3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 DONALD ALVA OLIVER, Case No. 2:17-cv-03008-MMD-DJA
7 Petitioner, ORDER v.
8 WILLIAM GITTERE,1 et al.,
9 Respondents.
10 11 I. SUMMARY 12 Pro se Petitioner Donald Alva Oliver, who is serving an aggregate sentence of 12 13 to 30 years after being found guilty of various charges stemming from two robberies, filed 14 a petition for writ of habeas corpus under 28 U.S.C. § 2254. (See ECF No. 13-57.) This 15 matter is before the Court for adjudication of the merits of the remaining grounds in 16 Oliver’s petition, which allege that the prosecution failed to turn over exculpatory evidence 17 and the charges should have been severed. (ECF No. 7 (“Petition”).) For the reasons 18 discussed below, the Court denies the Petition and a Certificate of Appealability. 19 II. BACKGROUND2 20 On June 27, 2012, around 7:00 p.m., George Williams went to the Village at Karen 21 apartment complex in Las Vegas, Nevada “to meet two girls . . . to drink and smoke weed.” 22 (ECF No. 13-36 at 31, 35-36.) After parking in the complex’s parking lot, Williams spoke 23 1The state corrections department’s inmate locator page states that Oliver is 24 currently incarcerated at Ely State Prison. William Gittere is the warden for that facility. At the end of this order, the Clerk of Court is directed to substitute Gittere as a Respondent 25 for the prior Respondent Brian Williams under Rule 25(d) of the Federal Rules of Civil 26 Procedure. 2The Court makes no credibility findings or other factual findings regarding the truth 27 or falsity of this evidence from the state court. The Court’s summary is merely a backdrop 28 to its consideration of issues presented in the case. Any absence of mention of a specific 1 with one of the women through his vehicle’s window. (Id. at 41.) Following that short 2 conversation, Oliver “approached [the] driver’s side . . . with a gun telling [Williams] to get 3 out [of] the car.” (Id.) Williams complied. (Id. at 43.) While Williams was lying on the ground 4 with Oliver pointing a gun at his head, “a white Tahoe [SUV] pulled directly in front of” 5 Williams’ vehicle, blocking it in the parking spot, and a man exited the vehicle and started 6 searching William’s vehicle. (Id. at 45-46.) Oliver then handed the gun to the other man 7 and started searching William’s vehicle. (Id. at 47.) After taking William’s car keys, house 8 key, cell phone, wallet, heirloom ring, and hat, Oliver and the other man entered the SUV 9 and drove away. (Id. at 51, 57.) 10 Williams identified Oliver from a photographic lineup but was unable to identify the 11 second robber. (ECF No. 13-39 at 112, 115.) Oliver’s right palm print was found at the 12 crime scene. (ECF No. 13-40 at 63.) Oliver pawned William’s heirloom ring shortly after 13 the robbery, but it was recovered by the Las Vegas Metropolitan Police Department 14 (“LVMPD”) and returned to Williams. (ECF Nos. 13-39 at 116; 13-40 at 29.) 15 Two weeks later, on July 10, 2012, S.S., who was 16 years old, was with Oliver at 16 S.S.’s apartment in Las Vegas, Nevada. (ECF No. 13-40 at 79, 81.) S.S. told Oliver that 17 he was planning to sell Belinda Kappert some prescription painkillers. (Id. at 84-85.) Oliver 18 told S.S. that he was going to rob Kappert. (Id. at 85.) Oliver later returned with “[m]oney 19 and pills” that Oliver indicated he obtained from Kappert. (Id. at 86-87.) 20 Kappert testified that she was in her vehicle in the apartment complex’s parking lot 21 waiting to purchase painkillers when Oliver entered her vehicle from the front passenger 22 door and another man entered her backseat and started “grabbing everything that [she] 23 had out.” (ECF Nos. 13-40 at 98; 13-41 at 3, 5.) Oliver and Kappert fought over Kappert’s 24 purse, but after Kappert was hit in the head, she let her purse go, and Oliver and the other 25 man exited the vehicle and ran away. (ECF No. 13-41 at 3-4.) Kappert picked Oliver from 26 a photographic lineup but testified that she was unable to identify the second robber. (Id. 27 at 15-16; ECF No. 13-44 at 43-44.) 28 /// 1 The jury found Donald Oliver guilty of two counts of conspiracy to commit robbery, 2 robbery with the use of a deadly weapon, two counts of burglary, robbery, and battery 3 with the intent to commit robbery. (ECF No. 13-57.) Oliver’s challenge to his conviction 4 was denied on direct appeal. (ECF No. 14-5.) 5 III. LEGAL STANDARD 6 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 7 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):
8 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect 9 to any claim that was adjudicated on the merits in State court proceedings 10 unless the adjudication of the claim --
11 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 12 determined by the Supreme Court of the United States; or
13 (2) resulted in a decision that was based on an unreasonable 14 determination of the facts in light of the evidence presented in the State court proceeding. 15 16 A state court decision is contrary to clearly established United States Supreme Court 17 precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that 18 contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state 19 court confronts a set of facts that are materially indistinguishable from a decision of [the 20 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 21 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 22 court decision is an unreasonable application of clearly established Supreme Court 23 precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the 24 correct governing legal principle from [the Supreme] Court’s decisions but unreasonably 25 applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 26 U.S. at 413). “The ‘unreasonable application’ clause requires the state court decision to 27 be more than incorrect or erroneous. The state court’s application of clearly established 28 /// 1 law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal 2 citation omitted). 3 The Supreme Court has instructed that “[a] state court’s determination that a claim 4 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 5 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 6 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 7 has stated “that even a strong case for relief does not mean the state court’s contrary 8 conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen 9 v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” 10 and “highly deferential standard for evaluating state-court rulings, which demands that 11 state-court decisions be given the benefit of the doubt” (internal quotation marks and 12 citations omitted)). 13 IV. DISCUSSION 14 A. Ground 1—alleged Brady violation 15 In the remaining portion of Ground 1, Oliver alleges that his Fifth and Fourteenth 16 Amendment rights to due process were violated because the State of Nevada failed to 17 disclose S.S.’s law enforcement interview and Kappert’s identification of the second 18 robber.3 (ECF No. 7 at 3.) 19 1. Background Information 20 Prior to trial, Oliver moved to compel the disclosure of exculpatory evidence. (ECF 21 No. 13-19.) Oliver specifically requested “[c]olor copies of the photo-lineups” and “any 22 and all statements made by any State witness, or any other person, at any time that [were] 23 in any manner inconsistent with the written and/or recorded statements previously 24 provided to the defense.” (Id. at 10.) The State opposed, responding in part, that it would 25 provide copies of the photo-lineups and had provided copies of witness statements and 26 reports. (ECF No. 13-21 at 6-7.) At a calendar call, Oliver’s counsel reported that she had 27
28 3This Court previously found that the portion of Ground 1 alleging judicial partiality 1 reviewed the discovery and “in talking with [the prosecutor], [she] th[ought] he was able 2 to provide everything that [she had] requested.” (ECF No. 13-26 at 3.) 3 On the first morning of trial, a Monday, Oliver’s counsel told the state district court 4 that she “received a telephone call from the district attorney’s office” on “Friday at about 5 4:30 in the afternoon” indicating that the prosecutor learned from a detective that S.S. 6 “had actually made a full taped interview” that was not disclosed to the defense. (ECF No. 7 13-31 at 6.) Oliver’s counsel moved to exclude S.S.’s testimony and statement because 8 “the testimony and th[e] information that[ was] contained in the voluntary statement [was] 9 significantly different than what he initially told the police on the night of one of these 10 incidents.” (Id. at 6-7.) 11 The prosecutor responded that he did not learn of the statement until he “had 12 pretrialed [sic] one of [the] officers,” but “[a]s soon as [he] learned of this statement, [he] 13 called [Oliver’s counsel] and told her about it.” (Id. at 7.) The prosecutor also argued that 14 the statement was not exculpatory, and S.S. had been properly noticed as a witness. (Id.) 15 Oliver’s counsel rebutted:
16 My concern is I - - I do believe that it’s potentially exculpatory. He 17 does, in the statement, just to give the Court a brief - - put some context on it. This witness indicates that he would call individuals to buy drugs. And 18 then when they would come, he would contact my client and others to let them know that there was a potential robbery victim. That’s his statement. 19 There was also a police report that was attached because at one point he was arrested. 20
21 My concern is, you know, he’s a juvenile. Because I received this Friday afternoon, I haven’t been able to obtain certified copies or get 22 juvenile records. First of all, it’s not like you can just go over and order juvenile records or get any of the outcome or what the - - you know, any of 23 what happened in the juvenile court related to this case because he also was charged and pled to a conspiracy robbery is my understanding from 24 what the district attorney has told me. But I don’t have any of the details of 25 what the conditions or if he was on probation, what those kind of things are in order to impeach him when he does testify if the Court was to allow it. 26 So I think there are definitely some things. You know, he is possibly 27 a suspect I would be able to point out and say, he’s just trying to cover his own skin and that’s why he’s testifying and blaming my client in this 28 situation. So those - - those are some of the, you know, things that I think 1 for the defense why it’s exculpatory and why I think it should be precluded because I haven’t had the opportunity to be able to do that investigation. 2 3 (Id. at 8-9.) The state district court excluded S.S.’s interview statement but allowed S.S. 4 to testify. (Id. at 10.) 5 On the fourth day of trial, during cross-examination of Officer Corie Rapp of the 6 LVMPD, Oliver’s counsel asked Rapp whether Belinda Kappert was shown any 7 photographic lineups other than the one in which she identified Oliver. (ECF No. 13-44 at 8 53.) Rapp indicated that he had and that Kappert had identified the second robber. (Id.) 9 Oliver’s counsel moved to dismiss the charges against Oliver or, alternatively, for 10 a mistrial, explaining that she could have used this information to impeach Kappert. (ECF 11 No. 13-44 at 58–59, 64.) Oliver’s counsel elaborated: “[Kappert] testified at a grand jury, 12 at a preliminary hearing, and [at the trial], all under oath, that she was not able to identify 13 the person in the back[seat]. And now we’re hearing for the first time she’s circled 14 someone.” (Id. at 59.) The prosecutor argued that the evidence was not exculpatory 15 because it “ha[d] nothing to do with” Oliver, whom Kappert identified before the second 16 lineup. (Id. at 60-61.) Oliver’s counsel rebutted that the evidence was exculpatory as 17 impeachment evidence because Kappert’s credibility and identifications were crucial and 18 having this information may have “influence[d] the way that [she] proceeded with cross- 19 examining [Kappert] and perhaps presenting [the] entire defense in this case.” (Id. at 63.) 20 The state district court recessed and then explained the basis of its decision to 21 deny Oliver’s counsel’s request:
22 Since I don’t do lots of criminal trials, I wanted to check with others 23 that have more experience to decide if my decision in the case was consistent with what other criminal judges might do. So that being said, I 24 agree that the information probably should have been turned over. I don’t know that it’s a Brady violation, because I don’t know that it’s exculpatory 25 as it relates to your client. I do understand the argument that it may have changed the way that you presented your case, at least with regard to 26 Belinda . . . Kappert. So I’m going to deny your request for a mistrial or 27 dismissal. But if you would want to recall Ms. Kappert, or if you want to call her in your case, if you want to subpoena her for tomorrow, so that you can 28 additionally cross-examine her on the inconsistencies, I’m okay with that. 1 (ECF No. 13-44 at 64–65.) 2 Oliver’s counsel declined the option to recall Kappert. (ECF No. 13-44 at 66.) 3 2. Standard for a Brady claim 4 “[T]he suppression by the prosecutor of evidence favorable to an accused upon 5 request violates due process where the evidence is material either to guilt or to 6 punishment irrespective of the good faith or bad faith of the prosecution.” Brady v. 7 Maryland, 373 U.S. 83, 87 (1963). Because a witness’s “‘reliability . . . may well be 8 determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls 9 within [the Brady] rule.” Giglio v. United States, 405 U.S. 150, 154 (1972). “There are 10 three components of a true Brady violation: The evidence at issue must be favorable to 11 the accused, either because it is exculpatory, or because it is impeaching; that evidence 12 must have been suppressed by the State, either willfully or inadvertently; and prejudice 13 must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 14 The materiality of the evidence that has been suppressed is assessed to determine 15 whether prejudice exists. See Hovey v. Ayers, 458 F.3d 892, 916 (9th Cir. 2006). 16 Evidence is material “if there is a reasonable probability that, had the evidence been 17 disclosed to the defense, the result of the proceeding would have been different.” United 18 States v. Bagley, 473 U.S. 667, 682 (1985). “The question is not whether the defendant 19 would more likely than not have received a different verdict with the evidence, but whether 20 in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of 21 confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Accordingly, “[a] ‘reasonable 22 probability’ of a different result is . . . shown when the government’s evidentiary 23 suppression ‘undermines confidence in the outcome of the trial.’” Id. (quoting Bagley, 473 24 U.S. at 678). 25 3. State court determination 26 In affirming Oliver’s judgment of conviction, the Nevada Supreme Court held:
27 First, appellant Donald Alva Oliver contends that the district court 28 erred by denying his oral motion to dismiss or, alternatively, for a mistrial, 1 tmo ottriioanl. aSfeteer Bthrea dSy tavt.e M’sa friynlaaln wd,i tn3e7s3s U, O.Sf.f ic8e3r, C87o r(ie1 9R6a3p).p O, ltievsetri fimeda daeb ohuist 2 information not provided to the defense—that the victim of the robbery occurring on July 10, 2012, identified Oliver’s coconspirator after reviewing 3 a photographic lineup. We disagree with Oliver’s contention.
4 Determining whether the State adequately disclosed information pursuant to Brady involves questions of both fact and law which we review 5 de novo. See State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 7-8 (2003). 6 Here, the district court heard arguments from counsel and denied Oliver’s motion. The district court stated that “the information probably should have 7 been turned over,” but ultimately found that the victim’s identification of the second suspect in the robbery was not exculpatory. Moreover, we conclude, 8 in light of the evidence presented, there is not a “reasonable possibility” that a more timely disclosure of the information in question would have affected 9 the outcome of Oliver’s trial. See Mazzan v. Warden, 116 Nev. 48, 66, 993 10 P.2d 25, 36 (2000); see also State v. Huebler, 128 Nev. ___, ___, 275 P.3d 91, 95 (2012) (“To prove a Brady violation, the accused must make three 11 showings: (1) the evidence is favorable to the accused, either because it is exculpatory or impeaching; (2) the State withheld the evidence, either 12 intentionally or inadvertently; and (3) prejudice ensued, i.e., the evidence was material.” (quotation marks omitted)), cert. denied, ___ U.S. ___, 133 13 S. Ct. 988 (2013). Therefore, we further conclude that the district court did 14 not err by determining that the State did not violate Brady or abuse its discretion by denying Oliver’s motion to dismiss or, alternatively, for a 15 mistrial. See Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008) (we review a district court’s denial of a motion to dismiss for an abuse of 16 discretion); Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007) (we review a district court’s denial of a motion for a mistrial for an abuse of 17 discretion).
18 [FN1] To the extent it was raised, we also conclude that Oliver 19 fails to demonstrate that he is entitled to relief based on the late disclosure of a taped interview of a third individual 20 involved in the July 10th robbery. 21 (ECF No. 14-5 at 2-3.) 22 4. Conclusion 23 As the Nevada Supreme Court reasonably determined, Oliver fails to demonstrate 24 prejudice from the State’s late disclosure of either piece of evidence: S.S.’s law 25 enforcement interview or Belinda Kappert’s identification of the second robber. 26 Turning first to S.S.’s law enforcement interview. It appears that the contents of 27 that interview were inculpatory. Oliver’s counsel explained that S.S. indicated in that 28 interview that “he would call individuals to buy drugs[, a]nd then when they would come, 1 he would contact [Oliver] and others to let them know that there was a potential robbery 2 victim.” (ECF No. 13-31 at 8.) However, if Oliver’s counsel used S.S.’s interview to 3 impeach his trial testimony that it was Oliver’s idea to commit the robbery (see ECF No. 4 13-40 at 84-85), the interview was potentially exculpatory. Importantly, though, S.S. also 5 testified that he was arrested and prosecuted in juvenile court for conspiracy to commit 6 robbery based on his participation in the robbery of Kappert. (ECF No. 13-40 at 87.) As 7 such, the jury was aware that S.S.’s testimony indicating a lack of a conspiracy was 8 incredible. Consequently, Oliver fails to establish there was a reasonable probability that, 9 had S.S.’s interview statement—which also established there was a conspiracy between 10 Oliver and S.S.—been earlier disclosed to the defense, the result of his trial would have 11 been different. See Bagley, 473 U.S. at 682. 12 Turning to Belinda Kappert’s identification of the second robber. Kappert testified 13 that she “wasn’t able to make a positive ID” of the second robber. (ECF No. 13-41 at 16.) 14 Based on Officer Rapp’s testimony that Kappert “was able to identify another suspect in 15 [a] second lineup” (ECF No. 13-44 at 69), Kappert’s testimony was subject to 16 impeachment. However, because the jury was aware that Kappert’s testimony regarding 17 her identification of the second robber was incredible based on Rapp’s testimony, Oliver 18 fails to establish there was a reasonable probability that, had Kappert’s second 19 photographic identification been disclosed prior to the trial such that his counsel could 20 have impeached Kappert during cross-examination—rather than through Rapp’s 21 testimony—the result of his trial would have been different. See Bagley, 473 U.S. at 682. 22 In fact, during closing arguments, Oliver’s counsel highlighted Kappert’s incredibility on 23 the issue, commenting that Kappert “testified multiple times, including here in court today, 24 that she could not identify that second suspect. And you heard from our last officer here 25 today that he did bring over another lineup and she did circle someone.” (ECF No. 13-51 26 at 53-54.) 27 /// 28 /// 1 Therefore, because Oliver fails to demonstrate prejudice to support his Brady 2 claims, the Nevada Supreme Court reasonably denied Oliver relief. Oliver is not entitled 3 to federal habeas relief for Ground 1. 4 B. Ground 2—misjoinder 5 In the remaining portion of Ground 2, Oliver alleges that his Fifth and Fourteenth 6 Amendments rights to due process were violated when the state district court failed to 7 sever the two robbery incidents.4 (ECF No. 7 at 5.) 8 1. Background information 9 Prior to trial, Oliver moved to sever the charges, arguing that “there [was] no 10 mutually cross-admissible evidence” connecting the two robberies. (ECF No. 13-15 at 3.) 11 The state district court denied the motion, finding that Oliver was not unfairly prejudiced 12 by the joinder, the evidence of each robbery would be cross-admissible, and there was 13 sufficient evidence that the alleged robberies constituted a common scheme or plan. 14 (ECF No. 13-22 at 3.) 15 2. Standard for a misjoinder violation 16 In the context of joinder of counts and defendants, the United States Supreme 17 Court has stated: “Improper joinder does not, in itself, violate the Constitution. Rather, 18 misjoinder would rise to the level of a constitutional violation only if it results in prejudice 19 so great as to deny a defendant his Fifth Amendment right to a fair trial.” United States v. 20 Lane, 474 U.S. 438, 466 n.8 (1986). The Ninth Circuit has declared this comment 21 constitutes dicta. See Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (discussing 22 “trial severance where a co-defendant presents a mutually antagonistic defense”). 23 Therefore, because there is no clearly established Supreme Court precedent, it is not 24 clear that the Nevada Supreme Court acted contrary to United States Supreme Court 25 precedent in denying Oliver’s claim. See 28 U.S.C. § 2254(d)(1); see also Wright v. Van 26 Patten, 552 U.S. 120, 126 (2008) (explaining that “it cannot be said that the state court
27 4This Court previously found that the portion of this ground relating to judicial 28 impartiality was unexhausted, and Oliver chose to abandon it. (ECF Nos. 21 at 5; 23.) 1 unreasonably applied clearly established Federal law” when United States Supreme 2 Court precedent “give[s] no clear answer to the question presented” (internal quotation 3 marks and alterations omitted)); Martinez v. Yates, 585 Fed.App’x. 460, 460 (9th Cir. 4 2014) (“There is no clearly established Supreme Court precedent dictating when a trial in 5 state court must be severed.”). 6 Assuming, arguendo, that the United States Supreme Court’s footnote in Lane 7 could be considered Federal law, Oliver must demonstrate the misjoinder of counts 8 “‘resulted in an unfair trial.’” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (quoting 9 Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 2001)); see also Bean v. Calderon, 10 163 F.3d 1073, 1084 (9th Cir. 1998); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 11 2000). As to prejudice, it must be determined “‘if the impermissible joinder had a 12 substantial and injurious effect or influence in determining the jury’s verdict.’” Davis, 384 13 F.3d at 638 (quoting Sandoval, 241 F.3d at 772). In making that determination, “the Ninth 14 Circuit focuses particularly on cross-admissibility of evidence and the danger of ‘spillover’ 15 from one charge to another, especially where one charge or set of charges is weaker than 16 another.” Id. 17 3. State court determination 18 In affirming Oliver’s judgment of conviction, the Nevada Supreme Court held:
19 Second, Oliver contends that the district court erred by denying his 20 pretrial motion to sever the charges. Oliver claims that charges stemming from the two robberies were improperly joined for trial because the offenses 21 were not “connected together” and “there is no mutually cross-admissible evidence.” We disagree. 22 Under NRS 173.115(2), the State may charge two or more offenses 23 in the same information, with a separate count for each offense, if the 24 offenses are “[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” If it appears 25 that a defendant will be prejudiced by joinder, the district court may grant a severance. See NRS 174.165(1). Here, the district court conducted a 26 hearing and found that “due to the close proximity in time and location and the similar modus operandi, there is sufficient evidence that the alleged 27 robberies constitute a common scheme or plan.” See Middleton v. State, 28 114 Nev. 1089, 1107, 968 P.2d 296, 308 (1998). The district court 1 dseeptearrmatiene tdri atlhsa” tp “uervsiudaenntc teo oNf ReSa c4h8 .r0o4b5b(e2r)y, sweoeu Wld ebbee rc rvo. sSst-aatdem, 1is2s1ib Nlee vin. 2 554, 573, 119 P.3d 107, 120 (2005), and that Oliver was “not unfairly prejudiced by joinder of the charges,” see id. at 574-75, 119 P.3d at 121; 3 see also Middleton, 114 Nev. at 1108, 968 P.2d at 309 (“Misjoinder requires reversal only if the error has a substantial and injurious effect on the jury’s 4 verdict.”). We conclude that the district court did not abuse its discretion by denying Oliver’s motion to sever the charges. See Weber, 121 Nev. at 570, 5 119 P.3d at 119 (we review a district court’s decision to join or sever charges 6 for an abuse of discretion). 7 (ECF No. 14-5 at 4-5 (footnote omitted).) 8 4. Conclusion 9 As the Nevada Supreme Court, the final arbiter of Nevada law, reasonably 10 determined, the evidence of the June 27, 2012 robbery incident and July 10, 2012 robbery 11 incident would have been cross-admissible under Nevada law. See NRS § 48.045(2) 12 (“Evidence of other crimes, wrongs or acts . . . may . . . be admissible . . . as proof of 13 motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 14 or accident.”). Indeed, both robberies had the same operative set of facts: the victims, 15 who were either in possession of illegal substances or buying illegal substances, were 16 lured to apartment complexes, and Oliver and a co-conspirator robbed them while they 17 were in their parked vehicles. (See ECF Nos. 13-36 at 35-47; 13-41 at 2-6.) 18 Moreover, there is no indication in the record that the jury failed to distinguish 19 between the evidence presented in the two robberies, and there was no significant 20 disparity in the relative strength of the two cases because Oliver was identified by both 21 victims during photographic lineups. (See ECF Nos. 13-39 at 112; 13-44 at 43-44.) 22 Finally, because the jury was instructed that “[e]ach charge and the evidence pertaining 23 to it should be considered separately” (ECF No. 13-48 at 6), “any prejudice was . . . 24 limited.” Davis, 384 F.3d at 639. Accordingly, because Oliver’s trial was not rendered 25 fundamentally unfair by the joinder of the two robbery incidents, the Nevada Supreme 26 Court reasonably denied Oliver’s claim. Oliver is therefore not entitled to federal habeas 27 relief for Ground 2. 28 /// || V. CERTIFICATE OF APPEALABILITY 2 This is a final order adverse to Petitioner Donald Oliver. Rule 11 of the Rules 3 || Governing Section 2254 Cases requires the Court to issue or deny a certificate of 4 || appealability (“COA”). Therefore, the Court has sua sponte evaluated the claims within 5 || the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 6 || Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Under 28 U.S.C. § 2253(c)(2), a COA 7 || may issue only when the petitioner “has made a substantial showing of the denial of a 8 || constitutional right.” With respect to claims rejected on the merits, a petitioner “must 9 || demonstrate that reasonable jurists would find the district court's assessment of the 10 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 11 || (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA 12 || will issue only if reasonable jurists could debate (1) whether the petition states a valid 13 || claim of the denial of a constitutional right and (2) whether this Court’s procedural ruling 14 || was correct. /d. 15 Applying these standards, the Court finds that a certificate of appealability is 16 || unwarranted. 17 || VI. CONCLUSION 18 It is therefore ordered that Donald Oliver's petition for a writ of habeas corpus under 19 ||} 28 U.S.C. § 2254 (ECF No. 7) is denied. 20 It is further ordered that a certificate of appealability is denied. 21 The Clerk of Court is directed to substitute William Gittere for Respondent Brian 22 || Williams. 23 The Clerk of Court is further directed to enter judgment accordingly and close this 24 || case. 25 DATED THIS 15 Day of November 2021. 26 —— J LL MIRANBA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE