1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Mauricio I. Melendez, Case No.: 2:16-cv-01003-JAD-DJA 4 Petitioner 5 v. Order Denying Habeas Petition and Certificate of Appealability 6 Brian Williams,et al., [ECF No. 18] 7 Respondents 8 9 Nevada state prisoner Mauricio I. Melendezbrings this habeas petition to challenge his 10 first-degree-murder conviction for the shooting death of his wife.1 Melendez claims that his 11 prosecution was plagued by ineffective assistance of counsel and prosecutorial misconduct. But, 12 because I find that Melendez has not shown any basis for habeas relief, I deny the petition, 13 decline a certificate of appeal, and close this case. 14 BACKGROUND2 15 In August 2008, Melendez shot his wife, Chennel, in the forehead while she was sitting at 16 the couple’s kitchen table. Melendez admittedto police that he shot and killed Chennel, but he 17 claimedthat he did so unintentionally and that he did not know the gun was loaded. TheState 18 presented evidence at trial that, rather than immediately calling 911 or seeking other help, 19 Melendez wrappedChennel’s body in a blanket, transportedit from the kitchen table to the 20 couch, and cleanedup blood in the kitchen. He alsotook multiple photographs of Chennel’s 21 bodyin the hours after her death. 22 1 ECF No. 18. 23 2 This background is derived from the exhibits filed under ECF Nos.19–21 and this court’s own docket. 1 After a five-day trial in the EighthJudicial District Court, Clark County, Nevada, in July 2 2009,thejury found Melendez guilty of first-degree murder with the use of a deadly weapon. 3 The court sentenced Melendez to two consecutive terms of life with the possibility of parole after 4 twenty years. Melendez appealed. In July 2011, the Nevada Supreme Court affirmed the 5 conviction. In February 2012, Melendez filed a proper person state habeas petition in the state
6 district court. With the assistance of appointed counsel, he filed several supplemental petitions. 7 The state district court conducted an evidentiary hearing and granted the petition, concluding that 8 Melendez’s trial attorneys were ineffective in several respects, but the Nevada Supreme Court 9 reversed the lower court’s decision to grant relief. 10 On May 2, 2016, Melendez filed his proper person federal habeas petition. With the 11 assistance of appointed counsel, he filed a first amended petition on February 24, 2017. On 12 respondents’ motion, I dismissed claim 1E of the first amended petition as unexhaustedon 13 February 20, 2018, and Melendez then opted to abandon that claim. I now consider Melendez’s 14 remaining claims on theirmerits.
15 STANDARDS OF REVIEW 16 A. Legal standards 17 If a state court has adjudicated a habeas corpus claim on its merits, a federal district court 18 may only grant habeas relief with respect to that claim if the state court’s adjudication “resulted 19 in a decision that was contrary to, or involved an unreasonable application of, clearly established 20 Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision 21 that was based on an unreasonable determination of the facts in light of the evidence presented in 22 the State court proceeding.”3 A state court acts contrary to clearly established federal law if it 23 3 28 U.S.C. § 2254(d). 1 applies a rule contradicting the relevant holdings or reaches a different conclusion on materially 2 indistinguishable facts.4 And a state court unreasonably applies clearly established federal law if 3 it engages in an objectively unreasonable application of the correct governing legal rule to the 4 facts at hand.5 Section 2254 does not, however, “require state courts to extend” Supreme Court 5 precedent “to a new context where it should apply” or “license federal courts to treat the failure
6 to do so as error.”6 The “objectively unreasonable” standard is difficult to satisfy;7 “even ‘clear 7 error’ will not suffice.”8 8 Habeas relief may only be granted if “there is no possibility [that] fairminded jurists could 9 disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”9 As “a 10 condition for obtaining habeas relief,” a petitioner must show that the state-court decision “was 11 so lacking in justification that there was an error well understood and comprehended in existing 12 law beyond any possibility of fairminded disagreement.”10 “[S]o long as ‘fairminded jurists 13 could disagree’ on the correctness of the state court’s decision,” habeas relief under Section 14 2254(d) is precluded.11 The Antiterrorism and Effective Death Penalty Act (AEDPA) “thus
15 16 17 4 Price v. Vincent, 538 U.S. 634, 640 (2003). 18 5 White v. Woodall, 134 S. Ct. 1697, 1705–07 (2014). 6 White, 134 S. Ct. 1705–06. 19 7 Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013). 20 8 Wood v. McDonald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (citation omitted); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question . . . is not whether a federal court 21 believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.”). 22 9 Harrington v. Richter, 562 U.S. 86, 102 (2011). 23 10 Id.at 103. 11 Id.at 101. 1 imposes a ‘highly deferential standard for evaluating state-court ruling,’ . . . and ‘demands that 2 state-court decisions be given the benefit of the doubt.’”12 3 If a federal district court finds that the state court committed an error under § 2254, the 4 district court must then review the claim de novo.13 The petitioner bears the burden of proving 5 by a preponderance of the evidence that he is entitled to habeas relief,14 but state-court factual
6 findings are presumed correct unless rebutted by clear and convincing evidence.15 7 DISCUSSION 8 A. Ground one: ineffective assistance of counsel 9 The claims in Ground Oneare all premised on allegations that Melendez was deprived of 10 his constitutional right to effective assistance of counsel. To demonstrate ineffective assistance 11 of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must 12 show that (1) counsel’s representation fell below an objective standard of reasonableness under 13 prevailing professional norms in light of all the circumstances of the particular case; and (2) it is 14 reasonably probable that, but for counsel’s errors, the result of the proceeding would have been
15 different.16 Melendez contends that his attorneys violated his constitutional right to effective 16 counsel in four separate—and compounding—ways. 17 18 19 20 12 Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted). 13 Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we 21 may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”). 22 14 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 23 15 28 U.S.C. § 2254(e)(1). 16 Strickland v. Washington, 466 U.S. 668, 687–94 (1984). 1 1. Claim 1A: failure to object to the State’s substituted coroner 2 In Ground 1A, Melendez alleges that he was deprived of effective assistance of counsel 3 because his trial counsel stipulated to the admission of an autopsy report prepared by a coroner 4 who did not testify at trial and allowed the State to present the testimony of a different coroner. 5 Chennel’s autopsy was conducted by Dr. Jacqueline Benjamin, who prepared a report of her
6 findings.17 But, at trial, the State called Dr. Lary Simms to testify about the report.18 Defense 7 counsel consented to allow Simms to testify in place of Benjamin, who was no longer employed 8 by the Clark County Coroner’s Office, and stipulated to the admission of the autopsy report and 9 x-rays.19 Simms testified about the location of the bullet entrance wound (the forehead, just to 10 the right of the midline and four inches from the crown the head) and the presence of stippling 11 around the wound.20 He also testified about the trajectory of the bullet, indicating that “it was 12 front to back, … right to left, and … downward.”21 According to the autopsy report and 13 Simms’s testimony, the manner of death was homicide.22 14 Melendez contends that he had a Sixth Amendment right to confront Dr. Benjamin at trial
15 absent a showing that she was unavailable to testify and that he had a prior opportunity to cross- 16 examine her.23 He relies on Melendez-Diaz v. Mississippi,in whichthe Supreme Court held that 17 certificates of laboratory analysts stating that material found in petitioner’s possessionwas 18 19 17 ECF No. 19-28. 20 18 ECF No. 19-26at 70. 21 19 Id.at 70, 74. 20 ECF No. 19-26at 80–84. 22 21 Id.at 87. 23 22 Id.at 90; ECF No. 19-28 at 2. 23 ECF No. 18at 10. 1 cocaine of a certain quantityweretestimonial statements underCrawfordv. Washington.24 2 Crawford holds that a witness’s testimony against a defendant is inadmissible unless the witness 3 appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross- 4 examination.25 Melendez further alleges that there is a reasonable probability that the outcome 5 of the trial would have been different but forSimms’s testimony.26
6 At the evidentiaryhearingon Melendez’s state post-conviction petition, lead defense 7 counsel, Christy Craig, testified that she was aware of theholdings in Crawford andMelendez- 8 Diaz,27 that she did not knowwhy Benjamin was not availableand did not have the autopsy 9 independently reviewed,28 and that defense counsel made a conscious decision “after some 10 discussion”to stipulate to the admission of the report.29 Their reasoning was that the autopsy 11 report did not impact their defense, which acknowledged that Melendez shot Chennel in the 12 forehead but claimed it was an accident.30 According toher testimony, the defense saw no 13 downside to stipulating to the report and felt that Simms was an expert who was less likely to 14 “wander about.”31
15 16 17 18 24 Crawford v. Washington, 541 U.S. 36 (2004). 19 25 Crawford,541 U.S. at 54. 20 26 Id.at 11. 21 27 ECF No. 21-9at 110–11. 28 Id.at 112–15. 22 29 Id.at 116. 23 30 Id.at 117. 31 Id.at 117–18. 1 The state district court granted relief on this claim32 but the Nevada Supreme Court 2 reversed that decisionon appeal.33 The state supreme court identified Stricklandv. Washington 3 as the governing federal-law standard then found that the district court erred by failing to give 4 sufficient deference to defense counsel’s decision and in finding prejudice: 5 [T]he State contends that the district court erred by concluding that counsel were ineffective for stipulating to the admission of a non- 6 testifying medical examiner’s autopsy report and allowing a different medical examiner to testify in his place. We agree. At 7 the evidentiary hearing, one of Melendez’s trial attorneys testified that she made a strategic decision to stipulate to admission of the 8 report, and the testimony of Dr. Lary Simms, because she did not dispute the findings in the report and she preferred to have Dr. 9 Simms testify rather than the report’s author. The district court failed to give sufficient deference to this decision. See Strickland, 10 466 U.S. at 689; Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (explaining that “trial counsel’s strategic or tactical 11 decisions will be virtually unchallengeable absent extraordinary circumstances”(internal quotation marks omitted)). The district 12 court also erred when it determined that Melendez was prejudiced, because although the autopsy report stated that the cause of death 13 was a homicide, the defense’s own theory of the case was that the cause of death was a homicide—just an unintentional or accidental 14 homicide. SeeBlack’s Law Dictionary 332 (3d ed.1996) (defining homicide). This distinction was explained to the jury on numerous 15 occasions. Finally, Melendez failed to demonstrate that the result of trial would have been different had counsel refused to stipulate 16 to the report and insisted upon cross-examining the report’s author. Wetherefore conclude that the district court erred by granting 17 relief on this claim.34 18 Reviewed under § 2254(d), the state court’s adjudication of the claim did not “result[] in 19 a decision that was contrary to, or involve[] an unreasonable application of, clearly established 20 Federal law, as determined by the Supreme Court of the United States,”nor did it “result[] in a 21 22 32 ECF No. 21-13at 9–10. 23 33 State v. Melendez,No. 65479, 2015 WL 6163908, at *1 (Nev. Oct. 16, 2015). 34 Id. 1 decision that was based on an unreasonable determination of the facts in light of the evidence 2 presented in the State court proceeding.” The applied the correct federal-law standards and did 3 so in a reasonable manner. In an interview with police the day followingthe shooting,Melendez 4 admitted to the police that he shot Chennel.35 The defense that Melendez’s counsel presented at 5 trial was that Melendez shot his wife but did so unintentionally.36 Simms’s testimony that
6 Chennel’s death was the result of a homicide was not harmful to the defense’s casebecause, as 7 the Nevada Supreme Court noted, classifying a death as a homicide does not speak to the issue of 8 intent. At no point in his testimony did Simms suggest that the shooting was intentional; in fact, 9 he conceded on cross-examination that he was incapable of addressing the issue of intent.37 10 Instead, the gist of his testimony was that Chennel’s death was a homicide as opposed to a 11 suicide. 12 Melendez argues that Simms’s testimony regarding the trajectory of the bullet allowed 13 the State to advance the theory that Melendez shot Chennel as he stood over her.38 But defense 14 counsel effectively cross-examined Simms on this point, getting him to admit that he could not
15 say whether the shot was fired from above or below because he did not know how Chennel’s 16 head was positioned when she was shot.39 In addition, Simms’s testimonyruling out suicide was 17 based primarily onaphotographshowing stippling around the entrance wound.40 Likewise, his 18 conclusions about the trajectory of the bullet appear to have been based on x-rays of Chennel’s 19 20 35 ECF No. 20-1at 50–53. 21 36 ECF No. 19-25at 86–91. 37 ECF No. 19-26at 90–91. 22 38 ECF No. 39at 14. 23 39 ECF No. 19-26at 97. 40 Id.at 83–84. 1 head.41 So, rather than simply recounting Benjamin’s autopsy-report conclusions, Simms 2 offeredhis own knowledge and expertise based on non-testimonial record evidence and was 3 subject to cross-examination on those points. It is unlikely defense counsel could have prevented 4 that testimony on Confrontation Clause grounds.42 5 Lastly, the Nevada Supreme Court properly granteddeference to defense counsel’s
6 strategic decision to stipulate to the autopsy report. Stricklandrecognizes that the strategic 7 choices that attorneys make onhow to defend a case are “virtually unchallengeable.”43 In 8 defending her team’s decision to stipulate to the autopsy report, Craig testified that Simms’s 9 opinions didn’t impact the defense: 10 The bullet wound to her head and the stippling were there whether we stipulated to the report or didn’t stipulate to the report. It didn’t 11 change our argument, it didn’t change our defense. We were acknowledging that he shot her in the head. We were arguing that 12 it was an accident as a result of mishandling the weapon after they both had been drinking.44 13 14 Plus, Craig was apparently familiar with Simms and felt that cross-examining him would be 15 more beneficial than potentially cross-examining Benjamin.45 Perhaps counsel should have 16 inquired into why Benjamin was not available, but in light of their strategic analysis, it cannot be 17 18 19 20 41 Id.at 85–88. 42 See Altes v. Pennywell, No. 13-CV-04522-YGR, 2015 WL 3430315, at *9 (N.D. Cal. May 28, 21 2015) (finding no Confrontation Clause violation where pathologist who did not conduct autopsy testified based on photos showing victim’s injuries and the bullet entry point). 22 43 Strickland, 466 U.S. at 690. 23 44 ECF No. 21-9at 116–17. 45 Id.at 118–19. 1 said that counsel’s decisionto stipulate to the report was “outside the wide range of 2 professionally competent assistance.”46 So, Ground 1Ais denied. 3 2. Ground 1B: failure to investigate and prepare for witness Claudine Eggleston 4 In Ground 1B, Melendez alleges that he was deprived of effective assistance of counsel 5 because his trial counsel failed to adequately investigate and prepare forthe testimonyof
6 Chennel’s sister,Claudine Eggleston. Eggleston testified that Chennel was unhappy in her 7 marriagebut was afraid to leave Melendez because she was afraid he would take their son 8 away.47 Eggleston also testified that there were occasions when she tried to contact Chennel by 9 phone but Melendez would answer and refuse to let Eggleston speak toher.48 10 Upon first calling Eggleston as a witness, the State elicited testimony about her having 11 turned over Melendez’s computer and camera to the police.49 When the State began to inquire 12 about conversations that Egglestonhad with Chennel, defense counsel interrupted and requested 13 a bench conference, at the conclusion of which, the court asked Eggleston to return the following 14 afternoon.50
15 Before Eggleston’s testimony resumed, the parties argued to the trial judge about 16 allowing Eggleston to testify about what Chennel had told her, with defense counsel objecting 17 based on hearsay and relevance grounds and lack of notice.51 Defense counsel also explained to 18 19 20 46 Strickland, 466 U.S. at 690. 21 47 ECF No. 19-32at 25–27. 48 Id.at 27–28. 22 49 ECF No. 19-26at 126. 23 50 Id.at 126–27. 51 ECF No. 19-32at 4–16. 1 the judgethat Eggleston had refused to interview with them.52 The prosecutor claimed that he 2 had only learned about Chennel’s statements to Eggleston a few days earlierat a pre-trial 3 conference.53 He also claimed that he notified defense counsel by email about this revelation, 4 but defense counsel denied having received such an email,and the email was never producedat 5 trial or in post-conviction proceedings.54
6 The trial judgedecided to allowEggleston’s testimony about her conversations with 7 Chennel, over defense counsel’s objections.55 He also denied defense counsel’s request for a 8 limiting instruction.56 On cross-examination, defense counsel attempted to impeach Eggleston 9 by getting her to admit that she had rejected defense counsel’s attempts to interview her.57 10 Eggleston denied that was the case and stated that she had returned defense counsel’s telephone 11 call.58 12 In his petition, Melendez points out that defense counsel had told the jury in opening 13 statements that the State would not present any evidence of amotive for Melendez to murder 14 Chennel.59 Healleges that counsel was ineffective for not using an investigator to contact
15 Eggleston, which would have provided the defense with a witness to testify about Eggleston’s 16 refusal to cooperate.60 He also alleges that effective counsel would have filed a motion with the 17 18 52 Id.at 6. 53 Id.at 6–7. 19 54 Id. at 12–13; ECF No. 21-1 at 12–13; ECF No. 21-9 at 173–74. 20 55 ECF No. 19-32at 14–16. 21 56 Id. 57 Id.at 30. 22 58 Id. 23 59 ECF No. 18at 12. 60 Id.at 13. 1 trial court asking that Eggleston be made available to the defense.61 He further contends that 2 Eggleston’s testimony likely changed the outcome of the trial because it was the State’s only 3 evidence ofmotive.62 4 At the state post-conviction evidentiary hearing, Craig testified about the events 5 surrounding Eggleston. She recounted that defense counsel were “totally blindsided”by
6 Eggleston’s testimony about Chennel’s statements to her.63 Going into trial, their understanding 7 was that Eggleston was going to testify about providing the police with Melendez’s camera and 8 computer, and they had no reason to suspect Eggleston’s testimony about what Chennel had told 9 her.64 When she testified about returning Craig’s phone call, Eggleston was referring to a 10 separate occasion when Craighad contacted her about interviewingMelendez’s son, who had 11 been placed in Eggleston’s custody.65 Craig had contacted Eggleston again to talk about 12 Chennel and that’s when Eggleston refused to cooperate with her.66 Craig had no strategic 13 reason for not using an investigator to contact Eggleston.67 In retrospect, with the knowledge of 14 Eggleston’s testimony about Chennel, Craig would have sought an order from the trial court
15 requiring Eggleston to talk to defense counsel.68 16 17 18 61 Id. 19 62 Id. 20 63 ECF No.21-9at 55. 21 64 Id.at 55, 169–75. 65 Id.at 57, 59, 170. 22 66 Id.at 59–61, 171. 23 67 Id.at 63. 68 Id.at 173–74. 1 The state district court granted relief on Melendez’s claim that counsel was ineffectivein 2 their preparation for Eggleston’s testimony.69 But the Nevada Supreme Court reversed that 3 decision, too, concluding that Eggleston’s testimony was inconsequential: 4 [T]he State contends that the district court erred by concluding that counsel were ineffective for failing to investigate Claudine 5 Eggelston[sic], Melendez’s sister-in-law, using the services of an investigator. We agree. The district court offered several 6 rationales for how this conduct was ineffective, but they all rest upon the faulty assumption that Eggelston’s [sic] testimony was 7 vital to the State’s case. As we concluded on Melendez’s direct appeal, we do not believe that Eggleston’s testimony contributed to 8 the verdict in any appreciable way in the light of the other evidence presented at trial. Melendez v. State, Docket No. 54770 (Order of 9 Affirmance, July 29, 2011). Our review of the record makes clear that it was Melendez’s statements to police and his actions after the 10 shooting which were responsible for his conviction, and therefore better preparation for Eggelston’s [sic]testimony or highlighting 11 her bias would not have changed the result at trial. We therefore conclude that the district court erred by granting relief on this 12 claim.70 13 Reviewed under § 2254(d), the state court’s adjudication of the claim did not “result[] in 14 a decision that was contrary to, or involve[] an unreasonable application of, clearlyestablished 15 Federal law, as determined by the Supreme Court of the United States,”nor did it “result[] in a 16 decision that was based on an unreasonable determination of the facts in light of the evidence 17 presented in the State court proceeding.” The Nevada Supreme Court’s conclusion that 18 Melendez was not prejudiced by Eggleston’s testimony is questionable, but not unreasonable. 19 Also,given the trial judge’s ruling, the testimony at issue would still have been admittedeven if 20 trial counsel had taken the steps Melendez proposes (obtaineda court order or usedan 21 22 23 69 ECF No. 21-13at 12–14. 70 Melendez, 2015 WL 6163908, at *2. 1 investigator). At most, defense counsel might have been able to moreeffectivelycross-examine 2 Eggleston, but even that conclusion requires mainly speculation. 3 In addition, while the Nevada Supreme Court’s analysis focused on the prejudice prong 4 of the Stricklandtest, I further conclude upon de novo review that Melendez cannot satisfy the 5 test’s performance prong either.71 In preparing for trial, defense counsel reasonably assumed
6 that Eggleston would be testifying about providing the police with Melendez’s camera and 7 computer, both of which were a source of evidence presented by the State at trial. Indeed, that 8 appears to have been the State’s intention up until just a few days before it calledEggleston as a 9 witness. The record supports a finding that Eggleston’s testimony about her conversations with 10 Chennel was a surprise sprung on defense counsel in the middle of thedirect examination. Left 11 to scramble, defense counsel objected and argued vigorously that the testimony should be 12 excluded. Ultimately, the Nevada Supreme Court agreed, but concluded the error was 13 harmless.72 14 In addition, defense counsel called Melendez’s ex-wife as a witness to testify that
15 Melendez was amicable about their divorce and child custody even though the reason for the 16 divorce was her infidelity.73 It is only with the benefit of hindsight that Melendez can fault 17 counsel for not conducting a more thorough investigation of Eggleston. Stricklanddoes not 18 allow this court to review counsel’s performance in that manner.74 Ground 1B is denied. 19 20 71 See Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam) (“Because the state court did not 21 decide whether Porter’s counsel was deficient, we review this element of Porter’sStrickland claim de novo.”). 22 72 Melendez v. State,No. 54770, 2011 WL 3298525,at *6–7(Nev. July 29, 2011). 73 ECF No. 20at 91–93. 23 74 See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the 1 3. Ground 1C: failure to hire a forensic or other qualified expert about the 2 shooting 3 In Ground 1C, Melendez alleges that he was deprived of effective assistance of counsel 4 because his trial counsel failed to consult any forensic experts or call any such experts to testify 5 at trial. In addition to Simms’s testimony about bullet trajectory, the State called Angel Moses, a 6 firearms expert who testified that the gun was discharged 1–18 inches away from Chennel’s head 7 andrequired 3 ½ to 3 ¾ pounds of pressure to fire in the cocked position, which he equated to 8 the weight of a half-gallon of milk.75 Moses further testified that if the gun was not cocked,it 9 would require 12 ½ to 13 pounds of pressure to fire.76 10 In closing argument, the prosecutor relied on Moses’s testimony, as well as Simms’s 11 trajectory testimony, to argue that Melendez intentionally shot Chennel.77 The prosecutor also 12 used Moses’s and Simms’s testimony to recreate the shooting for the jury.78 According to 13 Melendez, defense counsel were ineffective by not challenging this testimony with defense-hired 14 experts, who could have provided evidence that the shooting was accidental.
15 At the state post-conviction evidentiary hearing, Melendez presented a report from a 16 forensic scientist, George Schiro, in which Schiro statedthat he could have offered theories 17 alternative to homicide: 18 I would have been able to demonstrate that, based on the physical evidence, alternative hypotheses, such as an accident or suicide 19 circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s 20 perspective at the time.”). 21 75 ECF No. 19-26at 106, 111, 115. 22 76 Id. 23 77 ECF No. 20at 117–18. 78 Id.at 173–75. 1 were just as likely or more likely than an intentional homicide. While murder cannot be ruled out, there is evidence that is more 2 indicative of an accidental shooting or suicide.79 3 Schirocited the following factors as support for this position: (1) the lack of searing, soot, or 4 gunpowder tattooing on Chennel Melendez’s hands, which would be consistent with her hands 5 being up in a defensive position; (2) the lack of any injuries indicative of a fight or altercation 6 between Mr. and Mrs. Melendez; (3) the apartment was not in disarray and nothing was broken; 7 (4) the angle of the bullet trajectory; and (5) the trigger pull on the gun, which hadbeen 8 mischaracterized by the State.80 As to the last point, the report stated that, if cocked, the gun 9 required “only a slight amount of pressure”to fire.81 The state court sustained the State’s 10 objection to the admission of the report on hearsay grounds but cited to it in its decision granting 11 relief.82 12 When the report was presented, Craig testified that she was familiar with Mr. Schiro and 13 that she had used his services several times in the past.83 Craig testified that she did not hire an 14 expert to testify about distance because, due to the stippling, she already knew that the gun was
15 about eighteen inches away.84 She also testified that the defense did not hire a forensic expert 16 because “tactically”the defense “agreed with the State with regard to the autopsy, the location of 17 the wound, [and] the stippling.”85 She further indicated that the defense’s version of the 18 19 79 ECF No. 21-12at 2–3. 20 80 Id.at 3–4. 21 81 Id. 82 ECF No. 21-9, 102; ECF No. 21-13 at 11–12, 22 83 ECF No. 21-9at 102. 23 84 Id.at 126. 85 Id.at 138–39. 1 shootingdid not differ from the State’s,other than to claim that it was a “drunken accident” 2 rather than an intentional act and that she was “not aware or had not considered the idea that 3 there would be some expert that we could call that would be able to say that it was an 4 accident.”86 With respect to having the gun independently tested by a firearms expert, Craig 5 testified that shehad no reason to think that the gun was prone to misfire and,because they were
6 not arguing that Melendez did not pull the trigger, the force required to do so did not matter.87 7 When pressed further on this point, Craig agreed that demonstrating the trigger required less 8 pressure to pull may have weighed in favor proving the shooting was accidental, but not “enough 9 to have somebody come in and testify about that.”88 For her, the more important point for their 10 defense was providing an “explanation for why he had the gun in his hand in the first place.”89 11 The state district court granted relief on Melendez’s claim that counsel was ineffective by 12 not consulting with a forensic expert,90 but the Nevada Supreme Court reversed that decision,91 13 concluding that the district court failed to give the Strickland-required deference to trial 14 counsel’s strategy and that Melendez did not demonstrate prejudice:
15 [T]he State contends that the district court erred by concluding that counsel were ineffective for failing to hire an expert to support the 16 theory of defense. We agree. Counsel explained that the only issue in this case was whether Melendez intended to kill his wife 17 and she did not believe anexpert could assist the jury with this issue. Counsel chose to make Melendez the focus of the case 18 rather than quibble with the physical evidence because she believed the jurors would sympathize with Melendez when they 19 heard about his life. The district court failed to give sufficient 20 86 Id. 21 87 Id.at 177–78. 88 Id.at 182–83. 22 89 Id.at 183–85. 23 90 ECF No. 21-13at 10–12. 91 Melendez, 2015 WL 6163908, at *1. 1 deference to this strategy. But even assuming that counsel’s strategy was objectively unreasonable, Melendez failed to 2 demonstrate prejudice. Melendez did not demonstrate how testimony about a different bullet trajectory or lighter trigger-pull 3 would have made the defense’s theory of the case more plausible, or how those facts would lead to a different result at trial given his 4 own admissions and his conduct after the shooting. We therefore conclude that the district court erred by granting relief on this 5 claim.92 6 Reviewed under § 2254(d), the state court’s adjudication of the claim did not “result[] in 7 a decision that was contrary to, or involve[] an unreasonable application of, clearly established 8 Federal law, as determined by the Supreme Court of the United States,”nor did it “result[] in a 9 decision that was based on an unreasonable determination of the facts in light of the evidence 10 presented in the State court proceeding.” Neither Simms nor Moses testified that the shooting 11 was intentional. Instead, the State pulled facts from their testimony to make a case for specific 12 intent. Schiro’s report does not dispute Simms’s testimony on trajectory, but instead makes the 13 point that the downward angle could be explained by the tiltingof Chennel’s head.93 Defense 14 counsel elicited thesame point when he cross-examined Simms at trial.94 Also, Schiro did not 15 test the gunthat Melendez used to shoot Chennel,95 sohis report does not demonstrate that 16 Moses’s testimony regarding distance or trigger pull was inaccurate. 17 If thedefense had attempted to show that the gun, if cocked, required “only a slight 18 amount of pressure”to fire,as Schiro claimed, they would also need to explain why Melendez 19 had committed the clearly intentional act of cocking the gunin the first place. Also, a defense 20 premised on the gun accidentally discharging due to a “hair trigger” was not consistent with 21 92 Id. 22 93 ECF No. 21-12at 3. 23 94 ECF No. 19-26at 97. 95 ECF No. 21-12at 4–5. 1 Melendez’s statements to the police, which were admitted as evidence at trial.96 A more 2 plausible defense theory was that Melendez pulled the trigger, which he admitted, but thought 3 the gun was unloaded.97 In any case,Melendez has not shown that the presentation of Schiro’s 4 report to the jury would have improved his chances at trial. 5 Because the state court’s decision was not an unreasonable application of either the
6 performance or the prejudice standard under Strickland, this court must deny relief on this 7 claim.98 Ground 1C is denied. 8 4. Ground 1D: failure to obtain Melendez’s consent before conceding guilt to 9 manslaughter 10 In Ground 1D, Melendez alleges that he was deprived of effective assistance of counsel 11 because his trial counsel, Scott Coffee, asked the jury to convict him of manslaughter. 12 According to Melendez, this was a “radical departure from the defense theory of the case, which 13 was that the shooting was accidental.”99 In relation to this claim, Melendez notes that “[a] 14 criminal defendant has the ‘ultimate authority’to determine whether to plead guilty and an 15 attorney ‘must both consult with the defendant and obtain consent’before pursuing any such 16 course of action.”100 In the course discussing the jury instructions in his closing argument, 17 Coffee stated: 18 Accident. There is an instruction on accident in this chance [sic]. Like a legal example is, I’m swinging an axe and the handle flies 19 20 96 ECF No. 19-32at 131; ECF No. 20at 22; ECF No. 20-1at 46–53. 97 ECF No. 20at 135–39, 148–49. 21 98 See Richter v. Harrington, 643 F.3d 1238, 1240 (9thCir. 2011)(denying petitioner’s claim his 22 lawyer should have had a gunexpert testify at his murder trial because state court’s rejection of the claim was not an unreasonable application of Strickland). 23 99 ECF No. 18at 17. 100 Id. (citing Florida v. Nixon, 543 U.S. 175, 187 (2004)). 1 off and somebody gets killed, complete accident. You’re within your power to find that here. Wouldn’t expect you to find that 2 here.101 3 Then, at the endof his argument, defense counsel focused on the State’s failure to prove malice, 4 the element that distinguishes murder from manslaughter, and concluded by asking the jury to 5 consider manslaughter: 6 Look at everything, Take it as a whole. Use the eyeglass of character. When you do this you punish him, voluntary [sic] 7 manslaughter. It makes perfect sense, it fits, it is the right verdict.102 8 9 At the state post-conviction evidentiary hearing, Coffee testified that he had no recollection of 10 obtaining Melendez’s consent before conceding to involuntary manslaughter in his closing 11 argument.103 Melendez testified that he did not give his consent.104 12 The state district court granted relief on Melendez’s claim that counsel was ineffective by 13 conceding Melendez’s guilt without consulting with him.105 On appeal, however, the Nevada 14 Supreme Court reversed that decision,106 reasoning that the district court relied on an incorrect 15 determination of the facts and that Strickland was not satisfied: 16 [T]he State contends that the district court erred by concluding that trial counsel were ineffective for conceding guilt to involuntary 17 manslaughter during closing argument. See Armenta–Carpio v. State, 129 Nev. Adv. Op. 54, 306 P.3d 395 (2013) (applying a 18 Stricklandanalysis to ineffective-assistance claims based upon a 19 101 ECF No. 20at 150. 20 102 Id. at 152. Voluntary manslaughter was not among the verdicts available to the jury. Melendez was charged with, and the jury was instructed on, involuntary manslaughter, defined at 21 Nev. Rev. Stat. §200.070. SeeECF No. 19-36at 16; ECF No. 20-3. 103 ECF No. 21-9at 192. 22 104 Id.at 197. 23 105 ECF No. 21-13at 8–9. 106 Melendez, 2015 WL 6163908, at *2. 1 concession of guilt). We agree for several reasons. First, the district court based its decision on an incorrect determination of the 2 facts—Melendez never testified at trial and therefore counsel’s concession could not have undermined his trial testimony. Second, 3 the concession did not directly contradict what counsel told the jury in opening statements. Third, counsel’s decision was not 4 objectively unreasonable under the circumstances. We therefore conclude that the district court erred by granting relief on this 5 claim.107 6 Reviewed under § 2254(d), the state court’s adjudication of the claim did not “result[] in 7 a decision that was contrary to, or involve[] an unreasonable application of, clearly established 8 Federal law, as determined by the Supreme Court of the United States,”nor did it “result[] in a 9 decision that was based on an unreasonable determination of the facts in light of the evidence 10 presented in the State court proceeding.” In Florida v. Nixon, the Supreme Court held that, 11 because the defendant had otherwise “retained rights accorded a defendant in a criminal trial,” 12 defense counsel’s effectiveness in failingto obtain his client’s consent before conceding guilt in 13 a capital case should be assessed under Strickland, not United States,108 which calls for a 14 presumption of prejudice when counsel has“entirely failed to function as the client’s 15 advocate.”109 The Ninth Circuit applied the Nixonholding in a non-capital case where 16 defendant’s counsel conceded defendant’s guilt as to robbery in order to “enhance his credibility 17 on counts where the evidence was somewhat less clear and the penalties significantly greater.”110 18 The evidence presented at Melendez’s trial left little, if any, doubt that Melendez pointed 19 a gun at Chennel, an unlawful act under Nevada law,111 and in the process of doing so shot and 20 21 107 Id. (footnote omitted). 108 United States v. Cronic, 466 U.S. 648 (1984). 22 109 Nixon, 543 U.S. 175, 188–90. 23 110 SeeUnited States v.Thomas, 417 F.3d 1053, 1058–59 (9thCir. 2005). 111 SeeNev. Rev. Stat. §202.290. 1 killed her. Based on that alone, the State had established the elements of involuntary 2 manslaughter.112 Under the circumstances, Coffee made a strategically sound decision to argue 3 in his closing statement that the correct verdict was manslaughter, not murder. 4 In Hoveyv. Ayers,113 counsel told the jury in closing argument that “there could be 5 findings . . . of willful, deliberate and premeditated [murder].” The Ninth Circuit found that this
6 “argument did not amount to deficient representation”in light of then-recent Supreme Court 7 decisions: 8 In Yarborough v. Gentry, for example, the Court counseled that defense attorneys often must make strategic decisions as to what 9 arguments to include in closing arguments and may choose to acknowledge the “shortcomings”of their client’s case in order to 10 build credibility with the jury. In Bell[v.Cone],the Supreme Court approved of a strategic decision by counsel to waive closing 11 argument altogether, to prevent the prosecutor from having an opportunity at a rebuttal closing. And in Florida v. Nixon, the 12 Court stated that when facing the distinct possibility of a penalty phase, it can be reasonable for defense counsel to concede guilt in 13 a guilt-phase closing argument in an attempt to “impress the jury with his candor,”for purposes of building on that impression 14 during the penalty phase.114 15 Compared to defense counsel’s comments in Hovey,Coffee’s comments asking the jury to return 16 averdict of manslaughter rather than murder were eminently reasonable. And given that the jury 17 found Melendezguilty of first-degree murder, Melendez cannot show that he was prejudicedby 18 Coffee’s remarks. Imust therefore defer to the Nevada Supreme Court’s determination that 19 Melendez was not deprived of effective assistance of counsel. Ground 1Dis denied. 20 21 22 112 SeeNev. Rev. Stat. §200.070 (“[I]nvoluntary manslaughter is the killing of a human being, without any intent to do so, in the commission of an unlawful act….”). 23 113 Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006). 114 Hovey, 458 F.3d at 906 (internal citations omitted). 1 5. Claim 1F: cumulative error 2 In Claim 1F, Melendez alleges that he is entitled to relief due to the cumulative impact of 3 counsel’s errors and omissions. The state district court granted Melendez relief on this theory, 4 but the Nevada Supreme Court reversed that decision.115 Because Melendez’s claims of 5 ineffective assistance of counsel are without merit,the Nevada Supreme Court’s rejection of
6 Melendez’s cumulative error claim was not unreasonable. So, claim 1Fis denied. 7 B. Ground Two: prosecutorial misconduct 8 In Ground Two, Melendez claims that prosecutorial misconduct at his trial deprived him 9 of his right to due process under the Fifth and Fourteenth Amendments. As support for this 10 claim, he alleges that the State elicited testimony from police detective Stephen Popp that the 11 detectivedid not believe Melendez was telling the truth during his interview with the police. He 12 also points to the State’s closing argument wherein, according to Melendez, the prosecutor 13 engaged in misconduct by repeatedly calling him a liar. 14 With respect to the prosecution’s questioning of Popp, Melendez points to the following
15 exchange: 16 Question: Now, a couple of times during the interview with Defendant Mr. Melendez, you said things like: We 17 believe you but you just need to tell us the truth, and one of the detectives even led him and said: You 18 know, this was an accident, and the defendant said yes. 19 Did you, in fact, believe he was telling the truth, or 20 was that kind of an interview technique? 21 Mr. Coffee: Objection. Calls for him to comment on whether or not he’s telling the truth. If he wants to ask 22 interview technique, that’s fine, but the detective 23 115 Melendez,2015 WL 6163908, at *2n.2. 1 shouldn’t comment as to whether he believes the defendant. 2 The court: Are you asking the detective what he meant when 3 he said those things? 4 Mr.Smith: Yes. That’s the gist of my question. 5 The court: In that context I’ll allow the question. 6 The witness: It was part of the technique I was using to interview him.116 7 . . . Question: Can you tell us what a selective memory is? 8 Answer: A selective memory, or the term selective memory is just 9 one that we use in which we believe somebody is selectively giving us information based on what they’re 10 willing to tell us, or what they want us to hear. It’s not the complete truth, it’s just bits and pieces. 11 If you recall back to the statement – 12 Mr. Coffee: Permission to approach, Judge? 13 The Court: Yes, come forward. 14 (Whereupon, counsel conferred with the Court.) 15 The Court: Proceed, please? 16 Mr. Smith: Thank you. 17 Answer [sic] (By Mr. Smith): Detective, suffice it to say, a person who, in 18 your opinion, is utilizing selective memory is recalling certain things that may help them, but not recalling other 19 things that may hurt them? 20 Answer: Yes. 21 Question: Did you think that Mr. Melendez was employing such a technique? 22 23 116 ECF No. 18at 21–22 (quoting ECF No. 20at 23). 1 Answer: Absolutely.117 2 As for the prosecutor’s closing argument, Melendez refers to the prosecutor identifying 3 eighteen separate “untruths”that Melendez committed in his 911 call and his interview with the 4 police.118 He also cites the prosecutor’s references to his “story”and his “selective memory.”119 5 Defense counsel did not make a contemporaneous objection, but in moving for a mistrial after
6 the jury retired to deliberate, Coffee argued that the prosecutionhad “effectively call[ed] Mr. 7 Melendez a liar”in the rebuttal portion of its closing argument.120 8 To prevail on a claim of prosecutorial misconduct in a habeas action, a petitioner must 9 show that the comments “‘so infected the trial with unfairness as to make the resulting 10 conviction a denial of due process.’”121 A challenged statement by the prosecutor must be 11 evaluated in the context of the entire trial, as well as the context in which it was made.122 And, 12 even if a prosecutor’s conduct amounts to constitutional error, habeas relief will be granted only 13 if petitioner can establish that the alleged error “‘had a substantial and injurious effect or 14 influence in determining the jury’s verdict.’”123
15 On direct appeal, the Nevada Supreme Court addressed Melendez’s claims of 16 prosecutorial misconduct by explaining that the court must determine, first, whether the 17 18 117 Id. (quoting ECF No. 20 at 68–69). 118 Id.at 23 (citing to ECF No. 20at 160–70). 19 119 Id. (citing to ECF No. 20at 169, 171, 176). 20 120 ECF No. 20at 177–78. 21 121 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); Greer v. Miller, 483 U.S. 756, 765 (1987). 22 122 See Boyde v. California, 494 U.S. 370, 384–85 (1990). 123 Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see also Johnson v. Sublett, 63 F.3d 926, 23 930 (9thCir.1995) (no prejudice from prosecutorial misconduct because it could not have had a substantial impact on the verdict under Brecht). 1 “prosecutor’s conduct was improper,”then, if it was, “whether the improper conduct warrants 2 reversal.”124 As to Melendez’s claim that the State called him a liarand elicited improper 3 testimony from Popp, the state supreme court found that Melendez’s untruths were fair game: 4 As part of Melendez’s closing argument, he sought to comment on why the circumstantial evidence pointing to an intentional shooting 5 was equally consistent with his claim that the shooting had been accidental. Then, in its rebuttal, the State sought to show that 6 Melendez was only now claiming that the shooting was accidental because he had backed himself into such a theory of defense. The 7 State’s method for doing so was to proceed chronologically through Melendez’s 911 call and his custodial interview with 8 Detective Popp, identifying along the way all the “untruth[s]”that Melendez had told. On appeal, Melendez contends that pointing 9 out these “untruth[s]” was akin to calling him a liar, which amounted to prosecutorial misconduct. We disagree. 10 The State’s purpose behind identifying Melendez’s untruths was 11 not to brand him as a liar, but to put Melendez’s claim of an accidental shooting into the appropriate context. Because 12 Melendez made numerous irreconcilable statements in his 911 call and in his custodial interview, the necessary implication was that at 13 least some of those statements were untruthful. Cf. Miller, 121 Nev. at 100, 110 P.3d at 59 (“[O]ther jurisdictions have held that 14 unflattering characterizations of a defendant will not provoke a reversal when such descriptions are supported by the evidence.” 15 (quotations omitted)). 16 Moreover, because much of the evidence regarding Melendez’s intent was based upon the credibility of his and other witnesses’ 17 statements, the State necessarily had to explain why his interview statements were untrue in order to prove its case. See Rowland, 18 118 Nev. at 39, 39 P.3d at 119 (“[W]hen a case involves numerous material witnesses and the outcome depends on which witnesses 19 are telling the truth, reasonable latitude should be given to the prosecutor to argue the credibility of the witness—even if this 20 means occasionally stating in argument that a witness is lying.”). Consequently, the State did not commit prosecutorial misconduct 21 by identifying Melendez’s untruths.4 ___________________________ 22 23 124 Melendez, 2011 WL 3298525, at *4(citing Valdez v. State, 196 P.3d 465, 476 (Nev. 2008)) (internal quotation marks omitted). 1 4 Melendez also argues that the State committed prosecutorial misconduct during its direct examination of Detective Popp by 2 asking Detective Popp if he thought Melendez was lying in his custodial interview. This argument lacks merit and misconstrues 3 the basis for the State’s question. After Melendez’s custodial interview was played for the jury in which Detective Popp could 4 be heard as telling Melendez, “[w]e believe you,” the State asked Detective Popp whether he actually believed Melendez or if this 5 was simply an interview technique to try and stay on Melendez’s good side. In response, Detective Popp testified that this was 6 simply an interview technique, and at no point did he testify that he believed Melendez was lying to him.125 7 8 Reviewed under § 2254(d), the state court’s adjudication of the claim did not “result[] in 9 a decision that was contrary to, or involve[] an unreasonable application of, clearly established 10 Federal law, as determined by the Supreme Court of the United States,”nor did it “result[] in a 11 decision that was based on an unreasonable determination of the facts in light of the evidence 12 presented in the State court proceeding.” Notwithstanding the Nevada Supreme Court’s failure 13 to cite federal law, this court must defer to the state court’s decision if neither its reasoning nor 14 result contradicts U.S. Supreme Court precedent.126 While not permitted to express an opinion 15 about a defendant’s guilt, “a prosecutor is free to voice doubt about the veracity of a defendant’s 16 story.”127 Also, the “untruths”that the prosecutor highlighted were inferences that could be 17 reasonably drawn from the evidence presented at trial.128 18 19 20 125 Id.at *4–5. 21 126 See Early v. Packer, 537 U.S. 3, 8 (2002). 127 Dubria v. Smith, 224 F.3d 995, 1004 (9thCir. 2000) (citing United States v. Sarno, 73 F.3d 22 1470, 1496–97 (9th Cir.1995)). 128 See United States v. Molina, 934 F.2d 1440, 1445 (9thCir. 1991) (prosecutor’s comment that 23 defendant lied on the stand not improper because it could be considered an inference based on the evidence). 1 As to the prosecutor’s questioning of Popp, no Supreme Court precedent speaks directly 2 to whether it is improper for a prosecutor elicit a government agent’s opinion about the veracity 3 ofa defendant’s statement. But the Ninth Circuit held in U.S. v. Sanchezthat it was improper for 4 the prosecutor to directly ask “a law enforcement officer his opinion regarding whether the 5 defendant was untruthful during a police interview.”129
6 Here, the prosecutor’s questioning of Popp was not soexplicit. Coming after a recording 7 of Popp’s interview of Melendez had been played for the jury, the questions were arguablyan 8 attempt to clarify for the jury that Popp’s “we believe you” comments during the interview were 9 merely an interview technique, rather than Popp’s actual opinion. In any case, it was not the type 10 of conduct that so infected the trial with unfairness that the resulting conviction was a denial of 11 due process. The same conclusion applies to the prosecutor’s questions about selective memory. 12 Because thesealleged instances of prosecutorial misconduct did not amount to constitutional 13 error, Ground 2is denied. 14 Certificate of Appealability
15 The right to appeal from the district court’s denial of a federal habeas petition requires a 16 certificate of appealability. To obtain that certificate, the petitioner must make a “substantial 17 showing of the denial of a constitutional right.”130 “Where a district court has rejected the 18 constitutional claims on the merits,” that showing “is straightforward: The petitioner must 19 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional 20 claims debatable or wrong.”131 For procedural rulings, a COA will issue only if reasonable 21 22 129 United States v. Sanchez, 176 F.3d 1214, 1220-21 (9thCir.1999). 130 28 U.S.C. § 2253(c). 23 131 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 1077– 79 (9th Cir. 2000). jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court’s procedural ruling was correct.'*? The court declines to issue a 3|| certificate of appealability for its resolution of any procedural issues or any of Melendez’s 4) habeas claims. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that petitioner’s amended petition for writ of habeas corpus [ECF No. 18] is DENIED. The Clerk of Court is directed to ENTER JUDGMENT 8|| accordingly and CLOSE THIS CASE. 9 A certificate of appealability is denied. 10 Dated: September 23, 2019 as omni oe Oi U.S. District Judge>Jennifer ‘A./Dorsey 12 13 14 15 16 17 18 19 20 21 22 132