Leslie Villa v. John Henley, et al.

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 LESLIE VILLA, Case No. 2:21-cv-02030-ART-MDC 5 Petitioner, ORDER 6 v.

7 JOHN HENLEY,1 et al.,

8 Respondents.

9 10 Leslie Villa filed a first amended petition for a writ of habeas corpus under 11 28 U.S.C. § 2254. ECF No. 27. After a Nevada jury found him guilty, he was 12 sentenced to life imprisonment with the possibility of parole after five years for 13 first-degree kidnapping, and consecutive imprisonment for 24 to 60 months for 14 domestic battery (strangulation) and battery causing substantial bodily harm. 15 ECF No. 20-15. In the remaining grounds of his petition,2 Villa alleges his 16 constitutional rights were violated by (1) prosecutorial misconduct in opening and 17 closing argument, (2) failure to preserve evidence, and (3) ineffective assistance 18 of trial counsel. ECF No. 27. The Court denies the petition and grants a certificate 19 of appealability for Ground 1. 20 I. Background 21 Ashley Castillo was a police dispatcher in Nye County, Nevada, who lived 22 with Villa from 2003 until their relationship ended in October of 2011. ECF No. 23

24 1 Villa is currently incarcerated at Northern Nevada Correctional Center (“NNCC”). See NDOC Inmate Search. John Henley is the warden for that 25 facility. See Northern Nevada Correctional Center Facility | Nevada Department 26 of Corrections. At the end of this Order, the Court directs the Clerk of the Court to substitute Villa’s current immediate physical custodian, John Henley, as 27 Respondent in lieu of Respondent William Hutchings. See Fed. R. Civ. P. 25(d). 28 2 The Court previously dismissed Grounds 2, 4(A), and 4(C). ECF No. 48 at 8. 1 20-7 at 91–92, 130. On May 3, 2012, Villa, who is tall and weighed about 400 2 pounds, forcefully entered Castillo’s home, “twisted” her arm behind her back, 3 and shoved her down the hallway to her bedroom. Id. at 91, 94–97, 152–53. Villa 4 shoved Castillo on her bed, punched her in the face and head, and told her he 5 was going to “kill” her and “dump” her in the desert. Id. at 98–100. She reached 6 for her cellphone, but Villa grabbed it and threw it against the wall. Id. Villa found 7 duct-tape and unsuccessfully attempted to duct-taped her arms together. Id. at 8 100–01, 162. Castillo attempted to flee, and Villa slammed her to the ground 9 causing the back of her head to strike the tile floor. Id. at 100–01, 162–63. When 10 Castillo attempted to get up, Villa pushed her against the wall, put his arm 11 around her neck from behind, began choking her, and lifted her up until her feet 12 no longer touched the ground. Id. at 102. She could not breathe, he told her to 13 go to sleep, asking why she would not “just die,” and she fainted. Id. at 102–03. 14 Castillo awoke with Villa’s elbow pinning her head down “in the center 15 console” of his car. Id. at 104. With a free arm, she ripped the rear-view mirror 16 off the windshield to hit Villa with it. Id. at 105. Villa screamed and told Castillo 17 he was “going to have to do it now for sure” and was taking her to the desert. Id. 18 at 106. Castillo grabbed the steering wheel and tried to crash the car, but Villa 19 bit her arm. Id. at 106–07. Villa told Castillo he was doing this to her because she 20 didn’t want to be with him anymore and she had been with somebody else. Id. 21 Castillo convinced Villa to take her to his parents’ house. Id. at 107–10. Villa’s 22 father asked Villa why he attacked Castillo, and Villa paced “back and forth in 23 the kitchen,” repeating “I don’t know.” Id. at 111. 24 Villa’s father took Castillo to the hospital. Id. at 112. Castillo had a 25 headache, her neck and the whole right side of her body hurt, and it hurt to 26 swallow. Id. at 114. Nurse Maryann Dion observed Castillo had “quite a bit of 27 bruising: Face, head, neck, chest, legs, arms,” behind her ears, on her back, 28 including a bite mark on her right deltoid, circumferential bruise around her right 1 wrist, and petechiae (burst blood vessels) in her eyes. ECF No. 20-8 at 174–75, 2 178, 180, 184. Nye County Sheriff Detective Eric Murphy photographed Castillo’s 3 injuries. Id. at 20–31. The hospital conducted a CAT scan of Castillo’s neck and 4 arm and referred her for follow up with her primary doctor. ECF No. 20-7 at 115. 5 Her primary doctor referred her to an ophthalmologist because her right eye 6 turned inward toward her nose preventing her from driving a vehicle for about a 7 week. Id. at 115–16. The doctor concluded it was caused by a concussion. Id. at 8 116–17. At the time of trial, Castillo had constant right hip pain that worsened 9 when she walked or stood for long periods. Id. at 117–18. 10 Nye County Sheriff Deputy Cory Fowles arrested Villa during a traffic stop 11 on the night of the incident. Id. at 246. Fowles did not observe any signs Villa 12 was under the influence of a stimulant; rather, Villa appeared “pretty calm and 13 straight.” Id. at 248–49. When Detective Murphy arrived at the scene of the stop, 14 he noticed Villa was “sweaty,” which “could be” a symptom of stimulant use, but 15 did not notice other symptoms of stimulant use, e.g., fidgetiness or restlessness. 16 ECF No. 20-8 at 15–16, 66. 17 At around 3:00 p.m., the next day, Nye County Sheriff Detective Michael 18 Eisenloffel interviewed Villa. Id. at 139–40. Eisenloffel testified he minimized the 19 allegations to elicit statements from Villa. Id. at 159. Eisenloffel told Villa he never 20 knew him as violent; he knew him as a “mellow guy,” and something must have 21 “snapped.” Id. at 159–62. During the interview, Villa was “calm,” “collected,” 22 “cooperative,” spoke “reasonably” and understood their conversation. Id. at 157. 23 Villa admitted to Eisenloffel that he found duct-tape in Castillo’s room and 24 duct-taped her hands together, because “she wouldn’t be quiet for even a moment 25 to listen to him.” Id. at 144–45. Villa admitted he choked Castillo from behind “by 26 placing her head in a headlock” until she “passed out.” Id. at 143–44. He admitted 27 he dragged Castillo to his vehicle and dropped her on her face on the cobblestone 28 driveway. Id. Villa gave Eisenloffel several admissions and reasons for his actions: 1 he explained that he was upset because she wouldn’t be quiet for even a moment to listen to him. He just wanted her to be quiet and 2 listen to him. And he explained that the reason he wrapped her hands up with duct tape was in order to accomplish that goal and 3 get her to be quiet, sit down and listen to him.

4 . . . .

5 [H]e acknowledged that he made a statement [that he would kill her and take her out to the desert and bury her]. In fact, he called 6 it one of the stupidest things he had said or done in his entire life.

7 . . . .

8 [H]e indicated that he was emotional, he was angry . . . [H]e had taken pills. He indicated that he wanted her to just stop yelling 9 at him. And he repeated that several times. He just wanted her to stop yelling at him. 10 . . . . 11 [H]e indicated that he was regretting everything. And he 12 further indicated that he was upset because he had learned that she had an intimate relationship with another man. 13 . . . . 14 He indicated to me that he had—right after the act at one point 15 in time contacted an attorney who had advised him that what he had done was a result of the pills. At the end of the statement, however, 16 he added that—or he indicated that that wasn’t the case. That, in fact, it had been all him. 17 Id. at 146–47. 18 Villa was charged by amended information with (1) attempted murder; (2) 19 first-degree kidnapping resulting in substantial bodily harm; (3) domestic battery 20 (strangulation); (4) battery causing substantial bodily harm; and (5) burglary. 21 ECF No. 19-14. A jury acquitted Villa of attempted murder and burglary and 22 found him guilty of first-degree kidnapping, domestic battery (strangulation), and 23 battery causing substantial bodily harm. ECF No. 20-11. 24 II. Governing Standards 25 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable 26 in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 27 (AEDPA): 28 1 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits 2 in State court proceedings unless the adjudication of the claim— 3 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 4 established Federal law, as determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an 6 unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 7 8 28 U.S.C. § 2254(d). 9 A state court decision is contrary to established Supreme Court precedent, 10 within the meaning of § 2254(d)(1), “if the state court applies a rule that 11 contradicts the governing law set forth in [Supreme Court] cases” or “if the state 12 court confronts a set of facts that are materially indistinguishable from a decision 13 of [the Supreme] Court and nevertheless arrives at a result different from 14 [Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting 15 Williams v. Taylor, 529 U.S. 362, 405–06 (2000), and citing Bell v. Cone, 535 U.S. 16 685, 694 (2002)). A state court decision is an unreasonable application of 17 established Supreme Court precedent under § 2254(d)(1) “if the state court 18 identifies the correct governing legal principle from [the Supreme] Court’s 19 decisions but unreasonably applies that principle to the facts of the prisoner’s 20 case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable 21 application’ clause requires the state court decision to be more than incorrect or 22 erroneous. The state court’s application of clearly established law must be 23 objectively unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 24 U.S. at 409–10). A state court need not cite Supreme Court cases or be aware of 25 them, “so long as neither the reasoning nor the result of the state-court decision 26 contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). The petitioner carries 27 the burden of proof. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 28 (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)). 1 The Supreme Court has instructed that a “state court’s determination that 2 a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 3 could disagree’ on the correctness of the state court’s decision.” Harrington v. 4 Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 5 664 (2004)). “[E]ven a strong case for relief does not mean the state court’s 6 contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 7 75). See also Cullen, 563 U.S. at 181 (internal quotation marks and citations 8 omitted) (describing the standard as a “difficult to meet” and “highly deferential 9 standard for evaluating state-court rulings, which demands that state-court 10 decisions be given the benefit of the doubt”). To obtain habeas relief, a prisoner 11 must show the state court’s ruling on claim was “so lacking in justification that 12 there was an error well understood and comprehended in existing law beyond 13 any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 14 Under 28 U.S.C. § 2254(d)(2), “a state-court factual determination is not 15 unreasonable merely because the federal habeas court would have reached a 16 different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 17 (2010). “If [r]easonable minds reviewing the record might disagree about the 18 [finding in question], . . . on habeas review that does not suffice to supersede the 19 [state] court’s . . . determination.” Davis v. Ayala, 576 U.S. 257, 274 (2015) 20 (internal quotation marks and ellipsis omitted) (quoting Rice v. Collins, 546 U.S. 21 333, 341–42 (2006)). “Under § 2254(e)(1), ‘a determination of a factual issue made 22 by a State court shall be presumed to be correct,’ and the petitioner ‘shall have 23 the burden of rebutting the presumption of correctness by clear and convincing 24 evidence.’” Wood, 558 U.S. at 293. 25 III. Discussion 26 A. Ground 1—Prosecutorial Misconduct in Argument 27 Villa alleges his rights to due process and a fair trial were denied when the 28 prosecutor engaged in misconduct in opening and rebuttal argument. ECF No. 1 27 at 5–9. Respondents contend Villa cannot establish the state supreme court’s 2 resolution of the claim was objectively unreasonable or that the remarks denied 3 him a fair trial. ECF No. 51 at 6–10. Villa claims the prosecutor’s actions denied 4 him a fair trial because they had a substantial and injurious effect on the jury’s 5 verdict. ECF No. 55 at 27–28. Because Villa made differing allegations of 6 prosecutorial misconduct to the state courts and in his petition, the Court 7 subdivides for clarity its analysis of the claims. 8 1. Additional Background 9 In closing remarks, defense counsel argued, although he was not saying 10 the Nye County Sheriff’s Department was “bad,” he questioned whether the 11 detectives conducted “good police work,” whether the Sheriff’s Department 12 should have hired an “independent agency to investigate,” because Castillo was 13 their colleague, and counsel argued the testimony of each law enforcement 14 witness indicated they neglected to look for or obtain evidence helpful to the 15 defense because they had Villa’s confession and were investigating a crime 16 against a coworker. ECF No. 20-9 at 76–77, 80–82, 84–103. Defense counsel 17 reiterated this was domestic battery, the State overcharged Villa, and the jury 18 must decide whether Villa engaged in strangulation or not. Id. at 72–73, 130–31. 19 The prosecutor responded in relevant part during rebuttal: 20 I was pretty entertained by that closing. I could have sworn that [defense counsel] was actually arguing that maybe this didn’t 21 happen. That is the most preposterous thing I’ve seen in a long time. No evidence? Underinvestigated? Really? I think this was a thorough 22 and thoughtful investigation on behalf of the sheriff’s office. 23 . . . . 24 You can take about 80 percent of that closing that you heard from the defense and toss it right out window [sic] as pure speculation. 25 Kept talking about maybe this, maybe that. 26 . . . . 27 Instruction 33 basically explains why you should toss out most of the rest of the defense’s closing. It’s because you’re only here to 28 decide the innocence or guilt of the defendant. He wants you to put 1 do that? 2 . . . . 3 Just look at that evidence. Don’t sit there and think, how can I get a more perfect police force? They do this to us at just about every trial, 4 try to make it about anything but whether the defendant is innocent or guilty. There were so many red herrings thrown out up here that 5 we could open up a fish market. 6 Just sweep that all aside. This is about this defendant. 7 . . . . 8 He talked to you a lot about the lesser included instructions, and I want to make this real simple for you. I would invite you and 9 encourage you to go through and literally mark every box on that verdict form that says guilty. Just mark every single one. And here’s 10 why. You think we overcharged attempted murder? There’s no doubt this was a battery. He beat [Castillo] half to heck. There’s no doubt 11 they were previously in a dating relationship. So we know it’s domestic. There’s no doubt he choked her. Battery plus a domestic 12 relationship plus choking equals domestic battery by strangulation, so we know he did that. Go ahead and check the guilty box on that. 13 So there’s no doubt it’s battery, there’s no doubt it caused substantial bodily harm. I’ve never been knocked out for enough time 14 for somebody to transport me out of my house, into a car. You wake up, you don’t even know where you’re at. She’s still hurting. It’s two 15 years later. It’s definitely substantial bodily harm, so we know he’s guilty of battery causing substantial bodily harm. Go ahead and 16 check that guilty box, too. 17 Battery with specific intent to kill. We know he battered the hell out of her, telling her the whole way that he was going to kill her 18 and bury her in the desert. Go ahead and check that box off right next to attempt murder. He’s guilty of attempt murder, and it is just 19 one of the most clear cases that I’ve ever seen of that. 20 So just rifle right through those. Give them the time and deliberation they deserve. But when you get to that verdict form, 21 don’t be afraid, just check every single one of those. Because he did all of that. This whole nonsense about, well, if he committed the 22 attempt murder he couldn’t have committed the other stuff? Oh, yeah, he committed all that other stuff because it’s a lesser included. 23 He committed it on his way to attempting to murder her. He committed it in the course of attempting to murder her. Just check 24 every single one guilty. 25 First degree kidnapping with substantial bodily harm. There’s no doubt that was false imprisonment. He confined her and detained 26 her without legal authority for sure. He detained her. She tried to get out of her house, he ran her down and then choked her out right by 27 her front door. There’s no doubt it rises to the level of second degree. Because he took, he carried her away against her will. Loaded her 28 into his car and drove her out. He wasn’t going to the hospital. That’s 1 testified she knew she wasn’t going to the hospital. She knew she wasn’t going to his parents’ house. 2 That statement on closing? That was pretty funny about how, 3 well, he was taking her to the hospital in a roundabout way. Roundabout way after he decided finally not to kill her. There’s no 4 doubt it rises to second degree. It absolutely rises to first degree because of what I just said right there. He told her he was going to 5 kill her and bury her in the desert. That’s probably the most obvious form of first degree kidnapping ever. Take somebody with the intent 6 to kill them, commit substantial bodily harm on them. He is no doubt guilty of kidnapping her in the first degree. 7 . . . . 8 9 Id. at 136, 145–52. 10 2. Standards for Evaluating Prosecutorial Misconduct 11 Prosecutorial misconduct warrants federal habeas relief if the prosecutor’s 12 actions “so infected the trial with unfairness as to make the resulting conviction 13 a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation 14 and internal quotation marks omitted). The standard is general, leaving courts 15 “more leeway . . . in reaching outcomes in case-by-case determinations . . ..” 16 Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting Yarborough, 541 U.S. at 664). 17 To determine whether a prosecutor’s comments rise to the level of a due 18 process violation, courts examine the prosecutor’s remarks in context based on 19 the entire proceedings. See Boyde v. California, 494 U.S. 370, 385 (1990); see 20 also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“The touchstone of due process 21 analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, 22 not the culpability of the prosecutor.”). 23 If there is constitutional error, the error warrants relief if it “had substantial 24 and injurious effect or influence in determining the jury’s verdict.” Brecht v. 25 Abrahamson, 507 U.S. 619, 637–38 (1993) (citation and internal quotation marks 26 omitted); Wood v. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012). Factors to consider 27 when determining whether a prosecutor’s comment “rendered a trial 28 constitutionally unfair,” include: (1) whether the comment misstated or 1 manipulated the evidence; (2) whether the judge admonished the jury to disregard 2 the comment; (3) whether defense counsel invited the comment; (4) whether 3 defense counsel had an adequate opportunity to rebut the comment; (5) the 4 prominence of the comment in the context of the entire trial; and (6) the weight 5 of the evidence. See Hein v. Sullivan, 601 F.3d 897, 912–13 (9th Cir. 2010) (citing 6 Darden, 477 U.S. at 182). 7 3. State Court Determination 8 On direct appeal, the Nevada Supreme Court (NSC) determined the 9 prosecutor committed misconduct by injecting his personal opinion, view of 10 certain facts, belief the case was a clear instance of attempted murder, and by 11 urging the jury to disregard the instructions and find Villa guilty of each offense 12 and its lesser-included offenses; however, it concluded the remarks did not 13 prejudice Villa because overwhelming evidence supported Villa’s guilt, and the 14 jury rejected the prosecutor’s opinion by acquitting Villa of attempted murder 15 and completing the verdict form in accordance with jury instructions: 16 [V]illa argues that the State committed misconduct in its closing argument. The court follows a two-step approach in assessing 17 claims of prosecutorial misconduct: we first determine whether the conduct was improper, and if so, we then determine whether reversal 18 is warranted. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). The court reviews unpreserved error for plain error 19 affecting the appellant’s substantial rights by causing “actual prejudice or a miscarriage of justice.” Id. at 1190, 196 P.3d at 477. 20 Deputy District Attorney Michael Vieta-Kabell undeniably committed prosecutorial misconduct both in injecting personal opinion by 21 stating his personal view of certain facts and his belief that the case contained a clear instance of attempted murder, see Collier v. State, 22 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985), and in urging the jury to disregard its instructions and find Villa guilty of each offense 23 and its lesser-included offenses, see State v. McCorkendale, 979 P.2d 1239, 1252–53 (Kan. 1999), disapproved of on other grounds by State 24 v. King, 204 P.3d 585 (Kan. 2009). However, Villa has failed to show that this error affected his substantial rights because overwhelming 25 evidence supported Villa’s guilt and the jury rejected Vieta-Kabell’s personal opinion by acquitting Villa of attempted murder and 26 properly completing its verdict form in accordance with the jury instructions. Thus, we conclude that Villa has failed to show that 27 Vieta-Kabell’s misconduct warrants relief. 28 ECF No. 20-30 at 4. 1 4. Analysis of Ground 1(A)—Remarks on Instructions/Guilt 2 The NSC was objectively reasonable in its application of the Brecht 3 prejudice analysis to the prosecutor’s misconduct in remarks about his opinion 4 as to Villa’s guilt, lesser-included offenses, and the jury’s handling of the verdict 5 form. See, e.g., Allen v. Woodford, 395 F.3d 979, 998 (9th Cir. 2005) (finding 6 misconduct did not violate due process where trial court instructed that 7 attorneys’ statements were not evidence and there was substantial evidence of 8 the defendant’s guilt). 9 First, the jury was instructed that “statements, arguments and opinions of 10 counsel are not evidence in the case.” ECF No. 20-9 at 36; See Weeks v. Angelone, 11 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions.”). 12 Second, the jury acquitted Villa of attempted murder despite the prosecutor’s 13 opinion that Villa was guilty of that charge. ECF No. 20-11. Third, the verdict 14 form demonstrates the jury rejected the prosecutor’s arguments urging the jury 15 to check guilty for each of the charges. Id. Fourth, the jury’s verdict did not 16 conform to the prosecutor’s argument about lesser-included offenses and 17 burglary because the jury acquitted Villa of burglary and convicted Villa of first- 18 degree kidnapping instead of first-degree kidnapping resulting in serious bodily 19 injury. Id. Finally, as explained below, the evidence supporting the three counts 20 of conviction was overwhelming. 21 The jury was read the charges and instructed on the requirements for first- 22 degree kidnapping resulting in substantial bodily harm, domestic battery 23 (strangulation), and battery causing substantial bodily injury, including the 24 lesser-included offenses, and the special requirements for convicting Villa of first- 25 degree kidnapping along with domestic battery (strangulation) and battery 26 causing substantial bodily harm. ECF No. 20-9 at 23–31. 27 The NSC was objectively reasonable in its determination that the 28 prosecutor’s remarks did not have a substantial and injurious effect on the 1 determination of the verdict for first-degree kidnapping, including the 2 requirement that, e.g., the movement or restraint had an independent purpose 3 or significance. Castillo testified Villa twisted her arm behind her back, forced her 4 down the hall and onto the bed in her bedroom, attempted to bind her arms, and 5 told her he planned to “kill” her and “dump” her body in the “desert.” Villa 6 confessed to binding her hands with duct tape so she could not leave and 7 dragging her unconscious body to his vehicle and driving away. And Castillo 8 testified that when she awoke in the car, Villa bit her arm during a struggle. There 9 was also ample evidence and testimony corroborating Castillo suffered injuries 10 that matched these events. 11 The NSC was objectively reasonable in its determination that the 12 prosecutor’s remarks did not have a substantial and injurious effect on the 13 determination of the verdict for domestic battery (strangulation). Defense counsel 14 conceded Villa committed a domestic battery and Castillo testified, and Villa 15 admitted, that Villa choked Castillo from behind “by placing her head in a 16 headlock” until she “passed out.” 17 Finally, the NSC was objectively reasonable in its determination that the 18 prosecutor’s remarks did not have a substantial and injurious effect on the 19 determination of the verdict for battery causing substantial bodily harm. Even 20 apart from the chokehold and strangulation until Castillo fainted, Villa punched 21 her in the face and head in the bedroom, slammed her to the ground causing the 22 back of her head to strike the tile in another location, shoved her against a wall, 23 dropped her in the driveway, and bit her arm. Castillo testified she not only 24 experienced a protracted loss or impairment of her eye for about a week during 25 which she could not drive, but prolonged physical pain, i.e., hip pain that 26 continued until the time of trial. 27 Thus, the NSC was objectively reasonable in its application of clearly 28 established federal law as determined by the Supreme Court and determination 1 of the facts considering the evidence presented during the state court 2 proceedings. Ground 1(A) is therefore denied on deferential review. 3 5. Analysis of Ground 1(B)—Opening and Additional Rebuttal 4 In his first amended petition, Villa raised additional facts that he did not 5 present to the state courts in support of his assertion of prosecutorial 6 misconduct. See ECF No. 48 at 6. His additional allegations are the prosecutor 7 made remarks (1) in opening statements that compared Villa’s case to that of an 8 individual named Ray Rice (a professional football player who was in the news for 9 battering his domestic partner) and the defense of voluntary intoxication was an 10 “excuse” and Nevada “really doesn’t [like it]”; and (2) made remarks in rebuttal 11 that denigrated defense counsel. ECF No. 27 at 7–8. Respondents assert they do 12 not waive affirmative defenses and argue “trial counsel in opening repeated the 13 [Ray] Rice reference and then stated the facts prove domestic battery,” 14 “[c]riticisms of defense counsel were substantially outweighed by the evidence 15 presented by the victim,” and Villa never presented a voluntary intoxication 16 defense. ECF No. 51 at 2 n.1, 5, 10. 17 a. Standard of Review 18 This Court previously determined that, while Ground 1 cites remarks by 19 the prosecutor that were not included in Villa’s direct appeal brief, these 20 additional facts did not render the claim unexhausted. ECF No. 48 at 6; See 21 Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994) (“[N]ew factual allegations 22 do not render a claim unexhausted unless they ‘fundamentally alter the legal 23 claim already considered by the state courts.’” (quoting Vasquez v. Hillery, 474 24 U.S. 254, 260 (1986)). 25 The standard of review that applies to claims that were not raised before 26 the state court, but are technically exhausted, is unclear. See Zavala v. Gonzalez, 27 537 F. App’x 684, 686 (9th Cir. 2013). However, denial of the claim under de novo 28 review assures habeas relief is unwarranted irrespective of procedural default or 1 failure to exhaust. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (holding 2 when the standard of review is unclear, a federal habeas court may conduct a de 3 novo review to deny a petition “because a habeas petitioner will not be entitled to 4 a writ of habeas corpus if his or her claim is rejected on de novo review.”). 5 Applying de novo review, this Court denies relief because it concludes, even 6 if these additional remarks of the prosecutor are considered individually, or in 7 combination with each other, or in combination with each other and the 8 prosecutor’s improper remarks addressed in Ground 1(A), the remarks did not 9 have a substantial and injurious effect upon the determination of the verdict. 10 b. Remarks about Ray Rice3 11 In opening statements, the prosecutor argued, “this case is not about Ray 12 Rice,” and “what this defendant did in this case makes what Ray Rice did look 13 like a game of patty cake.” ECF No. 20-7 at 53–54. Because these remarks were 14 made at the outset of the opening statements, they appear to reference discussion 15 about Ray Rice’s case during the unreported jury selection. ECF No. 20-6 at 27. 16 Defense counsel responded by arguing Villa’s case is “[i]s actually very similar to 17 the Ray Rice case.” ECF No. 20-7 at 74. Defense counsel furthermore argued, “So 18 what is this case about? Domestic battery . . . it’s basically Ray Rice. Domestic 19 battery.” Id. at 83. Other than in opening statements, Ray Rice was never 20 mentioned again during the trial or closing and rebuttal arguments. 21 The prosecutor’s remark about Ray Rice in opening statements was not 22 improper as it was clearly intended to draw the jury’s attention and focus to Villa’s 23 case and direct the jury not to confuse it with the Ray Rice case. Moreover, 24 defense counsel seized on the remark to argue the case against Villa was the 25 same as Rice’s case, i.e., merely a domestic battery case. Not only did counsel 26 have an adequate opportunity to respond to it in the defense opening remarks, 27 3 Villa contends, at the time of his trial, Ray Rice was featured in national news as a professional football player who 28 battered his domestic partner in a Las Vegas casino. ECF No. 27 at 8 n.1. 1 but counsel turned it into a defense strategy—a strategy that arguably paid off 2 as the jury acquitted Villa of attempted murder despite the prosecutor’s improper 3 opinion argument that Villa was guilty of attempted murder. 4 c. Remarks about Intoxication 5 In opening remarks, the prosecutor stated the defense of voluntary 6 intoxication was an “excuse” and Nevada “really doesn’t [like it].” ECF No. 27 at 7 8. Those opening remarks were, however, followed by the acknowledgment that 8 intoxication may be taken into consideration in determining purpose, motive, or 9 intent. ECF No. 20-7 at 66–67. The jury was later instructed that it could take 10 into consideration a person’s intoxication in determining purpose, motive or 11 intent. ECF No. 20-9 at 32. The prosecutor’s opening remarks about intoxication 12 as a defense is not misconduct because it is an accurate statement of the law. 13 d. Remarks about Defense Counsel’s Closing Argument 14 Villa claims the prosecutor committed misconduct in rebuttal by 15 disparaging defense counsel’s arguments: 16 I was pretty entertained by that closing. I could have sworn that [defense counsel] was actually arguing that maybe this didn’t 17 happen. That is the most preposterous thing I’ve seen in a long time. 18 No evidence? Underinvestigated? Really? I think this was a thorough and thoughtful investigation on behalf of the sheriff’s office. 19 . . . . 20 You can take about 80 percent of that closing that you heard 21 from the defense and toss it right out window [sic] as pure 22 speculation. Kept talking about maybe this, maybe that. 23 ECF No. 27 at 7–8. See also ECF No. 20-9 at 136. 24 With one exception, the prosecutor’s remarks were not misconduct. Read 25 in context, the remarks replied to defense counsel’s lengthy arguments about the 26 Nye County Sheriff’s Department failures to investigate and collect evidence 27 because Castillo was their colleague, that the State overcharged Villa, and that 28 the State had no evidence corroborating Castillo’s version of the incident. See, 1 e.g., United States v. Wilkes, 662 F.3d 524, 538 (9th Cir. 2011) (stating 2 prosecutors are given “wide latitude” in closing arguments); United States v. 3 Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense theories 4 and tactics is a proper subject of closing argument.”). However, the remark that, 5 “[defense lawyers] do this to us in just about every trial, try to make it about 6 anything but whether the defendant is innocent or guilty,” constitutes 7 misconduct because it impugned the institutional role of defense attorneys. See, 8 e.g., Bruno Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983) (reversing for a new trial 9 where prosecutor implied the fact that a defendant hired a lawyer is a sign of guilt 10 and that all defense counsel are programmed to conceal and distort the truth). 11 See also United States v. Ollivierre, 378 F.3d 412, 421–22 (4th Cir. 2004), reversed 12 on other grounds by Ollivierre v. United States, 543 U.S. 1112 (2005) (holding 13 prosecutor improperly impugned defense counsel and institutional role of defense 14 attorneys by remarking prosecutor had gotten used to hearing “defense attorneys 15 make incredible arguments . . . with a straight face . . . in spite of the tremendous 16 amount of evidence” and it “is just incredible that [defense counsel] can say [that 17 government had no proof other than flight evidence] with a straight face.”). 18 e. Brecht Analysis 19 The record establishes the prosecutor’s misconduct impugning defense 20 counsel did not, individually, or cumulatively (when considered with the remarks 21 that constituted misconduct in Ground 1(A), or the other remarks not amounting 22 to misconduct alleged in Ground 1(B), or all the remarks alleged in Grounds 1(A) 23 and 1(B)) have a substantial and injurious effect on the determination of Villa’s 24 verdict for the convictions. See Allen, 395 F.3d at 998; Ollivierre, 378 F.3d at 421– 25 22 (holding prosecutor’s misconduct in closing argument did not deprive 26 defendant a fair trial in violation of due process as the remarks were unlikely to 27 mislead jury given overwhelming evidence of defendant’s guilt). 28 As explained in Ground 1(A), the jury was instructed that the statements, 1 opinions, and arguments of counsel were not evidence. Despite the prosecutor’s 2 remarks, including disparagement of the institutional role of defense counsel, the 3 jury acquitted Villa of attempted murder and burglary, and rejected the 4 prosecutor’s argument for a conviction for first-degree kidnapping causing 5 serious bodily injury, and instead convicted Villa of the lesser offense of first- 6 degree kidnapping. Moreover, as discussed in Ground 1(A), the evidence of guilt 7 for the crimes of conviction was overwhelming. Under a de novo review, Ground 8 1(B) must be denied as the prosecutor’s remarks did not deny Villa a fair trial. 9 D. Ground 3—Failure to Preserve Evidence 10 Villa alleges the State failed to collect and preserve his blood and urine 11 samples following the commission of the crime even though he repeatedly 12 informed police his actions were the result of having consumed a stimulant 13 (phentermine). ECF No. 27 at 11–15. He contends samples of his urine and blood 14 were exculpatory as he could have used them to argue he lacked specific intent 15 to commit first-degree kidnapping and domestic battery by strangulation. Id. 16 1. Additional Background 17 The Nye County Sheriff did not take blood, hair, or urine samples from Villa 18 when they arrested him on the night of the incident. ECF No. 20-8 at 163–66. 19 Villa moved to dismiss the charges pretrial arguing the State failed to preserve 20 evidence because, although Villa told detectives during his interview on the 21 afternoon after the incident that he had been taking phentermine, they failed to 22 obtain a blood test, and such evidence was probative of Villa’s intent to commit 23 the crimes charged. ECF No. 19-36 at 15–21. The trial court denied the motion 24 finding the Sheriff’s office was not obligated to take a blood draw from Villa 25 because Villa told them he contacted an attorney who told him the medication 26 was responsible for Villa’s actions, but Villa denied that saying the medication 27 had nothing to do with it. ECF No. 19-43 at 11–14. 28 At trial, Dr. Melvin Pohl testified for the defense regarding the use of 1 phentermine, an FDA approved prescription appetite suppressant used for weight 2 loss. ECF No. 20-8 at 218–19. Dr. Pohl testified common side effects include 3 hyperactivity, anxiety, mood swings, severe agitation, and psychosis including 4 hallucinations and disconnections from reality. Id. at 221, 228–29. Less common 5 side effects include agitation to the point of aggression or anxiety to the point of 6 panic, in some cases distortion of a sense of reality, so that people become 7 “paranoid, fearful of things that are not either real or a distortion of a real 8 concern,” and “can actually have hallucinations and believe things that are not 9 so.” Id. at 220–21. Dr. Pohl testified the effect of a drug on an individual is based 10 on “a lot of variables,” including how much of the drug was taken, food consumed, 11 hydration, and amount of sleep the prior night. Id. at 223. He testified the drug 12 may cause sweating if there’s an excess of the drug in the system. Id. at 225. 13 Toxicology expert Raymond C. Kelly testified for the State that he viewed 14 the video taken during the traffic stop on the night of the incident when Villa was 15 arrested. Id. at 244–45. The sole sign of stimulant use was that Villa had “a lot of 16 perspiration on the front of his shirt.” Id. It was, however, difficult for Dr. Kelly to 17 determine whether the sweating was “even from a drug at all.” Id. In his review of 18 many studies conducted on phentermine, he found no instances of it causing 19 psychosis. Id. at 246. On cross-examination, Dr. Kelly agreed that “mood swings” 20 “could be” consistent with phentermine use. Id. at 248. Dr. Kelly thought “the 21 nature of this whole incident could be consistent with an effect of phentermine 22 or some other stimulant.” Id. at 249. He agreed blood or urine samples would 23 have been helpful in reaching an opinion about the effects of phentermine on 24 Villa. Id. at 250–51. On redirect, Dr. Kelly opined, based on his review of the video 25 recording of Villa’s traffic stop, that Villa did not appear intoxicated to the point 26 he would no longer be able to act with logic and reason. Id. at 252. 27 2. Standards for Evaluating Preservation of Evidence 28 In California v. Trombetta, 467 U.S. 479 (1984), the Supreme Court 1 considered whether Due Process under the Fourteenth Amendment “demands 2 that the State preserve potentially exculpatory evidence on behalf of defendants,” 3 in particular, “whether the Due Process Clause requires law enforcement 4 agencies to preserve breath samples of suspected drunken drivers in order for 5 the results of breath-analysis tests to be admissible in criminal prosecutions.” Id. 6 at 481. The Supreme Court concluded the failure to preserve breath samples did 7 not violate Due Process because officers did not destroy the samples “in a 8 calculated effort to circumvent the disclosure requirements established by” 9 Brady; rather, they acted “‘in good faith and in accord with their normal practices. 10 . ..’” Id. at 488 (quoting Killian v. United States, 368 U.S. 231 (1961)). 11 In Trombetta, the Supreme Court stated, “[w]hatever duty the Constitution 12 imposes on the States to preserve evidence, that duty must be limited to evidence 13 that might be expected to play a significant role in the suspect’s defense.” Id. at 14 488. “[T]o meet this standard of constitutional materiality . . . evidence must both 15 possess an exculpatory value that was apparent before the evidence was 16 destroyed, and be of such a nature that the defendant would be unable to obtain 17 comparable evidence by other reasonably available means.” Id. at 489 (internal 18 citation omitted). 19 In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court granted 20 certiorari to consider “the extent to which the Due Process Clause of the 21 Fourteenth Amendment requires the State to preserve evidentiary material that 22 might be useful to a criminal defendant.” Id. at. 52 (emphasis added). The Court 23 held “[u]nless a criminal defendant can show bad faith on the part of the police, 24 failure to preserve potentially useful evidence does not constitute a denial of due 25 process of law.” Id. “The presence or absence of bad faith turns on the 26 government’s knowledge of the apparent exculpatory value of the evidence at the 27 time it was lost or destroyed, because without knowledge of the potential 28 usefulness of the evidence, the evidence could not have been destroyed in bad 1 faith.” Id. at 56 n.* (citing Napue v. People of State of Ill., 360 U.S. 264, 269 (1959)). 2 “Potentially useful evidence, as defined in Youngblood, is ‘evidentiary material of 3 which no more can be said than that it could have been subjected to tests, the 4 results of which might have exonerated the defendant.’” United States v. 5 Zaragoza-Moreira, 780 F.3d 971, 978 (9th Cir. 2015) (quoting Youngblood, 488 6 U.S. at 57). 7 Under NRS § 193.220, “whenever the actual existence of any particular 8 purpose, motive or intent is a necessary element to constitute a particular species 9 or degree of crime, the fact of the person’s intoxication may be taken into 10 consideration in determining the purpose, motive or intent.” While voluntary 11 intoxication can negate specific intent, a defendant “must show not only the 12 defendant’s consumption of intoxicants, but also the intoxicating effect of the 13 substances imbibed and the resultant effect on the mental state pertinent to the 14 proceedings.” Nevius v. State, 101 Nev. 238, 249, 699 P.2d 1053, 1060 (1985). 15 For involuntary intoxication, a defendant must show (1) he took the intoxicating 16 substance against his will, (2) his intoxication was the result of the intoxicating 17 substance and not some other substance or mixture of substances, and (3) he 18 was so mentally deficient as not to “know or understand the nature and capacity 19 of his act, or that he could not appreciate the wrongfulness of his act.” See Grey 20 v. State, 124 Nev. 110, 122 n.22, 178 P.3d 154, 163 n.22 (2008). 21 3. State Court Determinations 22 On direct appeal the NSC rejected this claim finding Villa failed to show the 23 bloodstream evidence was material because he did not show a reasonable degree 24 of probability such evidence would have led to a different trial outcome: 25 [V]illa argues that the State improperly failed to preserve potentially exculpatory evidence in failing to take a blood draw when 26 he gave his police statement. If the State fails to gather evidence and the defense shows that the evidence was material, relief is warranted 27 when the failure to gather the evidence was the result of gross negligence or a bad faith effort to prejudice the defendant. Daniels v. 28 State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998). Villa argues that 1 phentermine in his bloodstream, showing that he was under the influence of that medication during the incident. We conclude, 2 however, that Villa has failed to show that the bloodstream evidence was material because he has not shown a reasonable degree of 3 probability that the evidence would have led to a different trial outcome when (1) he appeared cogent and not intoxicated when 4 arrested shortly after the incident and during the police statement the next day, (2) the police statement was taken 18 hours after the 5 incident and no evidence was produced regarding phentermine’s dissipation rate and showing the significance that such a delayed 6 sample could have, (3) the State’s expert testified that he had found no reported instances of phentermine causing psychosis, and (4) 7 overwhelming evidence supported Villa’s guilt. See id. Accordingly, this claim lacks merit. 8 9 ECF No. 20-30 at 4–5. 10 4. Analysis of Ground 3 11 At the time of his arrest, Villa did not mention his consumption of 12 medication. ECF No. 20-7 at 232. The Deputies and Detective who interviewed 13 Villa during the traffic stop on the night of the incident were trained to recognize 14 symptoms of stimulant use, e.g., fidgetiness or restlessness, but none noticed 15 such symptoms, except Detective Murphy who acknowledged perspiration can be 16 a symptom of stimulant consumption. Although the Deputies and Detective saw 17 Villa was sweaty, they observed he was “pretty calm and straight,” and not 18 “jittery.” ECF Nos. 20-7 at 212–15, 248–49; 20-8 at 15–16, 66. The following 19 afternoon, in his interview with Sheriff’s detectives, Villa told them he spoke with 20 an attorney, who told him his actions were the result of having taken 21 phentermine, but Villa assured the Detectives the drug was not the cause of his 22 actions. ECF No. 20-8 at 147. 23 Under the circumstances, Villa failed to demonstrate the Sheriff acted in 24 bad faith by failing to preserve blood or urine evidence as he did not establish the 25 officers who stopped him knew that he had taken a stimulant or that a delayed 26 sample taken during his interview the following afternoon would have provided 27 potential usefulness evidence. Accordingly, the NSC was objectively reasonable 28 in its determination that Villa failed to establish the evidence was not taken or 1 was destroyed in bad faith. Ground 3 is therefore denied. 2 C. Ground 4(B)—Ineffective Assistance of Trial Counsel 3 Villa alleges trial counsel provided ineffective assistance in violation of the 4 Sixth Amendment by failing to object to prosecutorial misconduct in closing 5 arguments. ECF No. 27 at 19. 6 On postconviction review, the Nevada Court of Appeals determined: 7 [V]illa claimed counsel should have objected to prosecutorial misconduct committed during the State’s rebuttal argument in 8 closing and moved for a mistrial. Villa did not specify which comments amounted to prosecutorial misconduct or why he felt they 9 constituted misconduct. He also failed to support his mistrial argument with argument or authority. His bare claim thus failed to 10 demonstrate counsel was deficient. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). And because the Nevada Supreme 11 Court concluded that there was overwhelming evidence of Villa’s guilt, Villa failed to demonstrate a reasonable probability of a 12 different outcome had counsel objected. 13 ECF No. 20-48 at 3–4. 14 As discussed in Ground 1, there is overwhelming evidence of Villa’s guilt 15 for the counts of conviction. Thus, even if counsel successfully objected to the 16 remarks of the prosecutor (as alleged in Grounds 1(A) and 1(B)), there is no 17 reasonable probability the result of the trial would have been different. The NCA’s 18 determination is neither contrary to nor constitutes an unreasonable application 19 of clearly established federal law as determined by the Supreme Court and is not 20 based on an unreasonable determination of fact considering the evidence 21 presented in the state court proceedings. Ground 4(B) is therefore denied. 22 IV. Certificate of Appealability 23 This is a final order adverse to Villa. Rule 11 of the Rules Governing Section 24 2254 Cases requires the Court to issue or deny a certificate of appealability 25 (“COA”). Therefore, the Court has sua sponte evaluated the claims within the 26 petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); see also 27 Turner v. Calderon, 281 F.3d 851, 864–65 (9th Cir. 2002). Under 28 U.S.C. § 28 2253(c)(2), a COA may issue only when the petitioner “has made a substantial 1 || showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). With respect 2 || to claims rejected on the merits, a petitioner “must demonstrate that reasonable 3 || jurists would find the district court’s assessment of the constitutional claims 4 || debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural 5 || rulings, a COA will issue only if reasonable jurists could debate (1) whether the 6 || petition states a valid claim of the denial of a constitutional right and (2) whether 7 || this Court’s procedural ruling was correct. See id. Applying these standards, this 8 || Court finds a certificate of appealability is warranted for Ground 1. 9 V. Conclusion 10 Therefore, IT IS HEREBY ORDERED that Petitioner Leslie Villa’s first 11 || amended petition for writ of habeas corpus (ECF No. 27) is DENIED. 12 IT IS FURTHER ORDERED that a certificate of appealability is GRANTED 13 || for Ground 1. 14 IT IS FURTHER ORDERED that the Clerk of the Court is directed to 15 || substitute John Henley for Respondent William Hutchings, enter judgment 16 || accordingly, and close this case. 17 DATED THIS 10t# day of February, 2026. 18 19 an 20 Ans jlaseed 7 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28