McDonald v. Williams

• Court: District Court, D. Nevada
• Decided: June 1, 2022
• Docket: 2:19-cv-00261
• Status: Unknown

Opinion

2 DISTRICT OF NEVADA

4 CHARLES E. MCDONALD, Case No. 2:19-00261-CDS-DJA

5 Plaintiff, ORDER

v. 6

7 WARDEN BRIAN WILLIAMS1, et al.,

8 Defendants.

9 10 Petitioner Charles E. McDonald filed an amended petition for writ of habeas corpus 11 under 28 U.S.C. § 2254 (ECF No. 14 (“Petition”)). This matter is before the Court for 12 adjudication on the merits of the remaining grounds in the Petition. For reasons discussed 13 below, the Court denies the Petition and denies McDonald a certificate of appealability. 14 I. BACKGROUND 15 On September 1, 2010, Deborah Lee (“Lee”) withdrew $600 from her bank account and 16 went to another store called Plus Mail to purchase a money order in the amount of $415. ECF 17 No. 16-1 at 69-71. Lee put the money order and remaining cash in her wallet. Id. at 73. On the 18 same day after purchasing the money order, Lee went to a nearby clothing store. Id. at 74. While 19 at the clothing store, Lee stood looking at blouses at a rack and had her purse over her arm. Id. 20 Lee testified at trial that a tall black man approached her and asked whether a size large blouse 21 was within her reach. Id. As Lee reached towards the blouse on the rack, the man reached into 22 her purse, grabbed Lee’s wallet, and ran out of the store. Id. at 75. Lee’s wallet was pink with a 23 playboy bunny symbol. Id. at 72. Surveillance video depicted the man that approached Lee 24 25

26 1 It appears from the state corrections department’s inmate locator page that Petitioner is incarcerated at the Southern Desert Correctional Center (“SDCC”). See https://ofdsearch.doc.nv.gov/form.php 27 (retrieved May 2022 under identification number 96753). The department’s website reflects that William Hutchings is the warden of that facility. See https://doc.nv.gov/Facilities/SDCC_Facility/ (retrieved May 2022). 28 At the end of this order, the Court directs the Clerk of the Court to substitute Petitioner’s current immediate physical custodian, William Hutchings, as Respondent for the prior Respondent Brian 2 were dispatched. Id. at 79. 3 Ivra Baldwin (“Baldwin”) testified at trial that McDonald came to Baldwin’s apartment 4 on September 1, 2010. ECF No. 16-1 at 117. McDonald asked Baldwin to cash a $415 money order 5 and in exchange McDonald would give Baldwin $50. Id. at 119-121. After cashing the money order 6 at Moneytree, Baldwin gave the money to McDonald. Id. The State presented still images from 7 surveillance video and Baldwin identified McDonald as the person in the images. Id. at 124. 8 Samuel Wright (“Wright”) testified at trial that upon questioning from police officers, he 9 identified McDonald as the individual in the surveillance video. ECF No. 16-1 at 167-169. At trial, 10 Wright identified McDonald in a still image from the surveillance video based on his body type. 11 Id. at 170. 12 Following trial, the jury returned a verdict finding McDonald guilty of larceny from a 13 person, victim 60 years of age or older and possession of stolen property. ECF No. 16-7. In 14 January 2012, the Eighth Judicial District Court (“state court”) entered the judgment of 15 conviction and sentenced McDonald under the small habitual criminal statute to a term of 8 to 16 20 years. Id. McDonald appealed, and the Nevada Supreme Court affirmed the conviction. ECF 17 Nos. 16-8, 16-18. 18 In February 2013, McDonald filed a state petition for writ of habeas corpus. ECF No. 16- 19 23. The state court denied the petition and McDonald appealed. ECF Nos. 16-25, 16-30. The 20 Nevada Supreme Court found that the state court’s failure to appoint post-conviction counsel 21 prevented meaningful litigation of the petition and reversed and remanded for appointment of 22 counsel. ECF No. 17-4. McDonald filed a supplemental petition and following oral argument, the 23 state court denied the petition. ECF Nos. 17-13, 17-17. On appeal, the Nevada Court of Appeals 24 affirmed in part and reversed in part, remanding the case for a second time for an evidentiary 25 hearing. ECF No. 17-27. Upon remand and following an evidentiary hearing, the state court 26 denied the petition. ECF Nos. 18-1, 18-2. The Nevada Court of Appeals affirmed. ECF No. 18-12. 27 In February 2019, McDonald initiated the instant federal habeas corpus proceeding. ECF 28 No. 1. The Court appointed counsel and McDonald filed an amended petition. ECF Nos. 8, 14. 2 Respondents’ motion to dismiss and deferred ruling on the cause and prejudice argument and 3 merits analysis of Ground 3 until a determination on the merits. ECF No. 30. 4 II. LEGAL STANDARD 5 a. Review under the Antiterrorism and Effective Death Penalty Act 6 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus 7 cases under the Antiterrorism and Effective Death Penalty Act (AEDPA): 8 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 9 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 10

11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 12 Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the 13 facts in light of the evidence presented in the State court proceeding. 14 28 U.S.C. § 2254(d). A state court decision is contrary to established Supreme Court precedent, 15 within the meaning of § 2254(d)(1), “if the state court applies a rule that contradicts the 16 governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts 17 that are materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 18 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. 19 Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of 20 established Supreme Court precedent under § 2254(d)(1), “if the state court identifies the 21 correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies 22 that principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The 23 ‘unreasonable application’ clause requires the state court decision to be more than incorrect or 24 erroneous. The state court’s application of clearly established law must be objectively 25 unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 U.S. at 409-10). 26 The Supreme Court has instructed that a “state court’s determination that a claim lacks 27 merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 28 correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting 2 for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 102 3 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal 4 quotation marks and citations omitted) (describing the standard as “difficult to meet” and 5 “highly deferential standard for evaluating state-court rulings, which demands that state-court 6 decisions be given the benefit of the doubt”). 7 b. Standard for Evaluation of an Ineffective Assistance of Counsel Claim 8 In Strickland, the Supreme Court propounded a two-prong test for analysis of ineffective 9 assistance of counsel claims requiring Petitioner to demonstrate that: (1) the counsel’s 10 “representation fell below an objective standard of reasonableness[;]” and (2) the counsel’s 11 deficient performance prejudices Petitioner such that “there is a reasonable probability that, but 12 for counsel’s unprofessional errors, the result of the proceeding would have been different.” 13 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts considering an ineffective 14 assistance of counsel claim must apply a “strong presumption that counsel’s conduct falls within 15 the wide range of reasonable professional assistance.” Id. at 689. It is Petitioner’s burden to show 16 “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . 17 by the Sixth Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it is 18 not enough for Petitioner to “show that the errors had some conceivable effect on the outcome of 19 the proceeding.” Id. at 693. Rather, errors must be “so serious as to deprive [Petitioner] of a fair 20 trial, a trial whose result is reliable.” Id. at 687. 21 Where a state court previously adjudicated the ineffective assistance of counsel claim 22 under Strickland, establishing the court’s decision was unreasonable is especially difficult. See 23 Richter, 562 U.S. at 104-05. In Richter, the Supreme Court clarified that Strickland and § 2254(d) 24 are each highly deferential, and when the two apply in tandem, review is doubly so. See id. at 105; 25 see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) 26 The Court further clarified, “[w]hen § 2254(d) applies, the question is not whether counsel’s 27 actions were reasonable. The question is whether there is any reasonable argument that counsel 28 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 2 a. Grounds 1 and 2 3 In Ground 1, McDonald alleges that trial counsel rendered ineffective assistance for 4 failing to investigate mental health issues and request a competency exam. ECF No. 14 at 7-11. 5 McDonald argues that in March 2012, five months after the instant challenged conviction, 6 McDonald’s counsel, Dan Winder (“Winder”), in another state criminal case investigated his 7 mental health issues, requested a competency hearing, and as a result, McDonald was found 8 incompetent. Id. at 7-8. He asserts that he has a history of mental illness and has been diagnosed 9 with mental illness since 2000, has been found incompetent numerous times, and was 10 involuntarily committed to a psychiatric hospital in 2010. Id. at 9. He further asserts that when 11 he first met with his trial counsel, he was being held in a unit specifically for those in need of 12 mental health treatment and that he told his trial counsel that he had a history of mental illness, 13 including PTSD, mood disorder, severe depression, and hearing voices. Id. at 9-10. In addition, 14 McDonald’s significant other, Mary Shelman (“Shelman”), told McDonald’s counsel to have 15 McDonald evaluated. Id. 16 In Ground 2, McDonald alleges that trial counsel rendered ineffective assistance for 17 failing to investigate McDonald’s mental health issues thereby depriving him of an insanity 18 defense. ECF No. 14 at 11-14. A psychiatrist examined McDonald during post-conviction 19 proceedings and found that McDonald “has a complex of psychiatric disorders well documented 20 in his treatment record that support his chronic paranoia, exacerbated by drug use and 21 noncompliance with medication treatment . . . had he been competent to form a defense, he 22 might have . . . formulate[d] an insanity . . . defense.” Id. at 12. McDonald asserts that he was 23 incapable of developing the mens rea necessary due to his mental illness and delusions at the time 24 of the charged crime. (Id. at 13.) 25 The Nevada Supreme Court held: 26 The district court held an evidentiary hearing on this issue, and found counsel was not deficient. Specifically, the district court found McDonald failed to demonstrate 27 counsel should have known McDonald was incompetent or should have done further investigation into McDonald’s mental health issues. McDonald appeared 28 to understand counsel during meetings, was able to discuss strategies, and gave appropriate responses to counsel’s questions. Further, counsel testified McDonald acted and responded appropriately in court. 2 The district court also found McDonald failed to demonstrate prejudice because 3 McDonald failed to demonstrate he was incompetent at the time of trial. The district court found the subsequent finding of incompetency did not demonstrate 4 he was incompetent during this trial. Further the doctor who examined him during the postconviction proceedings could not draw a conclusion “either way whether 5 [McDonald]was competent or not competent at the time of trial.”

6 Substantial evidence supports the decision of the district court. McDonald failed to demonstrate counsel should have known he did not have sufficient ability to 7 consult with counsel with a reasonable degree of understanding or that he did not have a rational or factual understanding of the proceedings against him. Further 8 McDonald failed to demonstrate he was incompetent at the time of trial, or had counsel investigated his mental health, he would have been able to pursue an 9 insanity defense or a plea of guilty but mentally ill.

10 ECF No. 18-12 at 3-4. The Nevada Supreme Court’s ruling was neither contrary to nor an 11 objectively unreasonable application of clearly established law as determined by the United 12 States Supreme Court. 13 Defense counsel has a “duty to make reasonable investigations or to make a reasonable 14 decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In an 15 ineffectiveness of counsel case, “a particular decision not to investigate must be directly assessed 16 for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s 17 judgments.” Id. In assessing counsel’s investigation, the Court must conduct an objective review 18 of counsel’s performance, measured for “reasonableness under prevailing professional norms.” Id. 19 at 688. This includes a context-dependent consideration of the challenged conduct as seen “from 20 counsel’s perspective at the time.” Id. at 689. See Wiggins v. Smith, 539 U.S. 510, 523 (2003). 21 Furthermore, “strategic choices made after thorough investigation of law and facts relevant to 22 plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. 23 i. Ineffective Assistance re: Competency 24 The Nevada Supreme Court’s determination that McDonald failed to demonstrate that 25 trial counsel was deficient for his failure to investigate McDonald’s competency to stand trial 26 and request a competency evaluation was not unreasonable. Counsel's failure to move for a 27 competency hearing violates a petitioner’s right to effective assistance of counsel when “there 28 are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the 2 been found incompetent to stand trial had the issue been raised and fully considered.” Stanley v. 3 Cullen, 633 F.3d 852, 862 (9th Cir. 2011). At the evidentiary hearing, trial counsel testified that he 4 had an impression that McDonald “was indulging in some potential self-medication using 5 narcotic substances,” based on McDonald’s weight loss, but that he was able to discuss strategy 6 with McDonald, that McDonald appeared to understand the information trial counsel was 7 conveying to him, that McDonald realized the gravity of the situation he was facing, and that 8 McDonald provided appropriate responses to questions posed. ECF No. 18-1 at 45-47. Although 9 McDonald’s significant other, Shelman, testified that she informed trial counsel of McDonald’s 10 mental health issues, trial counsel testified that he did not recall interacting with Shelman. Id. at 11 59-60, 84-88. Trial counsel further testified as follows: 12 My general practice is if I have family members, friends, individuals saying, hey, Person X has some serious mental health issues that needs to be looked into, what 13 I generally do is have my private investigator speak to that person, get a little more information. If it has teeth, I will then – what I’ve done many, many times is have 14 the individual sign a release so I can go get mental health records . . . And if those records support what’s going on – excuse me, what we’ve been told, proceed 15 accordingly. I sometimes request for an evaluation, sometimes I ask them to go to competency court. 16

17 ECF No. 18-1 at 59. 18 In addition, trial counsel described McDonald as “very lucid before we were going to 19 trial,” that “[McDonald] knew exactly what he was up against,” that they “had a very pointed 20 conversation,” but, “he had given me ostensible justifications for why he was doing what he was 21 doing, primarily because he didn’t want to get habitualized.” Id. at 63. During the trial, 22 McDonald was out of custody and employed. Id. at 44, 54-56. As stated by the Nevada Supreme 23 Court, McDonald acted and responded appropriately in court. ECF No. 18-12 at 3. McDonald 24 fails to overcome the strong presumption that his counsel’s conduct “falls within the wide range 25 of reasonable professional assistance.” Strickland, 466 U.S. 689. The Nevada Supreme Court’s was 26 not objectively unreasonable in determining trial counsel was not deficient. 27 Further, the Nevada Supreme Court reasonably determined that McDonald failed to 28 establish prejudice. McDonald failed to demonstrate a reasonable probability that he would 2 found incompetent as a result of competency proceedings in a separate criminal state case for a 3 four-month period from March 29, 2012 to August 7, 2012, such finding does not demonstrate 4 that McDonald was incompetent during his three-day trial starting on October 11, 2011. ECF 5 Nos. 15-21, 17-13 at 25-27. McDonald demonstrated a rational and factual understanding of the 6 proceedings against him through trial as well as an ability to consult with his attorney. ECF No. 7 17-17 at 4. At the evidentiary hearing, Dr. Roitman testified as an expert witness on behalf of 8 McDonald. (ECF No. 18-1 at 3.) Dr. Roitman examined McDonald during post-conviction 9 proceedings and could not “draw a conclusion either way whether he was competent or not 10 competent at the time of trial.” Id. at 12. Accordingly, McDonald fails to demonstrate that he was 11 prejudiced by trial counsel’s failure to request competency proceedings. The Nevada Supreme 12 Court’s determination was not an unreasonable application of the prejudice prong of Strickland. 13 McDonald is not entitled to habeas relief on Ground 1. 14 ii. Ineffective Assistance re: Insanity Defense 15 The Nevada Supreme Court’s ruling that McDonald failed to demonstrate that had 16 counsel investigated his mental health, he would have been able to pursue an insanity defense or 17 a plea of guilty but mentally ill was not unreasonable. As stated previously, McDonald did not 18 overcome the strong presumption that trial counsel’s conduct “falls within the wide range of 19 reasonable professional assistance” regarding trial counsel’s decision not to investigate 20 McDonald’s mental health issues. Strickland, 466 U.S. 689. Further, McDonald failed to 21 demonstrate that there is a reasonable probability that the outcome of trial would have been 22 different had McDonald pursued an insanity defense. 23 Under Nevada law, criminal defendants are presumed to be legally sane, and, to prevail 24 with an insanity defense, must overcome that presumption with a preponderance of the 25 evidence. See Williams v. State, 885 P.2d 536, 538 (1994). Nevada recognizes the defense of legal 26 insanity and applies the M'Naghten rule. See, e.g., Miller v. State, 911 P.2d 1183, 1185 (1996). Under the 27 M’Naghten rule, the jury determines whether the defendant “knew the nature and quality of [his] 28 acts, had the capacity to determine right from wrong or whether [he] was doing wrong when 2 legally insane, a defendant must be in a delusional state such that he cannot know or understand 3 the nature and capacity of his act, or his delusion must be such that he cannot appreciate the 4 wrongfulness of his act, that is, that the act is not authorized by law.” Finger v. State, 27 P.3d 66, 5 84–85 (2001). “The fact that a person had mental health problems did not necessarily mean that 6 he or she could meet the M'Naghten test for insanity.” Id. at 72. 7 The Nevada Supreme Court considered Dr. Roitman’s evaluation that McDonald “has a 8 complex of psychiatric disorders well documented in his treatment record that support his 9 chronic paranoia, exacerbated by drug use and noncompliance with medication treatment.” 10 (ECF No. 20-2 at 19.) Dr. Roitman’s evaluation set forth McDonald’s “mental deterioration 11 during the events that led to the instant offense” providing that McDonald “felt sexually 12 attracted” to Lee at the clothing store, noticed Lee’s pink playboy bunny wallet in her purse, and 13 became “convinced that the eye of the bunny was a camera that the woman purposely 14 positioned to focus on [McDonald],” then McDonald heard his dead fiancé’s voice telling him to 15 “take the wallet with the camera to [Baldwin] and tell him to get rid of it.” Id. at 5. 16 The Nevada Supreme Court, however, also considered the evidence at trial wherein 17 McDonald deceived or distracted Lee during the commission of the crime by asking her to reach 18 for an item on the rack while he grabbed her wallet in her purse. ECF No. 16-1 at 73. The State 19 highlighted the flight instruction at closing and presented video evidence of McDonald running 20 after taking the wallet. See ECF No. 16-5 at 11. Additionally, evidence at trial demonstrated that 21 McDonald used a third-party individual to cash the money order. The State argued at closing 22 that McDonald had Baldwin cash the money order because police were looking for someone that 23 matched McDonald’s description. Id. at 13. Such evidence does not support the contention that 24 McDonald did not know or understand the nature and capacity of his act, or that his delusion 25 was such that he did not appreciate the wrongfulness of his act. See Finger, 27 P.3d at 84. 26 Accordingly, the Nevada Supreme Court reasonably determined that McDonald failed to 27 demonstrate a reasonable probability that the presentation of an insanity defense would have 28 changed the outcome of the trial. McDonald is not entitled to habeas relief on Ground 2. 2 In Ground 3, McDonald alleges that trial counsel rendered ineffective assistance for 3 failing to investigate or present any mitigation at McDonald’s sentencing. ECF No. 14 at 15 -17. 4 He asserts that because trial counsel failed to order McDonald’s medical records, the state court 5 was not aware of McDonald’s diminished capacity at sentencing. Id. at 16. The Court held that 6 Ground 3 is subject to dismissal as procedurally defaulted unless McDonald can show cause and 7 prejudice under Martinez.2 ECF No. 30. The Court, however, finds that Ground 3 is not 8 substantial under Martinez. See Martinez, 566 U.S. at 14. 9 McDonald’s argument that trial counsel did not present mitigation at sentencing related 10 to McDonald’s mental illness is belied by the record. At sentencing, trial counsel highlighted 11 that McDonald “did lead a clean and straight and narrow life and then due to incidents outside 12 of his control, for lack of a better term, the wheels came off and it led him down a spiral of self- 13 medication regarding his mental health issues.” ECF No. 16-6 at 8. Further, trial counsel noted 14 that McDonald received mental health treatment and requested “a strict inpatient program” as a 15 reasonable hope for success. Id. at 10. In addition, McDonald addressed the state court and 16 referenced his mental health issues. Id. at 7. The presentence investigation report also reviewed 17 McDonald’s mental health history, which was provided to the sentencing court. ECF No. 20-5 at 18 4. 19 McDonald’s argument that trial counsel would have explained to the state court that 20 McDonald’s crimes were a result of mental illness exacerbated by his drug addiction if trial 21 counsel investigated McDonald’s mental illness fails because trial counsel presented such 22 mitigation argument at sentencing. McDonald faced adjudication as a “large” habitual criminal 23 under Nev. Rev. Stat. § 207.010(1)(b), which has three possible sentences: life imprisonment 24

25 2 To establish cause and prejudice for a trial-level ineffective assistance of counsel claim under Martinez, a petitioner must show that: 26 (1) Post-conviction counsel performed deficiently; (2) there was a reasonable probability that, 27 absent the deficient performance, the result of the post-conviction proceedings would have been different, and (3) the underlying ineffective assistance of counsel claim is a substantial 28 one, which is to say that the prisoner must demonstrate that the claim has some merit. 2 and 25 years imprisonment with the possibility of parole after 10 years. In support of seeking 3 sentencing under the large habitual statute, the State argued that McDonald had five prior 4 felony convictions and that five of the convictions were committed while McDonald was on 5 supervised release. ECF No. 16-6 at 5. The State further argued that McDonald violated parole 6 when it was granted to him. Id. The state court, however, sentenced McDonald under the small 7 habitual statute to a term of 8 to 20 years. ECF No. 16-7. The Court concludes that Ground 3 is 8 not substantial under Martinez. 9 In addition, McDonald fails to demonstrate that post-conviction counsel performed 10 deficiently or a reasonable probability that the result of the post-conviction proceedings would 11 have been different had post-conviction counsel raised the claim. Trial counsel in fact presented 12 mitigation argument related to McDonald’s mental illness at sentencing. Post-conviction 13 counsel, therefore, was not deficient for foregoing a claim that lacked merit. Had post-conviction 14 counsel presented the claim that trial counsel was ineffective at sentencing, there is not a 15 reasonable probability the result of the post-conviction proceedings would have been different 16 because the state district court has broad discretion at sentencing. See Randell v. State, 846 P.2d 17 278, 280 (Nev. 1993). The State highlighted McDonald’s multiple prior felonies that were 18 committed while McDonald was on supervised release and that McDonald violated parole when 19 it was granted to him at sentencing. Because trial counsel presented mitigation argument, given 20 the broad discretion in sentencing enjoyed by the state courts in Nevada, and McDonald’s 21 criminal record, there isn’t a reasonable probability that further mitigation argument regarding 22 McDonald’s mental illness would have changed the result of the post-conviction proceedings. 23 Accordingly, the Court denied Ground 3 as procedurally defaulted. 24 c. Ground 4 25 In Ground 4, McDonald alleges that trial could rendered ineffective assistance for failure 26 to show Exhibit 8, a still image of video footage of the crime scene, to McDonald before telling 27 him to go to trial. ECF No. 14 at 17-18. He asserts that trial counsel advised McDonald to go to 28 2 McDonald that video footage existed. Id. at 17. The Nevada Court of Appeals held: 3 McDonald argues his counsel was ineffective for advising McDonald to reject a plea offer and proceed to trial without showing McDonald the video footage of the 4 crime scene. McDonald asserts counsel advised him the jury would not be able to identify him as the perpetrator and that is why he decided to reject the plea offer. 5 McDonald states he would have accepted a plea offer from the State had he viewed the video footage ahead of trial. McDonald failed to demonstrate his counsel's 6 performance was deficient or resulting prejudice.

7 McDonald did not allege counsel misadvised him regarding the law pertaining to his charges, cf. Lafler v. Cooper, 566 U.S.____, 132 S. Ct. 1376, 1384 (2012) (explaining 8 that counsel's performance was objectively unreasonable due to informing the petitioner of an incorrect legal rule). Moreover, during the preliminary 9 examination the victim could only describe the physical characteristics of the perpetrator of the crime and did not identify McDonald as the person who 10 committed the crime, and accordingly, McDonald fails to demonstrate that counsel's advice regarding use of an identity defense at trial was the performance 11 of an objectively unreasonable counsel. In addition, McDonald did not demonstrate a reasonable probability there was a plea offer from the State he 12 would have accepted absent ineffective assistance of counsel, the State would not have withdrawn it in light of intervening circumstances, and the district court 13 would have accepted such an offer. See id. ___, 132 S. Ct. at 1385. Therefore, we conclude the district court did not err in denying this claim. 14

15 ECF No. 17-27 at 3-4. The Nevada Court of Appeal’s rejection of McDonald’s ineffective assistance 16 claim was neither contrary to nor an objectively unreasonable application of Strickland. 17 McDonald argues that the state appellate court applied the wrong standard and 18 misinterpreted the expert’s conclusions, and the Court should, therefore, review the claim de 19 novo. ECF No. 42 at 15. In Lafler, the allegation was that petitioner had rejected favorable plea 20 offers “after his attorney convinced him that the prosecution would be unable to establish his 21 intent to murder” because the victim “had been shot below the waist.” Lafler, 566 U.S. at 161. The 22 Supreme Court confirmed that the Strickland test applies to the plea bargaining process when a 23 defendant rejects a plea offer and elects to go to trial. Id. at 163. Thus, other than stating that 24 counsel's advice was concededly deficient, the Supreme Court in Lafler did not provide any 25 standards under which lower courts are to evaluate the sufficiency of a trial counsel's 26 performance in rendering plea advice. See id. at 174 (stating that deficient performance had been 27 conceded by all parties, so there is no need to address what type of performance would be 28 required to find counsel to be constitutionally ineffective). The Nevada Court of Appeals, here, 2 advice regarding the law, but nonetheless applied the Strickland standard. 3 The Court is not convinced that trial counsel’s performance fell below the Strickland 4 standard as applied in the plea bargaining context. In the plea advice context, “[c]ounsel cannot 5 be required to accurately predict what the jury or court might find, but he can be required to 6 give the defendant the tools he needs to make an intelligent decision.” Turner v. Calderon, 281 F.3d 7 851, 881 (9th Cir. 2002). Trial counsel testified at the evidentiary hearing that he showed 8 McDonald the video footage and the still images from the video footage recounting that Exhibit 9 8 had a “crystal clear” image of McDonald’s face with the wallet also in view. ECF No. 18-1 at 50- 10 51. Trial counsel further testified that he did not advise McDonald to reject the plea and go to 11 trial. Id. at 53. 12 The state appellate court’s determination that McDonald failed to demonstrate prejudice 13 was not unreasonable. As noted by the Nevada Court of Appeals, McDonald did not 14 demonstrate a reasonable probability that if there was a plea offer from the State he would have 15 accepted absent ineffective assistance of counsel. Trial counsel further testified that he made a 16 “last-ditch effort” and discussed a potential plea deal with McDonald on the day of jury selection 17 recounting his discussion with McDonald, “[f]irst I had argued that if you go to trial you’re 18 going to be looking at in all probability getting habitualized based upon your record and the 19 facts in this case and you’ll probably be maxed out,” and “[s]econd I had argued that if we go to 20 trial and we lose, which I was very clear that I anticipated that happening, . . . that the second 21 that jury comes back and says guilty you will be placed in custody on a no bail hold pending 22 your sentencing.” ECF No. 18-1 at 55. 23 Moreover, as the Supreme Court has stated, “[w]hen a state prisoner asks a federal court 24 to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases 25 require that the federal court use a ‘doubly deferential’ standard of review that gives both the 26 state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S.Ct. 10, 13 27 (2013). Because the Nevada Court of Appeals’ decision denying relief is reasonable and 28 supported by the record, McDonald is not entitled to habeas relief on Ground 4. 2 In Ground 5, McDonald alleges that his state court conviction was on insufficient 3 evidence. ECF No. 14 at 18-19. He asserts that the witnesses were not able to positively identify 4 McDonald as the person who took the wallet. Id. at 18. He further asserts that one of the 5 witnesses, Wright, only identified McDonald on the surveillance video from his physical stature 6 and body type, not his facial features. Id. The Nevada Supreme Court held: 7 McDonald contends that the evidence presented at trial was insufficient to support the jury’s finding of guilt because the victim did not identify him and 8 another witness identified him by his build rather than his face. We disagree, and conclude that the evidence, when viewed in the light most favorable to the State, 9 is sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Wilkins v. 10 State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).

11 The jury heard testimony that the victim, Deborah Lee, purchased a money order and placed it into a long pink wallet. Lee testified that later, while shopping, she 12 was distracted by a tall black man who then removed the wallet from her purse and fled the scene. Irva Baldwin testified that McDonald approached him shortly 13 after the robbery and offered him $50 to cash a money order, the same order that Lee had purchased. The jury saw video footage from a security camera which 14 showed a tall black man escaping the scene on foot with a pink wallet visibly on his person. McDonald was identified by a witness as the person in the video footage 15 based upon his build and stature.

16 The jury could reasonably infer from the evidence presented that McDonald committed the larceny and approached Baldwin to cash the money order on his 17 behalf. Although McDonald contends that his face was never identified, it is for the jury to determine the weight and credibility to give conflicting testimony, and the 18 jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also 19 McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Circumstantial evidence alone may sustain a conviction. See Wilkins, 96 Nev. at 374, 609 P.2d at 313. Because 20 the jury made a reasonable determination, McDonald's first argument is without merit. 21

22 ECF No. 16-18 at 2. The Nevada Supreme Court’s ruling was neither contrary to nor an 23 objectively unreasonable application of clearly established law as determined by the United 24 States Supreme Court. 25 When a habeas petitioner challenges the sufficiency of evidence to support his 26 conviction, the Court reviews the record to determine “whether, after viewing the evidence in 27 the light most favorable to the prosecution, any rational trier of fact could have found the 28 essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 2 inferences,” the court “must presume—even if it does not affirmatively appear in the record— 3 that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to 4 that resolution.” Jackson, 443 U.S. at 326. The reviewing court must respect the exclusive 5 province of the fact-finder to determine the credibility of witnesses, to resolve evidentiary 6 conflicts, and to draw reasonable inferences from proven facts. United States v. Hubbard, 96 F.3d 7 1223, 1226 (9th Cir. 1996). The Supreme Court has emphasized that claims of insufficiency of 8 the evidence “face a high bar in federal habeas proceedings ....” Coleman v. Johnson, 566 U.S. 650, 9 651 (2012) (per curiam). When the deferential standards of AEDPA and Jackson are applied 10 together, the question for decision on federal habeas review is whether the state court's decision 11 unreasonably applied the Jackson standard to the evidence at trial. See, e.g., Juan H. v. Allen, 408 F.3d 12 1262, 1274–75 (9th Cir. 2005) (citations omitted). 13 As noted by the Nevada Supreme court, Lee testified at trial that after getting a money 14 order, a tall black man approached her in a clothing store and took her wallet from her purse. 15 Baldwin testified that on the same day that Lee’s wallet was taken, McDonald offered him $50 16 to cash a money order that was Lee’s money order. In addition, Baldwin identified McDonald in 17 surveillance video taken at or near the scene. Another individual, Wright, identified McDonald 18 to police officers as well as at trial. 19 Viewing the evidence in the light most favorable to prosecution, any rational trier of fact 20 would have found the essential elements of larceny from a person, victim 60 years of age or older 21 beyond a reasonable doubt. There was sufficient evidence identifying McDonald as the 22 individual who took the victim’s wallet. Based on a review of the record of evidence submitted at 23 trial, the Court concludes that a rational jury could have found the essential elements of the 24 crime beyond a reasonable doubt. McDonald is not entitled to habeas relief on Ground 5. 25 IV. CERTIFICATE OF APPEALABILITY 26 This is a final order adverse to McDonald. Rule 11 of the Rules Governing Section 2254 27 Cases requires the Court to issue or deny a certificate of appealability (“COA”). Therefore, the 28 Court has sua sponte evaluated the claims within the petition for suitability for the issuance of a 2 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial 3 showing of the denial of a constitutional right.” With respect to claims rejected on the merits, a 4 petitioner “must demonstrate that reasonable jurists would find the district court’s assessment 5 of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 6 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will 7 issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the 8 denial of a constitutional right and (2) whether this Court’s procedural ruling was correct. Id. 9 Applying these standards, this Court finds that a certificate of appealability is 10 unwarranted. 11 V. CONCLUSION 12 It is therefore ordered that Petitioner Charles E. McDonald’s amended petition for writ of 13 habeas corpus under 28 U.S.C. § 2254 (ECF No. 14) is denied. 14 It is further ordered that a certificate of appealability is denied. 15 It is further ordered that the Clerk of the Court is directed to substitute William 16 Hutchings for Respondent Brian Williams, enter judgment accordingly, and close this case. 17 DATED this 1st day of June, 2022.

19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28