LaChance v. Wickham

• Court: District Court, D. Nevada
• Decided: September 14, 2021
• Docket: 3:17-cv-00689
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DARREN GABRIEL LACHANCE, Case No. 3:17-cv-00689-MMD-WGC 7 Petitioner, ORDER v. 8 PERRY RUSSELL,1 et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Darren LaChance filed a pro se petition for writ of habeas corpus under 13 28 U.S.C. § 2254. (ECF No. 1 (“Petition”).) This matter is now before the Court for 14 adjudication on the merits of the remaining grounds in LaChance’s Petition. The Court 15 grants the Petition in part and denies it in part. 16 II. BACKGROUND 17 In 2012, a jury convicted Darren LaChance of, inter alia: (1) domestic battery by 18 strangulation; (2) domestic battery causing substantial bodily harm; (3) false 19 imprisonment; and (4) possession of a controlled substance for purposes of sale. (ECF 20 Nos. 19-9; 20-39.) 21 LaChance challenges his convictions on the grounds that (a) insufficient evidence 22 supports the verdict for the domestic battery convictions, and (b) counsel’s failure to 23

24 1It appears from the state corrections department’s inmate locator page that LaChance is currently incarcerated at the Northern Nevada Correctional Center 25 (“NNCC”). See https://ofdsearch.doc.nv.gov/form.php (retrieved September 2021, under identification number 75693). The department’s website reflects that Perry Russell is 26 warden of that facility. See https://doc.nv.gov/Facilities/NNCC_Facility/ (retrieved 27 September 2021). At the end of this order, the Court directs the Clerk of Court to substitute LaChance’s current immediate physical custodian, Perry Russell, as Respondent for the 28 prior Respondent Harold Wickham, pursuant to, inter alia, Rule 25(d) of the Federal Rules 1 request lesser-included-offense instructions and investigate and present the victim’s 2 Facebook messages constituted ineffective assistance of counsel. (ECF No. 1.) 3 The evidence available to the State of Nevada at the time of LaChance’s trial 4 tended to establish the following:2 5 The victim, Starleen Lane, testified she met LaChance when he was “bouncing” at 6 Sierra Tap House, and they moved into her apartment as boyfriend and girlfriend.3 (ECF 7 No. 19-5 at 32-34, 80.) LaChance’s friend, C.J., later moved in with them. (Id. at 81.) 8 Lane testified she had an argument with LaChance at 4:00 a.m. when he returned 9 home after a three-day-gambling spree on March 11, 2012. (Id. at 35-36, 81-83.) Lane 10 said she slept on the couch until she was awakened by an argument between LaChance 11 and C.J. (Id. at 35–37, 83.) She said LaChance and C.J. had a shoving match during 12 which LaChance hit her on the forehead with a flashlight, which later produced a knot. 13 (ECF Nos. 19-5 at 35-37, 86-87; 19-7 at 12.) Lane said LaChance and C.J. argued, while 14 she sat on the couch holding her head, until C.J. left for work. (ECF No. 19-5 at 37, 89.) 15 After C.J. left for work, Lane said LaChance, who was angry and yelling, grabbed 16 her by the arm and “flung” her onto the bed in their bedroom.4 (Id. at 37-38, 89-90.) She 17 said LaChance called her a “bitch” and a “whore,” told her she “better talk” or he was 18 going to “kill” her, and threatened to “wreck” her face and “punch out” her teeth. (Id. at 19 38.) Lane testified that LaChance slapped her ear causing her “immediate hearing loss” 20 and nausea, and punched her arms, buttocks, hips, ribs, thighs, and “the side of her 21

22 2The Court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or statements of fact in the state court. The Court summarizes the 23 same solely as background to issues presented in this case, and it does not summarize all such material. No assertion of fact made in describing statements, testimony, or other 24 evidence in the state court constitutes a finding by this Court. Omission of a specific piece of evidence or category of evidence in this overview, or elsewhere describing background 25 in this order, does not signify that the Court overlooked the evidence in considering LaChance’s claims. 26 3Booking information reflects his occupation as “bouncer.” (ECF No. 18-3 at 17.) 27 4The jury saw LaChance and Lane in-person at trial. The June 14, 2012 Pretrial Services Assessment Report reflects LaChance was 6’ 1” and weighed 193 pounds. (ECF 28 No. 18-2 at 4.) Lane testified that she is 5’ 4” tall. (ECF No. 19-5 at 109.) 1 breasts.” (Id. at 38-40, 47.) She said she tried to leave but LaChance threatened to kill 2 her if she escaped, and grabbed her face, threw her back onto the bed, and “got on top 3 of” her. (Id. at 38.) 4 According to Lane’s testimony, when LaChance got on top of her, her head was 5 hanging off the bed, his knee was in the middle of her chest, and his entire weight held 6 her down with “full force.” (Id. at 38, 41-42, 95-96.) While he was holding her down, Lane 7 said LaChance pressed “the lower part” of her “neck” or “collar bone,” while he screamed, 8 called her names, and threatened to kill her. (Id. at 38, 41-42, 53, 94-96, 108.) Lane 9 testified that at one point her air was cut off, and her breathing impeded. (ECF Nos. 19-5 10 at 53, 95-96, 102; 19-7 at 13-15.) She said she was anxious, dizzy, and “faint-ish.” (ECF 11 Nos. 19-5 at 95-96; 19-7 at 15.) She also said she saw “stars” and “little white spots” in 12 her eyes and thought she was “on the verge of passing out.” (ECF Nos. 19-5 at 38, 41, 13 53, 95-96; 19-7 at 15.) Lane’s written statement to police, given at the emergency room, 14 stated LaChance “grabbed my throat and squeezed while he shook my head and said, 15 ‘I’m going to fucking kill you, I swear to God, bitch’ [and] with one hand holding me down 16 by the throat, he slapped me . . . .” (ECF Nos. 19-7 at 65-67; 19-8 at 20-24.) 17 Lane further testified that she tried to wiggle away but LaChance was “too strong.” 18 (ECF No. 19-5 at 38.) She said LaChance “whacked” her knee and wrist with a flashlight, 19 and threatened to break her wrists, ankle, and foot. (Id. at 38, 40.) When she screamed, 20 she said LaChance pressed his hand over her mouth “putting great pressure,” and told 21 her it wasn’t “going to be good” for her if someone heard her scream and police came to 22 her aid. (Id. at 38-39.) She said LaChance kicked her shin, and when she assumed a fetal 23 position, LaChance kicked her tailbone. (Id. at 39.) Lane claimed that when she tried to 24 leave the bed, LaChance stomped on her feet. (Id.) She explained she was unable to call 25 for help because LaChance withheld her phone and when she went to grab his phone, 26 he took his phone away. (Id. at 42.) 27 The beating, according to Lane, occurred “for a good couple of hours” until 28 LaChance went to the bathroom, at which point, Lane “jumped off the bed,” “yanked” open 1 the patio door, scaled the four-foot-tall patio wall as fast as she could, landed on her 2 hands and feet, and ran. (ECF Nos. 19-5 at 42-44, 108-111; 19-7 at 17-18.) Lane said 3 she was “scared for [her] life,” “had so much adrenaline” and had a “split-second” window 4 to escape. (ECF Nos. 19-5 at 43, 109; 19-7 at 17.) Lane further testified LaChance gave 5 chase, caught up to her in the parking lot, shoved her into landscape rocks, grabbed her 6 wrists, and demanded she return to the apartment. (ECF No. 19-5 at 43-44, 113-15.) 7 A neighbor, Maryann Ritter, testified she heard a woman “screaming for her life,” 8 so she went to her balcony from where she saw LaChance in the parking lot hitting Lane’s 9 head and shoulders while Lane “coward (sic) down” to “deflect his blows,” which Ritter 10 described as “extremely forceful.” (ECF No. 19-7 at 21-24.) Ritter said she was “scared,” 11 because she “saw in [LaChance’s] eyes that at that moment, he wanted to kill her,” but 12 her fear did not compare “to the fear [she] saw in [Lane’s] eyes that day.” (Id. at 31.) 13 Lane and Ritter each testified that when Ritter yelled that she was calling the 14 police, LaChance released Lane and ran back toward the apartment while Lane ran in 15 the opposite direction. (ECF Nos. 19-5 at 44; 19-7 at 24, 29.) Ritter called 911 while Lane 16 hid. (ECF Nos. 19-5 at 44; 19-7 at 29.) Lane, recognizing the sound of her car’s dual- 17 exhaust engine, believed LaChance took her car keys and left in her car, so she returned 18 to her apartment where neighbors told her they called police. (ECF No. 19-5 at 44-45, 19 116.) 20 Officer Carl Flowers of Sparks Police Department testified he found Lane “very 21 upset, very hurting,” and “crying.” (ECF No. 19-7 at 46.) Lane told Flowers that LaChance 22 strangled her by holding her down on the bed “with one hand around her throat” and 23 hitting her with his other hand on her face and ear so hard “she saw stars,” and became 24 dizzy and nauseous. (Id. at 46.) Lane further told Flowers that LaChance “cut her airway 25 off causing her to almost pass out.” (Id. at 46–47.) Flowers said he saw “deep bruises, 26 marks,” on Lane’s ear and bruises on her face “all down her legs, all over her body, front 27 and back.” (Id. at 47.) Flowers took photographs of Lane’s injuries at the hospital, which 28 were admitted into evidence. (ECF Nos. 19-5 at 7; 19-6 at 2; 19-7 at 49.) Flowers stated 1 he heard the doctor mention there was blood in Lane’s eardrum, and Flowers noticed 2 Lane was given ice. (ECF No. 19-7 at 50-51.) He looked for handprints on Lane’s upper 3 neck, near her carotid artery and jaw, but found only light marks on her neck. (Id. at 51- 4 52, 56.) 5 Lane testified LaChance’s aunt and uncle drove her to the hospital where she 6 spent the rest of the day in treatment for an ear hemorrhage, contusions (arm, back, 7 buttocks, ear, face, feet, hand, hip, knee, leg, neck, shins, shoulder, tailbone), and a 8 forehead laceration. (ECF No. 19-5 at 46-47, 99-107.) According to Lane, her ear was 9 black and purple, and the injury to her shin swelled up like a baseball. (Id. at 51-52.) Lane 10 first saw a nurse to whom she described her pain as a “seven” on a scale of “one to ten.” 11 (Id. at 98.) She agreed that medical records reflected she complained of “airway, 12 breathing, circulation and neuro,” and “neck and back” tenderness, but omitted “choking.” 13 (Id. at 100, 102.) Lane also agreed her reported pain was “moderate” by the time the 14 emergency room physician saw her. (Id. at 103-05.) She said X-rays revealed nothing 15 broken. (Id. at 105–07.) The doctor prescribed Percocet for pain, an antibiotic (amoxicillin) 16 for her ear, and ibuprofen for swelling. (Id. at 46, 108.) Lane agreed the doctor directed 17 her to rest, apply ice to her ear, and to “expect an increase in pain for two days . . . before 18 gradual improvement,” and to take the antibiotics if pain persisted. (Id. at 107.) 19 After she left the hospital, Lane said she stayed with LaChance’s aunt and uncle 20 “for a few days” on bedrest because her shins and tailbone were bruised and swollen, 21 and she was unable to wear shoes due to her swollen feet. (Id. at 48-49, 52-53, 121.) 22 Lane stated her injuries were painful for “a good few months.” (Id. at 48-49.) She claimed 23 immediate hearing loss that improved but was “still not the same” by trial. (Id. at 47.) She 24 explained her hearing went “in and out,” and she suffered a “muscle thing” that caused 25 “pain in there” during vigorous workouts and similar activity. (Id. at 48-49.) She could no 26 longer sit for long periods due to the tailbone injury and could “no longer run” due to the 27 damage to her shins, which she described as “shin splints.” (ECF Nos. 19-5 at 48, 120; 28 19-7 at 17.) Lane did not seek medical assistance after the hospital visit because she was 1 uninsured. (ECF No. 19-5 at 48, 108.) She explained she did not have a medical diagnosis 2 for shin splits; but the emergency room doctor told her she “would probably have 3 prolonged injuries” and the healing process causes “calcium deposits,” which are likely to 4 cause shin splits because she is a runner. (ECF No. 19-7 at 16-17.) 5 Lane testified LaChance intimidated her with text and phone messages demanding 6 she recant her story to police. (ECF No. 19-5 at 56.) LaChance told her “[y]ou’re going to 7 make this go away,” during a phone conversation a few days after the incident. (Id. at 56- 8 57.) Lane felt threatened and worried because she “didn’t want to be any part of any of 9 this if it meant something bad was going to happen” to her, so she told police she did not 10 wish to press charges. (Id. at 59.) She told police that LaChance “didn’t choke” her or 11 keep her against her will because LaChance told her to recant her story. (Id. at 60.) Lane 12 agreed LaChance did not “choke” or “strangle” her with “two hands,” and she agreed the 13 medical records did not indicate she was “choked.” However, she maintained LaChance’s 14 actions impeded her breathing, and her air was cut off when LaChance, while sitting on 15 top of her, pressed on the bottom of her neck and top of her chest. (ECF Nos. 19-5 at 16 100, 104; 19-7 at 13-15.) 17 Lane further testified that about a week after the incident, on March 19, 2012, she 18 checked into a Reno Motel 6 with LaChance for two nights because she still “had love 19 for” LaChance and felt she still “was in a relationship with” him. (ECF Nos. 19-5 at 58, 60; 20 19-7 at 7.) On the morning of March 21, 2012, Lane stepped out of the motel room for a 21 cigarette, and encountered police, who while searching for LaChance, spotted Lane’s car 22 and surrounded the motel. (ECF No. 19-5 at 62-63; see also ECF No. 19-7 at 70-73.) 23 Detective Curtis English of Sparks Police Department testified that Lane was 24 cooperative with police until March 19, 2012, and she did not “tip” police to LaChance’s 25 location at the motel. (ECF No. 19-7 at 68, 71-73.) Lane testified that police kept her 26 “outside in the car” while they convinced LaChance to surrender from inside the motel 27 room. (ECF No. 19-5 at 63.) English said LaChance did not surrender until approximately 28 10 minutes after the police first asked him to do so. (ECF No. 19-7 at 73-75.) 1 Lane consented to a search of the motel room and told police that two duffel bags 2 inside the room, a black one and a red one, belonged to LaChance. (ECF Nos. 19-5 at 3 60-61, 64; 19-7 at 78.) Police found marijuana leaves floating inside the motel toilet and 4 Zip-Loc baggies of marijuana inside the toilet tank. (ECF No. 19-7 at 79-80, 134.) Police 5 searched Lane’s belongings and found $1,585 in cash inside her makeup bag. (ECF Nos. 6 19-5 at 67-68; 19-7 at 78.) Lane expressed genuine surprise, according to English, to 7 seeing the money and told police it did not belong to her. (ECF No. 19-7 at 78-79.) Lane 8 testified that the boyfriend of LaChance’s mother, Maury, later told Lane that “[LaChance] 9 needs the money put in your makeup bag so we can post bail.” (ECF No. 19-5 at 68.) 10 Police obtained a warrant to search the duffel bags after a police canine alerted to 11 the presence of narcotics. (ECF No. 19-7 at 81-82.) English testified that police found no 12 “women’s items” in those duffel bags. (Id. at 118.) The black duffel bag contained, inter 13 alia, LaChance’s prescription medication, a black digital scale (which could be used to 14 weigh marijuana), and Yves St. Laurent cologne. (Id. at 82-88, 96) The red duffel bag 15 contained, inter alia, a man’s belt, Yves St. Laurent cologne, scales, a box for the black 16 digital scale found in the black duffel bag, and five baggies and a jar containing a total of 17 about 4.6 gross pounds of marijuana. (Id. at 82-88, 90-96.) 18 Following his convictions and adjudication as a habitual criminal, LaChance was 19 sentenced to, inter alia, life imprisonment with eligibility for consideration for parole after 20 10 years. (ECF No. 20-39.) LaChance challenged the judgment of conviction on both 21 direct appeal and state postconviction review. (ECF Nos. 20-21; 21-24; 22-19; 22-21.) 22 III. GOVERNING STANDARD 23 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 24 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 25 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 26 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 27 the adjudication of the claim —

28 (a) resulted in a decision that was contrary to, or involved an 1 States; or

2 (b) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence 3 presented in the State court proceeding. 4 28 U.S.C. § 2254(d). 5 A state court’s decision is contrary to clearly established United States Supreme 6 Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule 7 that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state 8 court confronts a set of facts that are materially indistinguishable from a decision of [the 9 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 10 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 11 court’s decision is an unreasonable application of clearly established Supreme Court 12 precedent within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the 13 correct governing legal principle from [the Supreme] Court’s decisions but unreasonably 14 applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 15 U.S. at 413). “The ‘unreasonable application’ clause requires the state court decision to 16 be more than incorrect or erroneous . . . [rather] [t]he state court’s application of clearly 17 established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 18 409-12) (internal citation omitted). 19 The Supreme Court has held, “[a] state court's determination that a claim lacks 20 merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 21 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) 22 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated 23 “that even a strong case for relief does not mean the state court’s contrary conclusion 24 was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. 25 Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult-to-meet” and 26 “highly deferential standard for evaluating state-court rulings, which demands state-court 27 decisions be given the benefit of the doubt.” (internal quotation marks and citations 28 omitted)). 1 The AEDPA’s deferential standard of review “is demanding but not insatiable.” 2 Miller-El v. Dretke, 545 U.S. 231, 240 (2005). “Even in the context of federal habeas, 3 deference does not imply abandonment or abdication of judicial review[; and] [d]eference 4 does not by definition preclude relief.” Miller-El v. Cockrell, 527 U.S. 322, 340 (2003). 5 Although the AEDPA standard requires federal courts “to give considerable deference to 6 the state courts, AEDPA deference is not a rubber stamp.” Anderson v. Terhune, 516 7 F.3d 781, 786 (9th Cir. 2008) (citing Miller-El, 545 U.S. at 240). 8 IV. DISCUSSION 9 A. Ground I 10 In Ground I, LaChance alleges his right to effective assistance of counsel was 11 violated because his counsel did not request jury instructions on misdemeanor domestic 12 battery as a lesser included offense for felony (a) domestic battery by strangulation, or (b) 13 domestic battery causing substantial bodily harm. (ECF No. 1 at 10-15.) 14 1. Ineffective Assistance of Counsel 15 Strickland announced a two-prong test for ineffective assistance of counsel claims, 16 which requires a petitioner demonstrate (1) the attorney’s “representation fell below an 17 objective standard of reasonableness[;]” and (2) the attorney’s deficient performance 18 prejudiced petitioner such that “there is a reasonable probability that, but for counsel’s 19 unprofessional errors, the result of the proceeding would have been different.” Strickland 20 v. Washington, 466 U.S. 668, 687-88, 694 (1984). “A reasonable probability is a 21 probability sufficient to undermine confidence in the outcome.” Id. at 694. Courts 22 considering an ineffective-assistance-of-counsel claim, “must indulge a strong 23 presumption that counsel’s conduct falls within the wide range of reasonable professional 24 assistance . . .” Id. at 689 (citation omitted). A petitioner must show “counsel made errors 25 so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 26 Amendment.” Id. at 687. 27 Under Strickland, “counsel has a duty to make reasonable investigations or to 28 make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. 1 “[A] particular decision not to investigate must be directly assessed for reasonableness in 2 all the circumstances, applying a heavy measure of deference to counsel’s judgments.” 3 Id. “[S]trategic choices made after thorough investigation of law and facts relevant to 4 plausible options are virtually unchallengeable; and strategic choices made after less than 5 complete investigation are reasonable precisely to the extent that reasonable professional 6 judgments support the limitations on investigation.” Id. at 690-91. 7 Establishing a state-court-decision on an ineffective-assistance-of-counsel claim 8 is unreasonable under the AEDPA is especially difficult where the state court adjudicated 9 the claim under Strickland. See Harrington, 562 U.S at 104-05. In Harrington, the 10 Supreme Court clarified that Strickland and § 2254(d) are each highly deferential to 11 counsel’s conduct, and when the two apply in tandem, review is doubly deferential. See 12 id. at 105 (citation omitted); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 13 2010) (internal quotation marks omitted) (“When a federal court reviews a state court’s 14 Strickland determination under AEDPA, both AEDPA and Strickland’s deferential 15 standards apply; hence, the Supreme Court’s description of the standard as doubly 16 deferential.”). 17 2. Additional Background 18 Defense counsel Suzanne Lugaski testified at the state postconviction evidentiary 19 hearing as follows: 20 Q: Okay. Why didn’t you submit a jury instruction for a lesser 21 included of misdemeanor battery? 22 A: Because I didn’t think I would need that. Because of the fact that if he was going to get convicted, he was going to get 23 convicted on the felony. That there was substantial evidence to possibly get him convicted of that. 24 25 (ECF No. 21-14 at 70-71.) Lugaski also admitted she “didn’t think of” submitting a lesser- 26 included jury instruction, “[b]ecause if the jury was going to find [LaChance] guilty, they 27 would have ignored” counsel’s arguments that the evidence did not support substantial 28 bodily harm. (Id. at 71.) When asked whether the jury could have found LaChance guilty 1 of the lesser-included misdemeanor battery, Lugaski responded, “[p]ossibly,” “[p]ossibly 2 not,” and “[a]nything is possible.” (Id. at 71-72.) 3 3. The State Court’s Determination 4 The Nevada Court of Appeals rejected the corresponding claims as follows: 5 Appellant Darren Gabriel LaChance argues the district court erred in denying his claims of ineffective assistance of 6 counsel raised in his June 19, 2004 petition. To prove ineffective assistance of counsel, a petitioner must 7 demonstrate that counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and 8 resulting prejudice such that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings 9 would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 10 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of the inquiry must be shown, Strickland, 11 466 U.S. at 697, and the petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means 12 v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the district court’s factual findings if 13 supported by substantial evidence and not clearly erroneous but review the court’s application of the law to the facts de 14 novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). 15 Appellant Darren Gabriel LaChance argues the district 16 court erred in denying his claims of ineffective assistance of counsel raised in his June 19, 2004 petition. To prove 17 ineffective assistance of counsel, a petitioner must demonstrate that counsel’s performance was deficient in that 18 it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability 19 that, but for counsel’s errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 20 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). 21 Both components of the inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner must demonstrate the 22 underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We 23 give deference to the district court’s factual findings if supported by substantial evidence and not clearly erroneous 24 but review the court’s application of the law to the facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 25 1166 (2005).

26 . . . LaChance argues his trial counsel was ineffective for failing to request a jury instruction on misdemeanor battery 27 constituting domestic violence as a lesser-included offense for the charges of battery by strangulation constituting domestic 28 violence and battery constituting domestic violence causing 1 was prejudiced. Given the jury’s verdict, the jury necessarily found beyond a reasonable doubt LaChance strangled the 2 victim and caused her to sustain substantial bodily harm. Further, our review of the record reveals substantial evidence 3 to support these findings. Under these circumstances, LaChance failed to demonstrate a reasonable probability the 4 jury would have convicted him of misdemeanor battery constituting domestic violence, rather than the greater 5 offenses, had his trial counsel sought and the jury been instructed on such lesser-included-offense instructions. See 6 Harrington v. Richter, 112 U.S. 86, 112 (2011) (explaining that under the Strickland prejudice standard, “[t]he likelihood of a 7 different result must be substantial, not just conceivable.”); Crace v. Herzog, 798 F.3d 840, 851 (9th Cir. 2015). 8 Therefore, we conclude the district court did not err in denying this claim. 9 10 (ECF No. 22–21 at 2–3.) 11 4. State Court Unreasonably Applied Strickland 12 “[I]n ineffective assistance cases involving a failure to request a lesser-included- 13 offense instruction, Strickland requires a reviewing court to assess the likelihood 14 defendant’s jury would have convicted only on the lesser included offense.” Crace v. 15 Herzog, 798 F.3d 840, 849 (9th Cir. 2015) (citing Keeble v. United States, 412 U.S. 205, 16 213 (1973) (quotation omitted)). “Only by performing that assessment can a court answer 17 the question expressly posed by Strickland: whether there is a reasonable probability that, 18 if the defendant’s lawyer had performed adequately, the outcome of the proceeding would 19 have been different.” Id. (citing Strickland, 466 U.S. at 694). This requires a court to “weigh 20 all the evidence of record . . . to determine whether there was a reasonable probability 21 that the jury would have convicted [the defendant] only of [the lesser offense] if it had 22 been given the option.” Id. (citing Breakiron v. Horn, 642 F.3d 126, 140 (3d Cir. 2011)). 23 As in Crace, the state court here did not meet its obligation under Strickland’s 24 prejudice prong to analyze whether there was a reasonable probability evidence would 25 have permitted the jury to convict only on the lesser included offense, had it been given 26 the option. A determination based on a jury’s convictions and substantial evidence 27 /// 28 /// 1 supporting convictions for greater offenses is an inadequate substitute for the reasonable 2 probability analysis under Strickland.5 See e.g., Crace, 798 F.3d at 849. 3 The Court applies de novo review to LaChance’s claim that counsel was ineffective 4 in failing to request the lesser-included-offense instruction because the state appellate 5 court unreasonably applied Strickland’s prejudice prong by failing to examine whether, on 6 record evidence, there was a reasonable probability the jury would have instead convicted 7 LaChance of the lesser included offense, had it been given the option. 8 5. Nevada State Law 9 A jury will be instructed on a lesser included offense upon request “if there is any 10 evidence at all, however slight, on any reasonable theory of the case under which the 11 defendant might be convicted of a . . . lesser included offense.” Lisby v. State, 414 P.2d 12 592, 595 (Nev. 1966) (citations omitted). “[A] state court must focus on whether credible 13 evidence admitted at trial warranted a lesser included offense, not whether the evidence 14 was sufficient to prove the greater one.” Rosas v. State, 147 P.3d 1101, 1106 n.10 (Nev. 15 2006) (citing Hooks v. Ward, 184 F.3d 1206, 1232 (10th Cir. 1999) (emphasis omitted)), 16 abrogated on other grounds by Alotaibi v. State, 404 P.3d 761 (Nev. 2017). 17 At the time of the offenses, “battery” meant “any willful and unlawful use of force 18 or violence upon the person of another.” NRS § 200.481(1)(a), as amended by 2009 19 Laws, ch. 42, § 3. Misdemeanor battery was distinguished from felony battery as follows: 20 Except as otherwise provided in NRS 200.485, a person convicted of a battery, other than a battery committed by an 21 adult upon a child which constitutes child abuse, shall be punished: 22 (a) If the battery is not committed with a deadly weapon, and 23 no substantial bodily harm to the victim results, except

25 5The State contends that the state appellate court decision is entitled to the AEDPA deference because it cited Strickland and Crace and found “substantial” evidence 26 supported the verdict for the greater offense, whereas the state court in Crace applied a sufficiency of the evidence test. (ECF No 36 at 8-9.) This point does not redeem the state 27 appellate decision here as it nonetheless failed to undertake any analysis to determine the likelihood, considering all the evidence, that LaChance’s jury would have convicted 28 only on the lesser included offense had an instruction permitted it to do so. Consequently, 1 under circumstances where a greater penalty is provided in this section or NRS 197.090, for a misdemeanor. 2 (b) If the battery is not committed with a deadly weapon, and 3 either substantial bodily harm to the victim results or the battery is committed by strangulation, for a category C 4 felony as provided in NRS 193. 130. 5 NRS § 200.481(2), as amended by 2009 Laws, ch. 42, § 3. 6 “Strangulation” was defined as “intentionally impeding the normal breathing or 7 circulation of the blood by applying pressure on the throat or neck or by blocking the nose 8 or mouth of another person in a manner that creates a risk of death or substantial bodily 9 harm.” See NRS § 200.481(1)(h), as amended by 2009 Laws, ch. 42, § 3. 10 According to NRS § 0.060, “[u]nless the context otherwise requires,” “substantial 11 bodily harm” means: 12 (1) Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted 13 loss or impairment of the function of any bodily member or organ; or 14 (2) Prolonged physical pain. 15 16 According to the Nevada Supreme Court, “the phrase ‘prolonged physical pain’ 17 must necessarily encompass some physical suffering or injury that lasts longer than the 18 pain immediately resulting from the wrongful act.” Collins v. State, 203 P.2d 90, 92-93 19 (2009). As the Collins court explained: “In a battery, for example, the wrongdoer would 20 not be liable for ‘prolonged physical pain’ for the touching itself . . . [but] the wrongdoer 21 would be liable for any lasting physical pain resulting from the touching.” Id. at 64-65, n.3. 22 6. Ground I(a)6 23 This Court analyzes both Strickland prongs for the challenge to counsel’s failure 24 to request a lesser-included-offense instruction for domestic battery by strangulation 25 because the Court finds prejudice under Strickland on de novo review. 26 27 6The Court has subdivided Ground I into Ground I(a) challenging the conviction for 28 domestic battery by strangulation and Ground I(b) challenging the conviction for domestic 1 a. Strickland Performance Prong 2 The Court analyzes the Strickland performance prong de novo because the state 3 appellate court did not address it in its denial of relief. See Rompilla v. Beard, 545 U.S. 4 374, 390 (2005) (holding where a state court denied relief based on one element of the 5 Strickland claim and, therefore, did not reach the other, a federal court applies 6 de novo review to the Strickland element on which the state court did not rule (citing 7 Wiggins v. Smith, 539 U.S. 510, 534 (2003)). 8 As later discussed below in the analysis of Strickland’s prejudice prong, there was 9 at least slight evidence upon which the jury could have convicted LaChance of the lesser 10 offense of misdemeanor domestic battery instead of the greater offense of domestic 11 battery by strangulation, such that the state district court would have provided an 12 instruction on the lesser offense had counsel requested it. See infra at 16-17. 13 Although Strickland instructs that deference is owed to counsel’s actions when 14 they are the result of an informed strategic decision, the state court record reflects 15 counsel’s failure was neither strategic nor deliberate, and instead counsel did not consider 16 requesting a lesser-included-offense instruction: 17 Q: Okay. Why didn’t you submit a jury instruction for a lesser included of misdemeanor battery? 18 A: Because I didn’t think I would need that. Because of the 19 fact that if he was going to get convicted, he was going to get convicted on the felony. That there was substantial evidence 20 to possibly get him convicted of that. 21 (ECF No. 21-14 at 70-71.) Given the strong evidence a battery occurred, the state court 22 record demonstrates a lesser-included-offense instruction would no way undermined 23 defense counsel’s arguments that the State failed to prove strangulation, and nothing 24 suggests counsel deliberately and reasonably rejected the path of a lesser-included- 25 offense instruction to pursue an all-or-nothing strategy.7 Moreover, contrary to counsel’s 26 testimonial assumption, the jury appears to have discussed whether the State proved 27 7In Crace, the Ninth Circuit noted the reasonableness of a strategic decision to 28 forgo a lesser-included-offense instruction to force the jury into an “all-or-nothing” decision 1 Lane was strangled as evidenced by the jury’s note in which it started to ask the court for 2 a “definition of strangulation,” but crossed it out. (ECF No. 19-10 at 3.) 3 Based on evidentiary record, this Court holds on de novo review that counsel’s 4 performance was deficient under Strickland because failure to request an instruction of 5 misdemeanor domestic battery, as a lesser included offense for felony domestic battery 6 by strangulation, fell below an objective standard of reasonableness. 7 b. Strickland Prejudice Prong 8 This Court reviews the Strickland prejudice prong de novo because the state 9 appellate court’s analysis was objectively unreasonable. See supra at 12-13. 10 For the charge of domestic battery by strangulation, the State alleged LaChance 11 “applied pressure on the victim’s throat and/or neck, intentionally impeding the normal 12 breathing or circulation of the blood in a manner that created a risk of death or substantial 13 bodily harm.” (ECF Nos. 18-5 at 2; 19-5 at 5-6; 19-11 at 5.) 14 Defense counsel argued the State failed to prove the alleged actions amounted to 15 strangulation. (ECF No. 19-8 at 34-35, 38; see also 24-26, 54, 56.) While Lane agreed 16 LaChance did not strangle or choke her (according to her own definition), she maintained 17 LaChance’s actions impeded her breathing because her air was cut off at the bottom of 18 her neck and top of her chest when LaChance sat on her with his knee in her chest and 19 his entire weight on her, while pressing on the bottom of her neck or collarbone with his 20 hand as her head hung off the bed. See supra at 3, 6. Lane’s written statement to police 21 and to Flowers indicated LaChance grabbed her by the “neck.” See supra at 3, 4. 22 However, when Flowers looked for handprints on Lane’s neck, Flowers said he only found 23 “light marks.” See supra at 4-5. 24 Based on evidentiary record, the jury could have reasonably concluded the actions 25 alleged for the offense constituted a domestic battery but did not include strangulation. 26 Accordingly, there is a reasonable probability the jury would have convicted LaChance of 27 misdemeanor domestic battery, under NRS § 200.481(2), instead of felony domestic 28 battery by strangulation, had the jury been given the option to do so. See Keeble, 412 1 U.S. at 208 (stating that “it is now beyond dispute that the defendant is entitled to an 2 instruction on a lesser included offense if the evidence would permit a jury rationally to 3 find him guilty of the lesser offense and acquit him of the greater.”). 4 The Court finds on de novo review that LaChance was denied effective assistance 5 of counsel regarding the conviction for domestic battery by strangulation. LaChance is 6 granted relief for Ground I(a) of the Petition, as specified further infra. 7 7. Ground I(b)8 8 The Court analyzes only the Strickland prejudice prong for LaChance’s Ground 9 I(b) challenge to his conviction for domestic battery causing substantial bodily harm. In 10 contrast to the discussion regarding the conviction for domestic battery by strangulation, 11 there is no reasonable probability, on the state court record, that the jury would have 12 convicted LaChance of misdemeanor domestic battery in lieu of the greater offense of 13 felony domestic battery causing substantial bodily harm. 14 The jury asked for the definition of prolonged physical pain, by asking: “3 hours? 3 15 days? 3 months? 3 years?” (ECF No. 19-10 at 4.) The state district court replied with the 16 definition from Collins, 203 P.3d at 92-93: “‘Prolonged physical pain’ must necessarily 17 encompass some physical suffering or injury that last longer than the pain immediately 18 resulting from the wrongful act.” (Id at. 5; ECF No. 19-8 at 81.) 19 The jury was presented with Lane’s testimony that she was at the hospital for 20 several hours for treatment for her injuries. The doctors performed x-rays out of concern 21 that Lane could have broken bones and the emergency room physician told her she could 22 “expect an increase in pain for two days . . . before gradual improvement.” See supra at 23 5. Lane also testified her ear hemorrhage caused immediate hearing loss and hearing 24 impairment that lasted a few weeks and was not yet normal at trial. She was on bedrest 25 for a few days and unable to wear shoes for “awhile.” She said her pain lasted “a good 26 few months,” and by the time of trial, she was still unable to sit for extended periods due 27 to her tailbone injury and could not run due to her shin injuries. See supra at 5-6. Flowers 28 1 also testified he saw “deep bruises,” on Lane’s ear and “all over her body, front and back” 2 and he took photographs at the emergency room. See supra at 4. 3 This Court finds on de novo review, based on evidentiary record and the 4 “prolonged physical pain” definition under Nevada law, there was no reasonable 5 probability the jury would have convicted LaChance of the lesser crime of misdemeanor 6 domestic battery in lieu of domestic battery causing substantial bodily harm, had it been 7 instructed it could do so. As such, LaChance was not prejudiced by counsel’s failure to 8 request the lesser-included-offense instruction as alleged in Ground I(b). 9 8. Disposition of Ground I 10 Ground I is granted in part and denied in part. Relief is granted on Ground I(a) for 11 the conviction for domestic battery by strangulation and the conviction will be vacated 12 subject to the State’s ability to potentially retry LaChance for that offense within a certain 13 time, as specified in the conclusion of this order. Relief is denied on Ground I(b) as to the 14 conviction for domestic battery causing substantial bodily harm. 15 B. Ground II 16 In Ground II, LaChance alleges his right to effective assistance of counsel was 17 violated when counsel failed “to investigate and bring out the victim’s” Facebook 18 messages, as inconsistent with Lane’s trial testimony and the charges, and reflecting her 19 motive to lie. (ECF No. 1 at 15-20.) 20 1. Additional Background 21 a. Trial 22 Before defense counsel Lugaski commenced cross-examining Lane on the first 23 day of trial testimony, Lugaski informed the court she gave transcribed copies of 24 purported Facebook messages between Lane and LaChance’s ex-girlfriend Melia Shively 25 to the State attorney.9 (ECF No. 19-5 at 70-72.) Lugaski expressed concerned about the 26

27 9Respondents did not object to LaChance’s submission of what appears to be a portion of the Facebook messages admitted into evidence at the postconviction 28 evidentiary hearing and attached to LaChance’s reply to Respondents’ answer to the 1 authenticity of the messages and acknowledged disclosure was tardy. (Id. at 74-75.) She 2 explained Lane’s purported messages included “statements about some of the evidence 3 in this case,” and included statements that contradicted Lane’s written statement, but also 4 included “so-called prior bad acts” on the part of LaChance. (Id. at 71, 75.) Lugaski said 5 she would like to use “some” of the messages, but she could “do the same thing from the 6 preliminary hearing transcript” as she planned to impeach Lane with prior testimony if she 7 testified that LaChance had strangled her. (Id. at 75-76.) 8 The State argued the typed messages were not authenticated and contained 9 references to “a prior bad act” the State did not rely upon “where Star[leen Lane] was 10 abused by the defendant.” (Id. at 72, 74.) The State conceded, however, that Lane’s 11 messages contained an admission that LaChance did not strangle her. (Id. at 73.) 12 The state district court ruled the messages inadmissible for lack of authentication 13 under NRS § 52.015. (Id. at 76-77.) 14 b. Postconviction Evidentiary Hearing 15 At the postconviction evidentiary hearing, Shively testified she knew LaChance for 16 17 years and became acquainted with Lane while responding to a post on C.J.’s 17 Facebook page. (ECF No. 21-14 at 32-33, 36.) Shively identified Exhibit 1, which was 18 admitted into evidence, as messages between her and Lane, beginning about a month 19 before Lane’s message to Shively on the day of the incident. (Id. at 33-35.) 20 Lugaski testified she would have used the Facebook statements “if Star[leen] Lane 21 had been making up the statements in there . . .” but Lugaski did not see that as the case. 22 (Id. at 48.) Lugaski said Shively told her Lane’s messages stated untruths, but Lugaski 23 said she “didn’t see that . . . [and] [i]f it was there, she didn’t print it out.” (Id. at 48-49.) 24 Lugaski agreed Lane messaged that LaChance did not strangle her but explained that 25 Lane admitted this during her preliminary hearing testimony, and Lane testified at trial 26 that “[LaChance] never put his hands on her throat.” (Id. at 50.) Lugaski testified she 27 believed the messages were consistent with Lane’s testimony and Lugaski was otherwise 28 /// 1 concerned about references in the messages to LaChance’s alleged prior bad actions 2 toward Lane. (Id. at 62.) 3 2. State Court’s Determination 4 The Nevada Court of Appeals rejected the corresponding claim as follows: 5 . . . LaChance argues his trial counsel was ineffective for failing to investigate and discover inconsistent statements 6 the victim made on Facebook regarding the incidents at issue in this matter. During trial, counsel advised the court she had 7 recently received documents from LaChance’s mother which purportedly contained retyped statements made by the victim 8 on Facebook regarding the incidents at issue. The district court conducted a hearing regarding the documents and 9 concluded they were inadmissible because they could not be authenticated as statements made by the victim. See NRS 10 52.015(1). LaChance argues counsel should have performed actions to discover these statements at an earlier time and 11 therefore could have been prepared to properly present them at trial. Petitioner failed to demonstrate his counsel’s 12 performance was deficient or resulting prejudice.

13 At the evidentiary hearing, counsel testified she first learned of the actual Facebook statements during trial. The 14 district court concluded counsel was credible and substantial evidence supports this conclusion. LaChance fails to 15 demonstrate objectively reasonable counsel could have undertaken further investigation given these circumstances. 16 See Strickland, 466 U.S. at 691 (explaining that a decision not to investigate must be assessed for reasonableness 17 considering the circumstances in which the decision was made and “[c]ounsel’s actions are usually based, quite 18 properly . . . on information supplied by the defendant.”).

19 The district court further concluded the Facebook statements were mostly consistent with the victim’s trial 20 testimony and also contained “damning evidence” of additional improper conduct committed by LaChance. 21 Substantial evidence supports the district court’s conclusions. Given the nature of the Facebook statements, LaChance did 22 not demonstrate a reasonable probability of a different outcome had counsel investigated and presented those 23 statements at trial. Therefore, the district court did not err in denying this claim. 24 25 (ECF No. 22-21 at 3-4.) 26 3. Deferential Analysis of Strickland Prejudice Prong 27 The state appellate court’s determination is neither contrary to nor an 28 unreasonable application of United States Supreme Court authority, and is not based on 1 an unreasonable determination of the facts. This Court reaches only the Strickland 2 prejudice prong for LaChance’s challenge to counsel’s failure to investigate and present 3 the Facebook messages alleged in Ground II. 4 LaChance raises various reasons why he contends he was prejudiced by counsel’s 5 failure to investigate and present Lane’s Facebook messages. (ECF No. 1 at 15-19.) The 6 Court will not address Ground II as it relates to the conviction for domestic battery by 7 strangulation because, as stated above, the Court will grant relief for that conviction on 8 Ground I(a). 9 LaChance asserts his counsel’s failure to present the message in which Lane told 10 Shively that LaChance did not lock her in the bathroom was prejudicial. (ECF No. 1 at 11 16.) There is no prejudice because the false imprisonment conviction was based not upon 12 LaChance locking Lane in the bathroom but instead on his refusal to let her leave the 13 bedroom. (ECF No. 19-8 at 11-12, 70-71.) 14 LaChance claims he was prejudiced by his counsel’s failure to show that Lane’s 15 messages to Shively omitted an inability to hear, pain in her legs, or shin splints. (ECF 16 No. 1 at 16.) Lane’s messages, although not comprehensive, were consistent with her 17 trial testimony about her injuries. (ECF No. 40 at 27.) In a message to Shively about a 18 week after the incident, Lane stated: 19 He slapped me so hard so many times that my ears were bleeding. He kicked me a few times. He hit me with a flashlight 20 on my head, knee, and wrist. Socked me up. Threatened to kill me. Got on top of me at one point with his knee in my chest 21 and grabbed my neck and was shaking me threatening to break my foot and wrist. 22 23 (ECF Nos. 19-5 at 95-6; 40 at 27.) Lane’s messages did not contradict her testimony that 24 she suffered hearing loss, shin splints, or leg pain. See supra at 2-6. As such, there is no 25 reasonable probability that presenting Lane’s omission of some of her injuries in her 26 messages to Shively would have resulted in a different outcome. 27 LaChance asserts his counsel’s failure to present the Facebook messages 28 prejudiced him because the messages demonstrate Lane was motivated to lie or 1 exaggerate due to her anger because she believed LaChance was unfaithful. (ECF No. 2 1 at 16-17.) However, Lane’s angry belief that LaChance was unfaithful could have made 3 Lane a more sympathetic witness, particularly in the context of her message to Shively: 4 “I told myself after the last physical confrontation that i (sic) was done . . . .” (ECF No. 40 5 at 27.) 6 Even if the Facebook messages demonstrated Lane harbored a motive to lie or 7 exaggerate her injuries, there is no reasonable probability that the presentation of Lane’s 8 messages would have resulted in a different outcome because other evidence strongly 9 corroborated Lane’s testimony about the nature of her injuries and her prolonged physical 10 pain. The neighbor, Ritter, testified she heard Lane “screaming for her life” and saw 11 LaChance hit Lane’s head and shoulders with extreme force while Lane “coward (sic) 12 down” to “deflect his blows.” See supra at 4. Flowers also testified that he took photos of 13 Lane’s injuries at the hospital, and saw “deep bruises,” on Lane’s ear and bruises and 14 marks “all over her body, front and back.” See supra at 4. Flowers heard the emergency 15 room physician mention blood in Lane’s ear and saw Lane was given ice. Id. The 16 prolonged nature of the injuries was demonstrated by the emergency room physician’s 17 prescription for pain medication and statement telling Lane to “expect an increase in pain 18 for two days . . . before gradual improvement.” See supra at 5. 19 LaChance contends he was prejudiced because his counsel could have used the 20 Facebook messages to argue to the jury that Lane’s anger over his alleged infidelity gave 21 her motive to lure him to the motel to reconcile for two days so she could plant the 22 marijuana the police found in his duffel bag. There is no reasonable probability using the 23 messages for such an argument would have changed the outcome on the marijuana 24 conviction. Such an argument reasonably could not have undermined the strength of the 25 evidence of LaChance’s possession of marijuana found by police. Detective English 26 testified that Lane did not tip police to LaChance’s location at the motel and Lane testified 27 police kept her outside in the car while LaChance was alone inside the motel room for at 28 least 10 minutes after police asked him to surrender. See supra at 6. Police found 1 marijuana in the toilet bowl and toilet tank. Id. Police also testified they found marijuana 2 along with prescription medication, scales, and male clothing and cologne, but no 3 “women’s items,” inside the duffel bags attributed to LaChance. See supra at 7. These 4 circumstances supported a strong inference, inter alia, that LaChance was aware of and 5 at least initially tried to dispose marijuana that knowingly was in his possession, while he 6 tried to stall police. Moreover, there otherwise was nothing in the Facebook messages 7 themselves about marijuana, marijuana in the room, or planting marijuana to retaliate 8 against LaChance. 9 LaChance claims he was prejudiced by his counsel’s failure to introduce Lane’s 10 messages admitting the beating was precipitated by her affair with C.J. (ECF No. 1 at 16.) 11 There was no reasonable probability of a different outcome because the state court 12 excluded evidence about the cause of the incident and would not have permitted 13 presentation of related messages. (ECF Nos. 18-12; 18-13; 19-5 at 13-15; 19-6 at 2.) 14 Based on evidentiary record, there is no reasonable probability the presentation of 15 the messages would have resulted in different outcome. The state court’s application of 16 Strickland’s prejudice prong to LaChance’s claim was objectively reasonable and 17 LaChance is not entitled to federal habeas relief on Ground II. 18 C. Grounds III and IV 19 In Grounds III and IV, LaChance alleges there was insufficient evidence to 20 establish his convictions for (a) domestic battery by strangulation, and (b) domestic 21 battery causing substantial bodily harm. (ECF No. 1 at 20-25.) 22 1. General Legal Principles 23 A jury’s verdict must stand if, after viewing the evidence in the light most favorable 24 to the prosecution, any rational trier of fact could have found the essential elements of the 25 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). 26 A federal habeas petitioner faces a “considerable hurdle” when challenging the sufficiency 27 of evidence to support his or her conviction. Davis v. Woodford, 384 F.3d 628, 639 (9th 28 Cir. 2004). A reviewing court, faced with a record of historical facts that support conflicting 1 inferences, must presume the trier of fact resolved any conflicts in favor of the prosecution 2 and defer to that resolution, even if the resolution by the state court’s trier of fact of specific 3 conflicts does not affirmatively appear in the record. Id. (citing Jackson, 443 U.S. at 326.) 4 The Jackson standard is applied with reference to substantive elements of the criminal 5 offense as defined by state law. Id. (citing Jackson, 443 U.S. at 324, n.16.) When the 6 deferential standards of the AEDPA and Jackson are applied together, the question for 7 decision on federal habeas review is whether the state court’s decision unreasonably 8 applied the Jackson standard to the evidence at trial. See e.g., Juan H. v. Allen, 408 F.3d 9 1262, 1274-75 (9th Cir. 2005) (citations omitted). 10 2. State Court’s Determination 11 The Nevada Supreme Court rejected the corresponding claims as follows: 12 Sufficiency of the evidence

13 We first address LaChance’s challenge to the sufficiency of the evidence to support the convictions for 14 domestic battery by strangulation and domestic battery causing substantial bodily harm. Under a challenge to the 15 sufficiency of the evidence, this court reviews the evidence in the light most favorable to the prosecution and determines 16 whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 17 Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) (emphasis and internal quotation marks omitted). The jury is 18 tasked with assessing the weight of the evidence and the witnesses’ credibility, id.; Rose v. State, 123 Nev. 194, 202- 19 03, 163 P.3d 408, 414 (2007), and may rely on both direct and circumstantial evidence in returning its verdict, Wilkins v. 20 State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).

21 Domestic battery by strangulation

22 LaChance contends that there was insufficient evidence of strangulation and therefore, he could not be 23 convicted of felony battery under NRS 200.485(2). He argues that the strangulation element was only supported by 24 speculation and ambiguous statements and that any difficulty in breathing resulted from Lane’s anxiety. 25 NRS 200.485(1)(a) defines battery as “any willful and 26 unlawful use of force or violence upon the person of another.” See also NRS 33.018 (defining acts of domestic violence). 27 When the battery is committed by strangulation, the perpetrator is guilty of a felony rather than a misdemeanor. 28 NRS 200.485(2). The Legislature defined strangulation as 1 blocking the nose or mouth of another person in a manner that creates a risk of death or substantial bodily harm.” NRS 2 200.481(1)(h).

3 In reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could 4 have found beyond a reasonable doubt that LaChance strangled Lane. The State presented evidence that LaChance 5 placed his knee on Lane’s chest and his hands on her clavicle/lower part of her neck and then put pressure on the 6 area, impeding her breathing to the point that her vision was impaired. Depriving Lane of oxygen to the point where she 7 lost vision supports a finding that LaChance applied pressure to Lane’s throat or neck in a manner that created a risk of 8 death or substantial bodily harm. Accordingly, we affirm the conviction for domestic battery by strangulation. 9 Domestic battery causing substantial bodily harm 10 LaChance also challenges the sufficiency of the 11 evidence supporting the substantial-bodily-harm element of the domestic-battery-causing-substantial bodily harm 12 conviction. He also contends that where the substantial bodily-harm element is based on prolonged pain, the pain 13 must also be substantial, and here it was not.[FN1]

14 [FN1] LaChance also avers that the Collins v. State, 125 Nev. 60, 203 P.3d 90 (2009), 15 definition of “prolonged physical pain” is inadequate and that this court should adopt the 16 “prolonged . . . pain” standard elucidated in the dissent of State v. King, 827 N.E.2d 398, 402 17 (Ohio Ct. App. 2005) (Rocco, J., dissenting). Because LaChance’s counsel acquiesced to the 18 use of the definition found in Collins during trial, appellate consideration of this issue is limited to 19 constitutional or plain error. Saletta v. State, 127 Nev. ___, ___, 254 P.3d 111, 114 (2011) (noting 20 that failure to object during trial generally precludes appellate consideration of an issue); 21 Somee v. State, 124 Nev. 434, 443, 187 P.3d 152, 159 (2008) (“[T]his court has the discretion 22 to review constitutional or plain error.”). Because there is no alleged constitutional 23 component to this argument, the error here must be plain. “An error is plain if the error is so 24 unmistakable that it reveals itself by a casual inspection of the record.” Saletta, 127 Nev. at 25 ___, 254 P.3d at 114 (internal quotation omitted). The error must also be clear under 26 current Nevada law. Id. Accordingly, plain error cannot exist here because such a finding would 27 be inconsistent with Collins, the controlling Nevada authority. 28 1 battery becomes a felony. See NRS 200.485(2); NRS 200.481(2)(b). NRS 0.060 defines substantial bodily harm as 2 “[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted 3 loss or impairment of the function of any bodily member or organ; or . . . [p]rolonged physical pain.” We have stated that 4 “the phrase ‘prolonged physical pain’ must necessarily encompass some physical suffering or injury that lasts longer 5 than the pain immediately resulting from the wrongful act.” Collins v. State, 125 Nev. 60, 64, 203 P.3d 90, 92-93 (2009). 6 “In a battery, for example, the wrongdoer would not be liable for ‘prolonged physical pain’ for the touching itself. However, 7 the wrongdoer would be liable for any lasting physical pain resulting from the touching.” Id. at 64 n.3, 203 P.3d at 93, n.3. 8 Reviewing the evidence in the light most favorable to 9 the prosecution, we conclude that the State presented sufficient evidence to establish that Lane suffered prolonged 10 physical pain. Lane was treated at the hospital for hemorrhaging of the ear and multiple contusion and welts. 11 She testified that she was immobile for a few days afterward and that her injuries have resulted in permanent shin splints, 12 which prevent her from running. The injuries to her tailbone hinder her ability to sit for long periods. She also has hearing 13 loss as a result of the injuries suffered from the assault. We conclude that Lane’s testimony and the medical records 14 support a finding that Lane suffered “some physical suffering or injury that lasts longer than the pain immediately resulting 15 from the wrongful act.” Collins, 125 Nev. at 64, 203 P.3d at 92-93. Accordingly, LaChance’s conviction for domestic 16 battery causing substantial bodily harm is supported by sufficient evidence. 17 18 LaChance v. State, 321 P.3d 919, 924-26 (Nev. 2014). 19 3. Analysis 20 a. Ground III: Strangulation10 21 The state court’s application of Jackson to the evidentiary record for the conviction 22 for domestic battery by strangulation was objectively reasonable. 23 The elements of the crime of domestic battery by strangulation are discussed 24 above. See supra at 13-14. The parties did not dispute Lane and LaChance were in a 25 domestic relationship at the time of Lane’s injuries and did not dispute LaChance battered 26 Lane. See supra at 2-6. Although the parties disputed whether LaChance strangled Lane, 27 10This Court reaches Ground III notwithstanding the grant of relief on Ground I(a) 28 because a grant of relief on Ground III would lead to an acquittal rather than instead a 1 evidentiary record is sufficient for a rational jury to find the State met its burden to prove 2 strangulation beyond a reasonable doubt. 3 In her written statement to police, Lane told police that LaChance “grabbed” her 4 “throat and squeezed” it and, “with one hand holding [her] down by the throat, [LaChance] 5 slapped [her] . . .” See supra at 3. Although Lane testified LaChance did not choke or 6 strangle her, she maintained he impeded her breathing by sitting on top of her with his 7 entire weight while pressing down on her collarbone/lower neck/clavicle area. See supra 8 at 3-4, 6. As a result, Lane’s vision was impeded because she felt “faintish,” “saw stars” 9 and “white spots,” and believed she could have passed out. See supra at 3-4. At the 10 emergency room, Lane reported “airway, breathing, circulation and neuro,” concerns and 11 “neck and back” tenderness. See supra at 5. Flowers testified Lane told him that 12 LaChance held “her down on the bed with one hand around her throat,” while hitting her 13 so hard that she saw “stars” and became dizzy and nauseous. See supra at 4. LaChance 14 “cut her airway off causing her to almost pass out.” Id. This Court presumes the jury 15 resolved any conflicts in the evidence in favor of the prosecution as to where LaChance 16 pressed Lane’s neck, particularly where, as here, the record reflects Lane demonstrated 17 this area for the jury. See Davis, 384 F.3d at 639 (citing Jackson, 443 U.S. at 326.) 18 On this evidentiary record, a rational jury could find the State proved strangulation 19 beyond a reasonable doubt for purposes of the conviction for domestic battery by 20 strangulation, as required by Jackson. LaChance is not entitled to relief on Ground III. 21 4. Ground IV: Substantial Bodily Harm 22 The state court’s application of Jackson to the evidentiary record for the conviction 23 for domestic battery causing substantial bodily harm was objectively reasonable. 24 The elements of the crime of domestic battery causing substantial bodily harm are 25 discussed above. See supra at 13-14. There is no dispute Lane and LaChance were in a 26 domestic relationship or that LaChance battered Lane. See supra at 2-6. The evidentiary 27 record is sufficient for a rational jury to find the State proved substantial bodily harm, i.e., 28 “prolonged physical pain,” beyond a reasonable doubt. As stated above, “the phrase 1 ‘prolonged physical pain’ must necessarily encompass some physical suffering or injury 2 that lasts longer than the pain immediately resulting from the wrongful act.” Collins, 203 3 P.3d at 92-93. On this evidentiary record, a rational jury could find the State proved Lane 4 suffered prolonged physical pain and that LaChance committed domestic battery causing 5 substantial bodily harm beyond a reasonable doubt.11 See supra at 2-6. 6 The state appellate court’s application of Jackson to the trial evidence was 7 objectively reasonable, and LaChance is not entitled to relief on Ground IV. 8 VI. CONCLUSION 9 It is therefore ordered that Petitioner Darren LaChance’s petition for writ of habeas 10 corpus (ECF No. 1) is granted in part and denied in part on the grounds remaining before 11 the Court. Ground I(a) is granted as to the conviction for domestic battery by strangulation, 12 as further specified below. Ground I(b) is denied and dismissed on the merits as to the 13 conviction for domestic battery causing substantial bodily harm. Grounds II, III, and IV are 14 dismissed with prejudice on the merits. 15 It is further ordered that LaChance’s petition for writ of habeas corpus (ECF No. 1) 16 is conditionally granted in part and that, accordingly, the conviction of LaChance for 17 domestic battery by strangulation on Count I in the judgment of conviction, as amended, 18 in Case No. CR12-1025 in the Second Judicial District Court for the State of Nevada 19 hereby is vacated, and LaChance will be released from any and all custody, restraint, 20 and/or continuing consequences from the conviction on said Count I, within 30 days of 21 the later of the conclusion of any proceedings seeking appellate or certiorari review of the 22 Court’s judgment, if affirmed, or the expiration of the delays for seeking such appeal or 23 review, unless the State files a written election in this matter within the 30-day period to 24 retry LaChance for that offense and thereafter commences jury selection in the retrial 25 within 120 days following the election to retry LaChance, subject to reasonable request 26 27 11The definition of “prolonged physical pain” under Collins, does not require a 28 victim be admitted to an intensive care unit, lose significant amounts of blood, undergo 1|| for modification of the time periods in the judgment by either party pursuant to Rules 59 and 60. 3 It is further ordered that a certificate of appealability is denied as to all grounds 4|| and/or partial grounds upon which the Court has denied relief. Reasonable jurists would 5|| not find the Court’s rejection of the remainder of Ground | or rejection of Grounds II 6|| through IV debatable or wrong. Reasonable jurists would not find it debatable whether 7 || the district court was correct in its procedural ruling dismissing Ground V as failing to state a cognizable claim for federal habeas corpus relief, for the reasons stated in ECF No. 29. 9 The Clerk of Court is directed to enter judgment, accordingly, conditionally granting 10|| the petition for a writ of habeas corpus (ECF No. 1) in part as provided in the first two 11|| disposition paragraphs above verbatim and close this case. It is the Court’s intention that the judgment entered pursuant to this order will be a final judgment. Final judgment is entered subject to a possible later motion to reopen the matter to enter an unconditional 14|| writ if then warranted, as a matter of enforcement of the judgment. 15 The Clerk of Court is further directed to substitute Perry Russell for Respondent 16|| Harold Wickham. 17 The Clerk of Court is further directed to send a copy of this order and the judgment 18|| to the Clerk of the Second Judicial District Court, in connection with that court’s Case No. CR12-1025. 20 DATED THIS 14" Day of September 2021. 21 22 A |

23 MIRANDA M1. DU 24 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28 29