1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 | HYRUM JOSEPH WEST, 11 Plaintiff, Case No. 2:15-cv-1504-LDG (NJK) 12 || v. ORDER 13 | BRIAN WILLIAMS, et a/., 14 Defendants. 15 16 Presently before the Court is a habeas corpus proceeding under 28 U.S.C. §2254 17 || brought by Hyrum Joseph West, a Nevada State prisoner. 18 Procedural Background’ 19 As previously summarized by the Court, in June 201 1, ajury found West guilty of 20 || trafficking a Schedule 1 controlled substance following a trial in Nevada’s Fifth Judicial 21 || District Court. Prior to sentencing, West filed a motion for mistrial. At West's sentencing 22 || hearing, the court denied the motion and sentenced West to a prison term of 10 to 25 23 || years. West then filed a motion for a new trial. 24 25] 6 ' The Court has compiled the procedural history from the exhibits filed at ECF Nos. 17-22 and this Court’s own docket.
1 The state district court entered a judgment of conviction on December 30, 201 1, ar 2 || an order denying the motion for new trial on March 20, 2012. West appealed. The Nevac 3 || Supreme Court remanded the matter for a written disposition of the court’s order denying 4 || West's pretrial motions to dismiss and to suppress. 5 On December 13, 2012, the Nevada Supreme Court affirmed West’s conviction. 6 || West filed a separate appeal of the state district court’s written order denying his motion t 7 || dismiss and motion to suppress. On January 24, 2013, the Nevada Supreme Court 8 || dismissed the appeal for lack of jurisdiction. 9 On November 12, 2013, West filed a proper person state habeas petition and 10 || supporting memorandum. He filed a counseled supplemental petition on June 25, 2014. On October 21, 2014, the state court entered an order denying some of West's claims on 12 || the merits and finding his remaining claims procedurally barred pursuant to Nev. Rev. Sta 13 || §34.810. West appealed. 14 On April 15, 2015, the Nevada Court of Appeals affirmed the denial of most of 15 | West's claims on the merits, but dismissed one ground as procedurally barred pursuant tc 16 || Nev. Rev. Stat. 34.810, and declined to address additional claims on the ground that Wes 17 || failed to support them with any cogent arguments. 18 On May 7, 2015, before remittitur issued on the appeal, West filed a petition for wri 19 || of mandamus with the Nevada Supreme Court in which he sought an evidentiary hearing 20 | on his state habeas petition. The Nevada Supreme Court declined to exercise its original 21 || jurisdiction and denied mandamus. The court also denied West's petition for rehearing. 22 Prior to the conclusion of his state proceedings, on or about July 31, 2015, West 23 || initiated his federal habeas petition, in which he raised six grounds along with a lengthy 24 || supporting memorandum and exhibits, by mailing or handing the petition to a correctional 25 || officer for the purpose of mailing the petition to this Court. Respondents moved to dismis: 26
1 || the petition, arguing that the claims were unexhausted, procedurally barred or not 2 || cognizable. 3 On September 28, 2016, this Court granted the motion to dismiss, but also granted 4 || West leave to amend his petition to address several deficiencies in the initial petition. On 5 || November 1, 2016, West filed an amended federal petition (CM/ECF No. 33) anda 6 | memorandum in support (CM/ECF No. 34). Respondents again moved to dismiss the 7 || amended petition, again arguing that West’s claims were unexhausted, procedurally barre 8 || or not cognizable. This Court granted the motion in part, determining that West had 9 || included many unexhausted claims in the amended federal habeas petition, and that to th 10 || extent that West had exhausted Grounds 1, 2, 3, and 4 of his amended petition, those 11 || grounds for relief were not cognizable under Stone v. Powell, 428 U.S. 465 (1975).? 12 As West had included unexhausted claims in his amended federal petition, thus 13 || presenting the Court with a mixed petition, the Court provided West the opportunity to 14 || either (1) abandon his unexhausted claims and proceed on the remaining claims, or (2) 15 || request that the proceedings be stayed and held in abeyance while he exhausted his stat. 16 || court remedies as to the unexhausted claims. The Court notified West that the latter optic 17 || required that such a request be filed as a motion and that he make the necessary □□□□□□ 18 || to stay a mixed petition under Rhines v. Weber, 544 U.S. 269 (2005). 19 West moved for a stay and abeyance of his amended federal petition. The Court 20 || denied that motion, finding that West had not met his burden of demonstrating good caus 21 || for his failure to exhaust his unexhausted claims, as required under Rhines. The Court 22 || provided West an opportunity to abandon his unexhausted claims and proceed with his 23 || exhausted claims. The Court notified West that, if he failed to do so, the Court would be 24 25 2 The Court further noted that, to the extent West was alleging a Fourth Amendment violation in Grounds 5, 7, and 12, any such Fourth Amendment claims raised 26 || in those grounds for relief were also barred by Stone v. Powell.
1|| required to dismiss the entire petition under Rose v. Lundy, 455 U.S. 509 (1982) asa 2 || mixed petition. After West filed an abandonment of his unexhausted claims, respondents 3 || filed an answer (CM/ECF No. 70) to the remaining exhausted claims. West has filed a response (CM/ECF No. 72) to that answer. 5 Factual Background. 6 The state presented the following evidence at trial. Sometime prior to the early 7 | morning hours of July 10, 2010, Detective Meade, who worked in the Nye County Sheriff's 8 || Office’s narcotics unit, developed West as a target involved in the trafficking of 9 | methamphetamine. After receiving a call from a Las Vegas Metropolitan police officer, 10 || Detective Meade went to the highway from Las Vegas to Pahrump “in anticipation of Hyrut 11 | West returning back to Pahrump from Las Vegas,” along with another detective and a 12 || couple of patrol officers. 13 One of the patrol officers, Deputy Otteson, spotted West’s vehicle. Using a radar 14 || unit, she established that the vehicle was traveling 59 m.p.h. in a 55 m.p.h. zone. Deputy 15 || Otteson conveyed this information to the other law enforcement officers by radio. Based 16 || on that information, Deputy Zaragoza conducted a traffic stop of the vehicle West was 17 || driving. 18 After arriving at the location where West was stopped, Deputy Otteson asked West 19 whether he consented to a search of the vehicle, to which he said, “Yes.” Deputy Hunt, a 20 || canine deputy, did an external search of the vehicle with his canine partner, Indy. Indy 21 || alerted to the odor of a controlled substance on the driver’s side door of the vehicle and o1 22 || a clear package containing currency. Detective Meade then conducted a search of the 23 || vehicle, finding two blue pouches that contained a substance he suspected was 24 || methamphetamine. The blue pouches were hidden in the gear shift box. Subsequent 25 || testing confirmed that the substance was slightly more than 215 grams of 26 || methamphetamine. Several days later, Detective Meade interviewed West. West
1 || specifically discussed the quantity and quality of the methamphetamine that Detective 2 || Meade had seized from West’s car. 3 Analysis 4 This matter is governed by the Anti-Terrorism and Effective Death Penalty Act of 5 || 1996 (AEDPA). Under the AEDPA, federal courts cannot grant habeas relief when a state 6 || court has adjudicated a claim on its merits unless the state court adjudication “(1) resulted 7 || in a decision that was contrary to, or involved an unreasonable application of, clearly 8 || established Federal law, as determined by the Supreme Court of the United States; or (2) 9 || resulted in a decision that was based on an unreasonable determination of the facts in lig 10 || of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). To obtair 11 || relief, a petitioner must do more than show that “the relevant state-court decision applied 12 || clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 13 || 362, 411 (2000). Instead, a petitioner must show that the state court’s rejection of the 14 || claim was “so lacking in justification that there was an error well understood and 15 || comprehended in existing law beyond any possibility for fairminded disagreement.” 16 || Harrington v. Richter, 562 U.S. 86, 103(2011). In making this determination, the state 17 || courts’ factual findings are entitled to the presumption of correctness. 28 U.S.C. § 18 || 2254(e)(1). 19 Ground Six. 20 West asserts his stop was recorded by the camera and video recording system in 21 || Deputy Zaragoza’s patrol car. This video recording would have both shown that he was 22 || still in a 65 m.p.h. zone when Deputy Zaragoza initiated the traffic stop for speeding in a □ 23 || m.p.h. zone, and that he did not consent to a search of his vehicle in response to Deputy 24 || Otteson. He argues that the State violated Brady v. Maryland, 373 U.S. 83, 87 (1963), by 25 || failing to disclose the video recording. He contends that, because he is alleging a Brady 26 || violation, he does not have to show that the State acted in bad faith because such a &
1] “violation occurs when the government fails to disclose evidence materially favorable to th accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006). 3 The Court previously determined that West exhausted his claim that the State 4 || suppressed or destroyed material exculpatory evidence in violation of his constitutional rights. The specific evidence he claims was destroyed or suppressed was the video 6 || recording of the traffic stop and arrest, as recorded by the dashcam video recorder 7 |{ installed in Deputy Zaragoza’s patrol car. 8 During the preliminary hearing, Deputy Zaragoza testified that his patro! vehicle hac 9 || video recording equipment and that he believed the equipment was operational. In 10 || response to defense counsel's questions, Deputy Zaragoza indicated he did not have a 11 | videotape of the stop because he “didn’t think to put it in evidence.” When questioned 12 || whether the video recording existed, Deputy Zaragoza indicated he would need “to look 13 || through the videotapes, sir.” 14 West later learned that the recording of the stop on the video tape in Deputy 15 || Zaragoza’s patrol car had apparently been recorded over. In response, he moved to 16 || dismiss the case based upon the destruction of, or failure to preserve, evidence. During 17 || the resulting evidentiary hearing, Deputy Zaragoza testified that the videotape containing 18 || the recording of the stop had still been in his patrol car. When he attempted to review the 19 || recording of the stop on that tape, he discovered that “the dates were not concurrent with 20 || the video. It would have one date here, and it would skip and have a different date.” He 21 || further testified the only time he had touched the video tape was when he received it as a 22 || blank tape and had placed it in the video equipment in the car. He testified, based on his 23 || notation on the tape, that he had placed the tape into the equipment on January 22, 2010, 24 || and that he had never replaced that tape. He indicated that the equipment should have 25 | oo 8 West asserts the destruction of the video recording was intentional “or, at the 26 very least, inadvertantly allowed to be destroyed.” &
1 || notified him when the tape was full. The state also provided testimony indicating that the 2 || equipment, if it had functioned as intended, would have only recorded on blank tape and 3 | would not have recorded over previously-recorded tape. A portion of the tape was played, 4 || which showed a video recording made August 2, 2010, then a jump to a video recording 5 || made on July 10, 2010, of the stop of West’s vehicle. This recording was extremely short, 6 || and then the recording on the videotape again jumped to a different date. The state 7 || proffered that the remainder of the tape was consistent, with recordings constantly jumpin: 8 || between different dates until the tape was removed from the vehicle in October 2010. 9 The trial court denied West’s motion to dismiss based upon the destruction or failur 10 || to preserve evidence, which motion argued, in part, that failure to preserve the video 11 || recording violated Brady. The trial court found that Deputy Zaragoza’s video recording 12 | system was malfunctioning at the time of the stop, that the videotape record of the traffic 13 | stop in question and other traffic stops was in disarray and unintelligible, and that Deputy 14 || Zaragoza did not purposely destroy the videotape evidence of West's stop. The trial cour 15 || concluded that there was no evidence that the videotape evidence of the traffic stop was 16 || destroyed in bad faith. 17 West appealed the trial court’s denial of his motion to dismiss. The Nevada 18 || Supreme Court reviewed the trial court’s decision for abuse of discretion and affirmed. It 19 || noted that the “failure to preserve potentially exculpatory evidence may result in dismissal 20 || of charges if the defendant can show bad faith or connivance on the part of the 21 || government or that he was prejudiced by the loss of the evidence.” The Nevada Supreme 22 || Court concluded that “the record on appeal supports the district court’s factual findings” 23 || and that “West has failed to demonstrate that the State acted in bad faith or that he was 24 || prejudiced by the loss of the videotape.” Accordingly, the Nevada Supreme Court 25 || determined that the trial court had not abused its discretion in denying West's motion to 26 || dismiss.
1 West's argument rests on the premise that the Nevada Supreme Court’s decision 2 || was “contrary to, or involved an unreasonable application of, clearly established Federal 3 || law, as determined by the Supreme Court of the United States” because it did not apply Brady in reviewing his appeal. The Supreme Court held in Brady that “the suppression by 5 || the prosecution of evidence favorable to the accused upon request violates due process 6 || where the evidence is material either to guilt or to punishment, irrespective of the good fai 7 || or bad faith of the prosecution.” 373 U.S. at 87. As such, he argues the Nevada Suprem 8 | Court erred by applying a bad faith requirement. West's argument ignores, however, that 9 || the Supreme Court has recognized that a different standard applies to a State’s failure to 10 || preserve potentially useful evidence, rather than the suppression of favorable evidence. As stated by the Supreme Court, “unless a criminal defendant can show bad faith on the 12 || part of the police, failure to preserve potentially useful evidence does not constitute a 13 | denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).” Given □□□ 14 || the Nevada Supreme Court reviewed West's appeal for “failure to preserve potentially 15 || exculpatory evidence,” West must first establish that the underlying factual determination 16 || that the video recording was “potentially exculpatory evidence” was unreasonable in light | 17 || the evidence presented in the evidentiary hearing. He has not. West has also failed to 18 || show that the Nevada Supreme Court’s decision that he had not shown the State acted in 19 || bad faith or that he was prejudiced by the loss of the video recording was contrary to, or 20 || involved an unreasonable application of, Youngblood. Accordingly, West is not entitled tc relief on his sixth ground for relief. 22 Ground Seven. 23 The exhausted claim alleged by West in Ground Seven is that his rights under the 24 || Confrontation Clause were violated by the presentation of hearsay evidence. As recited i 25 || his state post-conviction petition, the exhausted portion of Ground Seven rests on his 26 || assertion that “Detective Meade informed the jury he had received information from the L:
1 || Vegas Metropolitan Police Department that a tipster had implicated Mr. West.” He further 2 || asserted that “the prosecutor and the lead detective provided compelling and highly 3 || prejudicial hearsay information against Mr. West.” He subsequently alleged that “the 4 || prosecutor and the lead detective provided the jury with blatant hearsay.” He asserts he 5 || “was not given an opportunity to confront the individual who allegedly ‘tipped off the 6 || metropolitan police department. Moreover, the anonymous silent witness allegedly 7 || provided information that was particularly devastating to Mr. West.” Absent from West’s 8 || state post-conviction petition, however, is any citation to the specific testimony of Detectiv 9 || Meade underlying this ground for relief, or to any specific statement made my the 10 || prosecutor to the jury. 11 To the extent West elaborates on the facts alleged in his state post-conviction 12 || petition in his present petition, he asserts that “during the trial the lead det [sic] Meade anc 13 || dda [sic] White provided compelling and high prejudicial hearsay information against Wes 14 || from that Cl Williams.” He further asserts the “prosecutor highlighted the anonymous 15 || tipster in his closing argument.” 16 The Court has reviewed the entirety of Detective Meade’s testimony, and cannot 17 || identify any testimony by Detective Meade that “he had received information from the Las 18 || Vegas Metropolitan Police Department that a tipster had implicated Mr. West.” In his closing arguments, the prosecutor stated “Detective Meade told you that he got tipped off 20 || that Mr. West was coming back in.” The “tip off’ Detective Meade received, and to which 21 || the prosecutor was apparently referring, however, did not concern information from an 22 || informant implicating West. Rather, Detective Meade testified that he had communicated 23 || with the Las Vegas Metropolitan Police Department as a result of his efforts to develop 24 || West as a target “as somebody that may be involved in methamphetamine.” Detective 25 || Meade testified he had received a call from Carl Bomer, of the Las Vegas Metropolitan 26 || Police Department, and that as a result of this call, he contacted other police officers and
1 || went to Highway 160 “in anticipation of Hyrum West returning back in to Pahrump from La 2 || Vegas.” Detective Meade further testifed that he had reason to believe West was coming 3 || back to Pahrump based on his conversation with Bomer. 4 West is not entitled to any relief on this seventh ground because the testimony of 5 |) Detective Meade and the statement of the prosecutor, as recorded in the transcript of the 6 || trial, are contrary to his allegations. Detective Meade testified that he acted based upon a 7 || call he received from Bomer. Detective Meade’s testimony of his actions based upon a cé 8 || that he received, which did not disclose the statement made by Bomer, was not hearsay evidence. (Further, contrary to West’s allegations, this phone call did not come from an 10 || informant implicating West, but from a police officer.) In addition, the prosecutor did not 11 | make a statement, during his closing argument, concerning a tip from an informant 12 || implicating West. Rather, he stated that Detective Meade acted on a tip that West was returning to Pahrump. The statement reflected Detective Meade’s testimony on cross- 14 || examination, when West elicited testimony that Bomer had said he (Bomer) had observed 15 || West's vehicle driving toward Pahrump. Again, Detective Meade’s testimony was not 16 || hearsay. As with the Detective Meade’s earlier testimony regarding the call, this evidence 17 || of Bomer’s statements did not go to the truth of the matter asserted (that Bomer had 18 | observed West's vehicle driving toward Pahrump) but to explain why Detective Meade 19 || called other officers and then went to Highway 160. Accordingly, West is not entitled to 20 || relief on the exhausted claim in his seventh ground for relief. 21 Ground Eight 22 The exhausted claim alleged by West in Ground Eight is that, as he did not consen 23 || to the declared mistrial in his first trial, his second trial violated the Double Jeopardy 24 || Clause. West argues that, as he did not consent to the mistrial, the judge presiding at his 25 || first trial could declare a mistrial only if there was a “manifest neccissity” for doing so. 26 || Relying largely on Ninth Circuit and Nevada Supreme Court decisions, he argues there we 10
1 || not such a “manifest neccesity,” and therefore the judge abused his discretion in declaring a mistrial. In light of West’s arguments, the Court begins by noting that the Supreme Cou! 3 || has indicated the proper framing for such claims: 4 It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even 5 whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the 6 determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of ... clearly established Federal 7 law.” § 2254(d)(1). 8 || Renico v. Lett, 559 U.S. 766, 772-73 (2010). 9 At the outset, the Court recognizes that the “clearly established Federal law’ 10 || governing this §2254 petition is the “clearly established Federal law, as determined by the 11 || Supreme Court.” The Supreme Court provided a thorough summary of the relevant, 12 || “clearly established Federal law” governing a trial judge’s declaration of a mistrial on the 13 | grounds that the jury is deadlocked. 14 The “clearly established Federal law’ in this area is largely undisputed. In Perez, we held that when a judge discharges a jury on the grounds that the 15 jury cannot reach a verdict, the Double Jeopardy Clause does not bar a new trial for the defendant before a new jury. We explained that trial judges may 16 declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for doing so.” The decision to 17 declare a mistrial is left to the “sound discretion” of the judge, but “the power ought to be used with the greatest caution, under urgent circumstances, and 18 for very plain and obvious causes.” 19 Since Perez, we have clarified that the “manifest necessity” standard “cannot be interpreted literally,” and that a mistrial is appropriate when there 20 is a “high degree” of necessity. The decision whether to grant a mistrial is reserved to the “broad discretion” of the trial judge, a point that “has been 21 consistently reiterated in decisions of this Court.” 22 In particular, “[t]he trial judge's decision to declare a mistrial when he considers the jury deadlocked is ... accorded great deference by a reviewing 23 court.” A “mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict [has been] long considered the classic basis for a proper 24 mistrial.” 25 The reasons for “allowing the trial judge to exercise broad discretion” are “especially compelling” in cases involving a potentially deadlocked jury. 26 There, the justification for deference is that “the trial court is in the best 14
1 position to assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach 2 a just verdict if it continues to deliberate.” In the absence of such deference, trial judges might otherwise “employ coercive means to break the apparent 3 deadlock,” thereby creating a “significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all 4 the jurors.” 5 This is not to say that we grant absolute deference to trial judges in this context. Perez itself noted that the judge's exercise of discretion must be 6 “sound,” and we have made clear that “[iJf the record reveals that the trial judge has failed to exercise the ‘sound discretion’ entrusted to him, the 7 reason for such deference by an appellate court disappears.” Thus “if the trial judge acts for reasons completely unrelated to the trial problem which 8 purports to be the basis for the mistrial ruling, close appellate scrutiny is appropriate.” Similarly, “if a trial judge acts irrationally or irresponsibly, ... his 9 action cannot be condoned.” 10 We have expressly declined to require the “mechanical application” of any “rigid formula’ when trial judges decide whether jury deadlock warrants a 11 mistrial. We have also explicitly held that a trial judge declaring a mistrial is not required to make explicit findings of “ ‘manifest necessity’ ” nor to 12 “articulate on the record all the factors which informed the deliberate exercise of his discretion.” And we have never required a trial judge, before declaring a 13 mistrial based on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the 14 consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse. 15 Lett, 559 U.S. at 773-75. 16 The Nevada Supreme Court’s decision, while terse, establishes that it did not 17 unreasonably apply the law as established by the Supreme Court. That court noted that 18 trial judge determined “the jury foreman stated that the last poll was eight-four, the jury wa: 19 hopelessly deadlocked, and further deliberation would not be helpful.” It further noted that 20 “a deadlocked jury is the classic example of the ‘manifest necissity’ for mistrial.” The 21 Nevada Supreme Court’s determination was not objectively unreasonable. Accordingly, 22 West is not entitled to relief on the exhausted Double Jeopary Clause claim in his eighth 23 ground for relief. 24 25 26
1 Ground Nine 2 West's exhausted claim, in his ninth ground for relief, is that his appellate counsel 3 || was ineffective for failing to assert, as an issue in his direct appeal, that the judge presidin 4 || at the second trial violated the “law of the case” by refusing to read two of West's jury 5 || instructions that were given to the jury in his first trial. 6 A criminal defendant is entitled to reasonably effective assistance of counsel. 7 || McMann v. Richardson, 377 U.S. 759, 771, n. 14 (1970). The right to effective assistance 8 || of counsel is the right of the accused to require the prosecution's case to survive the 9 || crucible of meaningful adversarial testing. Strickland v. Washington, 466 U.S. 668, 685 10] (1984). When a true adversarial criminal trial has been conducted, even if defense □□□□□□ 11 || has made demonstrable errors, the requirements of the sixth amendment have been met. 12 || United States v. Cronic, 466 U.S. 648, 656 (1984). Counsel is presumed competent. As 13 || such, the burden rests on the defendant to establish a constitutional violation. Cronic at 14 || 658. 15 To obtain reversal of a conviction, petitioner must prove (1) that counsel's 16 || performance was so deficient that it fell below an objective standard of reasonableness, 17 || and (2) that counsel’s deficient performance prejudiced the defense to such a degree as tc 18 || deprive the defendant of a fair trial. Strickland, 466 U.S. at 687-88, 692 (1984). To 19 || establish deficient performance under Strickland, it must be shown “that counsel made 20 || errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 21 || defendant by the Sixth Amendment. /d. at 687. Exercising highly deferential judicial 22 || scrutiny, /d. at 699, this court inquires “whether counsel's assistance was reasonable 23 || considering all the circumstances.” /d. at 688. “Such assessment must be made ‘from 24 || counsel's perspective at the time,’ so as ‘to eliminate the distorting effects of hindsight.” 25 || Silva v. Woodford, 279 F.3d 825, 836 (9" Cir. 2002) (citing Strickland, 466 U.S. at 689). 26 || Prejudice can be presumed only “where there has been an actual breakdown in the 12
1 || adversarial process at trial.” Toomey v. Bunnell, 898 F.2d 741, 744 n. 2 (9th Cir.), cert. 2 || denied, 111 S.Ct. 390 (1990); See also Cronic, supra. 3 Appellate counsel does not have a constitutional obligation to raise every 4 || nonfrivolous issue requested by the appellant. Jones v. Barnes, 463 U.S. 745, 751 (1983) 5 || “Experienced advocates since time beyond memory have emphasized the importance of 6 || winnowing out weaker arguments on appeal and focusing on one central issue if possible, 7 || or at most on a few key issues.” /d. at 751-52. 8 The underlying premise of West's ninth ground for relief is that the second trial cour 9 || was bound by the “law of the case” to give the same jury instructions as given in the first 10 || trial. West's concept of “the law of the case” is contrary to Nevada law. In Nevada, the 11] “law of the case” requires only that lower courts follow appellate court rulings in the same 12 || case. Hsu v. Cty. of Clark, 173 P.3d 724, 728 (Nev. 2007). West’s appellate counsel was 13 || not ineffective for failing to assert, in the direct appeal, that the second trial judge violated 14 | the law of the case by not following a ruling of the first trial judge. 15 Ground Ten 16 In his tenth ground for relief, West argues his appellate counsel was ineffective for 17 || failing to challenge the reasonable doubt instruction given to the jury. Courts have, 18 || however, consistently and repeatedly held that the instruction given by trial judge 19) appropriately describes the state’s burden of proof regarding reasonable doubt. 20 || Accordingly, counsel was not ineffective for failing to raise this issue on direct appeal. 21 Ground Eleven 22 In his eleventh ground for relief, West alleges he was deprived of the assistance of 23 || counsel. In sparse and vague allegations, he argues his counsel suggested or instructed 24 | West to represent himself, such advice resulting from counsel’s effort to avoid sanctions 25 || threatened by the prosecution. The threatened sanctions, West suggests, created an 26 || actual conflict of interest in counsel, forcing West to represent himself. West does not 1A
challenge the trial court’s canvas, in which the court determined West’s election to 2 || represent himself was knowing and voluntary. The Nevada Court of Appeals denied West 3 || relief on this issue, finding that “West failed to support this claim with sufficient facts that, i 4 || true, entitled him to relief.” Accordingly, to obtain relief, West must show was that this 5 || decision was “based on an unreasonable determination of the facts in light of the evidence 6 || presented in the State court proceeding.” He has not done so, and could not do so 7 || because the record is contrary to his vague allegations. 8 The Sixth Amendment right to effective assistance of counsel includes the right to 9 || representation free from conflicts of interest. Mickens v. Taylor, 535 U.S. 162, 166 (2002): 10 || Cuyler v.Sullivan, 446 U.S. 335, 349-50 (1980). It is insufficient to show a mere “possibilit 11 || of conflict.” Cuyler, 446 U.S. at 351. Rather, to demonstrate a conflict of interest for Sixth 12 || Amendment purposes, a petitioner must show his counsel operated under an “actual 13 || conflict” that “adversely affect[ed] counsel’s performance.” Mickens, 535 U.S. at 172. 14 || Potentially divided allegiances do not constitute active representation of conflicting 15 || interests. Paradis v. Arave, 130 F.3d 385, 391 (9th Cir. 1997). Speculation will not 16 || substitute for evidence. Morris v. California, 966 F.2d 448, 456 (9th Cir. 1992). Ifa 17 || petitioner demonstrates counsel “actively represented conflicting interests” and that “an 18 || actual conflict of interest adversely affected his lawyer’s performance,” prejudice to the 19 || petitioner is presumed. Cuyler, 446 U.S. at 350. In such cases, the defendant need not 20 || satisfy the “prejudice” prong of the Strickland analysis. Id.; Strickland, 466 U.S. at 692. Th 21 || United States Supreme Court has limited application of the Cuyler standard and exception 22 || to cases involving multiple concurrent representation of defendants. Mickens, 535 U.S. at 23 || 174-175 (holding the language in Cuyler does not “clearly establish, or indeed even 24 || support” applying Cuyler beyond joint representation cases); see also Earl v. Ornoski, 431 25 || F.3d 1158,1185 (9th Cir. 2005) (recognizing for AEDPA purposes that “the Supreme Cour 26 || . . . has expressly limited its constitutional conflicts jurisprudence’ to joint representation 16
1 || cases”). Any other conflict case must satisfy both prongs of the ineffective assistance of 2 || counsel standard in Strickland. Id.; see also Bragg v. Galaza, 242 F.3d 1082, 1086-90 (9tt 3 || Cir. 2001). 4 The record establishes that West’s counsel was not jointly representing any co- 5 || defendants. Accordingly, West must both show that his counsel otherwise had a conflict c 6 || interest and that such conflict prejudiced West’s defense. 7 The record establishes the context for West’s decision to represent himself and 8 || establishes that his counsel did not have a conflict of interest. As demonstrated through 9 || the present petition, from the outset of the state’s prosecution West has argued and 10 || continues to argue that the search of his vehicle was improper. The issue was litigated, 11 || and decided adverse to West, in pre-trial motions prior to the first trial. Despite those 12 || rulings, during the first trial defense counsel pursued a defense theory that (a) the search 13 || of West's vehicle was improper, (b) the jury could decide whether the search was imprope 14 || and (c) if the jury so found, it must not consider the evidence seized during the search. 15 || Consistent with this defense theory, counsel requested and obtained two instructions. The 16 | first, Instruction 19, instructed the jury that if it concluded the vehicle was searched 17 | “pursuant to the ‘search incident to arrest’ exception to warrantless searches, the jury “mu: 18 || find that the search was improper” and disregard all evidence seized. The second, 19 || Instruction 20, instructed the jury that the voluntariness and scope of a consent to search 20 || are questions of fact, and that if the jury found “the search was improper’ it must disregarc 21 || all evidence seized. In response to the decision of the first trial court to give these 22 || instructions to the jury, the state requested and obtained Jury Instruction 22: that the court 23 || had already determined that the search of the vehicle was legal and constitutional. □□□□□□ 24 || jury deliberations, the jury requested clarification of Instruction 19 as it conflicted with 25 || Instruction 22 that court had determined the search was legal and constitutional. 26 1G
1 Prior to the second trial, the state moved to preclude the defense from again 2 || pursuing its theory that the jury could decide the legality of the search of West’s vehicle. 3 | The state argued that not only were the jury instructions in the first trial in conflict and 4 || caused the deadlocked jury but that the defense theory was contrary to well-established 5 || law. The state concluded that the legality of the search, and the admissibility of the 6 || evidence, were not only issues for the court to decide but those issues were decided by th 7 || court adverse to West prior to the first trial. West, through his counsel, opposed the 8 | motion. The second trial judge granted the motion in limine. As indicated by West's allegation that his counsel was going to alter the theory of defense to avoid the imposition 10 || of sanctions, counsel apparently conveyed to West that he would abide by the □□□□□□□ ruling. Counsel’s decision to abide by a ruling of the court neither created a conflict of 12 | interest nor forced West to represent himself. Given that the record is contrary to West's 13 || vague allegations, he has not shown that the Nevada Appellate Court unreasonably 14 || determined that he had not supported his claim that counsel had a conflict of interest with 15 || sufficient facts to entitle him to relief. Accordingly, West’s eleventh ground for relief is 16 || without merit. 17 Ground Twelve 18 In his twelfth ground, West argues he is entitled to relief because the cumulation of 19 || errors. The Nevada Supreme Court rejected this claim. That ruling was neither contrary t 20 || clearly established federal law nor an unreasonable determination of the facts presented i 21 || the record. 22 Therefore, for good cause shown, 23 THE COURT ORDERS that Hyrum West's Motion for Extension of Time (ECF No. 24 || 71) to file a reply to the respondent’s answer is GRANTED; The Court has considered 25 || West's reply, filed at ECF No. 72, as timely filed and has considered the arguments raisec 26 || in that reply in determining his petition for relief. 17
1 THE COURT FURTHER ORDERS that Hyrum West’s Motion for Appointment of 2 || Counsel (ECF No. 73) is DENIED; 3 THE COURT FURTHER ORDERS that Hyrum West’s Amended Petition Pursuant 4 || to 28 U.S.C. §2254 (ECF Nos. 33 & 34) is DENIED. The Clerk of the Court shall enter a 5 || judgment denying West’s Amended Petition. 6 7 81 DATED this 22 _ day of January, 2020. Y, ° \ ole f aug Lip 10 Lloyd D. George □□ 44 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12