Dewey v. Neven ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 SHELLI ROSE DEWEY, Case No. 3:13-cv-00317-LRH-WGC 7 Petitioner, ORDER 8 v. 9 DWIGHT NEVEN, et al., 10 Respondents. 11 12 13 Introduction 14 This action is a petition for writ of habeas corpus by Nevada prisoner Shelli Rose 15 Dewey, who was convicted in 2006, in Nevada’s Fourth Judicial District Court, in Elko 16 County, of second-degree murder with use of a deadly weapon. On August 10, 2018, 17 this Court ruled on a motion to dismiss, and dismissed certain of Dewey’s claims 18 (ECF No. 69). The action is now before the Court for adjudication of Dewey’s remaining 19 claims. The Court will deny Dewey’s petition and will deny Dewey a certificate of 20 appealability. 21 Background 22 In its decision on Dewey’s direct appeal, the Nevada Supreme Court described 23 the factual background of the case, as revealed by the evidence presented at Dewey’s 24 ten-day jury trial, as follows: 25 In the early morning hours of September 12, 2004, Elko Police answered a hysterical “911” call from appellant Shelli Rose Dewey 26 reporting that her husband, Steven, had been stabbed. During the call, Dewey commented three times that she did not know who stabbed 27 Steven. At the scene, Dewey appeared to be intoxicated and was 1 marginally intelligible. Dewey told the police that her husband had been stabbed. The police looked inside the Deweys’ pickup truck as well as the 2 surrounding area for a weapon but could not locate one. 3 Several witnesses reported that Dewey and Steven had been drinking and creating a disturbance a few hours before the stabbing. At 4 some point, the bartender asked the couple to leave. About thirty minutes thereafter, a witness reported seeing them arguing in the parking lot. 5 Another witness also reported hearing a loud argument, followed by hysterical crying. This witness investigated the “ruckus” and saw Dewey 6 draped over Steven, who was lying on his back next to or in close proximity to the couple’s truck. According to this witness, Dewey was in 7 obvious distress, frantically saying, “Please don’t die! Please don’t die on me!” 8 * * * 9 Ultimately, the State charged Dewey with open murder with the use 10 of a deadly weapon. 11 * * * 12 At trial, the jury convicted Dewey of one count of second-degree murder with the use of a deadly weapon. 13 14 Dewey v. State, 123 Nev. 483, 485–87, 169 P.3d 1149, 1150–51 (2007) (a copy of the 15 opinion is filed in the record at Exh. 72 (ECF No. 22-2)). Dewey was sentenced to two 16 consecutive terms of life in prison with the possibility of parole after ten years. See 17 Judgment of Conviction, Exh. 67 (ECF No. 21-10). 18 The Nevada Supreme Court affirmed the judgment on November 1, 2007. See 19 Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court denied Dewey’s petition 20 for rehearing. See Order Denying Rehearing, Exh. 74 (ECF No. 22-4). 21 Dewey filed a post-conviction petition for writ of habeas corpus in the state 22 district court on October 18, 2008. See Petition for Writ of Habeas Corpus 23 (Post-Conviction), Exhs. 77, 83 (ECF Nos. 22-7, 22-13). The court held a six-day 24 evidentiary hearing (see Transcripts of Evidentiary Hearing, Exhs. 86–91 (ECF Nos. 22- 25 16, 22-17, 23, 23-1, 23-2, 23-3)), entertained post-hearing briefing (Exhs. 93, 94, 95 26 (ECF Nos. 24-1, 24-2, 24-3)), and denied the petition on June 28, 2011. See Decision, 27 Exh. 97 (ECF No. 24-5); Notice of Entry of Order, Exh. 98 (ECF No. 24-6). Dewey filed 1 Alternative, Motion for Reconsideration, Exh. 99 (ECF No. 24-7). The court ruled on that 2 motion on October 17, 2011, issuing an addendum to its June 28, 2011, order, further 3 explaining its denial of certain claims. See Addendum, Exh. 104 (ECF No. 24-12); 4 Notice of Entry of Addendum, Exh. 105 (ECF No. 24-13). Dewey appealed, and the 5 Nevada Supreme Court affirmed the denial of Dewey’s state habeas petition on 6 April 10, 2013. See Order of Affirmance, Exh. 112 (ECF No. 24-20). The court then 7 denied Dewey’s petition for rehearing. See Order Denying Rehearing, Exh. 114 8 (ECF No. 24-22). 9 Dewey filed her initial, nominally pro se, federal habeas corpus petition, 10 initiating this action, on June 13, 2013 (ECF No. 1). The Court appointed counsel for 11 Dewey (ECF No. 4), and, with counsel, Dewey filed a first amended petition on 12 November 7, 2014 (ECF No. 16). 13 Respondents filed a motion to dismiss on May 28, 2015 (ECF No. 41), 14 contending that certain of Dewey’s claims were barred by the statute of limitations, that 15 certain of her claims were unexhausted in state court, and that certain of her claims 16 were not cognizable in this federal habeas corpus action. The Court ruled on that 17 motion on October 29, 2015, ruling that Claims 5A, 5B, 5C and 5D of the first amended 18 petition were unexhausted, and directing Dewey to elect, with respect to those claims, 19 whether to abandon them or move for a stay to allow her to exhaust them in state court. 20 See Order entered October 29, 2015 (ECF No. 47). 21 Dewey filed a motion for stay on December 7, 2015 (ECF No. 50). The 22 respondents did not oppose the motion (ECF No. 51), and the Court granted the motion 23 and stayed this action on January 26, 2016, pending further proceedings in state court. 24 See Order entered January 26, 2016 (ECF No. 52). 25 The stay was lifted, upon a motion by Dewey, on July 20, 2017 (ECF No. 58). 26 Dewey then filed a second amended petition for writ of habeas corpus (ECF No. 59) on 27 September 18, 2017. The Court reads Dewey’s second amended petition to include the 1 Ground 1: Dewey’s “confession was taken in violation of her Fifth, Sixth and Fourteenth Amendment rights to silence, to the assistance of counsel, 2 and to due process under the United States Constitution.” 3 Ground 2A: Dewey’s federal constitutional rights were violated because her trial counsel was ineffective “for failing to present evidence from an 4 audio expert as to whether [Dewey] invoked her right to counsel.” 5 Ground 2B: Dewey’s federal constitutional rights were violated because her trial counsel was ineffective for failing “to present a battered women’s 6 syndrome defense to the murder charge.” 7 Ground 2C: Dewey’s federal constitutional rights were violated because her trial counsel was ineffective for failing “to investigate and present an 8 expert witness on linguistics to testify that [she] had not waived her right to an attorney.” 9 Ground 2D: Dewey’s federal constitutional rights were violated because 10 her trial counsel was ineffective “for failing to provide the defense crime scene analyst with all the available evidence and failing to properly 11 question the analyst at trial.” 12 Ground 2E: Dewey’s federal constitutional rights were violated because her trial counsel was ineffective “for failing to seek a spoliation instruction.” 13 Ground 2F: Dewey’s federal constitutional rights were violated because 14 her trial counsel was ineffective “for failing to present testimony from R. Goldie.” 15 Ground 3: Dewey’s “Fourteenth Amendment right to due process was 16 violated when she was convicted without sufficient evidence.” 17 Ground 4A: Dewey’s federal constitutional rights were violated because “Instruction No. 13 regarding second degree murder reduced the State’s 18 burden of proof of the malice element.” 19 Ground 4B: Dewey’s federal constitutional rights were violated because “Instruction 19 defining deadly weapon unconstitutionally relieved the 20 State of its burden to prove an element of the deadly weapon enhancement.” 21 Ground 5A: Dewey’s federal constitutional rights were violated because 22 her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 1. 23 Ground 5B: Dewey’s federal constitutional rights were violated because 24 her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 3. 25 Ground 5C: Dewey’s federal constitutional rights were violated because 26 her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 4A. 27 Ground 5D: Dewey’s federal constitutional rights were violated because 1 her appellate counsel was ineffective for failing to raise the entire legal and factual basis of the claim in Ground 4B. 2 Ground 6: Dewey’s federal constitutional rights were violated because 3 “cumulative error rendered [her] trial and verdict inherently unreliable.” 4 See Second Amended Petition for Writ of Habeas Corpus (ECF No. 59). 5 On March 9, 2018, Respondents filed a motion to dismiss Dewey’s second 6 amended petition, arguing: that Grounds 2A, 2B, 5A, 5B, 5C and 5D are barred by the 7 statute of limitations; that part of Grounds 2B, 5A, 5B, 5C and 5D are barred by the 8 procedural default doctrine; that Grounds 2A, 2D and 2E include allegations not 9 exhausted in state court; and that Ground 6 is not procedurally viable for several 10 reasons. See Motion to Dismiss (ECF No. 64). The Court ruled on that motion on 11 August 10, 2018. See Order entered August 10, 2018 (ECF No. 69). The Court denied 12 the motion to the extent it was based on the statute of limitations. See id. Regarding the 13 questions of exhaustion and procedural default of Ground 2B, the Court denied the 14 motion to dismiss, without prejudice to Respondents again raising the procedural default 15 defense in their answer. See id. With respect to Grounds 5A, 5B, 5C and 5D, the Court 16 granted the motion to dismiss and dismissed those claims as procedurally defaulted. 17 See id. The Court denied the motion to dismiss with regard to Grounds 2A, 2D, 2E and 18 6. See id. 19 Respondents filed an answer (ECF No. 77) on February 26, 2019, responding 20 to the remaining claims in Dewey’s second amended petition. Dewey filed a reply 21 (ECF No. 82) on April 29, 2019. Respondents filed a response to the reply (ECF No. 83) 22 on May 6, 2019. 23 Discussion 24 Standard of Review 25 A federal court may not grant a petition for a writ of habeas corpus on any claim 26 that was adjudicated on the merits in state court unless the state court decision was 27 contrary to, or involved an unreasonable application of, clearly established federal law 1 unreasonable determination of the facts in light of the evidence presented in the state- 2 court proceeding. 28 U.S.C. § 2254(d). A state-court ruling is “contrary to” clearly 3 established federal law if it either applies a rule that contradicts governing Supreme 4 Court law or reaches a result that differs from the result the Supreme Court reached 5 on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) 6 (per curiam). A state-court ruling is “an unreasonable application” of clearly established 7 federal law under section 2254(d) if it correctly identifies the governing legal rule but 8 unreasonably applies the rule to the facts of the case. See Williams v. Taylor, 529 U.S. 9 362, 407–08 (2000). To obtain federal habeas relief for such an “unreasonable 10 application,” however, a petitioner must show that the state court’s application of 11 Supreme Court precedent was “objectively unreasonable.” Id. at 409–10; see also 12 Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). Or, in other words, habeas relief is 13 warranted, under the “unreasonable application” clause of section 2254(d), only if the 14 state court’s ruling was “so lacking in justification that there was an error well 15 understood and comprehended in existing law beyond any possibility for fairminded 16 disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 17 Ground 1 18 In Ground 1, Dewey claims that her confession was taken in violation of her 19 federal constitutional rights. See Second Amended Petition (ECF No. 59), pp. 23–33. 20 Dewey was interviewed by police officers three times after she was taken into 21 custody: first by Detective Larry Kidd and Officer Kamiah Hamilton at about 8:55 a.m. 22 on September 12, 2004, the morning Steven was killed (see Transcript, Exh. 117 23 (ECF No. 24-25)); second, by Kidd, Detective Connie Bauers, and Detective Sergeant 24 Randy Parks at 11:25 a.m. on September 12, 2004 (see Transcript, Exh. 118 (ECF No. 25 24-26)); and third, by Kidd and Bauers at 9:05 a.m. the next morning, September 13, 26 2004 (see Transcript, Exh. 126 (ECF No. 26-2)). In the first interview, while the officers 27 were going over Dewey’s rights with her, Dewey said she did not want to speak, and the 1 interview was terminated. See Transcript, Exh. 117 (ECF No. 24-25). In the second 2 interview, Dewey made several incriminating statements. See Transcript, Exh. 118 3 (ECF No. 24-26). In the third interview, Dewey requested an attorney, and the interview 4 ceased before Dewey said anything of substance about the events of the previous 5 morning. See Transcript, Exh. 126 (ECF No. 26-2). 6 Dewey claims that the police violated her rights to counsel, to silence, and to due 7 process of law, under the Fifth, Sixth and Fourteenth Amendments and Miranda v. 8 Arizona, 384 U.S. 436 (1966). See Second Amended Petition (ECF No. 59), pp. 23–33; 9 Reply (ECF No. 82), pp. 4–12. Specifically, Dewey claims that in the first interview she 10 invoked her right to counsel – not just her right to remain silent – and, in interviewing her 11 a second time without counsel present, the police violated her right to counsel. See 12 Reply (ECF No. 82), pp. 5–8. In support of her argument, Dewey cites Edwards v. 13 Arizona, 451 U.S. 477 (1981); Solem v. Stumes, 465 U.S. 638 (1984); Smith v. Illinois, 14 469 U.S. 91 (1984); Connecticut v. Barrett, 479 U.S. 523 (1987); McNeil v. Wisconsin, 15 501 U.S. 171 (1991); and Davis v. United States, 512 U.S. 452 (1994). Id. Dewey 16 claims, further, that in commencing the second interview when and as they did, the 17 police officers violated her right to remain silent; in support of this argument, Dewey 18 cites Edwards; Michigan v. Mosley, 423 U.S. 96 (1975); and Arizona v. Roberson, 486 19 U.S. 675 (1988). See Reply (ECF No. 82), pp. at 8–10. Dewey also claims that her 20 incriminating statements, made in the second interview, were involuntary, in violation of 21 her constitutional rights, under Blackburn v. Alabama, 361 U.S. 199 (1960); Schneckloth 22 v. Bustamonte, 412 U.S. 218 (1973); Colorado v. Connelly, 479 U.S. 157 (1986); and 23 Withrow v. Williams, 507 U.S. 680 (1993). See Reply (ECF No. 82), pp. at 10–12. 24 Before her trial, Dewey filed a motion to suppress her statements. See Motion to 25 Suppress, Exh. 14 (ECF No. 17-14). That motion was briefed extensively, and was 26 addressed at hearings, including three days of evidentiary hearings. See Opposition to 27 Motion to Suppress, Exh. 15 (ECF No. 17-15); Offer of Proof Concerning Statements of 1 the Defendant, Exh. 16 (ECF No. 17-16); Response to State’s Offer of Proof, Exh. 22 2 (ECF No. 18-5); Supplement to Defendant’s Motion to Suppress, Exh. 23 (ECF No. 3 18-6); Transcript of Hearing, April 7, 2005, Exh. 137 (ECF No. 26-12); Supplement to 4 Opposition to Motion to Suppress, Exh. 24 (ECF No. 18-7); Transcript of Hearing, 5 May 19, 2005, Exh. 139 (ECF No. 26-14); Second Supplement to Opposition to Motion 6 to Dismiss, Exh. 27 (ECF No. 18-10); Transcript of Hearing, May 26, 2005, Exh. 144 7 (ECF No. 26-19). Dewey and the State presented expert witnesses (Tom Owen for 8 Dewey, and Mark Carey for the State), who created enhanced recordings of the first 9 interview, and who testified about what they could hear on the enhanced recordings. 10 In two written orders, the trial court ruled that Dewey’s rights were not violated, and her 11 incriminating statements were admissible. See Order Denying Motion to Suppress, Exh. 12 40 (ECF No. 18-23); Order Re: Statements of the Defendant, Exh. 49 (ECF No. 18-32). 13 After her conviction, Dewey raised these issues on her direct appeal. See 14 Second Amended Petition (ECF No. 59), p. 23; Appellant’s Opening Brief, Exh. 68, 15 pp. 17–25 (ECF No. 21-11, pp. 40–48). The Nevada Supreme Court denied Dewey 16 relief on these claims. See Dewey, 123 Nev. 483, 169 P.3d 1149 (2007). The court 17 described, as follows, the facts regarding Dewey’s statements: 18 Although not a suspect at the time, Dewey was taken to the Elko Police Station for an interview on the morning of Steven’s death. Once at 19 the police station, Dewey was informed that the interview was being recorded. Detective Larry Kidd of the Elko Police Department advised 20 Dewey of her Miranda rights and asked if she understood what Miranda rights were. Dewey answered, “I think so.” Detective Kidd then had Dewey 21 read the Miranda rights card line by line. Dewey initialed each line. 22 Twice during the initial interview, Detective Kidd explained to Dewey that even if she decided to answer questions “without a lawyer 23 present,” she could still stop the interview at any time. After reading Dewey the Miranda rights, the detective again confirmed that she 24 understood. Dewey then asked if she was a suspect. Detective Kidd told her that she was. During a brief colloquy, Dewey indicated that she did not 25 want to speak to anyone: 26 Dewey: Am I a suspect? 27 [Detective] Kidd: Uh, yes ma’am you are a suspect. Would Dewey: (inaudible) 1 [Detective] Kidd: You don’t want to talk to anybody? 2 Dewey: No (inaudible). 3 [Detective] Kidd: Okay, well if you don’t want to answer any 4 question then we won’t talk about it. We can’t talk to you about it okay. 5 Dewey: And we’ll go home. Take my kid back to the 6 (inaudible). (Inaudible) 7 The interview ended immediately after the last inaudible response, and Dewey was placed under arrest. 8 At the jail, approximately two hours after the first interview, other 9 police officers initiated a discussion with Dewey. Before any questioning began, Officer Connie Bauers asked Dewey to read the Miranda warnings 10 contained within a waiver form. Dewey again read and signed the waiver form. The officers again told Dewey she could end the interview at any 11 time. 12 During the second interview, Dewey admitted four times that she had “hit” Steven. Dewey told the police that she held a knife in her hand 13 with the handle pointing outward and the blade flat across her palm. Dewey told the police officers that she intended to punch Steven but 14 instead hit him with the knife. Dewey said the knife might be in the couple’s truck. Based upon these comments, the police obtained a 15 warrant, searched the pickup truck, and found a nine-inch knife underneath one of the seats, precisely where Dewey said it “might” be. 16 The police attempted to interview Dewey the next day at the jail. 17 However, this time, she clearly and unequivocally invoked her right to counsel. Accordingly, the interview immediately ceased. 18 Ultimately, the State charged Dewey with open murder with the use 19 of a deadly weapon. On a motion to suppress, the district court found that Dewey refused to speak to the police during the first interview, but that 20 she had not clearly invoked her right to counsel. 21 Dewey, 123 Nev. at 486–87, 169 P.3d at 1151. 22 The Nevada Supreme Court held that, in the first interview, although Dewey 23 invoked her right to remain silent and refused to speak, she did not invoke her right to 24 counsel. See Dewey, 123 Nev. at 487–89, 169 P.3d at 1152–53. The court recognized 25 that, under United States Supreme Court precedent, “[a] request for counsel must be, at 26 minimum, ‘some statement that can reasonably be construed to be an expression of a 27 desire for the assistance of an attorney,’” and “[t]he right to counsel ‘must be 1 desire to remain silent.” Id., 123 Nev. at 488–89, 169 P.3d at 1152 (quoting McNeil, 501 2 U.S. at 178, and Davis, 512 U.S. at 461). The Nevada Supreme Court ruled that, 3 although Dewey terminated the first interview, telling the police that she did not want to 4 talk to anybody, she did not make an affirmative, unequivocal, unambiguous request for 5 counsel until the third interview. Dewey, 123 Nev. at 489, 169 P.3d at 1152–53 (citing 6 Barrett). The Nevada Supreme Court determined that the trial court’s ruling was 7 supported by substantial evidence and held that Dewey’s statements were not obtained 8 in violation of her right to counsel. Id. 9 Next, turning to Dewey’s claim that her right to remain silent was violated, the 10 Nevada Supreme Court applied Roberson, Edwards, and Mosley, and held that the 11 police “scrupulously honored” Dewey’s invocation of her right to remain silent, and, 12 therefore, after again advising Dewey of her Miranda rights and obtaining her waiver of 13 those rights before the second interview, the second interview could proceed. Dewey, 14 123 Nev. at 489–91, 169 P.3d at 1153–54 (citing United States v. Hsu, 852 F.2d 407 15 (9th Cir. 1988)). The court stated: 16 In this case, once Dewey invoked her right to remain silent in the first interview, the detective ended the interview. The police waited two 17 hours before they initiated the next interview. The fact that the second interview concerned the same crime is not of great significance under 18 these facts, since Dewey was provided with a fresh set of Miranda warnings at the beginning of the second interview. [Footnote: Grooms v. 19 Keeney, 826 F.2d 883, 886 (9th Cir. 1987).] Thereafter, Dewey read and signed a waiver form, and the police repeatedly reminded her of her right 20 to stop the interview at any time. Looking at all the relevant circumstances, the immediate cessation of questioning upon Dewey’s initial invocation of 21 the right to remain silent, the two-hour time lapse between the interviews, and the careful and repeated Miranda warnings, we conclude that the 22 police “scrupulously honored” Dewey's right to remain silent. 23 Dewey, 123 Nev. at 491, 169 P.3d at 1154. The Nevada Supreme Court held, therefore, 24 that Dewey’s statements in the second interview were not obtained in violation of her 25 right to remain silent. Id. 26 The Nevada Supreme Court also rejected Dewey’s claim that her statements 27 were involuntary. Dewey, 123 Nev. at 491–93, 169 P.3d at 1154–55 (citing Blackburn). 1 totality of the circumstances, by a preponderance of the evidence,” and went on to rule 2 as follows: 3 The circumstances here demonstrate that Dewey’s statements were voluntary. She was over thirty years old, a high school graduate with 4 some college education. She home-schooled her children. She had been advised of her constitutional rights before each police interview and twice 5 availed herself of her right to remain silent by refusing to speak to police. She had been in jail for only a couple of hours when the second interview 6 began. 7 Dewey’s conduct during her first interview evinces a clear understanding of how to end an interview. During the third interview, 8 Dewey also demonstrated that she understood her right to seek the assistance of counsel. The evidence suggests that Dewey had a basic 9 understanding of law enforcement and was given more than ample opportunity to clarify her understanding of her Miranda rights. Each time, 10 she acknowledged her understanding and signed a waiver of rights [form]. 11 In light of Dewey’s education, her demonstrated ability to invoke her Fifth Amendment right to remain silent, and multiple reminders by the 12 police of her absolute right to end the interview, we conclude that her confession was voluntary and the district court did not err in admitting the 13 confession into evidence. 14 Id., 123 Nev. at 492–93, 169 P.3d at 1155. 15 This Court finds the Nevada Supreme Court’s rulings to be reasonable. 16 Regarding the question whether Dewey invoked her right to counsel in the first 17 interview, it was not unreasonable for the Nevada Supreme Court to conclude that 18 Dewey did not, in that interview, make an unambiguous and unequivocal request for 19 counsel such that a reasonable officer would understand that she wished to request 20 counsel. See Davis 512 U.S. at 560–62. The two officers at the first interview, Detective 21 Kidd and Officer Hamilton, testified that they did not hear Dewey request counsel. 22 Testimony of Kamiah Hamilton, Transcript of Hearing on Pretrial Motions, May 19, 23 2005, Exh. 139, p. 33 (ECF No. 26-14, p. 34); Testimony of Larry Kidd, Transcript of 24 Hearing on Pretrial Motions, May 19, 2005, Exh. 139, p. 42 (ECF No. 26-14, p. 43); 25 Testimony of Larry Kidd, Transcript of Trial, December 13, 2005, Exh. 55, p. 80 (ECF 26 No. 20-1, p. 81). And, while much has been made in this case of the experts’ 27 enhancements of the recording of the first interview, the question is not what can be 1 police officer at the interview would have heard and understood Dewey to make a 2 request for counsel. This Court concludes that the Nevada Supreme Court reasonably 3 determined, in light of the evidence, and under Supreme Court precedent, that, in the 4 first interview, Dewey did not unambiguously and unequivocally make a request for 5 counsel that police officers should reasonably have heard and understood. 6 The Court also determines that the Nevada Supreme Court reasonably held that 7 Dewey’s right to remain silent was not violated. See Mosley, 423 U.S. at 104–05; Hsu, 8 852 F.2d at 409–12. The officers present at the second interview carefully administered 9 the Miranda warnings to Dewey, and Dewey indicated unambiguously that she 10 understood them and waived her right to silence. Dewey demonstrated in the first 11 interview (and also in the third interview, for that matter) that she was quite able to stand 12 on her rights and terminate the second interview had that been her intention. Here, 13 reviewing on federal habeas a state court’s fact-based ruling, necessarily based on the 14 totality of the circumstances, the deference to be afforded the state court’s ruling is 15 “near its apex.” See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018). In view of the 16 totality of the circumstances, it was not unreasonable, under Supreme Court precedent, 17 for the Nevada Supreme Court to rule that the commencement of the second interview, 18 after Dewey invoked her right to silence and terminated the first interview about two 19 hours earlier, was not a constitutional violation. 20 With respect to the question whether Dewey’s statements were voluntary, here 21 again, this Court must give a great deal of deference to the state court’s ruling. And, 22 again, it is important to recognize that, in the first interview, Dewey demonstrated that 23 she was able to terminate the interview when that was her wish. Looking at all the 24 circumstances, the Nevada Supreme Court reasonably ruled that Dewey’s statements 25 were knowingly, intelligently and voluntarily given. 26 The Nevada Supreme Court’s rulings, denying relief on the claims asserted in 27 Ground 1 were not contrary to, or an unreasonable application of, United States 1 the facts in light of the evidence presented. The Court will deny Dewey habeas corpus 2 relief on Ground 1. 3 Ground 2A 4 In Ground 2A, Dewey claims that her federal constitutional rights were violated 5 because her trial counsel was ineffective for failing to present evidence from an audio 6 expert regarding whether she invoked her right to counsel. See Second Amended 7 Petition (ECF No. 59), pp. 37–45. Dewey’s claim, here, is that her trial counsel failed to 8 properly present the testimony of the audio expert at the pre-trial evidentiary hearing 9 regarding the motion to suppress her statements, and also at trial. See id. Dewey 10 asserts that her trial counsel erred in presenting Owen’s testimony telephonically, rather 11 than in person, at the pre-trial hearing, and in not presenting Owen’s testimony at trial. 12 See id. 13 Dewey asserted this claim on the appeal in her first state habeas action (see 14 Appellant’s Opening Brief, Exh. 108, pp. 48–56 (ECF No. 24-16, pp. 60–68)), and the 15 Nevada Supreme Court ruled as follows: 16 ... [A]ppellant argues that trial counsel was ineffective for failing to properly present evidence and testimony from an audio expert, which 17 would have demonstrated appellant invoked her right to counsel prior to confessing. Appellant fails to demonstrate that her trial counsel was 18 deficient or that she was prejudiced. The district court concluded, even after listening to the recording enhanced by the audio expert, that 19 appellant failed to demonstrate that she requested a lawyer prior to confessing. Appellant fails to demonstrate a reasonable probability of a 20 different outcome had counsel presented further expert testimony incorporating the enhanced recording. Therefore, the district court did not 21 err in denying this claim. 22 Order of Affirmance, Exh. 112, p. 5 (ECF No. 24-20, p. 6) (footnote omitted). 23 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court 24 propounded a two-prong test for analysis of claims of ineffective assistance of counsel: 25 the petitioner must demonstrate (1) that the attorney’s representation “fell below an 26 objective standard of reasonableness,” and (2) that the attorney’s deficient performance 27 prejudiced the defendant such that “there is a reasonable probability that, but for 1 Strickland, 466 U.S. at 688, 694. A court considering a claim of ineffective assistance of 2 counsel must apply a “strong presumption” that counsel’s representation was within the 3 “wide range” of reasonable professional assistance. Id. at 689. The petitioner’s burden 4 is to show “that counsel made errors so serious that counsel was not functioning as the 5 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. To establish 6 prejudice under Strickland, it is not enough for the habeas petitioner “to show that the 7 errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. 8 Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial 9 whose result is reliable.” Id. at 687. 10 The Court finds the Nevada Supreme Court’s ruling to be reasonable. Dewey’s 11 audio expert, Tom Owen, testified by telephone at the hearing on the pre-trial motion to 12 suppress Dewey’s statements. See Testimony of Tom Owen, Transcript of Hearing on 13 Pretrial Motions, May 19, 2005, Exh. 139, pp. 57–87 (ECF No. 26-14, pp. 58–88). Owen 14 testified that he had enhanced the recording of the first interview, and, on the enhanced 15 recording, he could hear Dewey request counsel. See id. at 60–61, 68, 76–77 (ECF No. 16 26-14, pp. 61–62, 69, 77–78). Owen testified that if he was present at the hearing, and if 17 he played back the enhanced recording, most anybody would be able to hear Dewey 18 say she wanted a lawyer. See id. at 76–77 (ECF No. 26-14, pp. 77–78). The trial court, 19 in ruling on the motion to suppress, made clear that the important question was not 20 what an expert could hear on an enhanced recording, but what a reasonable officer 21 could hear at the interview. See Order Denying Motion to Suppress, Exh. 40, pp. 5–8 22 (ECF No. 18-23, pp. 6–9) (“[T]he Court does not reach the merits of which expert to 23 credit in this case.”). 24 Later, in its ruling on this claim in Dewey’s first state habeas action, the state 25 district court made this same point again: 26 The test is what a reasonable officer would have heard and done; Judge Memeo [trial judge] rightly found that these officers acted reasonably and 27 without artifice or fraud, they could not hear what could not, with the interview, in fact, in both interviews. The invocation is[,] without the aid of 1 enhancements, unintelligible. 2 Decision, Exh. 97, p. 6 (ECF No. 24-5, p. 7). In Dewey’s first state habeas action, after 3 hearing the in-person testimony of Owen, the state district court ruled that Dewey’s 4 “purported invocation of right to counsel was not clear; it was not unequivocal, and it 5 was not unambiguous.” Id. The Nevada Supreme Court affirmed that ruling. See Order 6 of Affirmance, Exh. 112, p. 5 (ECF No. 24-20, p. 6). 7 Taking into consideration all the evidence, including both the original and 8 enhanced recordings filed by Dewey, this Court determines that the state courts’ denial 9 of relief on this claim was reasonable. Dewey makes no showing that having Owen 10 present, in person, to testify and play his enhanced recording, at either the pre-trial 11 hearing or trial, would have had any impact on the outcome of her case. The Nevada 12 Supreme Court’s denial of relief on this claim was not contrary to, or an unreasonable 13 application of Strickland, or any other Supreme Court precedent, and was not based on 14 an unreasonable determination of the facts in light of the evidence presented. The Court 15 will deny Dewey habeas corpus relief on Ground 2A. 16 Ground 2B 17 In Ground 2B, Dewey claims that her federal constitutional rights were violated 18 because her trial counsel was ineffective for failing to present a Battered Women’s 19 Syndrome (BWS) defense. See Second Amended Petition (ECF No. 59), pp. 45–55. 20 Dewey argues that evidence that she suffered from BWS would have buttressed her 21 claim of self-defense and her claim that she did not harbor the malice necessary for 22 murder. In support of her claim, Dewey presents evidence that she suffered terrible 23 abuse by her husband (see, e.g., Exhs. 227, 228, 229, 230, 240, 241 (ECF Nos. 28-18, 24 28-19, 28-20, 28-21, 28-30, 28-31)), and she presents a report (Exh. 223 (ECF No. 28- 25 14)) and evidentiary hearing testimony (Exh. 87, pp. 3–71, 162–228 (ECF No. 22-17, 26 pp. 4–72, 163–229)) of a clinical psychologist, Dr. Joanne Behrman-Lippert. Dewey 27 argues that her trial attorney should have presented such evidence at trial to show that 1 Dewey raised this issue on the appeal in her first state habeas action (see 2 Appellant’s Opening Brief, Exh. 108, pp. 29-36 (ECF No. 24-16, pp. 41-48)), and the 3 Nevada Supreme Court ruled as follows: 4 ... [A]ppellant argues that her trial counsel was ineffective for failing to investigate and present evidence through a forensic psychologist 5 regarding battered woman’s syndrome and the mental issues appellant suffered as a result of domestic violence. Appellant fails to demonstrate 6 that her trial counsel’s performance was deficient or that she was prejudiced. Counsel testified that, while he could not recall if he sought 7 expert testimony on battered woman’s syndrome, he did investigate whether appellant had been abused by the victim; he could not find 8 credible evidence of such abuse. Based on that testimony, counsel’s performance was not deficient. Further, the district court concluded that 9 the expert testimony presented at the evidentiary hearing did not establish that any mental issues appellant suffered from occurred solely by 10 domestic violence at the hands of the victim and not due to traumas suffered since her incarceration. Appellant fails to demonstrate a 11 reasonable probability of a different outcome had counsel sought to present expert testimony on battered woman’s syndrome and its effect on 12 appellant. Therefore, the district court did not err in denying this claim. 13 Order of Affirmance, Exh. 112, pp. 3–4 (ECF No. 24-20, pp. 4–5). 14 This Court agrees that Dewey does not demonstrate a reasonable probability of 15 a better outcome at trial if her trial counsel had presented evidence that she suffered 16 from BWS. Dewey’s expert, Dr. Behrman-Lippert, explains that BWS, is a syndrome – 17 albeit not one diagnosable under the Diagnostic and Statistical Manual (DSM), which is 18 relied upon by mental health professionals to diagnose mental health disorders – found 19 in individuals who have been abused by their spouses. See Testimony of Dr. Behrman- 20 Lippert, Exh. 87, pp. 178–84 (ECF No. 22-17, pp. 179–85). After examining Dewey, 21 Dr. Behrman-Lippert reported that she exhibited traits consistent with BWS, and with 22 Post-Traumatic Stress Disorder (PTSD), a closely related disorder. See id. at 31–34, 23 49, 51–52, 68, 71, 219 (ECF No. 22-17, pp. 32–35, 50, 52–53, 69, 72, 220); 24 Psychological Evaluation of Shelli Dewey, Exh. 223, pp. 12–13 (ECF No. 28-14, 25 pp. 16–17). However, as noted by the Nevada Supreme Court in its ruling on this 26 issue, Dr. Behrman-Lippert was unable to determine the extent to which Dewey’s 27 condition was caused by factors other than abuse by her husband. See Evidentiary 1 No. 22-17, pp.53–54, 216–28, 227). This significantly undermines any potential such 2 evidence would have had to buttress Dewey’s defense. 3 Furthermore – and while not minimizing the trauma to Dewey caused by the 4 abuse evidently inflicted by Steven – this Court determines that there is further reason 5 why evidence of Steven’s abuse, and testimony of an expert like Dr. Behrman-Lippert, 6 would not have changed the outcome of the trial in Dewey’s favor. Dewey was charged 7 with open murder, potentially including first-degree murder, and she was convicted of 8 second-degree murder. For Dewey to show that she was prejudiced by her trial 9 counsel’s failure to present evidence of BWS, she must show that, had such evidence 10 been presented, there would have been a reasonable probability of a manslaughter 11 conviction or an acquittal. See Strickland, 466 U.S. at 688, 694. 12 One of Dewey’s theories in her defense was self-defense. However, the 13 evidence at trial weighed heavily against that defense. Before Steven was killed, Dewey 14 and Steven were drinking at a bar in Elko, and witnesses observed an altercation 15 between them in the bar, during which Steven was seen on his back on the floor, with 16 Dewey on top of him, the two of them holding on to each other, and Dewey being more 17 aggressive than Steven. Trial Testimony of Charlene Marie Triste, December 7, 2005, 18 Exh. 52, p. 125 (“... I heard a large sound and I turned around and they were both on 19 the floor by the juke box.”), p. 126 (“He was lying on his back and she was on top of 20 him.”), p. 129 (“... [T]hey had a hold of each other pretty good. And she was on top of 21 him and she didn’t want to let go.”), p. 137 (“I didn’t see either one of them strike each 22 other at all.”), p. 149 (“[S]he was more intense on it than he was.”), p. 154 (Dewey and 23 Steven were holding on to each other’s clothing and shoulders; Dewey holding on more 24 than Steven.) (ECF No. 19-1, pp. 126, 127, 130, 138, 150, 155); Trial Testimony of 25 Raymond Ostrander, December 8, 2005, Exh. 53, p. 8 (“He was on his back or on his 26 rear on the floor. She would have been over him.”), pp. 9, 20–21, 37, 44–45 (ECF No. 27 19-2, pp. 9, 10, 21–22, 38, 45–46). The bartender then asked Dewey to leave the bar, 1 52, pp. 129–30, pp. 148–50 (Bartender kicked Dewey out because she was more 2 trouble than Steven.), p. 155 (ECF No. 19-1, pp. 130–31, 149–51, 156). About five 3 minutes after leaving the bar, Dewey returned, looking angry, whispered something 4 in Steven’s ear, and then left again. Trial Testimony of Charlene Marie Triste, 5 December 7, 2005, Exh. 52, pp. 130–31 (“She came storming back in.”), p. 147 (“She 6 still looked upset. Mad.” “He looked confused, I would say.”) (ECF No. 19-1, pp. 131– 7 32, 148). It then appeared to the bartender that Steven was about to leave, the 8 bartender told him that if he left he could not return, and Steven then apologized and 9 left. Trial Testimony of Charlene Marie Triste, December 7, 2005, Exh. 52, p. 131 (ECF 10 No. 19-1, p. 132). About half an hour later, a witness observed, for five or ten minutes, 11 Dewey and Steven in a parking lot near the bar, arguing and yelling at each other. 12 Testimony of Raymond Ostrander, December 8, 2005, Exh. 53, pp. 13–15 (“There was 13 some yelling going on.... There were hand motions. They may have touched each other. 14 There was no blows or anything rough. It didn’t seem like it was going to escalate, you 15 know, anything that needed to be intervened, and so I went back to doing what I was 16 doing, shooting pool.”), pp. 23–24, pp. 29–31 (Witness may have observed pushing and 17 shoving.), pp. 46–49 (Witness may have told detective that Dewey was being more 18 aggressive than Steven.) (ECF No. 19-2, pp. 14–16, 24–25, 30–32, 47–50.); see also 19 Trial Testimony of Shayne Allen Springston, December 7, 2005, Exh. 52, pp. 72–73 20 (ECF No. 19-1, pp. 73–74). Then, about 15 to 30 minutes later, after Steven was 21 stabbed, Dewey called 911 but did not tell the dispatcher or the responding police 22 officers that she stabbed him in self-defense, and she did not show the responding 23 police officers the dagger that was used to stab him. 24 In light of the evidence, and Dewey’s actions just before and after Steven was 25 killed – with or without evidence that Dewey suffered from BWS – there was, in this 26 Court’s view, no reasonable probability of the jury accepting Dewey’s self-defense 27 theory. 1 The instruction given to the jury regarding self-defense was as follows: 2 The killing of another person in self-defense is justified and not unlawful when the person who does the killing actually and reasonably 3 believes: 4 1. That there is imminent danger that the assailant will either kill her or cause her great bodily injury; and 5 2. That it is absolutely necessary under the circumstances for her to 6 use in self-defense force or means that might cause the death of the other person, for the purpose of avoiding death or great bodily injury to herself. 7 A bare fear of death or great bodily injury is not sufficient to justify a 8 killing. To justify taking the life of another in self-defense, the circumstances must be sufficient to excite the fears of a reasonable 9 person placed in a similar situation. The person killing must act under the influence of those fears alone and not in revenge. 10 An honest but unreasonable belief in the necessity for self-defense 11 does not negate malice and does not reduce the offense from murder to manslaughter. 12 The right of self-defense is not available to an original aggressor, 13 that is a person who has sought a quarrel with the design to force a deadly issue and thus through her fraud, contrivance or fault, to create a real or 14 apparent necessity for making a felonious assault. 15 However, where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of her own free will, is attacked 16 by an assailant, she has the right to stand her ground and need not retreat when faced with the threat of deadly force. 17 Actual danger is not necessary to justify a killing in self-defense. A 18 person has a right to defend from apparent danger to the same extent as she would from actual danger. The person killing is justified if: 19 1. She is confronted by the appearance of imminent danger which 20 arouses in her mind an honest belief and fear that she is about to be killed or suffer great bodily injury; and 21 2. She acts solely upon these appearances and her fear and actual 22 beliefs; and 23 3. A reasonable person in a similar situation would believe herself to be in like danger. 24 The killing is justified even if it develops afterward that the person 25 killing was mistaken about the extent of the danger. 26 If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you 27 find that the State has failed to prove beyond a reasonable doubt that the 1 Instruction No. 22, Exh. 59 (ECF No. 21-2, pp. 28–29); see also NRS 200.200; Hill v. 2 State, 98 Nev. 295, 847 P.2d 370 (1982). There was no evidence indicating that Steven 3 did anything to cause Dewey to reasonably believe that she was in imminent danger 4 that Steven would kill her or cause her great bodily injury, and that it was absolutely 5 necessary for her to use deadly force against Steven to protect herself. The evidence 6 showed that before the stabbing, in their arguments and in their altercation in the bar, 7 Dewey was at least as aggressive as Steven, and she did nothing to get away from him, 8 but, rather, after the altercation in the bar, returned to the bar and initiated further 9 contact with him. Moreover, after the stabbing, Dewey’s 911 call and her interactions 10 with the responding police officers were inconsistent with her claim that she stabbed 11 Steven in self-defense. In this Court’s view, whether or not Dewey could show that she 12 suffered from BWS, the State could show beyond a reasonable doubt that she did not 13 act with a reasonable belief in the necessity for self-defense. Therefore, the best Dewey 14 could have done with evidence that she suffered from BWS would have been to help 15 establish that she had an honest but unreasonable belief in the necessity for 16 self-defense. However, under Nevada law, this would not have led to a manslaughter 17 conviction; at best, it would only have supported a second-degree murder conviction, 18 which is what Dewey received at any rate. In short, regarding Dewey’s claim of self- 19 defense, this Court determines that evidence that she suffered from BWS would have 20 done her no good. 21 Moreover, the evidence presented by Dewey does not show that BWS might 22 have led her to accidently stab Steven or might have rendered her unable to harbor the 23 malice necessary for murder. There simply is nothing in either Dr. Behrman-Lippert’s 24 report (Exh. 223 (ECF No. 28-14)) or evidentiary hearing testimony (Exh. 87, pp. 3–71, 25 162–228 (ECF No. 22-17, pp. 4–72, 163–229)) to provide any significant support for 26 such a theory. 27 1 The Court determines, then, that Dewey has not shown that evidence that she 2 suffered from BWS could have given rise to a reasonable probability of an outcome 3 more favorable for her than second-degree murder. 4 This Court determines, therefore, that the Nevada Supreme Court’s denial of 5 relief on this claim was not contrary to, or an unreasonable application of Strickland, or 6 any other Supreme Court precedent, and was not based on an unreasonable 7 determination of the facts in light of the evidence presented. The Court will deny Dewey 8 habeas corpus relief on Ground 2B. 9 Ground 2C 10 In Ground 2C, Dewey claims that her federal constitutional rights were violated 11 because her trial counsel was ineffective for failing to investigate and present an expert 12 witness on linguistics to testify that she did not waive her right to counsel. See Second 13 Amended Petition (ECF No. 59), pp. 55–56. 14 Dewey asserted this claim on the appeal in her first state habeas action (see 15 Appellant’s Opening Brief, Exh. 108, pp. 12–20 (ECF No. 24-16, pp. 24–32)), and the 16 Nevada Supreme Court ruled as follows: 17 ... [A]ppellant argues that her trial counsel was ineffective for failing to investigate and present testimony from a linguist who had reviewed her 18 statement to police. Appellant argues that her statements where she appeared to admit guilt were actually questions or hypotheticals made in 19 response to the police’s inquiries. An expert in linguistics testified at the evidentiary hearing that appellant’s intonation rose at the end of her 20 statements, indicating a question and not a factual statement. For example, appellant asserts that her statement, which appeared to be “I hit 21 him with a knife,” was actually a question to the officers, “I hit him with a knife?” 22 Appellant fails to demonstrate that her counsel’s performance 23 was deficient or that she was prejudiced. Testimony presented at the evidentiary hearing demonstrated that use of a linguistics expert in a 24 criminal trial was relatively novel at the time counsel prepared for trial of this matter. Considering the relatively novel use of a linguistics expert in 25 preparation for a criminal trial, appellant fails to demonstrate it was unreasonable for counsel to have not investigated and obtained a 26 linguistics expert to testify in this case. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be 27 made to eliminate the distorting effects of hindsight, to reconstruct the concluded, after listening to the expert’s testimony and the recording of 1 appellant’s interviews with the police, that the testimony of appellant’s expert was insufficient to demonstrate a reasonable probability of a 2 different outcome at trial had counsel obtained an expert in linguistics. 3 Substantial evidence supports the district court’s finding that appellant failed to demonstrate prejudice. Therefore, appellant fails to demonstrate 4 the district court erred in denying this claim. 5 Order of Affirmance, Exh. 112, pp. 2–3 (ECF No. 24-20, pp. 3–4). 6 This Court finds this claim to be without merit and determines that the Nevada 7 Supreme Court’s ruling was reasonable. Dewey does not point to any precedent 8 suggesting that it is – or, more accurately, was in 2005 – below the standard of 9 reasonable practice for a defense attorney to not call an expert in linguistics to explain a 10 criminal defendant’s statement to the police. The jury in this case listened to a recording 11 of Dewey’s statement, and could judge for themselves whether, and the extent to which, 12 Dewey’s statement was a confession. It was not unreasonable for Dewey’s trial counsel 13 not to see the need for any such expert. 14 Moreover, the Court has carefully considered the evidentiary hearing testimony 15 of the linguistics expert, Robert Leonard, and determines that the Nevada Supreme 16 Court reasonably concluded that there is no reasonable probability that such testimony 17 would have changed the outcome of Dewey’s trial. See Testimony of Robert Leonard, 18 December 6, 2010, Exh. 86, pp. 132–233 (ECF No. 22-16, pp. 133–234). 19 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or 20 an unreasonable application of Strickland, or any other Supreme Court precedent, and 21 was not based on an unreasonable determination of the facts in light of the evidence 22 presented. The Court will deny Dewey habeas corpus relief on Ground 2C. 23 Ground 2D 24 In Ground 2D, Dewey claims that her federal constitutional rights were violated 25 because her trial counsel was ineffective for failing to provide the defense crime scene 26 analyst with all the available evidence and for failing to properly question the analyst at 27 trial. See Second Amended Petition (ECF No. 59), pp. 56–58. 1 Dewey raised this issue on the appeal in her first state habeas action (see 2 Appellant’s Opening Brief, Exh. 108, pp. 21-29 (ECF No. 24-16, pp. 33–41)), and the 3 Nevada Supreme Court ruled as follows: 4 ... [A]ppellant argues that her trial counsel was ineffective for failing to provide the defense crime scene analyst with all of the evidence 5 available and failing to ask the analyst proper questions at trial. Appellant fails to demonstrate that her trial counsel’s performance was deficient or 6 that she was prejudiced. Counsel testified that he provided the analyst with all of the evidence in his possession, but that a State’s witness 7 caused a delay in sending one report to the analyst. The analyst testified at the evidentiary hearing that he believed the victim pulled the knife out of 8 his own chest after he was stabbed; but even after further review of all of the available evidence, the analyst testified that he could not state how the 9 knife got into the victim’s chest. Given the analyst’s testimony that he could not opine that appellant did not cause the victim’s death, appellant 10 fails to demonstrate a reasonable probability of a different outcome at trial had counsel supplied the analyst with additional evidence or asked 11 different questions during the trial. Therefore, the district court did not err in denying this claim. 12 13 Order of Affirmance, Exh. 112, p. 3 (ECF No. 24-20, p. 4). 14 Here again, the Court finds this claim to be without merit. Dewey does not show, 15 in her second amended petition, or in her reply to Respondents’ answer, how better 16 preparation of the expert in question, Jon J. Nordby, could have changed the nature of 17 his testimony so dramatically as to raise a reasonable probability of a better outcome at 18 trial for Dewey. See Second Amended Petition (ECF No. 59), pp. 56–58; Reply (ECF 19 No. 82), pp. 28–30; see also Trial Testimony of Jon J. Nordby, December 15, 2005, 20 Exh. 57, pp. 80–166 (ECF No. 21, pp. 81–167); Evidentiary Hearing Testimony of 21 Jon J. Nordby, December 7, 2010, Exh. 87, pp. 72–160, and December 8, 2010, Exh. 22 88, pp. 3–95 (ECF No. 22-17, pp. 73–161, and ECF No. 23, pp. 4–96). 23 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or 24 an unreasonable application of Strickland, or any other Supreme Court precedent, and 25 was not based on an unreasonable determination of the facts in light of the evidence 26 presented. The Court will deny Dewey habeas corpus relief on Ground 2D. 27 1 Ground 2E 2 In Ground 2E, Dewey claims that her federal constitutional rights were violated 3 because her trial counsel was ineffective for failing to request a jury instruction 4 regarding spoliation of evidence. See Second Amended Petition (ECF No. 59), 5 pp. 58–62. 6 Dewey raised this issue on the appeal in her first state habeas action (see 7 Appellant’s Opening Brief, Exh. 108, pp. 36–43 (ECF No. 24-16, pp. 48–55)), and the 8 Nevada Supreme Court ruled as follows: 9 ... [A]ppellant argues that her trial counsel was ineffective for failing to seek an instruction on the spoliation of evidence that the police failed to 10 collect. Appellant fails to demonstrate that her trial counsel’s performance was deficient or that she was prejudiced as appellant fails to demonstrate 11 that any of the evidence she asserts the State should have collected was material – that there is a reasonable probability that the outcome of trial 12 would have been different had the defense had access to the uncollected evidence. See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 13 (1998). Therefore, the district court did not err in denying this claim. 14 Order of Affirmance, Exh. 112, p. 4 (ECF No. 24-20, p. 5). 15 This claim, too, is without merit. Dewey does not provide, as part of her claim, the 16 jury instruction that she believes her attorney should have requested. See Second 17 Amended Petition (ECF No. 59), pp. 62–63. Even after Respondents called attention to 18 this shortcoming of the claim in their Answer (see Answer (ECF No. 77), p. 18 n.3), 19 Dewey did not provide the instruction. See Reply (ECF No. 82), pp. 30–32. 20 Furthermore, Dewey makes general allegations regarding alleged deficiencies of 21 the investigation in this case, with respect to the handling of evidence by the police. 22 However, nowhere does Dewey explain in any detail how the alleged mishandling of 23 evidence by the police undermined her defense. The Court agrees with the conclusion 24 of the Nevada Supreme Court, that Dewey has not shown that there is a reasonable 25 probability that the outcome of trial would have been better for Dewey had the defense 26 had access to any evidence that Dewey claims to have been lost. 27 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or 1 was not based on an unreasonable determination of the facts in light of the evidence 2 presented. The Court will deny Dewey habeas corpus relief on Ground 2E. 3 Ground 2F 4 In Ground 2F, Dewey claims that her federal constitutional rights were violated 5 because her trial counsel was ineffective for failing to present testimony from R. Goldie. 6 See Second Amended Petition (ECF No. 59), pp. 58–62. 7 R. Goldie was the owner of the bar where Dewey and Steven had been drinking 8 prior to Steven’s death. Goldie testified at the evidentiary hearing in the state habeas 9 action. See Evidentiary Hearing Testimony of Ronald Goldie, December 8, 2010, Exh. 10 88, pp. 107–15 (ECF No. 23, pp. 108–16). He testified that on the morning of Steven’s 11 death he was asleep in a motor home outside the bar, when he awoke to hear a female 12 voice screaming “oh, my God; oh, my God; oh, my God.” Id. at 107–09 (ECF No. 23, pp. 13 108–10). He testified that he then looked out of the motorhome and saw “a man on the 14 ground and three different people standing around that man.” Id. at 109 (ECF No. 23, 15 p. 110). He testified further: 16 Apparently, something negative or bad had happened, and the female was very upset. And you could tell by the range of her voice and 17 what came out of her that there was some type of shock or – I don’t know. You could tell it wasn’t natural or right. 18 19 Id. at 111 (ECF No. 23, p. 112). Dewey claims that her trial counsel was ineffective for 20 not presenting Goldie’s testimony at trial. 21 Dewey raised this issue on the appeal in her first state habeas action (see 22 Appellant’s Opening Brief, Exh. 108, pp. 56–58 (ECF No. 24-16, pp. 68–70)), and the 23 Nevada Supreme Court ruled as follows: 24 ... [A] ppellant argues that trial counsel was ineffective for failing to investigate and present testimony from R. Goldie. Appellant fails to 25 demonstrate that her trial counsel’s performance was deficient or that she was prejudiced. Appellant's investigator testified that he investigated 26 Goldie prior to trial and gave the information regarding Goldie to counsel. Further, Goldie's testimony at the evidentiary hearing was similar to that of 27 witnesses who testified at trial. Appellant fails to demonstrate a presented at trial. Therefore, the district court did not err in denying this 1 claim. 2 Order of Affirmance, Exh. 112, pp. 5–6 (ECF No. 24-20, pp. 6–7). 3 Dewey argues that Goldie’s testimony would have been helpful to the defense 4 because between the time when Goldie heard the female voice screaming “oh, my 5 God,” and the time he looked out, there was insufficient time for Dewey to hide the 6 murder weapon in the truck, as the prosecution suggested she did. See Reply (ECF No. 7 82), p. 34. Dewey argues: “If called at trial, Goldie could have testified that less than a 8 minute after hearing the screams, he looked outside and saw a man on the ground 9 ([Steven]) and saw Shelli and two other men standing over the man on the ground.” Id. 10 That, however, is a misrepresentation of Goldie’s testimony; Goldie did not testify that 11 he looked outside “less than a minute after hearing the screams.” See Evidentiary 12 Hearing Testimony of Ronald Goldie, December 8, 2010, Exh. 88, pp. 107–15 (ECF No. 13 23, pp. 108–16). Nowhere in Goldie’s evidentiary hearing testimony did he say how long 14 it was between when he heard the screams and when he looked outside. See id. 15 Dewey also argues that Goldie’s testimony, that after the stabbing Dewey 16 screamed “oh, my God; oh, my God; oh, my God” would have shown that she did not 17 harbor the malice necessary for murder. See Reply (ECF No. 82), p. 34. However, this 18 Court disagrees that Dewey’s reaction in that manner after the stabbing shows a lack of 19 malice on her part at the moment of the stabbing. Furthermore, Goldie’s testimony 20 regarding Dewey’s reaction after the stabbing would have been cumulative of the 21 testimony of other witnesses. See Trial Testimony of Cody Lynn Madison, December 7, 22 2005, Exh. 52, pp. 20–22, 24 (ECF No. 19-1, pp. 21–23, 25); Trial Testimony of Vicki 23 Albin, December 7, 2005, Exh. 52, p. 43 (ECF No. 19-1, p. 44); Trial Testimony of Lee 24 Philip Griswold, December 7, 2005, Exh. 52, pp. 47–49, 52, 54, 62 (ECF No. 19-1, pp. 25 48–50, 53, 55, 63); Trial Testimony of Shayne Allen Springston, December 7, 2005, 26 Exh. 52, pp. 71–76 (ECF No. 19-1, pp. 72–77). The trial testimony of Shayne Allen 27 Springston is especially notable, as he too was sleeping in a vehicle in the parking lot 1 Testimony of Shayne Allen Springston, December 7, 2005, Exh. 52, pp. 71–76 (ECF 2 No. 19-1, pp. 72–77). Springston, though, heard a door open and close between the 3 time he was awakened and when he got out of the vehicle and saw what was going on. 4 See id. 5 The Court determines that Goldie’s testimony would have added nothing of any 6 significant value for the defense. The Nevada Supreme Court’s denial of relief on this 7 claim was not contrary to, or an unreasonable application of Strickland, or any other 8 Supreme Court precedent, and was not based on an unreasonable determination of the 9 facts in light of the evidence presented. The Court will deny Dewey habeas corpus relief 10 on Ground 2F. 11 Ground 3 12 In Ground 3, Dewey claims that her federal constitutional rights were violated 13 because she was convicted without sufficient evidence. See Second Amended Petition 14 (ECF No. 59), pp. 63–65. 15 The Due Process Clause of the United States Constitution “protects the accused 16 against conviction except upon proof beyond a reasonable doubt of every fact 17 necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 18 358, 364 (1970). However, a federal court collaterally reviewing a state court conviction 19 for sufficiency of the evidence does not determine whether it is satisfied that the 20 evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 21 335, 338 (9th Cir.1992). Rather, “the relevant question is whether, after viewing the 22 evidence in the light most favorable to the prosecution, any rational trier of fact could 23 have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. 24 Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Payne, 982 F.2d at 25 338. “[F]aced with a record of historical facts that supports conflicting inferences,” the 26 court “must presume — even if it does not affirmatively appear in the record — that the 27 trier of fact resolved any such conflicts in favor of the prosecution, and must defer to 1 emphasized that claims of insufficiency of the evidence “face a high bar in federal 2 habeas proceedings ....” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). 3 The Nevada Supreme Court denied Dewey relief on this claim on her direct 4 appeal, stating only: “We have carefully considered these arguments and conclude that 5 they lack merit.” Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. “Where a state 6 court's decision is unaccompanied by an explanation, the habeas petitioner’s burden 7 still must be met by showing there was no reasonable basis for the state court to deny 8 relief.” Richter, 562 U.S. at 784. In such cases, the federal habeas court must 9 “independently review” the record to determine whether the state court’s decision was 10 objectively unreasonable. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 11 This Court has reviewed the record of the trial in this case and determines that 12 Dewey’s claim is meritless. There was ample evidence supporting Dewey’s conviction. 13 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or an 14 unreasonable application of Jackson, or any other Supreme Court precedent, and was 15 not based on an unreasonable determination of the facts in light of the evidence 16 presented. The Court will deny Dewey habeas corpus relief on Ground 3. 17 Ground 4A 18 In Ground 4A, Dewey claims that her federal constitutional rights were violated 19 because an instruction given to the jury, Instruction No. 13, regarding second-degree 20 murder, reduced the State’s burden of proof with respect to the malice element of the 21 crime. See Second Amended Petition (ECF No. 59), pp. 65–67. Instruction No. 13 22 stated: 23 All murder which is not First Degree Murder is Second Degree Murder. Second Degree Murder is: 24 1. Murder with malice aforethought, but without the admixture of 25 premeditation and deliberation; or 26 2. Where an involuntary killing occurs in the commission of an unlawful act, which in its consequences naturally tends to take the life of a 27 human being or is committed in the prosecution of a felonious intent. 1 Here, too, on Dewey’s direct appeal, the Nevada Supreme Court denied relief on 2 this claim without any analysis. Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. The 3 question, then, is whether Dewey shows that there was no reasonable basis for the 4 Nevada Supreme Court’s ruling. See Richter, 562 U.S. at 784. 5 As the Court understands Dewey’s claim, she asserts, first, that the jury 6 instruction given in her case provided an incorrect definition of second-degree murder 7 under Nevada law. But the Nevada Supreme Court’s rejection of that aspect of Dewey’s 8 claim is an authoritative ruling by the state supreme court on an issue of state law. This 9 aspect of Dewey’s claim is beyond the scope of federal habeas review. See Bradshaw 10 v. Richey, 546 U.S. 74, 76 (2005) (“[S]tate court's interpretation of state law, including 11 one announced on direct appeal of the challenged conviction, binds a federal court 12 sitting in habeas corpus.”), citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); 13 Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); see also Rivera v. Illinois, 556 U.S. 148, 14 158 (2009) (“A mere error of state law ... is not a denial of due process.”) 15 In her reply, Dewey cites Estelle, 502 U.S. at 72, for the proposition that “[a]n 16 ambiguity, inconsistency, or deficiency in a jury instruction that infects the entire trial, 17 which in turn results in a conviction, violates due process.” Reply (ECF No. 82), pp. 36– 18 37. Dewey does not show, however, that the second-degree murder instruction given in 19 this case was ambiguous, inconsistent, or deficient, such that it infected her entire trial 20 with unfairness. 21 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or 22 an unreasonable application of Estelle, or any other Supreme Court precedent, and was 23 not based on an unreasonable determination of the facts in light of the evidence 24 presented. The Court will deny Dewey habeas corpus relief on Ground 4A. 25 Ground 4B 26 In Ground 4B, Dewey claims that her federal constitutional rights were violated 27 because Jury Instruction No. 19, defining “deadly weapon,” relieved the State of its 1 burden to prove an element of the deadly weapon enhancement. See Second Amended 2 Petition (ECF No. 59), pp. 67–69. Instruction No. 19 stated: 3 "Deadly weapon" means: 4 1. Any instrument which, if used in the ordinary manner contemplated by its design and construction, will or is likely to cause 5 substantial bodily harm or death; 6 2. Any weapon, device, instrument, material or substance which, under the circumstances in which it is used, attempted to be used or 7 threatened to be used, is readily capable of causing substantial bodily harm or death; or 8 3. A dangerous or deadly weapon such as a dagger. 9 10 Instruction No. 19, Exh. 59 (ECF No. 21-2, p. 24). In her reply, Dewey cites Sandstrom 11 v. Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471 U.S. 307 (1985), in 12 support of her claim. Dewey claims, essentially, that it was improper, and a 13 constitutional violation, for the trial court to instruct the jury that a dagger is a deadly 14 weapon. 15 The Nevada Supreme Court denied Dewey relief on this claim, without analysis. 16 See Dewey, 123 Nev. at 487 n.2, 169 P.3d at 1151 n.2. So, here again, the question is 17 whether Dewey shows that there was no reasonable basis for the Nevada Supreme 18 Court’s ruling. See Richter, 562 U.S. at 784. 19 To the extent that the Nevada Supreme Court’s ruling was that, under Nevada 20 law, a dagger is, as a matter of law, a deadly weapon, that part of the court’s ruling, 21 dealing with a matter of state law, would be authoritative, and beyond the scope of 22 federal habeas review. See Bradshaw, 546 U.S. at 76. 23 Moreover, even assuming, for the purpose of analysis, that Instruction No. 19 24 was erroneous under Sandstrom, such error was plainly harmless; there is simply no 25 reasonable debate about whether a dagger is a deadly weapon. Errors in jury 26 instructions involving “omissions or incorrect descriptions of elements are considered 27 trial errors,” subject to a harmless error analysis. Neder v. United States, 527 U.S. 1, 8– 1 error in instructing the jury that a dagger is a deadly weapon was harmless. See 2 Richter, 562 U.S. at 784. 3 The Nevada Supreme Court’s denial of relief on this claim was not contrary to, or 4 an unreasonable application of Sandstrom, Francis, or any other Supreme Court 5 precedent, and was not based on an unreasonable determination of the facts in light of 6 the evidence presented. The Court will deny Dewey habeas corpus relief on Ground 4B. 7 Ground 6 8 Finally, in Ground 6, Dewey claims that her federal constitutional rights were 9 violated because of the cumulative effects of the errors she alleges. See Second 10 Amended Petition (ECF No. 59), pp. 71–72. However, as the Court determines that 11 Dewey has not shown there to have been any errors, there are no errors to consider 12 cumulatively, and her claim in Ground 6 fails. The Court will deny Dewey relief on 13 Ground 6. 14 Certificate of Appealability 15 The standard for the issuance of a certificate of appealability requires a 16 “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c). The 17 Supreme Court has interpreted 28 U.S.C. § 2253(c) as follows: 18 Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 19 petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The 20 issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as 21 follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 22 COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the 23 denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 24 25 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 26 1077–79 (9th Cir. 2000). 27 The Court finds that, applying the standard articulated in Slack, a certificate of 1 || Conclusion 2 IT IS THEREFORE ORDERED that the Petitioner's Second Amended Petition for 3 || Writ of Habeas Corpus (ECF No. 59) is DENIED. 4 IT IS FURTHER ORDERED that Petitioner is denied a certificate of appealability. 5 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 6 || judgment accordingly. 7 8 DATED this 26th day of December, 2019. 9 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28