment should be amended. In that respect, Kelsey filed a 6 supplemental brief, respondents answered, and Kelsey replied. (ECF Nos. 44, 49, 52.) 7 This Court now affirms its previous denial of—but grants a certificate of appealability for— 8 grounds 1 and 2 of the Petition. 9 II. BACKGROUND3 10 On February 4, 2012, a group of approximately 50 people, ranging from high 11 school students to individuals in their early 20s, were at the motocross track in Lemmon 12 Valley, Nevada having a party and bonfire. (ECF Nos. 18-1 at 73–74, 88; 18-3 at 179.) A 13 few hours into the party, two women, Amber Dutra and Kasey Sinfellow, started to fight. 14 (ECF No. 18-4 at 78.) Taylor Pardick, Dutra’s boyfriend, broke up the fight, but Sinfellow 15 hit Pardick. (Id.) Pardick “threatened that he wasn’t scared to punch a girl in the face,” so 16 Jacob Graves, Sinfellow’s close friend, joined the altercation, saying, “if you want to try 17 and hit a girl, then you can hit me.’” (Id. at 274.) Andrue Jefferson and others tried to 18 instigate a fight between Pardick and Graves, asking if Pardick “was part of the [Twisted 19 Minds] crew, and if [he] was, then [he] needed to fight.” (ECF No. 18-2 at 212, 214.) Eric 20 Boatman joined the altercation to assist Pardick, but Graves hit Boatman and Pardick, 21 knocking them both to the ground. (Id. at 215.) 22 Michael Opperman testified that he and Kelsey were walking away from the 23 altercation involving Graves, Boatman, and Pardick when they heard Jared Hyde 24 comment, to no one in particular, “[t]his is bullshit. You just knocked out my best friend.” 25 (ECF No. 18-2 at 282.) Kelsey overheard Hyde’s comment and pushed him. (Id.) Hyde

26 3This Court makes no credibility findings or other factual findings regarding the 27 truth or falsity of this evidence from the state court. The summary is merely a backdrop to its consideration of the issues presented in the case. Any absence of mention of a 28 specific piece of evidence does not signify the Court overlooked it in considering Kelsey’s 1 “had his arms up kind of like . . . don’t hit kind of thing,” and Kelsey hit him twice in the 2 head. (Id. at 283.) “And then as [Hyde] was going down, [Kelsey] grabbed his head and 3 kneed him twice in the head.” (Id.) Aubree Hawkinson testified that she saw Kelsey “grab[ 4 Hyde] by the shirt and knee[ ] him in the face and hit him a couple times.” (ECF No. 18-4 5 at 275.) Opperman testified that he grabbed Kelsey and pushed him away from Hyde. 6 (ECF No. 18-2 at 283.) Hyde got up, “had blood either from his mouth or his nose running 7 down, his shirt was torn,” and walked away. (Id.) Opperman characterize the incident 8 between Kelsey and Hyde as an attack: “[Hyde] had no way to defend himself. He was 9 just walking, was talking to himself . . . . [Kelsey] overheard it, thought he was talking shit 10 about him or about maybe one of his friends or something like that and kind of just went 11 at him.” (ECF No. 18-3 at 18.) 12 Opperman testified that he tried to calm Kelsey down because Kelsey was 13 screaming at Hyde as he walked away. (ECF No. 18-2 at 283-84.) Cliffton Fuller testified 14 that Kelsey was “taking off his shirt acting like he wanted to go again,” and Hyde “seemed 15 kind of out of it.” (ECF No. 18-3 at 167-69.) Anthony Fuller testified that Hyde’s “mouth 16 was bleeding, [and] his shirt was ripped in half.” (ECF No. 18-2 at 106.) And Brandon 17 Naastad testified that Hyde “was scared. He was about to cry. He didn’t want to be there 18 at all.” (ECF No. 18-4 at 39.) 19 Tyler DePriest, who drove Hyde and a few other people to the party in his Dodge 20 Durango, testified that he saw Hyde following the incident with Kelsey, “[a]nd the collar of 21 [Hyde’s] shirt was really stretched out and ripped” and “[h]e looked kind of distraught.” 22 (ECF No. 18-2 at 11, 16.) Hyde told DePriest, “[l]et’s go, let’s get out of here. I just got 23 rocked.” (Id. at 16.) DePriest and Hyde walked back to the Durango to leave. (Id.) As they 24 walked, Kelsey, who was approximately 30 feet away with his shirt off, asked Hyde, “[o]ne 25 punch, that’s it?” (Id. at 17.) As DePriest was getting in the driver’s side door of the 26 Durango, believing Hyde was getting in the vehicle on the passenger’s side, he saw Hyde 27 “drop.” (Id. at 17-18.) 28 /// 1 L.E. testified that she saw Robert Schnueringer walk up to Hyde at the Durango 2 and ask, “[s]o do you want to fight, too?” (ECF No. 18-3 at 240.) Hyde responded, “[n]o, 3 I’m just trying to leave.” (Id.) Schnueringer hit Hyde “[r]eally hard,” and Hyde fell to the 4 ground. (Id. at 240–241.) Jefferson and two other individuals then punched and kicked 5 Hyde. (Id. at 241.) Naastad testified that Schnueringer and Jefferson were asking Hyde if 6 he was “still talking smack,” and after Hyde responded in the negative while “about to 7 cry,” Jefferson “hit [Hyde] and then [Hyde] kind of fell and then [Schnueringer] hit him one 8 time and then [Jefferson] hit him two more times on the ground.” (ECF No. 18-4 at 40.) 9 Hawkinson testified that Schnueringer “punched [Hyde] about three times and [Hyde] 10 looked pretty like [sic] he was going to pass out from the fight. And then the next thing 11 you know, [Jefferson] jumped from behind the car and hit [Hyde] as well about three 12 times.” (Id. at 281.) Opperman testified that Schnueringer hit Hyde in the head with a “full- 13 blown” punch, causing Hyde to fall, and Jefferson then told Hyde, “[y]ou got knocked the 14 fuck out,” and punched Hyde in the head. (ECF Nos. 18-2 at 284; 18-3 at 22.) Mark Rankin 15 testified that Schnueringer asked Hyde “if he had a problem with the crew and if he wanted 16 to get down with TM, get down with the mob.” (ECF No. 18-3 at 300.) Schnueringer then 17 “proceeded to keep yelling things about TM and he hit [Hyde],” causing him to “kind of 18 noodle[ ] to the ground.” (Id.) J.B. testified that Schnueringer’s hit to Hyde was hard and 19 “sounded like a baseball bat,” and Schnueringer and Jefferson kicked Hyde after he fell. 20 (ECF No. 18-4 at 195.) And Justin Ferretto testified that Schnueringer asked Hyde if he 21 had a problem, and after Hyde said no, Schnueringer hit him, causing Hyde to fall. (Id. at 22 136.) Jefferson and Schnueringer then “started stomping on [Hyde’s] head.” (Id. at 139.) 23 Brett Stuber testified that after Jefferson hit Hyde, “[h]e was jumping around 24 saying, ‘I slept him, I slept him.’” (ECF No. 18-5 at 27.) Cliffton Fuller also testified that 25 Jefferson said that he “slept” Hyde. (ECF No. 18-3 at 175.) Anthony Fuller testified that 26 while the incident with Schnueringer and Jefferson was occurring, he “heard TM being 27 yelled,” meaning “twisted minds,” which is “a tagging group.” (ECF No. 18-2 at 109, 172.) 28 1 Hyde was brought to the emergency room “in essentially cardiorespiratory arrest,” 2 and efforts to resuscitate him were unsuccessful. (ECF No. 18-1 at 203.) 3 Schnueringer presented three witnesses at trial—Aaron Simpson, Zachary Fallen, 4 and Zach Smith—who each testified that they saw Kelsey the night after Hyde died, and 5 Kelsey told them that he had used brass knuckles in his fight with Hyde and that “the last 6 person [he] hit died.” (ECF No. 18-5 at 214, 243, 259.) 7 Kelsey testified that he was watching the fight between Graves, who was his good 8 friend, and Pardick when three individuals, including Hyde, rushed into the fight. (ECF 9 No. 18-9 at 36.) Kelsey “jumped between them and [Graves] and swung at the first two” 10 individuals. (Id. at 37.) Hyde then said to Kelsey, “[i]f you are going to swing on me[,] I’m 11 going to knock you out.” (Id.) Hyde then “came forward with his fists balled up.” (Id. at 38.) 12 Kelsey punched Hyde twice, and Hyde grabbed Kelsey’s shirt, causing Kelsey to try to 13 kick Hyde off him. (Id.) In an effort to get Hyde to release his hold on Kelsey’s shirt, Kelsey 14 “ended up just leaning back and putting [his] weight into putting [Hyde] off of [him] and 15 when [he] did that[, Hyde] pulled [his] shirt over [his] head.” (Id.) With his shirt over his 16 head, Kelsey “got pushed and tripped and fell into [a] tree.” (Id.) Kelsey stood up and with 17 his “fists balled up” asked Hyde, “[a]re you done?” (Id. at 39.) Hyde said he was, and then 18 their fight was over. (Id.) Kelsey gave Schnueringer a ride home after the party and denied 19 using, or bragging about using, brass knuckles. (Id. at 21, 50, 56-57.) 20 Kelsey, Schnueringer, and Jefferson were found guilty of second-degree murder. 21 (ECF No. 18-13 at 83-84.) Kelsey was sentenced to 10 to 25 years, and Schnueringer 22 and Jefferson were sentenced to 10 years to life. (ECF No. 18-15 at 57-58.) The Nevada 23 Supreme Court affirmed Kelsey’s judgment of conviction. (ECF No. 19-8.) Kelsey sought 24 post-conviction relief. (ECF No. 19-16.) Although the state district court granted Kelsey’s 25 petition on the claim that his trial counsel was ineffective in failing to give a closing 26 argument, the Nevada Court of Appeals reversed. (ECF Nos. 20-15; 21-17.) 27 /// 28 /// 1 III. LEGAL STANDARDS 2 A. Antiterrorism and Effective Death Penalty Act (“AEDPA”) 3 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 4 habeas corpus cases under 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 (1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 9 (2) resulted in a decision that was based on an unreasonable 10 determination of the facts in light of the evidence presented in the State court proceeding. 11 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) (quoting Williams v. Taylor, 529 U.S. 362, 17 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 18 is an unreasonable application of clearly established Supreme Court precedent within 19 the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing 20 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 21 principle to the facts of the prisoner’s case.” Id. at 75. “The ‘unreasonable application’ 22 clause requires the state court decision to be more than incorrect or erroneous. The 23 state court’s application of clearly established law must be objectively unreasonable.” 24 Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted). 25 The Supreme Court has instructed that “[a] state court’s determination that a claim 26 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 27 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 28 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 1 has stated “that even a strong case for relief does not mean the state court’s contrary 2 conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen 3 v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” 4 and “highly deferential standard for evaluating state-court rulings, which demands that 5 state-court decisions be given the benefit of the doubt” (internal quotation marks and 6 citations omitted)). 7 B. Effective Assistance of Counsel 8 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 9 analysis of claims of ineffective assistance of counsel requiring the petitioner to 10 demonstrate (1) that the attorney’s “representation fell below an objective standard of 11 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the 12 defendant such that “there is a reasonable probability that, but for counsel’s 13 unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 14 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel 15 must apply a “strong presumption that counsel’s conduct falls within the wide range of 16 reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that 17 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 18 guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to establish 19 prejudice under Strickland, it is not enough for the habeas petitioner “to show that the 20 errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, 21 the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose 22 result is reliable.” Id. at 687. 23 Where a state district court previously adjudicated the claim of ineffective 24 assistance of counsel under Strickland, establishing that the decision was unreasonable 25 is especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the United States 26 Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, and 27 when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. 28 Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When 1 a federal court reviews a state court’s Strickland determination under AEDPA, both 2 AEDPA and Strickland’s deferential standards apply; hence, the Supreme Court’s 3 description of the standard as doubly deferential.”). The Supreme Court further clarified 4 that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were 5 reasonable. The question is whether there is any reasonable argument that counsel 6 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 7 IV. DISCUSSION 8 A. Ground 1—Closing Argument 9 In ground 1, Kelsey argues that Edwards’ decision to waive closing argument was 10 ineffective assistance of counsel because he gave up any chance to (1) persuade the jury 11 to select a lesser-included offense, (2) explain the jury instructions counsel prepared, and 12 (3) distinguish Kelsey’s actions from Schnueringer and Jefferson’s. (ECF No. 44 at 18.) 13 1. Information Reviewed During Initial Merits Review 14 The State tried Kelsey, Schnueringer, and Jefferson together. (ECF No. 17-4.) 15 Kelsey was represented by Scott Edwards, Schnueringer by John Ohlson, and Jefferson 16 by Richard Molezzo. (ECF No. 18 at 3.) The junior prosecutor gave the State’s first closing 17 argument, arguing that “the State [was] asking [the jury] to return a verdict for each of 18 these three defendants” for second-degree murder. (ECF No. 18-13 at 28, 31.) A lunch 19 break was taken following the junior prosecutor’s closing argument, and following that 20 break, Ohlson represented that “all three counsel have been discussing and we’re all in 21 unanimous agreement and each of the three defense lawyers waives closing arguments.” 22 (ECF No. 18-13 at 79.) Edwards then confirmed that he was waiving his closing argument. 23 (Id.) 24 During the post-conviction evidentiary hearing, Edwards testified that his theory of 25 defense was that Kelsey “was guilty at best of the lesser included offense of simple 26 battery” and that Kelsey was not the proximate cause of the victim’s death. (ECF No. 20- 27 9 at 177-78.) Edwards testified that by waiving his closing argument, he gave up the 28 opportunity to address his jury instructions on—and argue about—Kelsey’s lack of 1 proximate cause to Hyde’s death and Kelsey’s actions amounting to only a misdemeanor 2 battery or involuntary manslaughter. (Id. at 194-95, 200-01.) However, Edwards testified 3 that the decision was made to waive closing argument because he, Ohlson, and Molezzo 4 “didn’t want [the senior prosecutor], the number one prosecutor, to come in with an 5 argument that made a first degree [sic] murder conviction a possibility at all.” (Id. at 194, 6 197.) Edwards explained that Ohlson “floated” the idea of waiving closing argument, and 7 he and Molezzo “had the same kind of opinion.” (Id. at 231.) Edwards testified that the 8 junior prosecutor’s closing argument “wasn’t the most vigorous closing argument [he] had 9 ever seen in a prosecution.” (Id.) Conversely, Edwards explained that he would 10 characterize the senior prosecutor’s closing arguments as more vigorous; thus, the 11 decision to waive closing argument was “predicated in part on a desire to keep [the senior 12 prosecutor] from addressing the jury.” (Id. at 232.) Edwards, however, did testify that 13 Kelsey’s trial was the first time he had ever waived a closing argument and that “[i]t might 14 be the last.” (Id. at 244.) 15 2. New Information 16 In his August 2015 deposition, which this Court did not possess for consideration 17 during its initial merits review, Ohlson confirmed that it was his idea for the three 18 defendants to waive closing argument and that he discussed this idea with Edwards 19 during the lunch break. (ECF No. 43-1 at 23.) Ohlson opined that the junior prosecutor’s 20 closing argument “was intentionally perfunctory in order to set us up for closing arguments 21 to which [the senior prosecutor] could give a blazing rebuttal argument.” (Id. at 24.) Ohlson 22 “wanted to cut [the senior prosecutor] off from arguing” because the senior prosecutor 23 was “[v]ery tough.” (Id.) When asked if he would have waived closing argument had he 24 represented Kelsey, Ohlson responded that he would not. (Id. at 26.) Ohlson’s deposition 25 was admitted as an exhibit at Kelsey’s post-conviction evidentiary hearing. (ECF No. 20- 26 9 at 171.) 27 /// 28 /// 1 3. Legal Standard 2 “[C]losing argument for the defense is a basic element of the adversary factfinding 3 process in a criminal trial,” so “counsel for the defense has a right to make a closing 4 summation to the jury.” Herring v. New York, 422 U.S. 853, 858 (1975) (explaining that 5 “closing argument serves to sharpen and clarify the issues for resolution by the trier of 6 fact in a criminal case. For it is only after all the evidence is in that counsel for the parties 7 are in a position to present their respective versions of the case as a whole. Only then 8 can they argue the inferences to be drawn from all the testimony, and point out the 9 weaknesses of their adversaries’ positions”). As such, “[t]he right to effective assistance 10 [of counsel] extends to closing arguments,” but “counsel has wide latitude in deciding how 11 best to represent a client, and deference to counsel’s tactical decisions in his closing 12 presentation is particularly important because of the broad range of legitimate defense 13 strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). Accordingly, 14 “[j]udicial review of a defense attorney’s summation is therefore highly deferential-and 15 doubly deferential when it is conducted through the lens of federal habeas.” Id. at 6. 16 4. State Court Determination 17 In its order affirming in part, reversing in part, and remanding, the Nevada Court of 18 Appeals held:

19 The State argues the district court erred by granting the postconviction petition when it found trial counsel was ineffective for waiving respondent 20 Zachary Kelsey’s right to present a closing argument. In its order, the district court concluded counsel’s decision to waive closing argument was deficient 21 and not a tactical decision and Kelsey demonstrated prejudice because there was a possibility of a different outcome at trial had counsel presented 22 a closing argument.

23 We conclude the district court erred by granting Kelsey’s claim that counsel was ineffective for waiving closing argument. To prove ineffective 24 assistance of counsel, a petitioner must demonstrate that counsel’s performance was deficient in that it fell below an objective standard of 25 reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings 26 would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) 27 (adopting the test in Strickland). Both components of the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner must demonstrate the 28 underlying facts by a preponderance of the evidence, Means v. State, 120 1 erroneous but review the court’s application of the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). 2 “A court considering a claim of ineffective assistance must apply a 3 strong presumption that counsel’s representation was within the wide range of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 4 104 (2011) (internal quotation marks omitted). Tactical decisions of counsel “are virtually unchallengeable absent extraordinary circumstances.” Ford v. 5 State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). The decision to waive closing argument is a tactical decision. See Bell v. Cone, 535 U.S. 685, 701- 6 702 (2002). An appellate court is “required not simply to give the attorneys the benefit of the doubt, but to affirmatively entertain the range of possible 7 reasons [an appellant’s] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks, 8 alterations, and citations omitted).

9 At the evidentiary hearing, counsel testified he decided to waive closing argument because he did not believe the State’s closing argument 10 was very vigorous and believed the State’s rebuttal closing argument would be much more persuasive. Counsel testified he was prepared to present a 11 closing argument, but decided not to after hearing the State’s closing argument and discussing the strategy with Kelsey’s codefendants’ 12 counsels, and all defense counsel agreed to waive closing argument. He also testified he had observed the prosecutor’s rebuttal closing arguments 13 in other cases and found the prosecutor to be very vigorous and persuasive. This was a tactical decision, and cannot be challenged outside of 14 extraordinary circumstances, which are not present here.

15 [FN1] The district court relied on Ex parte Whited, 180 So.3d 69 (Ala. 2015), to conclude Kelsey demonstrated counsel was 16 ineffective. Trial counsel in Whited, however, could not articulate his strategic reason for waiving closing argument. 17 180 So.3d at 81-82. In the instant case, counsel articulated his reason for waiving, and therefore, the instant case is 18 distinguishable.

19 While the choice to forgo closing argument may not have been the best option, it was a tactical decision and did not place counsel’s representation 20 “outside the wide range of professional competent assistance.” Strickland, 466 U.S. at 690-91. Accordingly, we conclude the district court erred by 21 determining counsel was deficient for waiving his closing argument.

22 We also conclude the district court erred by determining Kelsey suffered prejudice by counsel waiving closing argument. While the district 23 court found Kelsey “suggest[ed] a manner in which counsel could have argued in closing that could have affected a reasonable probability of a 24 different outcome for the Petitioner at trial,” the district court also stated there were “arguments available to the Petitioner from which the jury could 25 possibly conclude the Petitioner was guilty of the lesser charged offenses as offered in the jury instructions.” Based on the evidence presented at trial, 26 Kelsey failed to demonstrate a reasonable probability of a different outcome at trial had counsel not waived closing argument. Kelsey punched the victim 27 in the head twice and may have kneed him the [sic] in the head as well. After being pulled out of the fight, Kelsey continued to yell and try to get at 28 the victim. After the fight, the victim stood up, had blood streaming from his 1 and another expert testified the injuries to the victim were likely cumulative. Accordingly, we conclude the district court erred by granting this claim. 2 3 (ECF No. 21-17 at 2-5.) 4 Kelsey argues that this Court should review this ground de novo because the 5 Nevada Court of Appeals’ decision is based on an unreasonable determination of the 6 facts and an unreasonable application of Strickland. (ECF No. 44 at 26-27.) Specifically, 7 Kelsey argues that the Nevada Court of Appeals’ finding that Edwards’ decision to waive 8 closing argument was strategic is undermined by the record and the Nevada Court of 9 Appeals unreasonably gave deference to Edwards’ strategy without evaluating whether 10 that strategy was reasonable. (Id. at 27; ECF No. 52 at 8-10.) Regarding the latter 11 argument, this Court disagrees that the Nevada Court of Appeals simply acquiesced to 12 Edwards’ testimony about the strategy behind his waiver of closing argument; rather, the 13 Nevada Supreme Court determined that Edwards’ decision was tactical and was not 14 “outside the wide range of professional competent assistance.” (ECF No. 21-17 at 4 15 (citing Strickland, 466 U.S. at 690-91).) 16 And turning to the former argument, it is true, as Kelsey contends, that Edwards 17 testified that he waived closing argument, in part, to keep the senior prosecutor from 18 advocating that the jury should convict Kelsey of first-degree murder. (ECF No. 20-9 at 19 194.) However, this Court does not agree with Kelsey’s contention that this testimony was 20 undermined by Edwards’ alleged later testimony that the senior prosecutor could not have 21 made such an argument based on the facts of the case. Contrarily, Edwards testified he 22 “couldn’t say . . . for sure” that the senior prosecutor would not have contradicted the 23 junior prosecutor by advocating that the jury convict Kelsey of first-degree murder 24 because “we hadn’t been able to shake the causation issue.” (Id. at 198, 202.) 25 Consequently, this Court declines to review ground 1 de novo. 26 5. Analysis 27 Due to the allegedly distinctive roles Schnueringer and Jefferson played in Hyde’s 28 death as compared to the role Kelsey played, it seems sensible that Edwards would have 1 taken the opportunity to present a closing argument to highlight the fact that Kelsey’s 2 actions towards the victim occurred prior in time to the, arguably, more severe beating 3 Hyde received from Schnueringer and Jefferson. Further, like his opening statement, 4 Edwards could have asked the jury to find Kelsey guilty of involuntary manslaughter or 5 misdemeanor battery instead of murder. (See ECF No. 18-1 at 66-68.) 6 However, while Edwards’ decision to forgo closing argument may have been 7 unexpected given the facts of the case, the Nevada Court of Appeals reasonably noted 8 that Edwards testified that he waived closing argument for a tactical reason: his belief that 9 the senior prosecutor would give a vigorous rebuttal closing whereby he may ask the jury 10 to find Kelsey guilty of first-degree murder. Evaluating this tactical decision from Edwards’ 11 perspective at the time it was made and in light of the circumstances, the Nevada Court 12 of Appeals reasonably determined that Edwards’ decision fell within “the wide range of 13 professionally competent assistance.” Strickland, 466 U.S. at 689; see also Kimmelman 14 v. Morrison, 477 U.S. 365, 384 (1986) (“The reasonableness of counsel’s performance is 15 to be evaluated from counsel’s perspective at the time of the alleged error and in light of 16 all the circumstances.”). 17 Indeed, similarly, in Bell v. Cone, defense counsel faced two similar options: he 18 could give a closing argument and, thus, “give the lead prosecutor, who all agreed was 19 very persuasive, the chance to depict his client as a heartless killer just before the jurors 20 began deliberation” or he “could prevent the lead prosecutor from arguing by waiving his 21 own summation and relying on the jurors’ familiarity with the case and his opening plea.” 22 535 U.S. 685, 701-02 (2002). In Bell, the Supreme Court held that “[n]either option . . . so 23 clearly outweigh[ed] the other that it was objectively unreasonable for the Tennessee 24 Court of Appeals to deem counsel’s choice to waive argument a tactical decision about 25 which competent lawyers might disagree.” Id. at 702; see also Narvaez v. Scribner, 551 26 F.App’x 416, 418 (9th Cir. 2014) (“[T]he state court correctly noted that the decision to 27 waive closing argument was a reasonable strategic choice because the waiver denied 28 the prosecution the opportunity to argue in response.”). 1 Therefore, the Nevada Court of Appeals’ determination that the state district court 2 erred by determining counsel was deficient for waiving his closing argument constituted 3 an objectively reasonable application of Strickland’s performance prong. Strickland, 466 4 U.S. at 688; Yarborough, 540 U.S. at 5-6; Bell, 535 U.S. at 701-02. This Court’s previous 5 denial of ground 1 will not be amended. 6 B. Ground 2—Consultation and Retention of Expert 7 In ground 2, Kelsey argues that Edwards was ineffective for failing to consult with 8 a forensic pathologist since the central issue at trial was the cause of Hyde’s death. (ECF 9 No. 44 at 28.) 10 1. Information Reviewed During Initial Merits Review 11 Ellen Clark, M.D., the chief medical examiner and coroner for Washoe County, 12 testified at Kelsey’s trial that she performed Hyde’s autopsy and that “[t]he cause of death 13 was bleeding into the brain . . . due to blunt force trauma.” (ECF No. 18-1 at 213-14, 216, 14 218.) Dr. Clark explained that “a cumulative effect of the blows to the head” could have 15 resulted in death, or a single blow to the head could have caused tearing of the veins and 16 arteries that supply blood to the brain and that additional blows to the head exacerbated 17 those tears. (Id. at 227-28.) Dr. Clark explained that “[t]here were multiple injuries to 18 different parts of the brain” such that she could not “identify one fatal impact site” because 19 “based upon the cumulative effect or the compounding injury, any and all of the blows 20 may have contributed to causing death.” (Id. at 238, 259.) 21 Bennet Omalu, M.D., a forensic pathologist, neuropathologist, and “recognized 22 and leading expert in brain trauma,” testified that Dr. Clark consulted with him regarding 23 his opinion of Hyde’s cause of death. (ECF No. 18-8 at 5, 10, 16.) Dr. Omalu testified 24 about “repetitive traumatic brain injury,” meaning “each and every repeated blow 25 accentuates the totality of all the blows” such that it cannot be determined “which blow 26 was the fatal blow.” (Id. at 29; see also id. at 48 (“Science cannot tell you or isolate the 27 single punch which resulted in his death.”), 61 (“Each blow you receiving [sic] increases 28 the severity of injury and the risk of death.”).) Dr. Omalu further testified that each hit to 1 Hyde cannot be isolated, so he must conclude that “each and every blow contributed to 2 his death.” (Id. at 30; see also id. at 67 (“The guideline of the science indicates and 3 dictates that each and every impact to the head contributed to his eventual fatality. The 4 more blows you receive, the greater the risk of death.”).) Dr. Omalu explained that “after 5 receiving the first injury, the first rupture, he may still be lucid, he may still be talking, but 6 maybe symptoms will start coming up gradually.” (Id. at 32-33.) And “[i]f he receives a 7 second impact or force, he may drop nonresponsive almost instantaneously.” (Id. at 33.) 8 Edwards did not call an expert witness to rebut Dr. Clark and Dr. Omalu’s 9 testimonies, and Edwards testified at the post-conviction hearing that he “did not contact 10 a forensic pathologist as an expert witness.” (ECF No. 20-9 at 179.) Instead, Edwards 11 explained that he spoke to Ohlson about an expert who Ohlson had contacted and that 12 Ohlson indicated to Edwards that his expert’s opinion “wasn’t good,” meaning that his 13 expert could not contradict Dr. Clark or Dr. Omalu’s findings. (Id. at 182.) Edwards testified 14 that he “didn’t have any reason to distrust what [Ohlson] was saying to [him].” (Id. at 187.) 15 Edwards also testified that he “[p]erhaps” would have been able to better cross-examine 16 Dr. Omalu by consulting with an expert, but he “didn’t feel like [he] was undermanned.” 17 (Id. at 249.) 18 Dr. Llewellyn, a pathologist, testified at Kelsey’s post-conviction hearing that she 19 reviewed Hyde’s autopsy report and photographs, Dr. Clark and Dr. Omalu’s trial 20 testimonies, and various witness statements. (ECF No. 20-9 at 24, 29-30.) Dr. Llewellyn 21 testified that it is possible that Kelsey’s blows to Hyde’s face caused Hyde’s death, but, 22 based on a reasonable degree of medical certainty, the second attack by Schnueringer 23 and Jefferson were the blows that killed Hyde. (Id. at 31-32). Dr. Llewellyn further testified 24 that it is “more probable” that the disruption of Hyde’s blood vessels on the base of his 25 brain was due to the actions of Schnueringer and Jefferson if the facts were that, following 26 Kelsey’s two or three punches, Schnueringer and Jefferson blindsided Hyde and then 27 repeatedly kicked him in the head. (Id. at 34; see also id. at 43 (testifying it is “more likely 28 than not that the injuries identified in Dr. Clark’s autopsy protocol c[a]me from attacks 1 from the second group of assailants”) and 44 (testifying that “it’s much more probable that 2 most, if not all, injuries were from the second assault”).) On cross-examination, Dr. 3 Llewellyn testified that if the facts were that Hyde were knocked to the ground or fell to 4 his knees and was kneed in the head by Kelsey, then those would be further injuries that 5 could possibly cause his brain to bleed. (Id. at 56.) Dr. Llewellyn also testified that she 6 agreed with much of Dr. Clark and Dr. Omalu’s reports; however, she did not agree with 7 Dr. Omalu’s opinion “that every single hit would have necessarily contributed to [Hyde’s] 8 death” because “not every hit is equal.” (Id. at 60-61.) 9 Dr. Clark testified at Kelsey’s post-conviction hearing that she “cannot exclude the 10 initial fight or the initial exchange of blows involving [Kelsey] . . . from causing severe and 11 potentially lethal injury to [Hyde’s] brain.” (ECF No. 20-9 at 69, 72.) Dr. Clark also testified 12 that Kelsey’s blows to Hyde’s head could have caused tearing that was exacerbated by 13 the subsequent attack and that Kelsey’s blows to Hyde’s head, even if they were less 14 severe than the blows delivered by Schnueringer and Jefferson, could have caused 15 Hyde’s brain to bleed. (Id. at 73-74, 86.) 16 2. New Information 17 In his August 2015 deposition, which, as stated above, the Court did not possess 18 for consideration during its initial merits review, Ohlson testified that “it was clear that the 19 pathology and the testimony of expert pathologists would be critical,” so he consulted with 20 Dr. Terri Haddix, a forensic pathologist. (ECF No. 43-1 at 11-12.) Dr. Haddix “identified 21 the primary injury that was the factual cause of death of the deceased,” which “was a 22 rupture or severing of the cranial artery” from “the torquing motion of the head that 23 resulted from a blow that the deceased received.” (Id. at 12-13.) Ohlson “thought Dr. 24 Haddix’ information . . . would have been devastating to the prosecution [sic] . . . [b]ecause 25 she went further than either of the State’s pathologists went” in “describ[ing] the effects 26 of a blow that was sufficient to cause the torque to the head to rupture the cranial artery.” 27 (Id. at 17-18.) Ohlson did not share Dr. Haddix’ findings with Edwards or Molezzo because 28 he “felt the information, while possibly exculpatory to Mr. Edwards’ client, was inculpatory 1 to Mr. Molezzo’s and more particularly to [his] client.” (Id. at 14.) Ohlson only “volunteered 2 to [Edwards and Molezzo] that [he] had consulted Terri Haddix, and that she did not have 3 information that [he] deemed to be helpful, and [he] wasn’t going to be using her.” (Id.) As 4 noted in ground 1, Ohlson’s deposition was admitted as an exhibit at Kelsey’s post- 5 conviction evidentiary hearing. (ECF No. 20-9 at 171.) 6 In her January 2016 report prepared for Kelsey’s postconviction proceedings, 7 which the Court also did not possess for consideration during its initial merits review, Dr. 8 Llewellyn reported that “[w]hile it is possible that” Kelsey’s blows to Hyde “could have 9 been fatal or contributed to the death of [Hyde], it is [her] opinion to a reasonable degree 10 of medical probability that the blows administered by . . . Schnueringer and Jefferson[ ] 11 were in fact fatal in nature and resulted in the death of the victim.” (ECF No. 43-2 at 4-5.) 12 Dr. Llewellyn’s finding was based, in part, on her opinion that “in [the] face-to-face 13 encounter between Kelsey and Master [sic] Hyde, it is possible but unlikely that two jabs 14 to Hyde’s cheek, which Hyde would have seen coming, would have created the motion 15 necessary to the torquing/rotational injury (i.e., the fatal injury).” (Id. at 5.) Contrarily, “[t]he 16 most significant areas injury [sic] to Jared Hyde’s head and face are consistent with acts 17 of kicking on the side of his head, possibly falling to the ground, and punching from an 18 angle where Master [sic] Hyde would not see the assailant.” (Id.) Dr. Llewellyn concluded 19 that she could not “agree with the opinion that each and every blow contributed to Master 20 [sic] Hyde’s death” because “the more reasonable cause of the rotational forces causing 21 disruption of Master [sic] Hyde’s blood vessels, which caused his death, came from the 22 second fight as opposed to the first one (involving Kelsey).” (Id. at 6.) Notably, Dr. 23 Llewellyn’s report was not admitted as an exhibit at Kelsey’s post-conviction evidentiary 24 hearing. (ECF 20-9 at 29.) 25 3. State Court Determination 26 In its order affirming in part, reversing in part, and remanding, the Nevada Court of 27 Appeals held:

28 First, Kelsey claims the district court erred by denying his claim counsel was 1 victim’s death. After holding an evidentiary hearing, the district court concluded Kelsey failed to demonstrate a reasonable probability of a 2 different outcome at trial had counsel presented an expert because the expert presented at the evidentiary hearing could not establish which 3 arteries caused the hemorrhaging in the victim’s brain and her testimony could not be differentiated from that of the experts presented by the State 4 at trial. Substantial evidence supports the decision of the district court, and we conclude the district court did not err in denying this claim. 5 6 (ECF No. 21-17 at 5.) 7 Kelsey argues that the Nevada Court of Appeals’ decision is based on an 8 unreasonable determination of the facts, making this Court’s review de novo, because 9 Dr. Llewellyn’s testimony at the post-conviction evidentiary hearing could be differentiated 10 from the experts presented by the State at trial. (ECF No. 44 at 32-33.) Dr. Llewelyn 11 testified that she did not agree with Dr. Omalu’s opinion that every hit Hyde suffered 12 necessarily contributed to his death. (See ECF No. 20-9 at 60-61.) However, Dr. Llewelyn 13 also testified that it was possible that Kelsey caused Hyde’s death, which is consistent 14 with Dr. Clark and Dr. Omalu’s testimonies. (Id. at 31-32.) Accordingly, this Court 15 disagrees that the Nevada Court of Appeals’ decision was based on an unreasonable 16 determination of the facts and declines to review ground 1 de novo.5 17 4. Analysis 18 Dr. Llewellyn’s testimony that it was more probable that the disruption of Hyde’s 19 blood vessels was due to the actions of Schnueringer and Jefferson was based on 20 Kelsey’s self-serving version of the facts: that he only punched Hyde whereas 21 Schnueringer and Jefferson blindsided Hyde and then repeatedly kicked him in the head. 22 Importantly, during cross-examination, Dr. Llewellyn’s opinion as to the role Kelsey played 23 in Hyde’s death changed based on the State’s version of the facts: that Kelsey punched 24 and kneed Hyde in the head, causing him to be knocked to the ground. 25 At the trial, there were three individuals who testified about Kelsey’s attack on 26 Hyde: Opperman, Hawkinson, and Kelsey. Opperman testified that Kelsey hit Hyde twice 27

28 5And even if this Court were to review ground 2 de novo, Kelsey would still not be 1 in the head, and as Hyde “was going down,” Kelsey “grabbed his head and kneed him 2 twice in the head.” (ECF No. 18-2 at 283.) And Hawkinson testified that she saw Kelsey 3 “grab[ Hyde] by the shirt and knee[ ] him in the face and hit him a couple times.” (ECF No. 4 18-4 at 275.) Contrarily, Kelsey testified that he only punched Hyde twice after Hyde 5 “came forward with his fists balled up” and only tried to kick Hyde because Hyde had 6 grabbed his shirt. (ECF No. 18-9 at 38.) 7 Based on (1) the evidence presented at the trial, which demonstrates that Dr. 8 Llewelyn’s testimony would have only been helpful if the jury believed Kelsey’s testimony 9 over Opperman and Hawkinson’s testimonies; and (2) Dr. Llewelyn’s testimony that— 10 notwithstanding Schnueringer and Jefferson’s actions—it was possible that Kelsey 11 caused Hyde’s death, which did not directly challenge the conclusions made by Dr. Clark 12 and Dr. Omalu, Kelsey establishes nothing more than a theoretical possibility—not a 13 reasonable probability—that the result of his trial would have been different had Edwards’ 14 retained an expert like Dr. Llewellyn. See Strickland, 466 U.S. at 694; see also Richter, 15 562 U.S. at 112 (“It was also reasonable to find Richter had not established prejudice 16 given that he offered no evidence directly challenging other conclusions reached by the 17 prosecution’s experts.”); Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“Strickland 18 prejudice is not established by mere speculation.”). As such, the Nevada Court of 19 Appeals’ determination that substantial evidence supports the state district court’s 20 decision that Kelsey failed to demonstrate a reasonable probability of a different outcome 21 at trial had counsel presented an expert constituted an objectively reasonable application 22 of Strickland’s prejudice prong. See Strickland, 466 U.S. at 694. The Court’s previous 23 denial of ground 2 will not be amended. 24 V. CERTIFICATE OF APPEALABILITY 25 This is a final order adverse to Kelsey. Rule 11 of the Rules Governing Section 26 2254 Cases requires this Court to issue or deny a certificate of appealability (COA). This 27 Court has sua sponte evaluated the claims within the petition for suitability for the 28 issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 1 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the 2 petitioner “has made a substantial showing of the denial of a constitutional right.” With 3 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 4 jurists would find the district court’s assessment of the constitutional claims debatable or 5 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 6 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 7 could debate (1) whether the petition states a valid claim of the denial of a constitutional 8 right and (2) whether this Court’s procedural ruling was correct. See id. 9 Applying these standards, the Court finds that a certificate of appealability is 10 warranted for grounds 1 and 2. First, reasonable jurists could debate whether Edwards’ 11 decision to waive closing argument amounted to ineffective assistance of counsel 12 because (1) he gave up the opportunity to argue for a lesser-included offense by 13 highlighting the distinctive role that Kelsey played in Hyde’s death as compared to 14 Schnueringer and Jefferson, and (2) his tactical decision, at least in part, to keep the 15 senior prosecutor from advocating for first-degree murder is somewhat illogical given that 16 the junior prosecutor only advocated for second-degree murder. And second, reasonable 17 jurists could debate whether prejudice ensued from Edwards’ failure6 to consult with a 18 forensic pathologist. 19 /// 20 /// 21 /// 22

23 6It is fairly irrefutable that Edwards’ “representation fell below an objective standard of reasonableness” due to (1) his failure to attempt to contact an expert pathologist since 24 the central issue at trial was the cause of Hyde’s death, and (2) his misguided reliance on Ohlson’s representation that a defense expert was unobtainable. See Strickland, 466 U.S. 25 at 691 (explaining that defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary”); 26 Richter, 562 U.S. at 106 (“Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert 27 evidence.”); Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir. 2008) (“[W]hen the prosecutor’s expert witness testifies about pivotal evidence or directly contradicts the 28 defense theory, defense counsel’s failure to present expert testimony on that matter may 1 || VI. CONCLUSION’ 2 It is therefore ordered that the petition for a writ of habeas corpus pursuant to 28 3 || U.S.C. § 2254 (ECF No. 6) remains denied. 4 It is further ordered that a certificate of appealability is granted for grounds 1 and 5 || 2. 6 The Clerk of Court is directed to substitute Tim Garrett for respondent Renee 7 || Baker. The Clerk of Court shall not amend the judgment previously entered on August 8 || 22, 2019. The Clerk of Court is directed to close this case. 9 DATED THIS 29" Day of March 2022. 10

12 Wig NOK IRANDA M. DU 43 CHIEF UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 || —— ‘This Court previously denied grounds 3, 4, and 5 of the Petition in its original 25 || merits order on August 22, 2019. (See ECF No. 27.) Because (1) the Ninth Circuit did not grant a certificate of appealability as to grounds 3, 4, and 5; and (2) the basis of the Ninth 26 || Circuit's remand—the consideration of Ohlson’s deposition testimony and Dr. Llewellyn’s report—do not particularly concern grounds 3, 4, and 5, this Court does not reconsider 27 || them. (See ECF No. 43-1 at 26-27 (Ohlson’s deposition discussing, briefly, his cross- examination of Kelsey, which tangentially corresponds with ground 4, Edwards’ failure to 28 || object to Ohlson’s racist philosophies).) As such, they remain denied as provided in this Court’s original merits order. (ECF No. 27.) 21