Miller v. State of Nevada

• Court: District Court, D. Nevada
• Decided: January 23, 2023
• Docket: 3:19-cv-00673
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CLIFFORD W. MILLER, Case No. 3:19-cv-00673-MMD-CSD

7 Petitioner, ORDER v. 8 KYLE OLSEN,1 et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Clifford W. Miller filed a third amended petition for writ of habeas corpus 13 under 28 U.S.C. § 2254 (ECF No. 29 (“Petition”)). This matter is before the Court for 14 adjudication on the merits of the remaining grounds in the Petition. For the reasons 15 discussed below, the Court denies the Petition and denies Petitioner a certificate of 16 appealability. 17 II. BACKGROUND2 18 A. Conviction and Appeal 19 Petitioner challenges a 2006 judgment of conviction and sentence imposed by the 20 21 1The state corrections department’s inmate locator page indicates that Petitioner 22 is incarcerated at the Northern Nevada Correctional Center. See https://ofdsearch.doc.nv.gov/form.php (retrieved January 2023 under identification 23 number 70907). The department’s website reflects that Fernandies Frazier is the warden of that facility. See https://doc.nv.gov/Facilities/NNCC Facility/ (retrieved January 2023). 24 At the end of this order, the Court directs the Clerk of Court to substitute Petitioner’s current immediate physical custodian, Fernandies Frazier, as Respondent for the prior 25 Respondent Kyle Olsen under Rule 25(d) of the Federal Rules of Civil Procedure.

26 2The Court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or statements of fact in the state court. The Court summarizes the 27 factual assertions solely as background to the issues presented in the case, and it does not summarize all such material. No statement of fact made in describing statements, 28 testimony, or other evidence in the state court constitutes a finding by the Court. Any absence of mention of a specific piece of evidence or category of evidence does not 2 No. 99-4204. Following a 2001 jury trial, Petitioner was found guilty of two counts of 3 murder of the first degree with the use of a deadly weapon. (ECF No. 63-9.) The state 4 court entered a judgment of conviction. (Id.) Petitioner appealed, and the Nevada 5 Supreme Court reversed the judgment of conviction, finding multiple trial errors, including 6 legally incorrect jury instructions, erroneous admission of hearsay evidence, and improper 7 exclusion of Petitioner’s suicide note. (ECF No. 64-17.) The Nevada Supreme Court 8 remanded for a new trial. (Id.) 9 On remand, following a jury trial, Petitioner was found guilty of two counts of 10 murder of the first degree with the use of a deadly weapon. (ECF No. 70-3.) The state 11 court entered a judgment of conviction in November 2006, and sentenced Petitioner to 12 consecutive terms of life without the possibility of parole on both counts of murder of the 13 first degree with equal and consecutive terms of life without the possibility of parole for 14 the use of a deadly weapon. (Id.) The Nevada Supreme Court affirmed the judgment of 15 conviction. (ECF No. 71-16.) 16 1. Facts Underlying Conviction 17 Police responded to shots fired at an apartment complex and found Petitioner lying 18 on the ground outside of the complex, suffering from a self-inflicted gunshot wound to the 19 head. (ECF No. 64-17.) Police found the deceased bodies of Lisa Jenkins Miller, 20 Petitioner’s estranged wife, and Leon Carlson, Lisa’s boyfriend, inside the apartment. (Id.) 21 Lisa was shot in the head, and Leon was shot in the groin and in the head. (Id.) Petitioner 22 survived his suicide attempt and the state court found that he was competent to stand 23 trial. (Id.) 24 On the evening of the incident, Petitioner called his father, told his father that his 25 car had broken down, and asked his father to pick him up. (Id.) Petitioner’s father drove 26 to pick up Petitioner but could not locate Petitioner or his car. (Id.) Petitioner’s father later 27 discovered that his revolver, a .45 Colt handgun, was missing from his home. (Id.) Police 28 2 matching the handgun from Petitioner’s pants pocket. (Id.) 3 2. Petitioner’s Trial Attorneys 4 Attorney Robert Dolan represented Petitioner in the 2001 jury trial. At the 2001 5 trial, the defense argued that Petitioner went to the apartment with the intent to commit 6 suicide. (ECF No. 62-1 at 151-197.) The defense presented evidence related to 7 Petitioner’s mental health, including suicidal ideation, depression, and borderline 8 personality disorder, arguing that Petitioner lacked specific intent under the felony murder 9 theory. (Id.) In addition, the defense argued that the jury should find that Petitioner was 10 provoked, that Petitioner acted in the heat of passion, and that the jury should return a 11 verdict under voluntary manslaughter. (Id. at 184-193.) 12 Following the Nevada Supreme Court’s order for remand, at a status hearing in 13 November 2004, Dolan informed the state court that he was leaving the public defender’s 14 office and that Andrew Myers represented Petitioner. (ECF No. 65-7.) In January 2006, 15 because Myers went on administrative leave, the state court appointed Steven McGuire 16 to represent Petitioner. (ECF No. 65-18.) 17 B. State Post-Conviction Proceedings and Federal Habeas Action 18 Petitioner sought post-conviction relief in a state petition for writ of habeas corpus, 19 which the state court denied after appointment of counsel and an evidentiary hearing. 20 (ECF Nos. 72-22, 74-1.) The Nevada Court of Appeals affirmed the denial of relief. (ECF 21 No. 75-7.) 22 On November 7, 2019, Petitioner initiated this federal habeas proceeding pro se. 23 (ECF No. 1.) The Court appointed counsel and granted leave to amend the petition. (ECF 24 No. 12.) Petitioner filed a first, second, and third amended petition. (ECF Nos. 7, 20, 29.) 25 Respondents moved to dismiss Grounds 1-4 as unexhausted. (ECF No. 39.) The Court 26 deferred consideration of whether Petitioner can demonstrate cause and prejudice under 27 28 2 until the time of merits review. (ECF No. 86.) 3 III. LEGAL STANDARD 4 A. Review under the Antiterrorism and Effective Death Penalty Act 5 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 6 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (AEDPA): 7 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 8 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 9 (1) resulted in a decision that was contrary to, or involved an unreasonable 10 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 11 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 12 13 28 U.S.C. § 2254(d). A state court decision is contrary to established Supreme Court 14 precedent, within the meaning of § 2254(d)(1), “if the state court applies a rule that 15 contradicts the governing law set forth in [Supreme Court] cases” or “if the state court 16 confronts a set of facts that are materially indistinguishable from a decision of [the 17 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. 18 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). 19 A state court decision is an unreasonable application of established Supreme Court 20 precedent under § 2254(d)(1), “if the state court identifies the correct governing legal 21 principle from [the Supreme] Court’s decisions but unreasonably applies that principle 22 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 24 incorrect or erroneous. The state court’s application of clearly established law must be 25 objectively unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 U.S. at 26 409-10). 27 28 3 2 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 3 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 4 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Court has stated 5 that “even a strong case for relief does not mean the state court’s contrary conclusion 6 was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. 7 Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted) 8 (describing the standard as “difficult to meet” and “highly deferential standard for 9 evaluating state-court rulings, which demands that state-court decisions be given the 10 benefit of the doubt”). 11 B. Standard for Evaluation of Ineffective Assistance of Counsel Claims 12 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 13 analysis of claims of ineffective assistance of counsel requiring Petitioner to demonstrate 14 that: (1) the attorney’s “representation fell below an objective standard of 15 reasonableness[;]” and (2) the attorney’s deficient performance prejudiced Petitioner 16 such that “there is a reasonable probability that, but for counsel’s unprofessional errors, 17 the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 18 Courts considering a claim of ineffective assistance of counsel must apply a “strong 19 presumption that counsel’s conduct falls within the wide range of reasonable professional 20 assistance.” Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious 21 that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 22 Amendment.” Id. at 687. Additionally, to establish prejudice under Strickland, it is not 23 enough for Petitioner “to show that the errors had some conceivable effect on the outcome 24 of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 25 [petitioner] of a fair trial, a trial whose result is reliable.” Id. at 687. 26 Where a state district court previously adjudicated the claim of ineffective 27 assistance of counsel under Strickland, establishing the decision was unreasonable is 28 especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court 2 in tandem, review is doubly so. See id. at 105; see also Cheney v. Washington, 614 F.3d 3 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews 4 a state court’s Strickland determination under AEDPA, both AEDPA and Strickland’s 5 deferential standards apply; hence, the Supreme Court’s description of the standard as 6 doubly deferential.”). The Court further clarified, “[w]hen § 2254(d) applies, the question 7 is not whether counsel’s actions were reasonable. The question is whether there is any 8 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 9 562 U.S. at 105. 10 IV. DISCUSSION 11 A. Cause and Prejudice under the Martinez Exception 12 When a petitioner has procedurally defaulted his claims, federal habeas review 13 occurs only in limited circumstances. In Martinez, the United States Supreme Court held 14 that the absence or inadequate assistance of counsel in an initial review collateral 15 proceeding may be relied upon to establish cause excusing the procedural default of a 16 claim of ineffective assistance of trial counsel. 566 U.S. at 9. The Nevada Supreme Court 17 does not recognize Martinez cause as cause to overcome a state procedural bar under 18 Nevada state law. Brown v. McDaniel, 130 Nev. 565, 331 P.3d 867, 875 (Nev. 2014). 19 Thus, a Nevada habeas petitioner who relies upon Martinez—and only Martinez—as a 20 basis for overcoming a state procedural bar on an unexhausted claim can successfully 21 argue that the state courts would hold the claim procedurally barred but that he 22 nonetheless has a potentially viable cause and prejudice argument under federal law that 23 would not be recognized by the state courts when applying the state procedural bars. “[A] 24 procedural default will not bar a federal habeas court from hearing a substantial claim of 25 ineffective assistance at trial if ‘the default results from the ineffective assistance of the 26 prisoner’s counsel in the collateral proceeding.’” Martinez, 566 U.S. at 17. 27 To establish cause and prejudice to excuse the procedural default of a trial-level 28 ineffective assistance of counsel claim under Martinez, a petitioner must show that: (1) 2 absent deficient performance, the result of the post-conviction proceeding would have 3 been different; and (3) the underlying ineffective assistance of trial counsel claim is a 4 substantial one. Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019). Determining 5 whether there was a reasonable probability that the result of the post-conviction 6 proceedings would be different “is necessarily connected to the strength of the argument 7 that trial counsel’s assistance was ineffective.” Id. 8 To show that a claim is “substantial” under Martinez, a petitioner must demonstrate 9 that the underlying ineffectiveness claim has “some merit.” Martinez, 566 U.S. at 14. That 10 is, the petitioner must be able to make at least some showing that trial counsel performed 11 deficiently, and that the deficient performance harmed the defense. See Strickland, 466 12 U.S. at 695-96. When evaluating counsel’s choices, the Court must make “every effort … 13 to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 14 counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at 15 the time.” Id. at 689. “[C]ounsel should be strongly presumed to have rendered adequate 16 assistance and made all significant decisions in the exercise of reasonable professional 17 judgment.” Pinholster, 563 U.S. at 189. Here, Petitioner advances only Martinez as a 18 basis for excusing default for Grounds 2-4. 19 1. Ground 2 20 a. Background Information 21 In Ground 2, Petitioner alleges that trial counsel rendered ineffective assistance 22 for failure to request appointment of alternate counsel. (ECF No. 29 at 9-13.) Petitioner 23 sent a letter to the state court regarding McGuire. (Id.) The state court construed 24 Petitioner’s letter as a motion for new counsel and conducted a hearing. (ECF No. 65- 25 20.) Petitioner informed the state court that McGuire did not meet with him, did not 26 communicate with him, and that McGuire stated that a conviction for first degree murder 27 would be “a win” for McGuire. (ECF No. 29 at 9.) After questioning Petitioner and McGuire, 28 the state court denied Petitioner’s motion for new counsel. (ECF No. 65-20 at 48-49.) 2 communications during the state court hearing on Petitioner’s motion for new counsel, 3 and did not advocate for Petitioner. (ECF No. 109 at 15.) Petitioner argues that prejudice 4 should be presumed under Cuyler v. Sullivan, 446 U.S. 335 (1980). He asserts that 5 McGuire had an actual conflict of interest and should have requested alternate counsel 6 to represent Petitioner during the hearing on his motion for new counsel. (Id. at 16.) 7 Petitioner further argues, in the alternative, that as a result of McGuire’s deficient 8 performance, Petitioner was represented by an attorney who failed to zealously advocate 9 for him and failed to present a defense at trial. (Id. at 18-21.) 10 b. Martinez does not apply to Ground 2. 11 The Court finds that Ground 2 is not substantial within the meaning of Martinez. 12 566 U.S. at 14. Effective assistance of counsel “includes a right to conflict-free 13 counsel.” United States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995). To establish a 14 violation of the Sixth Amendment, a defendant who raised no objection at trial must 15 demonstrate that an actual conflict of interest adversely affected his lawyer’s 16 performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). If counsel actively represents 17 multiple defendants with conflicting interests, such that an actual conflict adversely affects 18 counsel’s performance, prejudice is presumed. See Sullivan, 446 U.S. at 349-50. A trial 19 judge is required to order a substitution of counsel if, after a hearing, the defendant has 20 shown that there is a breakdown in the attorney-client relationship or that “an 21 actual conflict of interest existed.” Wood v. Georgia, 450 U.S. 261, 273-74 (1981). 22 Petitioner relies on United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996), arguing 23 that McGuire’s performance was affected during the state court hearing. (ECF No. 109 at 24 16-17.) In Del Muro, the Ninth Circuit found a Sixth Amendment violation where trial 25 counsel was required to argue his own ineffectiveness at a hearing on a motion for new 26 trial creating an inherent conflict of interest. 87 F.3d at 1080. Here, however, McGuire 27 was not required to prove his own ineffectiveness at a motion for new trial. The state court 28 conducted a hearing on Petitioner’s motion for new counsel and found that McGuire was 2 court did not find a conflict warranting appointment of new counsel. (Id.) There was no 3 actual, irreconcilable conflict and the state court did not require McGuire to argue his own 4 ineffectiveness as in Del Muro. 5 Petitioner fails to demonstrate that McGuire had an actual conflict of interest that 6 adversely affected his performance and the circumstances do not warrant a presumption 7 of prejudice. Petitioner further fails to demonstrate that had McGuire not been adversely 8 impacted by the asserted conflict, the outcome of the trial would have been different. 9 Accordingly, the Court determines that Ground 2 is without merit. Petitioner’s post- 10 conviction counsel was not ineffective for not asserting this claim. Petitioner does not 11 demonstrate cause and prejudice relative to the procedural default. The Court denies 12 Ground 2. 13 2. Ground 3 14 a. Background Information 15 In Ground 3, Petitioner alleges trial counsel rendered ineffective assistance for 16 failure to present evidence regarding Petitioner’s memory loss as a result of shooting 17 himself in the head. (ECF No. 29 at 13-15.) At trial, Petitioner testified as to his memory 18 loss and false memories resulting from the gunshot wound to his head. (Id.) The 19 prosecution impeached Petitioner’s credibility based on his alleged memory loss, false 20 memories, and recovered memories. (Id.) Petitioner alleges that trial counsel was 21 deficient for failing to present medical evidence regarding memory loss to corroborate 22 Petitioner’s testimony. (ECF No. 109 at 27-28.) Petitioner further alleges that had trial 23 counsel presented medical evidence corroborating Petitioner’s testimony, the outcome of 24 the trial would have been different because Petitioner was the sole witness for the 25 defense. (Id.) 26 Respondents argue that counsel strategically chose to avoid evidence regarding 27 Petitioner’s injury and/or suicide attempt to avoid the introduction of more damaging 28 evidence related to homicidal thoughts recorded in Petitioner’s medical military records. 2 prejudice because the result of the proceeding would not have been different had counsel 3 introduced medical evidence corroborating Petitioner’s memory loss. (Id. at 21.) 4 b. Martinez does not apply to Ground 3. 5 The Court finds that Ground 3 is not substantial, and that Martinez does not apply 6 to Ground 3. Defense counsel has a “duty to make reasonable investigations or to make 7 a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 8 U.S. at 691. In an ineffective assistance of counsel case, “a particular decision not to 9 investigate must be directly assessed for reasonableness in all the circumstances, 10 applying a heavy measure of deference to counsel’s judgments.” Id. Furthermore, 11 “strategic choices made after thorough investigation of law and facts relevant to plausible 12 options are virtually unchallengeable.” Id. at 690. “[I]neffective assistance claims based 13 on a duty to investigate must be considered in light of the strength of the government's 14 case.” Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir.), opinion amended on denial of 15 reh’g, 253 F.3d 1150 (9th Cir. 2001). 16 Petitioner fails to demonstrate that had counsel presented medical evidence 17 regarding Petitioner’s memory loss that the outcome of the trial would have been different. 18 At a competency hearing in April 2000, Dr. Globus testified that when an individual suffers 19 from Petitioner’s type of gunshot wound, “there is often amnesia,” and “very poor memory 20 of the events that led up to the shooting and immediately following the incident.” (ECF 41- 21 1 at 29-30.) Dr. Globus, however, even testified as to Petitioner’s memory loss at the 2001 22 trial and a jury nonetheless found Petitioner committed first-degree murder. (ECF No. 58- 23 1 at 210.) Further, the evidence against Petitioner was strong and Petitioner has not made 24 a persuasive showing that counsel’s investigative failure was “unreasonable under 25 prevailing professional norms.” Strickland, 466 U.S. at 688. 26 At trial, the prosecution presented evidence that Petitioner told a witness that he 27 intended to kill Lisa, that Petitioner asked a witness to help beat up Leon, that Petitioner 28 stated that “if [he] can’t have [Lisa], no one will,” that Lisa asked for a divorce, and that 2 evidence demonstrating premeditation and the timeline of events on the night of the 3 incident, including that a witness observed Petitioner drive by their residence while Lisa 4 and Leon were there, that Petitioner purchased a soda from a store down the street from 5 Lisa’s apartment, and that Petitioner planned a ruse to retrieve his father’s handgun. (ECF 6 No. 69-2 at 177.) In light of the evidence against Petitioner, there is no reasonable 7 probability that medical evidence regarding Petitioner’s memory loss would have changed 8 the outcome of the trial. 9 Because Petitioner’s underlying ineffective assistance of counsel claim fails under 10 Strickland, Petitioner cannot meet the second prong of the Martinez test, which requires 11 a petitioner to show a reasonable probability that the result of the post-conviction 12 proceedings would have been different absent post-conviction counsel’s deficient 13 performance. See Ramirez, 937 F.3d at 1242. Because Petitioner failed to satisfy all three 14 prongs of the Martinez test, he does not show cause and prejudice to excuse default of 15 this claim. The Court therefore denies Ground 3. 16 3. Ground 4 17 a. Background Information 18 In Ground 4, Petitioner alleges counsel rendered ineffective assistance for failure 19 to investigate Petitioner’s mental health and failure to present a theory of defense. (ECF 20 No. 29 at 15-20.) Petitioner asserts that he has a history of depression and suicidal 21 ideation. (Id.) Counsel failed to present expert testimony related to his mental health 22 despite the use of experts in his 2001 trial. (Id.) He further asserts that counsel failed to 23 present a theory of defense and that the outcome of the trial would have been different 24 had counsel investigated and presented a defense. (Id.) 25 Respondents argue that Martinez does not apply to Ground 4 because Petitioner 26 initially raised this claim in the state court and the claim was not defaulted in the initial 27 review collateral proceeding. (ECF No. 102 at 10-11.) In his reply, Petitioner asserts that 28 he did not present Ground 4 to the state district court because Ground 4 of his federal 2 the state court. (ECF No. 109 at 30.) The Court agrees with Petitioner that Ground 4 was 3 not presented to the state court because the factual allegations in the federal claim 4 fundamentally alter the claim that was considered by the state court. In its November 9, 5 2021 order, the Court determined that Ground 4 was technically exhausted, but 6 procedurally defaulted and subject to dismissal as procedurally defaulted unless 7 Petitioner can show cause and prejudice under Martinez. (ECF No. 86.) Petitioner does 8 not do so. 9 b. Martinez does not apply to Ground 4. 10 Petitioner’s assertion that counsel failed to investigate Petitioner’s mental health 11 and failed to present a theory of defense is belied by the record. The defense filed a 12 motion in limine to preclude the state from offering evidence of Petitioner’s military records 13 indicating he had ideas of using an axe handle against his platoon leader in 1992. (ECF 14 No. 66-4.) During the hearing on the motion in limine, the parties provided as follows to 15 the state court: 16 McGuire: I think that unless we do open the door that the evidence is not admissible. And my reading of the State’s response is that they appear to 17 agree with that position. Our, we do not intend to open that door. We do expect that the evidence will show that my client went to the scene of the 18 shooting that night and did in fact shoot himself in the head. But we do not intend to introduce evidence that he was of suicidal temperament or 19 character. And with that restraint on our part I believe the State appears to recognize that if that door stays closed they don’t get to bring in the evidence 20 of the prior incident with the thoughts about using an axe handle.

21 . . .

22 The State: Judge I think counsel and I have the same understanding. The last time it was – the defense counsel asked a witness in the case, the 23 State’s case in chief, about isn’t it true he was suicidal in the Army. And once that happened it was what made that evidence suddenly admissible. 24 So, if he is to avoid any characterization of his prior suicide or suicidal tendencies as well as he doesn’t put forward evidence that he’s, has a 25 character for nonviolence, which I can’t imagine that he’s going to put forward in the case, then I don’t anticipate the evidence becoming relevant. 26 So long as they don’t open any door, we’re not intending to offer it.

27 (ECF No. 66-9 at 7-8.) 28 2 “[S]trategic choices made after thorough investigation of law and facts relevant to 3 plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. As evidenced 4 by the record, counsel strategically avoided presenting evidence regarding Petitioner’s 5 mental health to avoid more damaging evidence demonstrating that Petitioner had 6 homicidal and/or violent ideation. In addition, counsel presented a theory of defense that 7 Petitioner went to Lisa’s apartment with the intent to kill himself, not Lisa or Leon, based 8 on evidence that Petitioner shot himself and his suicide note. (ECF No. 69-2 at 189.) The 9 defense also argued that the State failed to meet its burden of proof as to first-degree 10 murder. (Id. at 192-93.) Petitioner fails to overcome the strong presumption that his 11 counsel’s conduct “falls within the wide range of reasonable professional assistance.” 12 Strickland, 466 U.S. 689. Further, in light of the strong evidence presented against 13 Petitioner, he fails to demonstrate that had counsel presented evidence related to 14 Petitioner’s mental health that the outcome of the trial would have been different. 15 Because Petitioner’s underlying ineffective assistance of counsel claim fails under 16 Strickland, Petitioner cannot meet the second prong of the Martinez test, which requires 17 a petitioner to show a reasonable probability that the result of the post-conviction 18 proceedings would have been different absent post-conviction counsel’s deficient 19 performance. See Ramirez, 937 F.3d at 1242. Petitioner fails to show cause and prejudice 20 to excuse default of this claim. The Court therefore denies Ground 4. 21 B. Ground 5 22 1. Background Information 23 In Ground 5, Petitioner alleges counsel rendered ineffective assistance for failure 24 to introduce his mental health history as mitigation evidence during the penalty hearing. 25 (ECF No. 29 at 21-22.) He asserts that due to counsel’s deficient performance, the jury 26 did not know about Petitioner’s history of depression and suicidal ideation, Petitioner’s 27 family history of depression, or that Petitioner was on medication on the day of the 28 2 mitigating evidence, he would have likely received a lower sentence. (Id.) 3 2. State Court Determination 4 The Nevada Court of Appeals held: 5 [Petitioner] claims trial counsel was ineffective for failing to introduce evidence of his mental health problems and the medications he was taking 6 to treat these problems as mitigating evidence at sentencing. The district court found trial counsel’s decision not to introduce evidence of [Petitioner’s] 7 mental health problems and family history of suicide and depression during the penalty phase of trial was a sound trial strategy because it precluded 8 the State from introducing harmful evidence of his previous suicidal and homicidal thoughts and a prior bad act of domestic violence. The district 9 court further found that [Petitioner] failed to demonstrate a reasonable likelihood that the results of the penalty phase would have been different if 10 this evidence had been presented. We conclude the district court’s findings are supported by the record, [Petitioner] failed to meet his burden to prove 11 ineffective assistance of counsel, and the district court did not err by rejecting this claim because trial counsel’s strategic decision was 12 unchallengeable under the circumstances of this case. See McNelton v. State, 115 Nev. 396, 410, 990 P.2d 1263, 1273 (1999) (“The decision as to 13 what mitigating evidence to present [is] a tactical [decision].”).

14 (ECF No. 75-7 at 4.) 15 3. Conclusion 16 The Nevada Court of Appeals’ ruling was neither contrary to nor an objectively 17 unreasonable application of clearly established law as determined by the United States 18 Supreme Court. As stated by the Nevada Court of Appeals, counsel adopted an 19 objectively reasonable trial strategy to preclude introduction of harmful evidence that 20 Petitioner had previous homicidal thoughts and a prior bad act of domestic violence at 21 sentencing. Counsel chose to emphasize other mitigation factors and argued that 22 Petitioner was not “the most heinous killer,” because he did not seek financial gain, did 23 not kill because of racial or religious hatred, did not torture, and did not kill for “thrills or 24 kicks.” (ECF No. 70-2 at 110-11.) “[W]here a defendant’s psychiatric history is both 25 mitigating and incriminating, trial counsel is best positioned to determine how to 26 incorporate a diagnosis into the defense.” Daire v. Lattimore, 818 F.3d 454, 465 (9th Cir. 27 2016); Wong v. Belmontes, 558 U.S. 15, 18 (2009). Petitioner has not established that 28 2 assistance.” Strickland, 466 U.S. at 690. 3 Further, the Nevada appellate court reasonably determined that Petitioner failed 4 to demonstrate prejudice. At sentencing, the State presented testimony from Sheila 5 Nuttall, Lisa’s friend, that Lisa separated from Petitioner on multiple occasions, that Lisa 6 told Nuttall that Petitioner was physically violent, and that Nuttall observed bruises on 7 Lisa’s arms. (ECF No. 70-2 at 54-56.) A child that Lisa babysat also testified that Petitioner 8 scared her when Petitioner hit Lisa. (Id. at 65-70.) The state also presented testimony 9 from Leon’s family and friends regarding the impact of Leon’s death. (Id. at 81-97.) 10 Accordingly, it was not unreasonable for the Nevada appellate court to conclude that 11 Petitioner failed to demonstrate a reasonable likelihood that the results of the penalty 12 phase would have been different if counsel presented further mitigation evidence of 13 Petitioner’s mental health history. Petitioner is therefore denied federal habeas relief as 14 to Ground 5. 15 C. Ground 6 16 1. Background Information 17 In Ground 6, Petitioner alleges he was denied due process and his Sixth 18 Amendment right to counsel when the trial court did not remove McGuire and appoint 19 new counsel to represent Petitioner. (ECF No. 29 at 22-24.) Petitioner asserts that he 20 made a timely request for new counsel after McGuire commented that a murder 21 conviction would be “a win,” and that the state court did not adequately inquire into the 22 issue. (ECF No. 109 at 51.) Further, he could not demonstrate a genuine conflict to the 23 state court because he was not appointed conflict-free counsel at the motion hearing. (Id.) 24 2. State Court Determination 25 On direct appeal, the Nevada Supreme Court held: 26 [Petitioner] contends that the district court abused its discretion when it (1) did not provide him with an adequate hearing on his request for new 27 counsel, (2) did not provide him with new counsel, (3) allowed the State to appear and present evidence during his hearing to substitute counsel. We 28 disagree because the district court’s hearings adequately addressed [Petitioner’s] concerns. This court reviews a district court’s denial of a motion to substitute counsel 2 for abuse of discretion. Garcia v. State, 121 Nev. 327, 337, 113 P.3d 836, 843 (2005). In Garcia, this court noted that “a defendant in a criminal trial 3 does not have unlimited right to the substitution of counsel.” Id. at 337, 113 P.3d at 842. To demonstrate a Sixth Amendment violation, a defendant 4 must show sufficient cause. Id. When this court reviews a denial of a motion to substitute counsel, it considers the following three factors: “(1) the extent 5 of the conflict between the defendant and his or her counsel, (2) the timeliness of the motion and the extent to which it will result in 6 inconvenience or delay, and (3) the adequacy of the court’s inquiry into the defendant’s complaints.” Id. at 337, 113 P.3d at 842-43. 7 With reference to [Petitioner’s] first motion to dismiss counsel, the Garcia 8 factors support the district court’s denial. As to the first Garcia factor, [Petitioner] did not allege any conflict with his present counsel, Steven 9 McGuire, and instead simply stated that he preferred his former attorney, Andrew Myers. The fact that [Petitioner] wanted the public defender 10 assigned to his first trial because the two had established rapport was not an adequate ground for substituting counsel. Regarding the second factor, 11 the record reveals that [Petitioner] moved to substitute counsel approximately six months before the trial was scheduled, which does not 12 suggest intent to delay proceedings. Under the third factor, the district court’s inquiry into [Petitioner’s] complaints about McGuire was adequate 13 because the district court canvassed [Petitioner] and inquired into retaining Myers for [Petitioner]. Under these circumstances, we conclude that the 14 district court did not err when it denied [Petitioner’s] first motion to dismiss counsel. 15 As to [Petitioner’s] second motion to dismiss counsel, the district court did 16 not abuse its discretion under the three Garcia factors. First, there was no genuine conflict, despite McGuire’s inappropriate comment, because 17 [Petitioner] and McGuire met on several occasions to discuss the case. Second, [Petitioner] made his motion two months before the upcoming trial, 18 causing an unreasonable delay. Third, the district court adequately inquired into [Petitioner’s] complaints by questioning both [Petitioner] and McGuire. 19 In addition, the court correctly stated that [Petitioner] could hire an attorney of his choice, but he could not personally pick the public defender assigned 20 to the case. Young v. State, 120 Nev. 963, 968-69, 102 P.3d 572, 576 (2004). 21 We also reject [Petitioner’s] argument that the district court should have 22 conducted an in camera proceeding outside of the State’s presence. The district court did not need to hold an in camera proceeding because 23 McGuire directly and adequately answered the court’s questions, met with [Petitioner] multiple times to discuss trial preparation, and agreed to attempt 24 to resolve the conflict in due course. See Garcia, 121 Nev. 339, 113 P.3d at 844 (concluding that the district court did not abuse its discretion when it 25 did not conduct an in camera inquiry into the defendant’s motion for substitution of counsel because the defendant’s attorney directly addressed 26 the court on the motion and agreed to resolve the issues causing the purported conflict). Accordingly, we conclude that the district court did not 27 err when it denied [Petitioner’s] motions to substitute counsel.

28 (ECF No. 21-2 at 3-5.) 2 The Nevada Supreme Court’s ruling was neither contrary to nor an objectively 3 unreasonable application of clearly established law as determined by the United States 4 Supreme Court. Indigent individuals have a Sixth Amendment right to representation by 5 an attorney who: (1) functions in the role of an active advocate, Entsminger v. State of 6 Iowa, 386 U.S. 748, 751 (1967); (2) is free of actual conflicts of interest, Sullivan, 446 7 U.S. at 350; and (3) provides effective assistance at trial, Strickland, 466 U.S. at 688. 8 Further, the Sixth Amendment guarantees effective assistance of counsel, but not a 9 “meaningful relationship” between an accused and his counsel. Morris v. Slappy, 461 10 U.S. 1, 14 (1983). 11 The Ninth Circuit has ruled that a trial court’s denial of a request for substitution of 12 counsel can violate a defendant’s constitutional right to effective assistance of counsel if 13 the defendant and his attorney were embroiled in an “irreconcilable conflict” which 14 resulted in a total lack of communication preventing an adequate defense. Hudson v. 15 Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983). The Ninth 16 Circuit has identified three factors to be considered when determining whether an 17 attorney/client conflict rises to the level of intolerably irreconcilable: (1) the extent of the 18 conflict; (2) the adequacy of the inquiry by the trial court; and (3) the timeliness of the 19 motion to substitute counsel. Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007). The 20 ultimate inquiry is whether the petitioner’s Sixth Amendment right to counsel was violated 21 by the denial of the substitution motion. Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 22 2000). 23 Here, Petitioner has not identified a United States Supreme Court decision that 24 clearly establishes that the failure to grant a motion for substitute counsel due to a conflict 25 as alleged by Petitioner violates his Sixth Amendment right to counsel. Where the 26 Supreme Court has not “squarely established” a legal rule that governs a particular claim, 27 it cannot be said that a state court’s decision unreasonably applied federal law when it 28 2 Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 (2006). 3 Petitioner fails to demonstrate that the Nevada Supreme Court’s ruling was 4 objectively unreasonable. The Nevada appellate court reasonably concluded that there 5 was no genuine conflict between Petitioner and his counsel and that the state court 6 properly denied the motion to substitute. The Nevada Supreme Court’s determination is 7 supported by the record and is not objectively unreasonable. Accordingly, Petitioner fails 8 to demonstrate that the Nevada Supreme Court’s rejection of this claim was contrary to, 9 or an objectively unreasonably application of clearly established federal law. Petitioner is 10 therefore denied federal habeas relief as to Ground 6. 11 V. CERTIFICATE OF APPEALABILITY 12 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section 13 2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). 14 Therefore, the Court has sua sponte evaluated the claims within the petition for suitability 15 for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 16 864-65 (9th Cir. 2002). Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the 17 petitioner “has made a substantial showing of the denial of a constitutional right.” With 18 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 19 jurists would find the district court’s assessment of the constitutional claims debatable or 20 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 21 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 22 could debate: (1) whether the petition states a valid claim of the denial of a constitutional 23 right; and (2) whether this Court’s procedural ruling was correct. Id. 24 Applying these standards, this Court finds that a certificate of appealability is 25 unwarranted. 26 VI. CONCLUSION 27 It is therefore ordered that Petitioner Clifford W. Miller’s third amended petition for 28 writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 29) is denied. 1 It is further ordered that a certificate of appealability is denied. 2 The Clerk of Court is directed to substitute Fernandies Frazier for Respondent Kyle 3 || Olsen, enter judgment accordingly, and close this case. 4 DATED THIS 23" Day of January 2023.

6 me MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19