Owens v. Bean

• Court: District Court, D. Nevada
• Decided: February 7, 2025
• Docket: 3:21-cv-00307
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DARIAN OWENS, Case No. 3:21-cv-00307-MMD-CSD

7 Petitioner, ORDER v. 8 WILLIAM A. GITTERE, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Darian Owens filed an amended petition for writ of habeas corpus under 13 28 U.S.C. § 2254.1 (ECF No. 18 (“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 grants a writ of habeas corpus for Ground 1; denies the 16 remaining grounds of the Petition; and denies a Certificate of Appealability. 17 II. BACKGROUND 18 A. Conviction and Appeal 19 In November 2015, following a jury trial, a Nevada district court entered judgment 20 convicting Owens of 32 counts: nine counts of conspiracy to commit robbery, 11 counts 21 of burglary while in possession of a firearm, 10 counts of robbery with use of a deadly 22 weapon (some counts involving victims 60 years of age or older), one count of attempted 23 robbery with use of a deadly weapon, and one count of possession of a firearm by an ex- 24 felon. (ECF Nos. 22-36; 22-37.) The state district court sentenced Owens to 32 25 consecutive terms of life without the possibility of parole under the large habitual criminal 26

27 1According to the state corrections department’s inmate locator page, Owens is currently incarcerated at High Desert State Prison (“HDSP”). See 28 https://ofdsearch.doc.nv.gov/form.php. Jeremy Bean is the warden of that facility. See https://doc.nv.gov/Facilities/HDSP_Facility/. The Court directs the Clerk of Court to 2 appeal. (ECF No. 23-28.) 3 1. Facts Underlying Conviction2 4 From June 2014 to August 2014, a series of 11 robberies occurred across multiple 5 Las Vegas grocery stores. The robberies primarily involved multiple individuals targeting 6 the gaming areas within the stores. 7 On June 16, 2014, two individuals wearing hoodies with bandanas covering their 8 faces robbed the gaming area of the Smith’s located on 6855 Aliante Parkway in North 9 Las Vegas, pointing a handgun at the clerk and ordering her to open the cash drawer. On 10 June 25, 2014, two individuals entered the gaming area of the Albertsons located at 1650 11 North Buffalo with handguns and one of the individuals ordered the clerk to give him the 12 money in the cash drawer. On July 15, 2014, two individuals ran up to an employee in the 13 parking lot of the Smith’s located at 2255 Easy Centennial. The individual in a red 14 sweatshirt pointed a gun and instructed the employee to follow them into the store. 15 Because the employee could not open the cash registers, the two individuals left. During 16 later interviews with detectives, Owens identified himself in store surveillance camera 17 photographs as the male suspect wearing a red hooded sweatshirt at each of these 18 locations. 19 On July 19, 2014, two individuals robbed the Smith’s located at 2111 North 20 Rampart, instructing a 78-year-old employee to open and empty the cash drawers. Both 21 individuals wore hooded sweatshirts, one of which was red. On July 21, 2014, multiple 22 individuals robbed the gaming area at the Smith’s located at 8555 West Sahara with a 23 gun, instructing the 86-year-old employee to give them all the money. Owens identified 24 himself as the individual in the black hooded sweatshirt in photographs from the store 25 surveillance camera. 26 /// 27

28 2The facts underlying the conviction are derived from the State’s answering brief 2 Terribles located at 8495 Blue Diamond Road, where two individuals with a gun 3 approached the 72-year-old employee, demanding money from the cash register. Thirty 4 minutes later, two individuals robbed the Smith’s located at 2385 Eastern. Because no 5 employee was working the gaming area, the individuals demanded that an employee at 6 a nearby check stand open and empty the cash register. On August 9, 2014, a single man 7 with a handgun robbed the Shortline Express located at 6698 Sky Pointe Drive. On 8 August 12, 2014, a man with a handgun robbed the 7-Eleven located at 835 Seven Hills 9 in Henderson. On August 19, 2014, two individuals robbed the Quicky’s at 4400 North 10 Jones. Owens again identified himself in surveillance photographs at each location. 11 On August 25, 2014, two individuals robbed the Rebel gas station at 7191 West 12 Craig Road. One of the men pointed a handgun at the employee, instructing her to give 13 him money from the register. The employee called 9-1-1 and followed the men after they 14 left the store. Detectives, who had been surveilling Owens, followed the individuals, who 15 drove away in a red Toyota Prius. Detectives tracked the vehicle until it was ditched in a 16 cul-de-sac and the two men fled on foot. The car’s female driver, who was later identified 17 as the suspect involved in the June 25, July 19, and July 21 robberies, was taken into 18 custody. The two men jumped through a series of backyards until they entered a home. 19 After the homeowner ran out to inform officers, the two men were taken into custody. 20 B. State Post-Conviction Proceedings and Federal Habeas Action 21 Owens filed a pro se state petition for writ of habeas corpus. (ECF No. 23-45.) The 22 state district court denied post-conviction relief. The Nevada Supreme Court entered an 23 order of limited remand, instructing the district court to provide an amended written order 24 containing specific findings of fact and conclusions of law explaining the basis for denying 25 relief. (ECF No. 24-13.) 26 Reviewing the amended order, the Nevada Supreme Court affirmed, in part, and 27 reversed, in part, the district court’s denial of post-conviction relief, remanding and 28 directing the district court to consider claims it had determined were abandoned in error. 2 relief. (ECF No. 24-29.) In July 2021, the Nevada Court of Appeals affirmed the denial of 3 relief. (ECF No. 24-36.) 4 Owens initiated this federal habeas corpus proceeding pro se. (ECF No. 1.) 5 Following appointment of counsel on initial review, Owens filed his counseled first 6 amended petition. (ECF No. 18.) Respondents moved to dismiss certain claims as 7 unexhausted, non-cognizable and/or conclusory, and the Court granted the motion in 8 part, dismissing Ground 1(B), any substantive claims alleged in Ground 3, and Additional 9 Grounds 1-6. (ECF No. 35 at 11.) The Court deferred consideration of whether Owens 10 can establish cause and prejudice to overcome the default of Ground 3(B). (Id.) 11 III. LEGAL STANDARD 12 A. Review under the Antiterrorism and Effective Death Penalty Act 13 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 14 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (AEDPA): 15 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 16 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 17

18 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 19 Supreme Court of the United States; or

20 (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. 21

22 28 U.S.C. § 2254(d). A state court decision is contrary to established Supreme Court 23 precedent, within the meaning of § 2254(d)(1), “if the state court applies a rule that 24 contradicts the governing law set forth in [Supreme Court] cases” or “if the state court 25 confronts a set of facts that are materially indistinguishable from a decision of [the 26 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 27 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 28 court decision is an unreasonable application of established Supreme Court precedent 2 [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the 3 prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable 4 application’ clause requires the state court decision to be more than incorrect or 5 erroneous. The state court’s application of clearly established law must be objectively 6 unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 U.S. at 409-10) 7 (internal citation omitted). 8 The Supreme Court has instructed that a “state court’s determination that a claim 9 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 10 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 11 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 12 has stated that “even a strong case for relief does not mean the state court’s contrary 13 conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75). See also Cullen 14 v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted) 15 (describing the standard as a “difficult to meet” and “highly deferential standard for 16 evaluating state-court rulings, which demands that state-court decisions be given the 17 benefit of the doubt”). 18 B. Standard for Evaluation of Ineffective Assistance of Counsel Claims 19 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 20 analysis of claims of ineffective assistance of counsel requiring Petitioner to demonstrate 21 that: (1) the attorney’s “representation fell below an objective standard of 22 reasonableness[;]” and (2) the attorney’s deficient performance prejudiced Petitioner 23 such that “there is a reasonable probability that, but for counsel’s unprofessional errors, 24 the result of the proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 25 Courts considering a claim of ineffective assistance of counsel must apply a “strong 26 presumption that counsel’s conduct falls within the wide range of reasonable professional 27 assistance.” Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious 28 that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth 2 enough for Petitioner “to show that the errors had some conceivable effect on the outcome 3 of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 4 [petitioner] of a fair trial, a trial whose result is reliable.” Id. at 687. 5 Where a state district court previously adjudicated the claim of ineffective 6 assistance of counsel under Strickland, establishing the decision was unreasonable is 7 especially difficult. See Richter, 562 U.S. at 104-05. In Richter, the Supreme Court 8 clarified that Strickland and § 2254(d) are each highly deferential, and when the two apply 9 in tandem, review is doubly so. See id. at 105. See also Cheney v. Washington, 614 F.3d 10 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews 11 a state court’s Strickland determination under AEDPA, both AEDPA and Strickland’s 12 deferential standards apply; hence, the Supreme Court’s description of the standard as 13 doubly deferential.”). The Court further clarified, “[w]hen § 2254(d) applies, the question 14 is not whether counsel’s actions were reasonable. The question is whether there is any 15 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 16 562 U.S. at 105. 17 IV. DISCUSSION 18 A. Ground 1—Disproportionate Sentence 19 In Ground 1, Owens alleges that the state district court’s 32 consecutive sentences 20 of life without the possibility of parole (“LWOP”) violate the Eighth Amendment. (ECF No. 21 18 at 10-13.) He asserts that his sentence constitutes cruel and unusual punishment 22 because it is grossly disproportionate to the crimes. (Id. at 12.) In addition, he asserts that 23 his sentence is shocking for a non-murder case and is particularly shocking in comparison 24 to his co-defendants’ sentences. (Id. at 11.) One co-defendant entered into a guilty plea 25 agreement and received a term of four to 13 years as well as a six-month aggregated 26 sentence. (Id.) The other co-defendant also entered into a guilty plea agreement receiving 27 an aggregated sentence of three to 12 years. (Id.) Owens further argues that he was 28 sentenced as a habitual criminal based on prior robberies that occurred when he was 2 1. Additional background information 3 Owens’s offenses occurred during the early morning hours between 12:30 a.m. 4 and 4:30 a.m. when few, if any, customers were patronizing the businesses. He 5 concealed his identity with a bandana or hood and used a firearm to threaten clerks, 6 demanding money from cash drawers. He either took the money himself, accepted it 7 when handed to him, or instructed the clerk to place it in a bag before he fled. Owens 8 threatened to shoot if clerks failed to cooperate and sometimes pointed the gun at the 9 clerk’s head, face, nose, or back. In one instance, he shoved a clerk against a wall. On 10 one occasion, he left empty-handed because the register could not be opened, and on 11 another, he dropped a sack of money but retrieved it after his companion yelled for him 12 to do so. Owens also stole cigarettes in two instances, once taking several packs and 13 another time requesting only one pack, for which he thanked the clerk. The amounts 14 stolen from 10 businesses varied, with $275 recovered in one instance. Owens 15 apologized to a clerk during one robbery, expressing that he had to do it. Each incident 16 was captured on surveillance video and no shots were fired. No one was physically 17 harmed. However, one clerk became so nervous he quit working the graveyard shift for 18 a month. Four of the victims were over the age of 60 years. 19 Owens evaded capture until after police issued a media release including 20 surveillance video of one of the earlier burglaries and a Crime Stoppers tipster 21 anonymously identified Owens. Police obtained a warrant to attach a GPS device to 22 Owens’s vehicle and conducted surveillance of Owens until his capture shortly after the 23 last burglary. Owens was cornered by police, including a K9 unit and a helicopter, in the 24 yard of a house in a cul-de-sac. The homeowner reported Owens and his brother broke 25 into the house, but Owens later stated they merely knocked on the back door. 26 Upon arrest, Owens immediately confessed to the last robbery and stated that his 27 brother and fiancée were not involved. He disclosed the location of his firearm, which 28 contained 15 bullets in the magazine, and claimed he never chambered a round. At the 2 photographs for 10 of the 11 burglaries, but stated he did not recall many of the details. 3 A Second Amended Indictment charged Owens with 11 counts of burglary while in 4 possession of a firearm, nine counts of conspiracy to commit robbery, six counts of 5 robbery with use of a deadly weapon, four counts of robbery with use of a deadly weapon, 6 victim over 60 years of age, one count of attempted robbery with use of a deadly weapon, 7 and one count of possession of a firearm by an ex-felon. (ECF No. 19-3.) Just before jury 8 selection, the parties confirmed that Owens rejected an offer from the State to plead to 9 three counts of robbery with use of a deadly weapon and burglary while in possession of 10 a firearm, and stipulated to a sentence of 15 years to life imprisonment. (ECF No. 19-4 at 11 4-5.) The State informed the trial court that, if convicted at trial, Owens faced “[p]robably 12 life without—every single robbery he’s mandatory violent habitual because of his priors. 13 So under 012 we have to seek it and you have to give it. So 10 to 25, 10 to life, or life 14 without for every single robbery and there’s 11 of them.” (Id.) Owens confirmed he did not 15 want to take a deal. (Id.) 16 Following Owens’s conviction on all charges, a Presentence Investigation Report 17 (“PSI”) stated that Owens is a self-admitted member of the Donna Street Crips criminal 18 street gang; and was 25 years old at the time of the offenses. (ECF No. 62-1 at 2-3.) 19 Owens previously acquired three felony convictions in 2007 for robbery with the use of a 20 deadly weapon for three separate cases, for which he served concurrent prison 21 sentences until his release on February 14, 2014—less than four months before the 22 crimes committed in the instant case. (Id. at 5-7.) Owens was 18 years old at the time he 23 committed the 2007 offenses. 24 The PSI reported that none of the individual victims of the crimes in this case—12 25 in all—submitted claims or provided any information regarding the impact the crimes had 26 on them. (Id. at 11.) The victim businesses reported a total of $7,218.77 was stolen. (Id.) 27 One of the businesses reported its employees were afraid to return to work for fear of 28 getting hurt during a robbery. (Id. at 27.) The PSI recommended that, if Owens was 2 sentences of 10 years to life imprisonment. (Id. at 24.) 3 At sentencing, the State insisted that because of Owens’s three prior felony 4 robbery convictions, the district court has no discretion but to adjudicate him as a habitual 5 criminal. (ECF No. 22-38 at 3.) The State argued Owens should be given a sentence of 6 life without the possibility of parole and requested consecutive terms for each individual 7 robbery.3 (Id.) The State noted that “these were all separate instances,” and “many of 8 them involve these very violent acts occurring to victims who are well into their 80s.” (Id.) 9 The defense argued sentencing that the robberies occurred during a four-month 10 period of Owens’s life and that nobody was hurt during the events. (Id. at 4-5.) The 11 defense further argued that “a life tail is more than appropriate in this case,” but that 12 Owens “should be afforded the opportunity to potentially see the light of day.” (Id. at 5.) 13 The defense highlighted that Owens was still a young man who did not fully comprehend 14 the actions that he committed. (Id.) The district court made the following comments: 15 You know, a 26-year-old young man, handsome, should be thinking about advancement in his employment, should have graduated from college, 16 should—and yet what he does is he puts a gun in these old people’s face that are merely trying to supplement their income, probably are minimum 17 wage employees trying to just supplement their fixed income because they can’t afford to live. And he chose to involve his girlfriend, who’s in prison . . 18 . . . . . 19 But at a minimum, she’s how had to have gone to prison. His brother has to 20 go to prison because of his choices. You’ve got to live with your choices. I reviewed the Eighth Amendment to the Constitution because I thought, well, 21 someone’s going to argue that it might be cruel and unusual punishment, but, you know, it’s not when you look at these 11 people. This is how people 22 end up dead. We could be here on multiple murder charges.

23 He used a deadly weapon, knew what he was doing . . . I don’t think he thought ahead on what the consequence would be, and it’s a sad day. 24 (Id. at 6.) The district court adjudicated Owens a habitual criminal and sentenced him to 25 32 consecutive LWOP sentences under the large habitual criminal statute. (Id. at 7-11.) 26

27 3At the time, defendants who qualified as a large habitual criminal, were subject to a sentence of imprisonment for (1) a definite term of 10 to 25 years; (2) 10 years to life 28 with the possibility of parole, or (3) life without the possibility of parole. See NRS § 2 In denying his appeal, the Nevada Court of Appeals held: 3 Owens claims his sentence of 32 consecutive terms of life without the possibility of parole, imposed pursuant to the large habitual criminal statute, 4 constituted cruel and unusual punishment and shocks the conscience. Owens claims the sentence is grossly disproportionate to the crimes, he 5 was only 26 when he was convicted, the crimes that made him eligible for the large habitual criminal enhancement occurred when he was 18, and the 6 sentence was harsher than requested by the State.

7 Regardless of its severity, “[a] sentence within the statutory limits is not ‘cruel and unusual punishment unless the statute fixing the punishment is 8 unconstitutional or the sentence is so unreasonably disproportionate to the offense as to shock the conscience.’” Blume v. State, 915 P.2d 282, 284 9 (1996) (quoting Culverson v. State, 596 P.2d 220, 221-22 (1979); see also Harmelin v. Michigan, 501 U.S. 957, 1000-01 (plurality opinion) (explaining 10 that the Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only an extreme sentence that is grossly 11 disproportionate to the crime).

12 The sentence imposed is within the parameters provided by the relevant statute, see NRS 207.010(1)(b), and Owens does not allege that the statute 13 is unconstitutional. Owens had three previous convictions for robbery with the use of a deadly weapon and, shortly after being released from prison 14 for those prior crimes, he committed this series of robberies with use of a deadly weapon. We conclude that the sentence imposed is not grossly 15 disproportionate to the crimes committed and Owen’s history of recidivism and does not constitute cruel and unusual punishment. See Ewing v. 16 California, 538 U.S. 11, 29 (2003) (plurality opinion).

17 (ECF No. 23-28 at 2-3.) 18 3. Applicable legal standard 19 The Eighth Amendment forbids sentences that are “grossly disproportionate” to 20 the crime. Graham v. Fla., 560 U.S. 48, 59-60 (2010). In non-capital cases, a court must 21 first compare the gravity of the offense with the severity of the sentence to determine 22 whether it is one of the “rare” cases which leads to an inference of gross disproportionality. 23 See id. (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., 24 concurring)). See also Solem v. Helm, 463 U.S. 277, 289-92 (1983) (explaining that the 25 court weighs the criminal offense and penalty “in light of the harm caused or threatened 26 to the victim or society, and the culpability of the offender” and agreeing that “‘[o]utside 27 the context of capital punishment, successful challenges to the proportionality of particular 28 sentences [will be] exceedingly rare . . . .’”) (internal citation omitted). See also Norris v. 2 penalty imposed upon the defendant with the gravity of his triggering offense and criminal 3 history”) (citing Ewing v. California, 538 U.S. 11, 28-29 (2003); accord Ramirez v. Castro, 4 365 F.3d 755, 767-70 (9th Cir. 2004)). “‘[I]n the rare case in which . . . [the] threshold 5 comparison . . . leads to an inference of gross disproportionality’ the court should then 6 compare the defendant’s sentence with the sentences received by other offenders in the 7 same jurisdiction and with the sentences imposed for the same crime in other 8 jurisdictions.” Graham, 560 U.S. at 60 (quoting Harmelin, 501 U.S. at 1005 (opinion of 9 Kennedy, J., concurring)). “If this comparative analysis ‘validate[s] an initial judgment that 10 [the] sentence is grossly disproportionate,’ the sentence is cruel and unusual.” Id. 11 The Supreme Court has stated that “[r]eviewing courts . . . should grant substantial 12 deference to the broad authority that legislatures necessarily possess in determining the 13 types and limits of punishments for crimes, as well as to the discretion that trial courts 14 possess in sentencing convicted criminals.” Solem, 463 U.S. at 290. Generally, as long 15 as the sentence imposed does not exceed statutory limits, it will not be overturned on 16 Eighth Amendment grounds. See United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 17 2001). 18 4. Analysis 19 The Nevada appellate court unreasonably applied clearly established federal law 20 as determined by the United States Supreme Court to the facts in this case when it 21 determined the circumstances do not raise an inference that the sentence of 32 22 consecutive LWOP sentences is grossly disproportionate to the offenses. 23 a. Severity of the sentence 24 Owens received 32 consecutive LWOP sentences. An LWOP sentence is the 25 second most severe penalty after the death penalty. See Harmelin, 501 U.S. at 1001 26 (Kennedy, J., concurring in part and concurring in judgment). Owens’s sentence exceeds 27 the maximum punishment recommended in the PSI, which suggested a maximum of 12 28 consecutive sentences of 10 years to life imprisonment. (ECF No. 62-1 at 24.) It far 2 a deadly weapon and one count of burglary while in possession of a firearm with a 3 stipulated sentence of 15 years to life imprisonment. It also exceeds the State’s request 4 at sentencing that Owens be given consecutive LWOP sentences for each incident. The 5 codefendants, while certainly less culpable and with less serious criminal histories, each 6 pleaded guilty to one count of conspiracy to commit robbery and one count of robbery 7 with use of a deadly weapon, receiving aggregate sentences of only three to 12 years 8 and four to 13.5 years respectively. (ECF Nos. 19-37; 19-38.) Under the circumstances, 9 the number of consecutive LWOP sentences imposed, even considering Owens’s 10 criminal history and eligibility for large habitual criminal treatment, is rare and severe. The 11 Court has found no case in Nevada or any other state in which an individual was 12 sentenced to an equivalent number of consecutive LWOP sentences for similar crimes. 13 The impossibility of parole also supports an assessment that the sentence is severe. 14 Nevada law prohibits commutation of sentences to life with parole. See NRS § 15 213.085(2)(b), as enacted by Laws, 1995, p. 1258 (“If a person is convicted of any crime 16 other than murder of the first degree on or after July 1, 1995, the Board shall not commute 17 . . . [a] sentence of imprisonment in the state prison for life without the possibility of parole, 18 to a sentence that would allow parole.”). 19 All objectively reasonable jurists would agree that the imposition of more than 30 20 consecutive LWOP sentences against Owens is severe and contributes to an inference 21 of gross disproportionality. 22 b. Gravity of the offenses 23 In weighing the severity of the sentence against the gravity of the offenses, a court 24 must consider both current offenses and criminal history. See Ewing, 538 U.S. at 29. 25 Defendants “who do not kill, intend to kill, or foresee that life will be taken are categorically 26 less deserving of the most serious forms of punishment than are murderers.” Graham, 27 560 U.S. at 69. “There is a line ‘between homicide and other serious violent offenses 28 against the individual.’” Id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 438 (2008)). 2 punishment,’ those crimes differ from homicide crimes in a moral sense.” Id. (internal 3 citation omitted). See also Graham, 560 U.S. at 91 (Roberts, J., concurring in judgment) 4 (recognizing armed burglary of a nondomicile with an assault or battery is a serious crime 5 deserving serious punishment, as is home invasion robbery, but both are less serious 6 than murder or rape). “If more serious crimes are subject to the same penalty, or to less 7 serious penalties, that is some indication that the punishment at issue may be excessive.” 8 Solem, 463 U.S. at 291. 9 In Nevada, LWOP sentences are typically authorized for the more serious crimes 10 involving physical harm.4 Moreover, there are serious crimes involving physical harm in 11 Nevada that do not authorize an LWOP sentence, such as second-degree murder, which 12 permits a maximum sentence of 10 years to life (allowing for parole after 10 years) (NRS 13 14 15 16 17 18 19

20 4Some of the crimes in Nevada for which an LWOP sentence was authorized under certain circumstances at the relevant time were: First-Degree Murder (NRS § 21 200.030(4)(b)(1)); First-Degree Kidnapping (NRS § 200.320(1)(a)); Sexual Assault (NRS § 200.366(2)(a)(1) as enacted by Laws 2007, c. 528 § 7); Battery with Intent to Commit 22 Sexual Assault resulting in substantial bodily harm or committed by strangulation (NRS § 200.400(4)(a)(1) as enacted by Laws 2009, c. 42, § 2, eff. May 6, 2009); Death Resulting 23 from Duel (NRS § 200.030; 200.410); Death Resulting from Challenges to Fight (NRS §§ 200.030; 200.450(3)); Act of Terrorism (NRS § 202.445(3)(a)(1)); Crimes involving 24 weapons of mass destruction, biological or chemical agents, or similar lethal agents resulting in substantial bodily harm or death (NRS § 202.446(3)(b)(1)); Providing a 25 controlled substance that causes death (NRS § 200.030; 453.333 as enacted by Laws 1995, p. 1285); Unlawful manufacturing of a controlled substance resulting in death to 26 another person during discovery or cleanup of a premises (NRS § 453.3353 as enacted by Laws 2005, c. 266, § 1, eff. June 6, 2005); Using explosives to destroy an occupied 27 property or vehicle (NRS § 202.830(2)(a)); Commission of felony to aid an act of terrorism resulting in substantial bodily harm or death (NRS § 193.1685(3)(a)); and Procuring the 28 execution of an innocent person by perjury (NRS § 199.160). 2 only the large habitual criminal statute authorized it due to Owens’s three prior 3 convictions. See NRS § 207.012 as amended by Laws 2013, c. 354, § 6. 4 Few instances exist where a defendant in Nevada was sentenced to multiple 5 consecutive LWOP sentences for crimes of the nature at issue here—even where the 6 defendant qualified for punishment as a recidivist. And remarkably, the number of 7 consecutive LWOP sentences in those cases do not approach the high number of 8 consecutive LWOP sentences imposed against Owens. See, e.g., Jones v. State, 134 9 Nev. 965, 2018 WL 3218014, (Docket No. 73622) (Nev. App. June 19, 2018) 10 5For vehicular homicide, the maximum authorized sentence was life with parole 11 eligibility in 10 years. See NRS §§ 484C.130 enacted legislation substituted in 2009 revision for part of NRS § 484.37955; 484C.440. At the relevant time, an individual who 12 killed someone while driving under the influence of alcohol or a controlled substance could be sentenced to a minimum term of two years and a maximum term of not more 13 than 20 years. See NRS § 484C.430. A sentence of life with parole eligibility in 15 years was authorized for pandering a child under 14. See NRS § 201.300 as enacted by Laws 14 2013, c. 426, § 42, eff. July 1, 2013. A conviction for first degree kidnapping where the victim suffers no substantial bodily harm could garner a life sentence with parole eligibility 15 after five years. See NRS § 200.320.

16 6Conspiracy to commit robbery was punishable for imprisonment for one year with a maximum term of six years. See NRS §§ 199.480 as enacted by Laws 2013, c. 426, § 17 30, eff. July 1, 2013; 200.380 as enacted by Laws 1995, p. 1187. Burglary while in possession of a firearm was punishable by imprisonment for a minimum of two years and 18 a maximum of up to 15 years, plus a consecutive minimum term of not less than one year and a maximum term of not more than 15 years for the deadly weapon enhancement. 19 See NRS §§ 193.165; 205.060 as enacted by Laws 2013, c. 488 § 1. Robbery with use of a deadly weapon was punishable by imprisonment for a minimum of two years and a 20 maximum of 15 years, plus a consecutive minimum term of not less than one year and a maximum term of not more than 15 years for the deadly weapon enhancement. See NRS 21 §§ 193.165; 200.380 as enacted by Laws 1995, p. 1187. Attempted robbery with use of a deadly weapon was punishable by imprisonment for a minimum of one year and a 22 maximum of 10 years, plus a consecutive minimum term of not less than one year and a maximum term of not more than 10 years for the deadly weapon enhancement. See NRS 23 §§ 193.165; 193.330 as enacted by Laws 1997, p. 1178; 200.380 as enacted by Laws 1995, p. 1187. Possession of a firearm by an ex-felon was punishable by imprisonment 24 for a minimum term of one year and a maximum of six years. See NRS § 202.360 as enacted by Laws 2003, c. 256 § 7. Robbery with use of a deadly weapon, with a victim 25 60 years of age or older was punishable as a robbery for a minimum of two years and a maximum of 15 years, plus a consecutive term for not less than one year and a maximum 26 term of not more than 20 years. See NRS §§ 193.167 as enacted by Laws 2013, c. 110, § 1; 200.380 as enacted by Laws 1995, p. 1187. But see Barrett v. State, 775 P.2d 1276, 27 1278 (1989) (recognizing a district court may not enhance a primary substantive offense under more than one enhancement statute); Carter v. State, 647 P.2d 374, 377 (1982) 28 (holding sentencing court may not impose consecutive enhancement penalties 2 sentences for crimes against 13 businesses, including robbery of individual patrons and 3 employees, resulting in 12 convictions for burglary while in possession of a firearm, 19 4 counts of robbery with the use of a deadly weapon, and convictions for burglary, robbery, 5 and attempted robbery with use of a deadly weapon); Eagles v. State, 410 P.3d 981 6 (Table) (Docket No. 71154) (Nev. Sup. Court, January 24, 2018) (unpublished) (four 7 consecutive LWOP sentences as a habitual criminal for conspiracy to commit robbery, 8 robbery, battery with substantial bodily harm, and battery with intent to commit a crime); 9 Hughes v. State, 996 P.2d 890, 892 (2000) (three consecutive LWOP sentences for 10 robbery with use of a deadly weapon). 11 In other states, multiple consecutive LWOP sentences also typically accompany 12 more serious crimes, e.g., murder, kidnapping, and sexual assault (including assault on 13 minors). Far fewer cases involve multiple consecutive LWOP sentences for crimes such 14 as those committed by Owens—even considering sentences imposed under recidivist 15 statutes—and the Court found none imposing this high number of consecutive LWOP 16 sentences for crimes like those here. See e.g., State v. Bailey, Case No. 17 W201402517CCAR3CD, 2016 WL 269851, at 1-3 (Tenn. Crim. App. Jan. 11, 2016) 18 (seven LWOP sentences, including one consecutive LWOP sentence, for aggravated 19 robberies, as a repeat and violent offender under three strikes law); Esco v. State, 102 20 So. 3d 1209, 1211 (Miss. Ct. App. 2012) (LWOP sentences on all counts, including two 21 consecutive LWOP sentences, for aggravated assault, armed robbery, conspiracy to 22 commit aggravated assault, conspiracy to commit armed robbery, possession of a firearm 23 by a prior convicted felon, and felony evasion); Sandridge v. State, Case No. 24 W200900261CCAR3PC at 4 (Tenn. Crim. App. Sept. 18, 2009) (consecutive LWOP 25 sentences as repeat offender for aggravated robbery with a deadly weapon with 26 conviction for which defendant was on parole); State v. Floyd, 353 S.C. 55, 56-57, 577 27 S.E.2d 215, 215 (2003) (LWOP sentences for two defendants convicted of two counts of 28 hostage-taking). 2 firearm, committed at age 18, when his “culpability or blameworthiness is diminished, to 3 a substantial degree, by reason of youth and immaturity.” (ECF No. 62-1 at 5-6.) See 4 Graham, 560 U.S. at 91 (Roberts, J., concurring in judgment) (quoting Roper v. Simmons, 5 543 U.S. 551, 557 (2005). Owens served out his prison term, and nothing indicates he 6 was a troublemaker in prison. (ECF No. 62-1 at 7.) The record establishes that he started 7 committing the instant offenses roughly four months after he was discharged from prison, 8 when he was about 25 years old. (Id. at 3, 7.) The instant offenses involved pointing a 9 firearm at employees, some elderly—certainly a serious crime. But it is nevertheless 10 relevant that no physical harm occurred. Owens confessed immediately upon arrest and 11 cooperated with the authorities by identifying himself in surveillance photographs for 10 12 of the 11 burglaries. Owens’s criminal history and crimes establish he acted dangerously 13 and deserves punishment. But this does not mean his crimes are indistinguishable from 14 those of someone who committed, for example, 32 murders or rapes. And it does not 15 mean he deserves a more severe punishment than similar defendants who committed 16 the same types of offenses. 17 All objectively reasonable jurists would conclude this is a rare instance where the 18 severity of the sentence, compared to the gravity of the offenses, raising an inference of 19 gross disproportionality. Accordingly, the state appellate court’s determination to the 20 contrary is objectively unreasonable, and this Court will conduct de novo review of the 21 second step of the Eighth Amendment proportionality analysis. 22 c. Intrajurisdictional and Interjurisdictional Comparisons 23 Because there is an inference of gross disproportionality, the Court is required to 24 undertake intrajurisdictional and interjurisdictional comparisons of Owens’s sentence to 25 determine whether they confirm the threshold inference of disproportionality. See 26 Graham, 560 U.S. at 60 (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in 27 part and concurring in judgment)). 28 /// 2 jurisdiction logically starts with sentences received by Owens’s two co-defendants. One 3 co-defendant received an aggregate sentence of four to 13.5 years; and the other co- 4 defendant received an aggregate sentence of three to 12 years. (ECF No. 18 at 10-13.) 5 Even accounting for the fact that the co-defendants were less culpable, had far less 6 severe criminal histories, and pled guilty while Owens rejected an offer to plead only to 7 four of the charges with a stipulated sentence of 15 years to life imprisonment, the total 8 sentence imposed on Owens was grossly disproportionate to those of his co-defendants. 9 That the LWOP sentences are grossly disproportionate is further reflected by the State’s 10 own assessment of Owens’s culpability versus the codefendants’, as indicated in the 11 State’s plea offer, which did not suggest a single LWOP sentence. 12 As discussed, the Court’s brief survey reveals no intrajurisdictional state cases 13 involving a comparable number of consecutive LWOP sentences for similar types of 14 offenses. See supra pp. 14-15. The Jones case is the most comparable and confirms the 15 gross disproportionality of the sentence imposed against Owens.7 See Jones, 134 Nev. 16 Jones, like Owens, was sentenced under the large habitual criminal statute for multiple 17 episodes involving armed robbery and burglary for which no one was physically harmed. 18 Jones was sentenced to 35 LWOP sentences, but only seven were consecutive LWOP 19 sentences, for offenses involving 13 businesses and robbery of the possessions of 20 individuals. In comparison, Owens was sentenced to 32 consecutive LWOP sentences 21 for offenses involving 11 businesses, and he did not directly rob individuals of their 22 personal possessions. Owens immediately cooperated, confessed to his involvement in 23 10 of the 11 burglaries, and led police to the location of the firearm he used to commit the 24 offenses. There is thus a significant disparity in the number of consecutive LWOP 25 sentences imposed for Owens (32) versus Jones (seven) given the offenses. Owens also 26 had a less serious criminal history than Jones yet he received a far more serious 27

28 7The Court takes judicial notice of the publicly available documents contained in 2 recently released from prison, was not under any form of supervision, either through 3 parole or probation, at the time of the offenses—yet Owens received a harsher sentence 4 than Jones. Jones also had a criminal history that included two probation revocations and 5 three parole revocations, whereas Owens had no prior revocations of either kind. 6 Moreover, Owens appears to have a more limited criminal history than Jones, yet Owens 7 was given a far harsher sentence. 8 As also previously discussed, the Court’s survey reveals no interjurisdictional state 9 cases involving a comparable number of consecutive LWOP sentences for similar types 10 of offenses. See supra p. 15. 11 In sum, under the circumstances, the Court concludes Owens’s sentence is 12 grossly disproportionate in violation of the Eighth Amendment. The Court will accordingly 13 grant relief for Ground 1. 14 B. Ground 2—Prosecutorial Misconduct 15 In Ground 2, Owens alleges that the State committed prosecutorial misconduct 16 and violated his right to a fair trial by referencing Owens as a repeat offender in closing 17 argument. (ECF No. 18 at 13-16.) In addition, Owens alleges that the State elicited 18 testimony from an officer referencing an uncharged bad act that Owens committed a 19 home invasion on the night of his arrest. (Id. at 16.) Owens asserts that the cumulative 20 effect of the acts of prosecutorial misconduct violated his right to a fair trial. (Id. at 16-17.) 21 1. Additional background information 22 d. Uncharged bad act 23 Officer Ryan Petersen testified at trial. During direct examination, Petersen 24 testified regarding the night of Owens’s arrest as follows: 25 Eventually those males come to the center house that’s right here and we lost sight of them underneath this little awning that was right there. But the 26 homeowner came running out and talked to one of the detectives that was set up over here saying that two males had just broken into his house. The 27 males eventually jumped back into this house that’s right here where they were taken into custody. 28 2 e. Repeat offender reference 3 At closing, the State referenced “ROP” detectives twice. ROP is an acronym for 4 the repeat offender program. The State argued at closing that “[t]he last robbery in the 5 series is the Angel Delgarza. They were practically caught red-handed as to this one. The 6 ROP detective missed him by seconds.” (ECF No. 22-35 at 12-13.) The State also argued 7 regarding Owens’s co-defendant that “the ROP detective surveilled her getting into the 8 driver’s seat at the Von’s on Lake Mead and Buffalo just before this robbery occurred.” 9 (Id. at 13-14.) 10 2. State court determination 11 In regard to the claim of prosecutorial misconduct based on eliciting testimony on 12 an uncharged bad act, the Nevada Court of Appeals held: 13 Owens claims the State committed prosecutorial misconduct during trial by eliciting a reference to an uncharged bad act, a home invasion that occurred 14 just prior to Owen[s]’s arrest, without first requesting a Petrocelli hearing. We review claims of prosecutorial misconduct for improper conduct and 15 then determine whether reversal is warranted. Valdez v. State, 196 P.3d 465, 476 (2008). We review improper conduct claims for harmless error. Id. 16 We conclude the State did not commit misconduct in this regard. [FN 1] The 17 record demonstrates the State did not elicit the reference to the uncharged bad act. The witness made reference to the uncharged bad act in a 18 nonresponsive answer to the question asked by the State. However, even assuming there was error, we conclude the error was harmless because the 19 reference to the uncharged act was fleeting. Collman v. State, 7 P.3d 426, 437-38 (2000) (noting when the reference to a defendant’s past criminal 20 activity was fleeting any error was harmless), the district court gave a limiting instruction at the close of evidence regarding uncharged conduct, 21 and the evidence presented at trial established overwhelming evidence of Owens’ guilt. Owens, after being arrested told police officers he was the 22 person who committed the crimes. He also told the officers where to find the gun used in the robberies. He later identified himself on most of the 23 video surveillance tapes as being the person with the firearm during the robberies. 24 [FN1] Contrary to the State’s claim, this home invasion testimony was 25 not properly admitted as res gestae because there was no need to elicit the home invasion testimony in order to describe the crime charged. . . 26 . The alleged home invasion occurred after the crimes in question were committed and was not necessary to describe the crime charged. 27 (internal citation and quotation omitted).

28 (ECF No. 23-28 at 3-4.) 2 repeat offender, the Nevada Court of Appeals held: 3 Owens claims the State committed prosecutorial misconduct during closing arguments by twice referring to detectives as “ROP” detectives which 4 informed the jury Owens was a repeat offender. We conclude the State did not commit prosecutorial misconduct by referring to the detectives as “ROP” 5 detectives. The jury was never informed “ROP” means repeat offender program and, therefore, the State’s reference to “ROP” did not convey to 6 the jury Owens was a repeat offender.

7 (Id. at 5.) 8 Finally, regarding cumulative error of claims of prosecutorial misconduct, the 9 Nevada Court of Appeals held: 10 Owens argues the cumulative errors of prosecutorial misconduct warrant reversal. However, we reject this claim because even assuming there was 11 error, the error was harmless. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) (“One error is not cumulative error.”). 12

13 (Id. at 5-6.) 14 3. Applicable legal standard 15 Prosecutorial misconduct warrants federal habeas relief if the prosecutor's actions 16 “so infected the trial with unfairness as to make the resulting conviction a denial of due 17 process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotation 18 marks omitted). A defendant's constitutional right to due process of law is violated if 19 the prosecutor's misconduct renders a trial “fundamentally unfair.” Id. at 181-83. See 20 also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process 21 analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the 22 culpability of the prosecutor.”). Claims of prosecutorial misconduct are reviewed “on the 23 merits, examining the entire proceedings to determine whether the prosecutor's [actions] 24 so infected the trial with unfairness as to make the resulting conviction a denial of due 25 process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation and internal 26 quotation marks omitted). See also Greer v. Miller, 483 U.S. 756, 765 (1987); Turner v. 27 Calderon, 281 F.3d 851, 868 (9th Cir. 2002). If there is constitutional error, a harmless 28 error analysis is applied; the error warrants relief if it “had substantial and injurious effect 2 38 (1993) (citation and internal quotation marks omitted); Wood v. Ryan, 693 F.3d 1104, 3 1113 (9th Cir. 2012). 4 4. Analysis 5 The Nevada appellate court’s decision is not contrary to, nor an unreasonable 6 application of federal law as determined by the United States Supreme Court and is not 7 based on unreasonable determinations of fact in the state court record. 8 a. Uncharged bad act 9 As stated by the Nevada appellate court, the State did not elicit the reference to 10 the uncharged bad act, but the witness nonetheless referenced the uncharged bad act in 11 his nonresponsive answer to the State’s question. Petersen testified about the night that 12 Owens was arrested, such as the detectives’ surveillance of Owens, which included 13 testimony regarding an air unit and review of multiple exhibits. Although his testimony 14 included the reference to the uncharged bad act, the reference was so brief and fleeting 15 as to have no appreciable prejudicial impact. In addition, the district court instructed the 16 jury to disregard reference to any other acts that were not charged in the indictment. (ECF 17 No. 22-32 at 37.) The United States Supreme Court has long held that “[a] jury is 18 presumed to follow . . . [and] is [also] presumed to understand” a judge’s instructions.” 19 Weeks v. Angelone, 528 U.S. 225, 235 (2000). 20 Moreover, the prosecution presented strong evidence that Owens committed the 21 robberies. See Darden, 477 U.S. at 181-82 (analyzing a claim that the prosecutor's 22 argument violated due process by considering the strength of the evidence against the 23 defendant). Considering witness testimony that Owens confessed to committing the 24 robberies, including identifying himself in photographs from store surveillance video, the 25 Court cannot conclude that the actions of the prosecutor “so infected the trial with 26 unfairness as to make the resulting conviction a denial of due process.” Id. The Court 27 finds that the Nevada appellate court reasonably found that Petersen’s testimony 28 2 evidence that established Owens’s guilt. 3 b. “ROP” reference 4 Although the State referred to the detectives as “ROP” detectives twice during 5 closing, the State did not inform the jury that the “ROP” acronym stood for the repeat 6 offender program. As stated by the Nevada appellate court, reference to the acronym 7 “ROP” when mentioning “ROP” detectives did not convey to the jury that Owens was a 8 repeat offender. Considering the entire proceeding and the overwhelming evidence of 9 Owens’ guilt, it was objectively reasonable for the Nevada court of appeals to conclude 10 that the State’s challenged remarks referring to “ROP” detectives did not infect the entire 11 proceeding. 12 c. Cumulative error 13 The Nevada court of appeals concluded that even if there was error, the error was 14 harmless. Owens has not demonstrated multiple errors to cumulate. He has not shown 15 that the appellate court’s decision was objectively unreasonable. The prosecutorial 16 misconduct did not infect the trial with such unfairness as to make the resulting conviction 17 or sentence a denial of due process. See, e.g., Wood, 693 F.3d at 1116-17 (holding 18 allegations of prosecutorial misconduct did not “rise to the level of a due process violation 19 even when considered in the aggregate”). Accordingly, Owens is denied habeas relief as 20 to Ground 2. 21 C. Ground 3—Ineffective Assistance of Counsel, Failure to Move to Suppress 22 23 In Ground 3, Owens alleges that trial counsel rendered ineffective assistance by 24 failing to investigate and move to suppress Owens’s statements to police. (ECF No. 18 25 at 20-25.) Owens asserts that counsel should have moved to suppress his statements (1) 26 as involuntary, because Owens was intoxicated; and (2) because they were obtained in 27 28 2 In its order granting in part Respondents’ motion to dismiss, the Court found that 3 Owens did not fairly present a claim under Seibert to the state courts during 4 postconviction proceedings and that Ground 3(B) is unexhausted. (ECF No. 35 at 6.) 5 Although Owens did not suggest any means by which he could overcome the procedural 6 bar in state court or assert a basis to overcome procedural default under Martinez v. 7 Ryan, 566 U.S. 1 (2012), the Court deferred ruling whether Ground 3(B) must be 8 dismissed as procedurally defaulted until merits review. Owens, however, does not 9 present any cause and prejudice argument to excuse the procedural bar of Ground 3(B) 10 and does not present any arguments relative to Martinez regarding Ground 3(B). (ECF 11 No. 59 at 10.) Accordingly, the Court dismisses Ground 3(B) as procedurally defaulted. 12 1. Additional background information 13 A robbery detective, David Miller, testified at trial on direct examination as follows: 14 [The State]: At some point during the initial contact with [Owens], did you tell him look, I’ll talk to you at the Robbery Division Later? 15 [Witness]: That’s true, yes. 16 [The State]: Did he continue to speak to you? 17 [Witness]: Yes. 18 [The State]: Unsolicited? 19 [Witness]: Yes. 20 [The State]: Because you wanted to Mirandize him and record the 21 interview later, correct?

22 [Witness]: Right. I wasn’t—I was still trying to—I had just woken up frankly. I was—I don’t know 3:30, 4:00 in the morning. I was 23 just trying to get the details from those detectives, everything that they saw occur that night and he was just going on and 24 on, you know, stating I’m the one who did it. I already told them. It’s all me. I don’t want anyone else to go to jail. Things 25 of that nature.

26 And I was—yeah, I was basically telling him we’ll—I promise you I’ll talk to you, but let me get some facts and details out 27 8Seibert held that Miranda warnings mid-interrogation, after a defendant gave 28 unwarned confessions, were ineffective, and thus a confession repeated after warnings 2 (ECF No. 22-30 at 68-69.) 3 On cross-examination, Miller testified regarding his interview with Owens: 4 [Defense]: Okay. Now I’m going to throw something out there and then I’m going to ask you based on your training and experience. It 5 appeared to me in the video that [Owens] was in an altered state, be it drunk or high or something like that. Is that fair to 6 say?

7 [Witness]: No, not at all. He seemed not—I didn’t get that impression, not even slightly. I do interview people who I get that impression 8 of, but no, I didn’t get that impression at all.

9 [Defense]: Okay. So the way he spoke with you colloquially, dropping a lot of F-bombs, doing things like that, that was not out of the 10 norm for you?

11 [Witness]: Nope.

12 [Defense]: So you believed him to be sober when he was giving those interviews? 13 [Witness]: Yes. 14 15 (ECF No. 22-30 at 141.) 16 2. State court determination 17 The Nevada Court of Appeals held: 18 Owens claimed his trial counsel was ineffective for failing to investigate the circumstances surrounding his confession or file a motion to suppress his 19 confession because his interview with the police was not voluntary. Owens contended he was forced to sign documents he did not understand and 20 asserted he was under the influence of a substance during that interview. “A confession is admissible only if it is made freely and voluntarily” and 21 “must be the product of a rational intellect and a free will.” Passama v. State, 725 P.2d 321, 322 (1987) (internal quotation marks omitted). “Voluntariness 22 must be determined by reviewing the totality of the circumstances,” and “[t]he ultimate inquiry is whether the defendant’s will was overborne by the 23 government’s actions.” Gonzalez v. State, 354 P.3d 654, 658 (Ct. App. 2015). 24 Officers testified at trial that upon his arrest, Owens stated he had 25 committed the crimes and offered those statements unprompted. Owens also informed a police officer where he had discarded a firearm. An officer 26 testified he subsequently transported Owens to a police station and initiated an interview with Owens. The officer advised Owens of his rights pursuant 27 to Miranda v. Arizona, 384 U.S. 436 (1966). Owens stated that he understood his rights and agreed to talk to the officer. Owens proceeded to 28 discuss his involvement in the robberies in detail and provided clear responses to the officer’s questions. Owens initialed surveillance does not reveal that Owens informed the officer that he was under the 2 influence of any substance during the interview and Owens did not provide an indication that he was unable to understand the interview process. The 3 totality of the circumstances demonstrated that Owens’ confession was voluntary and his will was not overborne by the officers’ actions. 4 Accordingly, Owens did not demonstrate counsel acted in an objectively unreasonable manner by failing to investigate the circumstances 5 surrounding his confession or to move to suppress his confession. Owens also did not demonstrate a reasonable probability of a different outcome 6 had counsel investigated this issue or moved for suppression of the confession. Therefore, we conclude the district court did not err by denying 7 this claim without conducting an evidentiary hearing.

8 (ECF No. 24-36 at 4-6.) 9 3. Analysis 10 The Nevada appellate court’s decision is not contrary to, nor an unreasonable 11 application of federal law as determined by the United States Supreme Court and is not 12 based on unreasonable determinations of fact in the state court record. 13 Under Miranda v. Arizona, a suspect must be warned that they have the right to 14 remain silent and to the assistance of counsel if they are subjected to custodial 15 interrogation. See 384 U.S. at 444. “The defendant may waive effectuation of these rights, 16 provided the waiver is made voluntarily, knowingly and intelligently.” Id. The waiver must 17 be “voluntary in the sense that it was the product of a free and deliberate choice rather 18 than intimidation, coercion, or deception.” Berghuis v. Tompkins, 560 U.S. 370, 382 19 (2010). Whether a confession is involuntary must be analyzed within the “totality of the 20 circumstances.” Withrow v. Williams, 507 U.S. 680, 693 (1993). The factors to be 21 considered include the degree of police coercion; the length, location and continuity of 22 the interrogation; and the defendant’s maturity, education, physical condition, mental 23 health, and age. See id. at 693-94. 24 Counsel’s decision not to move to suppress Owens’s statements to police does 25 not fall “outside the wide range of professionally competent assistance.” Strickland, 466 26 U.S. at 690. As noted by the Nevada appellate court, Owens volunteered that he 27 committed the crimes, and he provided clear responses to the police. The record does 28 not show that Owens informed police that he was under the influence of any substances 2 Owens was sober during his interview. Owens has not demonstrated that a motion to 3 suppress had any likelihood of success. Owens fails to demonstrate that his trial counsel’s 4 actions in failing to move to suppress his statements to police fell below an objective 5 standard of reasonableness and that but for the alleged deficiency, a reasonable 6 probability exists that the result of the proceeding would have been different. Accordingly, 7 Owens is denied habeas relief as to Ground 3. 8 D. Ground 4—Ineffective Assistance of Counsel, Failure to Challenge Search Warrant 9

10 In Ground 4, Owens alleges that trial counsel rendered ineffective assistance by 11 failing to investigate and challenge the search warrant. (ECF No. 18 at 25-27.) He asserts 12 that trial counsel should have investigated the probable cause underlying the search 13 warrant for the mobile tracking device. (Id. at 26.) He further asserts that probable cause 14 for the search warrant was provided by an “anonymous tipster.” (Id.) 15 1. Additional background information 16 At trial, Miller testified that during the investigation, detectives received a tip 17 anonymously over the telephone through Crime Stoppers on August 5, 2014. (ECF No. 18 22-30 at 59-60.) When asked if detectives had probable cause to arrest Owens on August 19 5, Miller testified as follows: 20 I didn’t think we had probable cause on the 5th after first receiving that information. I thought we were building our case, trying to determine the 21 validity of the tip. And of course, it did look like him in those pictures, so it was looking good, but the investigation was ongoing. I wasn’t going to go 22 out that very moment and take him into custody. But I certainly was interested in taking a look at his life and seeing if we could determine if he 23 was related.

24 (Id. at 63.) Miller further testified regarding the surveillance conducted on Owens. (Id.) He 25 testified that detectives obtained footage of Owens using the red Prius, which was a rental 26 car. (Id. at 64-65.) 27 /// 28 /// 2 The Nevada Court of Appeals held: 3 Owens claimed trial counsel was ineffective for failing to investigate the probable cause supporting a search warrant or move to suppress evidence 4 obtained pursuant to the search warrant. The police obtained a warrant to place a tracking device on a vehicle due to information they obtained 5 indicating it was being utilized in the commission of robberies. Owens contended that counsel should have attempted to discover additional 6 information concerning the anonymous source that provided information to the police concerning the robberies and should have argued the warrant 7 was improper because the vehicle was not registered to him.

8 “[I]nstallation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search.” United States v. 9 Josh, 565 U.S. 400, 404 (2012) (internal quotation marks omitted). Non- owners of a vehicle generally do not have standing to challenge the search 10 of that vehicle unless the non-owner has some sort of possessory intent in that vehicle. Scott v. State, 877 P.2d 503, 507-08 (1994). Owens made no 11 attempt to demonstrate he had a possessory interest in the vehicle. See id. Owens also made no attempt to demonstrate he had a legitimate 12 expectation of privacy in the vehicle. See Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978) (“The proponent of a motion to suppress has the burden of 13 establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”). Accordingly, Owens did not demonstrate 14 counsel acted in an objectively unreasonable manner by failing to investigate the probable cause supporting the search warrant or by failing 15 to move to suppress the evidence obtained pursuant to the warrant. In addition, Owens did not demonstrate a reasonable probability of a different 16 outcome had counsel performed an investigation or attempted to suppress the evidence obtained from the tracking device. Therefore, we conclude the 17 district court did not err by denying this claim without conducting an evidentiary hearing. 18

19 (ECF No. 24-36 at 3-4.) 20 3. Analysis 21 Considering the deferential standard set forth in Strickland, and the “high level of 22 deference given to counsel's decisions,” Carrera v. Ayers, 670 F.3d 938, 948 (9th Cir. 23 2011), on reh'g en banc, 699 F.3d 1104 (9th Cir. 2012), the Court finds that the Nevada 24 court of appeals’ determination that trial counsel was not deficient for failing to challenge 25 the search warrant was a reasonable application of clearly established federal law. 26 Owens fails to demonstrate that there was a substantial basis to challenge the search 27 warrant and trial counsel was not ineffective for failure to raise an issue that lacks merit. 28 In addition, Owens cannot demonstrate that had trial counsel investigated and challenged 2 considering Owen’s confession that he committed the robberies and witness testimony 3 that likely would not have been excluded based on a successful challenge to the search 4 warrant. 5 The Nevada appellate court’s decision is not contrary to, nor an unreasonable 6 application of federal law as determined by the United States Supreme Court and is not 7 based on unreasonable determinations of fact in the state court record. Owens is denied 8 habeas relief as to Ground 4. 9 E. Ground 5—Ineffective Assistance re: Failure to Move to Disqualify Trial Judge and Change of Venue 10

11 Finally, in Ground 5, Owens alleges trial counsel rendered ineffective assistance 12 for failure to seek disqualification of the trial judge or a change of venue due to judicial 13 bias. (ECF No. 18 at 27-29.) He asserts that the trial judge had a bias against Owens 14 because he was also the judge that signed the search warrant. (Id. at 28.) He further 15 asserts that the trial judge should have recused himself based on his authorization of the 16 search warrant. 17 1. State court determination 18 The Nevada Court of Appeals held: 19 Owens claimed trial counsel was ineffective for failing to seek disqualification of the trial judge or a change of venue because the judge 20 was biased against him. Owens contended the trial judge was biased against him because the judge approved the search warrant permitting the 21 police to install the tracking device on a vehicle. However, the “rulings and actions of a judge during the course of official judicial proceedings do not 22 establish” that a district court judge was biased against a party. In re Petition to Recall Dunleavy, 769 P.2d 1271, 1275 (1988). Because the trial judge’s 23 approval of the search warrant was insufficient to establish that the judge was biased, Owens did not demonstrate counsel’s performance fell below 24 an objective standard of reasonableness by failing to seek disqualification of the trial judge. Owens also failed to demonstrate a fair and impartial trial 25 could not have been held in Clark County, see NRS 174. 455, and, therefore, he did not demonstrate counsel should have sought a change of 26 venue. In addition, Owens did not demonstrate a reasonable probability of a different outcome had counsel moved for disqualification of the trial judge 27 or a change of venue due to bias toward Owens. Therefore, we conclude the district court did not err by denying this claim without conducting an 28 evidentiary hearing. 2 2. Analysis 3 The Nevada appellate court’s decision is not contrary to, nor an unreasonable 4 application of federal law as determined by the United States Supreme Court and is not 5 based on unreasonable determinations of fact in the state court record. 6 a. Judicial disqualification 7 “[M]ost matters relating to judicial disqualification [do] not rise to a constitutional 8 level.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009). Under Supreme 9 Court precedent, there are “only three circumstances in which an appearance of bias— 10 as opposed to evidence of actual bias—necessitates recusal”: (1) the judge has a 11 pecuniary or personal interest in the outcome of the proceedings, (2) the judge “becomes 12 embroiled in a running, bitter controversy with one of the litigants,” or (3) the judge “acts 13 as part of the accusatory process.” Crater v. Galaza, 491 F.3d 1119, 1130 (9th Cir. 2007) 14 (quoting Turney v. Ohio, 273 U.S. 510, 523 (1927)); Mayberry v. Pennsylvania, 400 U.S. 15 455, 465 (1971). 16 The Court finds that Owens fails to establish that trial counsel’s performance was 17 deficient as a result of failure to object or move to disqualify the trial judge for bias based 18 on his authorization of the search warrant. The Supreme Court has explicitly held that 19 “opinions formed by the judge on the basis of facts introduced or events occurring in the 20 course of the current proceedings, or of prior proceedings, do not constitute a basis for a 21 bias or partiality motion unless they display a deep-seated favoritism or antagonism that 22 would make fair judgment impossible.” Litekey v. United States, 510 U.S. 540, 555-56 23 (1994) (finding grounds for disqualification asserted by petitioners including “judicial 24 rulings, routine trial administration efforts, and ordinary admonishment (whether or not 25 legally supportable) to counsel and witnesses” were inadequate as “[a]ll occurred in the 26 course of judicial proceedings, and neither (1) relied upon knowledge acquired outside 27 such proceedings nor (2) displayed deep seated and unequivocal antagonism that would 28 render fair judgment impossible”). Owens does not present any evidence of judicial bias, 2 source that could form the basis of a constitutional claim. 3 b. Change of venue 4 The Sixth and Fourteenth Amendments “guarantee[ ] to the criminally accused a 5 fair trial by a panel of impartial ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). 6 When a trial court is “unable to seat an impartial jury because of prejudicial pretrial 7 publicity or an inflamed community atmosphere[,] . . . due process requires that the trial 8 court grant defendant’s motion for a change of venue.” Harris v. Pulley, 885 F.3d 1354, 9 1361 (9th Cir. 1988) (citing Rideau v. Louisiana, 373 U.S. 723, 726 (1963)). 10 Owens asserts that trial counsel rendered ineffective assistance for failure to seek 11 a change of venue based on a biased judge. (ECF No. 59 at 14-15.) As determined above, 12 Owens failed to demonstrate any evidence of judicial bias to form the basis of a due 13 process violation. As stated by the Nevada court of appeals, Owens also failed to 14 demonstrate a fair and impartial trial could not have been held in Clark County, and, 15 therefore, he did not demonstrate counsel should have sought a change of venue. Owens 16 is denied habeas relief as to Ground 5. 17 V. CERTIFICATE OF APPEALABILITY 18 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section 19 2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). 20 Therefore, the Court has sua sponte evaluated the claims within the petition for suitability 21 for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner, 281 F.3d at 864-65. Under 22 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a 23 substantial showing of the denial of a constitutional right.” With respect to claims rejected 24 on the merits, a petitioner “must demonstrate that reasonable jurists would find the district 25 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 26 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For 27 procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether 28 1 || the petition states a valid claim of the denial of a constitutional right and (2) whether this 2 || Court’s procedural ruling was correct. /d. 3 Applying these standards, this Court finds that a certificate of appealability is 4 || unwarranted. 5 || Vi. CONCLUSION 6 It is therefore ordered that the Amended Petition for Writ of Habeas Corpus under 7 || 28 U.S.C. § 2254 (ECF No. 18) is granted as to Ground 1 and denied as to the remaining 8 || grounds. Petitioner Darian Owens’s sentence in Case No. C-14-300761-1 in the Eighth 9 || Judicial District of Nevada is hereby vacated. Within 60 days® of the later of (1) the 10 || conclusion of any proceedings seeking appellate or certiorari review of this Court’s 11 || judgment, if affirmed; or (2) the expiration for seeking such appeal or review, Owens must 12 || be given new sentencing hearing. 13 It is further ordered that a certificate of appealability is denied. 14 The Clerk of Court is directed to (1) substitute Jeremy Bean for Respondent 15 || Gittere; (2) enter judgment accordingly; (3) provide a copy of this order and the judgment 16 || to the Clerk of the Eighth Judicial District Court of Nevada in connection with that □□□□□□□ 17 || Case No. C-14-300761-1; and (4) close this case. 18 DATED THIS 7" Day of February 2025. "GQ 20 MIRANDA M. DU 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 — ® Reasonable requests for modification of this time may be made by either party.