3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ALEXANDER STEVEN KING, Case No. 3:18-cv-00202-MMD-WGC
7 Petitioner, ORDER v. 8 TIM GARRETT, et al., 9 Respondents. 10
11 I. SUMMARY 12 Petitioner Alexander Steven King, a Nevada state prisoner, filed a Second 13 Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 56 14 (“Second Amended Petition”)). This matter is before the Court for adjudication on the 15 merits of the Second Amended Petition. The Court denies the Second Amended Petition 16 and denies a Certificate of Appealability (“COA”). 17 II. BACKGROUND 18 A. Facts Underlying Conviction 19 On January 3, 2011, King was committing a residential burglary in Silver Springs, 20 Nevada, when the residents, Stuart Gardner and his girlfriend, returned home 21 unexpectedly. (ECF No. 26-3 at 7.) Gardner’s girlfriend caught King in their bedroom. (Id.) 22 King shoved Gardner’s girlfriend out of the doorway and ran out of the house. (Id.) 23 Gardner’s girlfriend yelled for Gardner, and Gardner attempted to stop King. (Id.) King 24 pulled out a gun and shot Gardner in the chest. (Id.) 25 B. Procedural Background 26 The state court entered a judgment of conviction upon a guilty plea of first-degree 27 murder (i.e., felony murder) with use of a deadly weapon. (ECF No. 22-20.) The state 28 court sentenced King to a maximum term of life in prison with parole eligibility after 20 2 The Nevada Court of Appeals affirmed the judgment of conviction. (ECF No. 22-25.) 3 King filed a pro se state petition seeking postconviction relief. (ECF No. 22-27.) 4 Following an evidentiary hearing, the state court denied the state petition. (ECF Nos. 23- 5 1, 23-2.) The Nevada Court of Appeals affirmed the state court’s denial of relief. (ECF 6 No. 23-7.) 7 King initiated this federal habeas proceeding pro se. (ECF No. 1.) Following 8 appointment of counsel, King filed his first amended petition, alleging three grounds for 9 relief. (ECF Nos. 7, 20.) The Court granted Respondents’ motion to dismiss in part finding 10 Grounds 1(A) and 2 exhausted and finding Grounds 1(C) and 3 unexhausted. (ECF No. 11 46.) The Court granted King’s motion for stay and abeyance to return to state court and 12 exhaust his unexhausted claims. (ECF No. 49.) 13 In August 2020, King filed his second state petition seeking postconviction relief. 14 (ECF No. 57-1.) The state court denied the petition on procedural grounds as successive 15 and untimely. (ECF No. 57-2.) The Nevada Supreme Court affirmed on appeal. (ECF No. 16 57-4.) In June 2022, the Court reopened this federal habeas proceeding, and King filed 17 his Second Amended Petition. (ECF No. 56.) The Court granted Respondents’ motion to 18 dismiss in part. (ECF No. 72.) 19 III. LEGAL STANDARD 20 A. Review Under the Antiterrorism and Effective Death Penalty Act
21 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 22 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (AEDPA): 23 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 24 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 25
26 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 27 Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination 28 of the facts in light of the evidence presented in the State court proceeding. 2 precedent, within the meaning of § 2254(d)(1), “if the state court applies a rule that 3 contradicts the governing law set forth in [Supreme Court] cases” or “if the state court 4 confronts a set of facts that are materially indistinguishable from a decision of [the 5 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 6 529 U.S. 362, 405-06 (2000); and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 7 court decision is an unreasonable application of established Supreme Court precedent 8 under § 2254(d)(1) “if the state court identifies the correct governing legal principle from 9 [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the 10 prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable 11 application’ clause requires the state court decision to be more than incorrect or 12 erroneous. The state court’s application of clearly established law must be objectively 13 unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 U.S. at 409-10). 14 The Supreme Court has instructed that a “state court’s determination that a claim 15 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 16 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 17 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Court has stated 18 that “even a strong case for relief does not mean the state court’s contrary conclusion 19 was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. 20 Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted) 21 (describing the standard as “difficult to meet” and “highly deferential standard for 22 evaluating state court rulings, which demands that state court decisions be given the 23 benefit of the doubt”). 24 B. Standard For Ineffective Assistance of Counsel Claims 25 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 26 analysis of claims of ineffective assistance of counsel requiring Petitioner to demonstrate 27 that: (1) the attorney’s “representation fell below an objective standard of 28 reasonableness[;]” and (2) the attorney’s deficient performance prejudiced Petitioner 2 the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 3 Courts considering an ineffective assistance of counsel claim must apply a “strong 4 presumption that counsel’s conduct falls within the wide range of reasonable professional 5 assistance.” Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious 6 that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 7 Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it is not 8 enough for Petitioner “to show that the errors had some conceivable effect on the outcome 9 of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 10 [petitioner] of a fair trial, a trial whose result is reliable.” Id. at 687. 11 Where a state district court previously adjudicated the claim of ineffective 12 assistance of counsel under Strickland, establishing the decision was unreasonable is 13 especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court 14 clarified that Strickland and § 2254(d) are each highly deferential, and when the two apply 15 in tandem, review is doubly so. See id. at 105; see also Cheney v. Washington, 614 F.3d 16 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews 17 a state court’s Strickland determination under AEDPA, both AEDPA and Strickland’s 18 deferential standards apply; hence, the Supreme Court’s description of the standard as 19 doubly deferential.”). The Court further clarified that, “When § 2254(d) applies, the 20 question is not whether counsel’s actions were reasonable. The question is whether there 21 is any reasonable argument that counsel satisfied Strickland’s deferential standard.” 22 Richter, 562 U.S. at 105. 23 IV. DISCUSSION 24 A. Ground 1—Ineffective Assistance of Counsel Re: Mitigation at Sentencing 25 In Ground 1(A), King alleges that trial counsel rendered ineffective assistance for 26 failure to present mitigation evidence, such as medical records and testimony from a 27 clinical psychologist, at sentencing. (ECF No. 56 at 10-14.) King submits health records, 28 including records from West Hills Hospital and Northern Nevada Adult Mental Health 2 of such health records and evaluations, arguing they are not included in the state court 3 record. (ECF No. 73 at 9.) King asserts that, while postconviction counsel did not attach 4 the records to King’s supplemental state habeas petition, counsel set out all pertinent 5 information contained in the West Hills Hospital and NNAMHS records in King’s opening 6 brief on appeal. (ECF No. 23-4 at 15-16.) He further contends that the Lake’s Crossing 7 Center competency report is part of the state court record, as it was prepared following a 8 motion by King’s counsel. (ECF No. 26-3.) 9 I. Consideration of Medical Records 10 The Supreme Court decided in Shinn v. Ramirez, 596 U.S. 366 (2022) that “a 11 federal court may not conduct an evidentiary hearing or otherwise consider evidence 12 beyond the state court record based on ineffective assistance of postconviction counsel” 13 unless the exceptions set forth in 28 U.S.C. § 2254 are satisfied. The requirements of § 14 2254 are as follows: 15 (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on 16 the claim unless the applicant shows that-
17 (A) the claim relies on-
18 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 19 was previously unavailable; or
20 (ii) a factual predicate that could not have been previously discovered through the exercise of due 21 diligence; and
22 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, 23 no reasonable factfinder would have found the applicant guilty of the underlying offense. 24
25 28 U.S.C. § 2254(e)(2)(A); see also Shinn, 596 U.S. at 283 (affirming the prerequisites in 26 § 2254(e)(2) apply only “when a prisoner ‘has failed to develop the factual basis of claim’”) 27 The Supreme Court has held that, although § 2254(e)(2) refers only to evidentiary 28 hearings, its provisions apply to a federal habeas court’s consideration of evidence. See 2 “reaffirmed that [§ 2254(e)(2)]’s restrictions not only apply to evidentiary hearings, but 3 also apply ‘when a prisoner seeks relief based on new evidence without an evidentiary 4 hearing’”) (citing 596 U.S. at 389). 5 King does not allege that he can meet the requirements of § 2254(e)(2) but, rather, 6 that the Court can nonetheless consider the medical records because it was “spelled out” 7 in appellate briefs and “incorporated by reference.” (ECF No. 83 at 12.) The Court 8 declines to deem the West Hills Hospital and NNAMHS records as part of the state court 9 record to the extent they were “incorporated by reference.” The Court, however, will 10 consider the information as recited in King’s appellate brief because it was part of the 11 state court record when the Nevada Court of Appeals rejected this claim during the state 12 postconviction proceeding. 13 II. Additional Background 14 1. Sentencing Hearing 15 Before his withdrawal as King’s counsel in June 2013, Wayne Pederson obtained 16 medical records detailing King’s mental health history, including admission records from 17 West Hills Hospital and NNAMHS as well as a psychiatric evaluation conducted by Lake’s 18 Crossing Center. (ECF No. 26-1, 26-3.) Pederson also retained the services of clinical 19 psychologist, Alfredo M. Amezaga, who conducted a two-hour psychological evaluation 20 of King. (ECF No. 21-44.) 21 Kenneth Ward was appointed to represent King after he entered his guilty plea. 22 (ECF No. 23-1 at 42.) During the sentencing hearing, Ward argued: 23 As the Court can see and I think everyone in this courtroom can see his
24 remorse and his apologetic attitude, not just now, but it's been that way for a long time. And he's been having to face the consequences of his own 25 actions for that time as well. He's had a rough time, and I think the fact of his physical and mental disability that he -- made him an easy target. Got 26 all involved in basically a burglary ring where they took him under his wing, treated him like he was good, like he could be their main worker, and they 27 took advantage of him.
28 (ECF No. 22-19 at 38.) 2 (Id. at 25-31.) Kathryn testified that she adopted King when he was 18 months old after 3 King’s biological mother deserted him, leaving him in a house alone for a week, and that 4 King’s biological mother committed suicide. (Id. at 25-26.) She referred to Gardner’s death 5 as a “horrible, horrible accident” that “wouldn’t have happened if the State hadn’t dropped 6 the ball on [King’s] medication, because he was bipolar.” (Id. at 27.) She provided that 7 King “was running for his life” that day because he wasn’t on his medication. (Id.) 8 Keith testified that he came into King’s life when he was nine years old and adopted 9 King when he was eleven years old. (Id. at 28.) He further testified that King was a “bright” 10 and “very hard-working young man” until the Pluffs1 became involved in his life. (Id.) In 11 addition, Keith commented on King’s bipolar disorder: 12 His mother is right, he was supposed to be medicated by the State. They dropped the ball. His bipolar disorder did create a situation that allowed the 13 Pluffs to influence him. They caught him at a manic moment and convinced him to do this. He made some terrible bad choices. He was carrying a gun, 14 he should have never been carrying. He went into a man's house. He was raised to know better than to do those kinds of things. 15
16 (Id. at 29.) Ward questioned Keith regarding King’s physical and mental health history: 17 Q: [King] has had some rather serious mental as well as physical issues going on, correct? 18 A: He's had some corrective surgery. [King] was born looking this way 19 because his mother, his biological mother, was an addict.
20 What he has is called Goldenhar Syndrome. It creates some mental instability as well as the physical things that you have to see; the 21 missing ear, the misshapen jaw. We've had some surgery done to try to help alleviate that. The goal was at some time to actually have 22 an ear made from cartilage in his rib cage so he would look a little more normal. 23 Mentally, he was pretty good most of the time until he hit puberty. 24 And, like I said, and then the bipolar disorder kicked in. And, like I said, the Pluffs stepped right in and harvested him. 25 Q: So you believe that because of his basically, his mental health as 26 well as his physical health that the Pluffs, basically, they were his boss and told him what to do – 27 1At his postconviction evidentiary hearing, King provided that he only committed 28 the burglary because an individual named Alan Pluff coerced him. (ECF No. 23-1 at 11, 73.) Pluff was the leader of a Northern Nevada burglary ring. (Id. at 11.) A: Oh, they victimized him. They did. 2 [King] has always wanted to try to please people. Yes, he made a 3 bad choice to even become involved with those people, but I believe that those people acted like vultures and sucking him up and were 4 using him in the way that they did.
5 I do not believe he would have gone to that house for any reason other than that the Pluffs told him it's something he needed to do for 6 them.
7 (Id. at 30-31.) 8 King testified that four months prior to the shooting, he was struggling because he 9 was recently released from jail, had an extremely hard time finding work, and was trying 10 to fix marital problems with his wife. (Id. at 32.) He asserted that “[his] boss ended up 11 pulling [him] into jobs to help pay for [his] probation, [his] wife’s probation, food for [his] 12 family, and life quickly started getting further and further out of control.” (Id. at 32-33.) 13 King’s boss instructed him to carry a gun. (Id. at 33.) King testified that he was only getting 14 four hours of sleep a night and had difficulty getting medication from the mental health 15 clinic. (Id.) King expressed his remorse to the victim’s family and his own family. (Id. at 16 35-36.) 17 Following King’s testimony, Ward highlighted King’s remorse by providing an 18 apology letter that King wrote to the victim’s family two years earlier. (Id. at 36.) Ward 19 argued that King has demonstrated his remorse and apologetic attitude for a long time. 20 (Id. at 38.) He further argued that based on King’s “physical and mental issues …, any 21 time in prison is not going to be gentle.” (Id. at 39.) Ward asked the state district court to 22 impose the lowest threshold of a 20-to-50-year sentence and to consider a 1-to-20-year 23 deadly weapons enhancement. (Id. at 40.) 24 The state district court imposed a sentence of life with the possibility of parole after 25 20 years plus a deadly weapon enhancement of a consecutive term of 48-120 months. 26 The state district court provided its reasoning for King’s sentencing: 27 On the weapons enhancement, the Court has taken into consideration all of the facts and circumstances of the crime. In this case it certainly was an 28 absolutely senseless waste of another human life and absolutely beyond the pale in terms of explaining how it could have happened. Certainly, in terms of criminal history, you have a criminal history. The 2 impact of the crime on the other victims certainly you can’t have much more of an impact than that of a loved one. 3 Certainly, there are some mitigating circumstances, one is your relatively 4 young age.
5 Certainly, the Court doesn’t argue with the fact that your life was less than ideal, but perhaps the thing that impacted the Court the most in terms of 6 giving you the possibility of parole in this case is that the Court believes that you truly are sorry for what happened. And there was a letter that was 7 attached to the presentence investigation that you wrote.
8 And, certainly, the Court believes in redemption. There are people who have done very bad things in their lives who go on to be very significant 9 contributors because they spend the rest of their life paying for the mistakes that they made. 10 I can only hope that the possibility of parole will give you that ability to work 11 yourself and to pay back.
12 (Id. at 41-42.) 13 2. Postconviction Proceedings 14 At the postconviction evidentiary hearing, Ward testified that the Lake Crossing 15 mental health evaluation did not contain information that was particularly helpful. (ECF 16 No. 23-1 at 45.) He testified that he made a professional decision not to put on any 17 psychiatric evidence because he determined there would be little benefit. (Id. at 55.) Ward 18 decided to focus on King’s letters expressing remorse to humanize him more. (Id.) 19 In King’s supplemental state habeas petition, in support of his argument that Ward 20 rendered ineffective assistance for failure to call Dr. Amezaga, King asserts: 21 Dr. Amezaga would have testified about the cruel hand that Mr. King was dealt even before his birth by a drug consuming mother. His biological 22 mother committed suicide. She left him with birth defects and mental scars. His biological father has not been part of his life, and he suffers from 23 abandonment issues. Mr. King has three suicide attempts prior to this incident. Mr. King has a history of admission to West Hills and NNAMHS. 24 (ECF No. 26-4 at 16.) 25 In King’s opening brief to the Nevada Court of Appeals, he recites the information 26 in his medical records at length: 27 There were two psychiatric evaluations completed upon Mr. King. The first 28 by Lindell Bradley, M.D., explained that Mr. King had suffered two hospitalizations at West Hills Hospital and one hospitalization at Northern suicide attempts. Mr. King had a history of cutting himself. He has been 2 prescribed psychotropic medications including Lexapro, Celexa, Trazodone, Effexor, Seroquel and Abilify. Mr. King’s biological mother. 3 Committed suicide. Mr. King did not have any contact with his biological father until he was 17. Mr. King was raised by his adoptive mother, Mrs. 4 King.
5 The second psychiatric evaluation was completed by Amy E. Patterson, Ph.D. In that evaluation it was pointed out that Mr. King was born with 6 Goldenhar Syndrome, which is a congenital defect typically characterized by incomplete development of one side of the head and/or face. Mr. King 7 had two surgeries to reconstruct his jaw. His deformities caused him to be teased frequently as a child. By sixth grade, he was suffering problems, 8 getting in to fights and his adoptive mother decided that Mr. King should be home schooled. Mr. King was a good student and received his high school 9 diploma at age 16. Mr. King attended college through the University o[f] Phoenix in business management. He worked at a grocery store, fast food 10 restaurants and at an airport. His biological mother committed suicide when he was 23 months old. 11 (ECF No. 23-4 at 15-16.) 12 3. State Court Determination 13 The Nevada Court of Appeals held: 14 King argues the district court erred by denying his claim defense counsel 15 was ineffective at sentencing for failing to object to improper victim impact evidence and for failing to present mitigating evidence. . . . [D]efense 16 counsel made a strategic decision as to what mitigating evidence to present and fully argued King’s mental and social history to the sentencing court. 17 The record supports the district court’s findings and we conclude King was not deprived of effective assistance of counsel in this regard. 18 (ECF No. 23-7 at 3-4.) 19 III. Analysis 20 In evaluating a claim of ineffective assistance of counsel on federal habeas, ”[t]he 21 pivotal question is whether the state court's application of the Strickland standard was 22 unreasonable.” Richter, 562 U.S. at 785. Additionally, “[f]ederal habeas courts must guard 23 against the danger of equating unreasonableness under Strickland with 24 unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether 25 counsel's actions were reasonable. The question is whether there is any reasonable 26 argument that counsel satisfied Strickland's deferential standard.” Id. at 788. 27 Given the deference with which the Court must view counsel’s decisions at 28 sentencing, the Court concludes the Nevada appellate court’s ruling was neither contrary 2 by the United States Supreme Court. As the Nevada Court of Appeals noted, trial counsel 3 made strategic decisions regarding mitigation at sentencing. Strickland, 466 U.S. at 690 4 (“Strategic choices made after thorough investigation of the law and facts are virtually 5 unchallengeable; and strategic choices made after less than complete investigation are 6 reasonable precisely to the extent that reasonable professional judgments support the 7 limitations on investigation.”) 8 This is not a case in which counsel failed to present any mental health mitigation 9 at sentencing. Instead, King asserts that Ward did not fully present King’s mental and 10 social history, as Ward only called King’s adoptive parents to testify—their testimony 11 included passing references to King being bipolar, taking medication, and suffering from 12 Goldenhar Syndrome, but did not include King’s abuse and harassment at school, 13 substance abuse, depression, or various suicide attempts or psychiatric issues beyond 14 his bipolar disorder. 15 It is clear that “evidence about the defendant's background and character is 16 relevant because of the belief, long held by this society, that defendants who commit 17 criminal acts that are attributable to a disadvantaged background, or to emotional and 18 mental problems, may be less culpable than defendants who have no such excuse.” 19 Boyde v. Cal., 494 U.S. 370, 380 (1990). Counsel presented mitigating evidence about 20 King’s traumatic childhood, that King was bipolar and off his medication, that King was 21 influenced by an individual during a manic period and while he was struggling after a 22 recent release from jail, and that King was extremely remorseful. The presentence 23 investigation report also reviewed King’s childhood and mental health history, including 24 his depression diagnosis, suicide attempts, and substance abuse history. (ECF No. 26-3 25 at 3-4.) 26 The Court finds that the Nevada appellate court’s determination regarding the 27 scope of counsel’s mitigation presentation was reasonable even though counsel did not 28 necessarily present the full scope of King’s mental health and social history with expert 2 significant detail, particularly his history of depression, suicide attempts, and substance 3 abuse history, an examination of the proffered psychiatric evaluations in the state court 4 record and the information contained in those statements reveals that the mental health 5 and social history was not appreciably different from the evidence that was introduced 6 during the penalty phase proceedings. See Wong v. Belmontes, 558 U.S. 15, 22-23 (trial 7 counsel is not required to present cumulative mitigating evidence). Counsel chose to 8 emphasize other mitigation factors highlighting that “everyone in this courtroom can see 9 his remorse and his apologetic attitude, not just now, but it's been that way for a long 10 time.” (ECF No. 22-19 at 38.) In fact, the state district court provided in its sentencing 11 rationale that “the thing that impacted [the state district court] the most in terms of giving 12 [King] the possibility of parole” was that King demonstrated that he was “truly are sorry 13 for what happened.” (ECF No. 22-19 at 41-42.) 14 Even if the facts alleged were sufficient to state a case of deficient performance, 15 King must also demonstrate that counsel’s deficient performance was prejudicial and that 16 the Nevada appellate court’s rejection of this claim was an objectively unreasonable 17 application of Strickland. As discussed below, the Court would reach the same result on 18 the prejudice prong of Strickland even on de novo review. 19 Even on de novo review, in the alternative, the Court nonetheless finds that King 20 fails to demonstrate a reasonable probability that the results of the penalty phase would 21 have been different if counsel presented the omitted mitigation evidence. Given the 22 aggravating evidence and the circumstances of the crime, King fails to establish a 23 reasonable probability that the proffered mitigation evidence would have led to a different 24 penalty phase outcome. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In assessing 25 prejudice, [this Court] reweigh[s] the evidence in aggravation against the totality of the 26 available mitigating evidence.”); see also Wong, 558 U.S. at 27-28 (“It is hard to imagine 27 expert testimony and additional facts about Belmontes’ difficult childhood outweighing the 28 facts of [the] murder.”). 2 home interrupted King’s burglary, King fled and indiscriminately fired behind him. The 3 state district court described the circumstances of the crime as “an absolutely senseless 4 waste of another human life and absolutely beyond the pale in terms of explaining how it 5 could have happened.” (ECF No. 22-19 at 41.) The state presented testimony from the 6 victim’s family regarding the impact of his death. 7 The Court acknowledges that the omitted evidence further humanizes King. 8 However, “even if this evidence had been presented to the jury, it would not have 9 significantly altered the character of the evidence supporting mitigation.” Berryman v. 10 Wong, 954 F.3d 1222, 1228 (9th Cir. 2020). “Reasonable jurists could therefore conclude 11 that admission of this evidence would not have led to a reasonable probability of a 12 different sentence.” Id. (citing Pinholster, 563 U.S. at 200-02.) As the state district court 13 observed, King’s life “was less than ideal,” but the most impactful mitigation evidence was 14 King’s letter to the victim’s family expressing his remorse, which counsel emphasized at 15 sentencing. (ECF No. 22-19 at 42.) The state district court afforded King a chance at 16 “redemption” and sentenced him to 20 years to life and a four-to-ten-year enhancement. 17 (Id.) The Court finds that King fails to demonstrate a reasonable likelihood that the results 18 of the penalty phase would have been different if counsel presented further mitigation 19 evidence of King’s mental health or social history. Accordingly, the Court denies King 20 federal habeas relief on Ground 1(A). 21 B. Ground 2—Validity Of Guilty Plea 22 In Ground 2, King alleges that his guilty plea was not knowingly, intelligently, or 23 voluntarily entered because his counsel rendered ineffective assistance by giving him 24 incorrect and inadequate advice regarding felony murder defenses. (ECF No. 56 at 23- 25 25.) King asserts that Pederson advised him that King “had nothing to work with.” (Id. at 26 24.) Even though Pederson knew that (1) King was committing crimes for Alan Pluff, an 27 older man manipulating others, (2) that Pluff “controlled” King, and (3) that Pluff and his 28 crew were violent people, Pederson did not consider a defense of coercion or duress to 2 regarding the defense of duress, or any other defense, even though counsel was aware 3 of facts that would call for such defenses. (ECF No. 83 at 23-24.) King argues that he 4 could have presented a defense at trial that he lacked intent as to his burglary charge 5 because of the duress and coercion inflicted by the Pluffs. (Id. at 27.) 6 I. Additional Background 7 1. Guilty Plea Canvas and Memorandum 8 At the plea canvas, the state district court affirmed that King discussed the facts 9 and circumstances of the crime as well as the potential penalties. (ECF No. 21-40 at 4.) 10 King affirmed that he read, understood, and signed the guilty plea agreement. (Id. at 6.) 11 The state district court instructed King to tell the court what happened to cause the charge 12 to be filed against him. (Id. at 9.) King responded: 13 I was committing a burglary, and I did not get a phone call from my partners letting me know that anybody came out to the house. And as I ran away, I 14 shot a pistol behind my back to scare away the person that was chasing me. And I accidentally shot him in the chest. 15 (Id. at 10.) 16 In the guilty plea memorandum, King affirmed that he discussed the elements of 17 the original charge against him with his attorney and that he understood the nature of the 18 charge against him. (ECF No. 21-41 at 5.) He affirmed that he discussed any possible 19 defenses, defense strategies, and circumstances that may be in his favor with his 20 attorney. (Id.) He further affirmed that “all of the foregoing elements, consequences, 21 rights, and waiver of rights have been thoroughly explained to me by my attorney.” (Id.) 22 Attached to the guilty plea memorandum is a certificate of King’s counsel, in which 23 counsel stated that he fully explained to King the allegations contained in the charge to 24 which the guilty plea is being entered. (Id. at 6-7.) 25 2. Postconviction Evidentiary Hearing 26 Pederson testified as to his representation of King during the plea process. (ECF 27 No. 23-1 at 5-40.) When asked if Pederson discussed possible defenses with King, he 28 responded: intelligent person, and in that respect, he wrote – and that’s what he did, he 2 liked to write. So he wrote a letter to the court admitting to the burglary. He wrote a letter to me. He wrote a letter to the family, all confessing to the 3 burglary, which in my – you know, my legal, you know, advice to him was since it was a death that was committed in commission of a burglary that 4 there was not much of a defense to it.
5 (Id. at 10.) He further testified that he did not see the ability to defend the burglary and 6 that King did not want to defend that part because King “was always very, very clear and 7 open that he had committed that burglary.” (Id.) 8 As to his knowledge of King’s relationship with the Pluffs, Pederson testified that 9 King married the daughter in the family, that King was “sort of one of the pack,” and that 10 King was “sort of controlled” by Pluff. (Id. at 11.) Pederson knew that King “didn’t want to 11 cross [Pluff], but “it didn’t seem to me like [King] was concerned about getting harmed 12 before.” (Id. at 12.) King was concerned about being harmed after because he didn’t want 13 to implicate the Pluffs in court. (Id.) Pederson was sure that “fear might have played a 14 part.” (Id.) 15 Pederson testified that he did not consider the defense of coercion because King 16 was at the home by himself, and there were many times that King could have called for 17 help if he thought he was being coerced. (Id. at 11-12.) He advised King that he believed 18 King “had no chance at trial” and that if he went to trial, he believed King would receive a 19 sentence of life without parole. (Id. at 16.) 20 King testified at the postconviction evidentiary hearing that the only discussion of 21 any possible defenses he had with Pederson was that King had no defense. (Id. at 72.) 22 King explained to Pederson that he committed the burglary because he was being 23 manipulated. (Id.) He testified that he was coerced into committing the burglary, that Pluff 24 drove him to the residence and dropped him off, and that Pluff told him what to do. (Id. at 25 73.) King was afraid if he did not commit the burglary that he would be harmed and that 26 “there was always a threat of violence in the house.” (Id.) 27 King testified that he did not intend to shoot the victim but shot to scare them away. 28 (Id. at 74.) He pulled the gun out of the holster with his right hand, pulled back the slide 2 pulled the trigger once. (Id. at 75.) He testified that he never looked back. (Id.) 3 On cross-examination, King was questioned about physical threats of violence if 4 he did not commit the burglaries: 5 Q: And what were the physical threats? You said there was some manipulation but describe with specificity the physical threats. 6 A: I lived in a house full of guns. 7 Q: Okay. 8 A: I lived in a house with a man who claimed to commit murder. There 9 was always threats. If you didn’t obey there was always the threat of violence. If you went against someone there was a thought that you 10 were thinking about crossing him. I seen it happen.
11 (Id. at 85.) 12 3. State Court Determinations 13 In affirming King’s conviction on direct appeal, the Nevada Court of Appeals 14 rejected claims similar to Ground (2), explaining: 15 Appellant argues that his plea is invalid because the district court and trial counsel failed to advise him that if he went to trial he could possibly be 16 convicted of a lesser included offense or that felony murder could be negated by arguing lack of intent for the underlying felony. … 17 The district court conducted an evidentiary hearing and found that appellant 18 entered into his plea voluntarily, knowingly, and intelligently. The district court found that appellant was incorrect that he could have been found guilty 19 at trial of lesser-included offenses because appellant was charged with first- degree felony murder. See Graham v. State, 116 Nev. 23, 28-29 (2000) 20 (concluding that when a person is charged with an enumerated first-degree murder pursuant to NRS 200.030(1), the charge cannot be reduced by 21 failure to prove deliberation, premeditation, or intent). Therefore, counsel was not ineffective for failing to inform him of lesser-included offenses 22 because there were no lesser-included offenses possible. Further, the district court concluded that appellant failed to support his claim regarding 23 a defense to the underlying burglary with any evidence and it amounted to a purely speculative claim. 24 The record on appeal supports the district court's factual findings and we 25 conclude that appellant has not demonstrated that counsel was ineffective; established a substantial, fair, and just reason for withdrawing his plea; or 26 shown that the district court abused its discretion by denying his motion to withdraw his guilty plea. 27
28 (ECF No. 22-25 at 2-4.) 2 Court of Appeals held: 3 King argues the district court erred in denying his claim defense counsel was ineffective for failing to investigate and advise him on the defenses of 4 coercion and accident. The district court conducted an evidentiary hearing and made the following findings: Defense counsel discussed the case in 5 depth with King and informed him he did not have a defense. King's testimony that he was forced to commit the burglary was speculative, he 6 failed to point out any specific fact that would have supported a defense of coercion, and it was highly unlikely a jury would have concluded he was 7 forced to commit the underlying felony and consequently was not guilty of felony murder. King's testimony he knew he was being chased by the victim, 8 removed a handgun from his holster, loaded a round into the chamber of the handgun, and shot the handgun in the direction of the victim was in stark 9 contrast with the eyewitness statement that King turned and faced the victim, lifted the handgun, and shot the victim in the chest. And King failed 10 to demonstrate his testimony would have changed the outcome in the case. The record supports the district court's findings. and we conclude King was 11 not deprived of effective assistance of counsel in this regard.
12 (ECF No. 23-7 at 4.) (citations omitted) 13 C. Analysis 14 The federal constitutional guarantee of due process requires that a guilty plea be 15 knowing, intelligent, and voluntary. See Boykin v. Ala., 395 U.S. 238, 242 (1969). “The 16 longstanding test for determining the validity of a guilty plea is ‘whether the plea 17 represents a voluntary and intelligent choice among the alternative courses of action open 18 to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting N.C. v. Alford, 400 19 U.S. 25, 31 (1970)). The relevant inquiry is whether a petitioner’s guilty plea was voluntary 20 and intelligent under the totality of the circumstances. See Alford, 400 U.S. at 31; Brady, 21 397 U.S. at 749. 22 If “a defendant is represented by counsel during the plea process and enters his 23 plea upon the advice of counsel, the voluntariness of the plea depends on whether 24 counsel’s advice ‘was within the range of competence demanded of attorneys in criminal 25 cases.’” Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). 26 The Supreme Court has held “that the two-part Strickland v. Washington test applies to 27 challenges to guilty pleas based on ineffective assistance of counsel.” Id. at 58. The 28 deficient performance prong remains the same. Id. at 58-59. But the prejudice prong 2 outcome of the plea process.” Id. at 59. Thus, “to satisfy the ‘prejudice’ requirement, the 3 defendant must show that there is a reasonable probability that, but for counsel’s errors, 4 he would not have pleaded guilty and would have insisted on going to trial.” Id. 5 The Nevada Court of Appeals’ ruling was neither contrary to nor an objectively 6 unreasonable application of clearly established law as determined by the United States 7 Supreme Court. 8 Although King’s postconviction evidentiary testimony provides some support for 9 the defense of coercion, his counsel did not unreasonably advise King after thoroughly 10 discussing the case with King. Pederson testified at the postconviction evidentiary hearing 11 that King seemed more concerned about being harmed after the burglary because he 12 didn’t want to implicate the Pluffs in court. (ECF No. 23-1 at 12.) Although it is possible 13 that a factfinder could have considered that King was influenced or manipulated into 14 committing the burglary, the relevant inquiry is not what defense counsel could have 15 done, but, rather, whether the choices he made were reasonable. See Babbitt v. 16 Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). As the Nevada appellate court noted, 17 there was an eyewitness statement that King “turned and faced the victim, lifted the 18 handgun, and shot the victim in the chest,” as opposed to King’s assertion that he shot 19 the gun in the direction of the victim while being chased. (ECF No. 23-7 at 4.) In light of 20 the evidence against King and given that he could have received a sentence of life without 21 parole, it cannot be said that counsel’s advice fell below an objective standard of 22 reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688. 23 To demonstrate prejudice as a result of counsel’s failure to advise him of a potential 24 defense, King must show that the defense would have succeeded at trial. See Hill, 474 25 U.S. at 59. He has not done so. As the Nevada appellate court found, King “failed to point 26 out any specific fact that would have supported a defense of coercion, and it was highly 27 unlikely a jury would have concluded he was forced to commit the underlying felony and 28 consequently was not guilty of felony murder.” (ECF No. 23-7 at 4.) Although King testified 2 of violence” and that he “lived in a house full of guns,” the record shows that King was at 3 the home by himself and there were many times that King could have called for help if he 4 thought he was being coerced. (ECF No. 23-1 at 11-12.) See Padilla v. Ky., 599 U.S. 356, 5 372 (2010) (“[P]etitioner must convince the court that a decision to reject the plea bargain 6 would have been rational under the circumstances.”) Accordingly, the Court denies King 7 federal habeas relief for Ground 2. 8 V. CERTIFICATE OF APPEALABILITY 9 This is a final order adverse to King. Rule 11 of the Rules Governing Section 2254 10 Cases requires the Court to issue or deny a COA. The Court has sua sponte evaluated 11 the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 12 2253(c); see also Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Under 28 13 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial 14 showing of the denial of a constitutional right.” With respect to claims rejected on the 15 merits, a petitioner “must demonstrate that reasonable jurists would find the district court’s 16 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 17 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For 18 procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether 19 the petition states a valid claim of the denial of a constitutional right; and (2) whether the 20 Court’s procedural ruling was correct. Id. 21 Applying these standards, the Court finds that a certificate of appealability is 22 unwarranted. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 || VI. CONCLUSION 2 It is therefore ordered that Petitioner Alexander Steven King’s Second Amended 3 || Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 56) is denied. 4 It is further ordered that a certificate of appealability is denied. 5 It is furthered ordered that the Court directs the Clerk of Court to enter judgment 6 || and close this case. 7 DATED THIS 23% Day of September 2025.
9 So MIRANDA M. DU 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20