3:04-cv-0562-ECR-VPC (D. Nev. Mar. 17, 2008)

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Evans v. McDaniel

United States District Court, D. Nevada

Mar 17, 2008

3:04-cv-0562-ECR-VPC (D. Nev. Mar. 17, 2008)

Opinion

3:04-cv-0562-ECR-VPC.

March 17, 2008

ORDER

EDWARD REED, District Judge

This action is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by Vernell Ray Evans, a Nevada prisoner represented by counsel. This matter comes before the Court with respect to its merits.

I. Procedural History

On June 9, 1993, a criminal complaint was sworn out against petitioner for various crimes related to the May 1, 1992, murders of Samantha Latrelle Scotti, Lisa Renee Boyer, Steven Lawrence Walker, and Jermaine M. Woods at a Wardelle Street apartment in Las Vegas. (Exhibit 2). On October 12, 1993, a preliminary hearing was held and Evans was bound over to the district court as charged. (Exhibits 1 and 9). On November 8, 1993, a criminal information was filed. (Exhibit 12). On November 15, 1993, the state filed a notice of intent to seek the death penalty. (Exhibit 13). On November 16, 1993, an initial arraignment was held wherein petitioner pled not guilty and waived his right to a speedy trial. (Exhibit 11).

The exhibits referenced in this Order were provided by respondents in support of their motion to dismiss and are found in the Court's record at Docket #27-#41 and #44-#45.

On August 29, 1994, a jury trial commenced and evidence was presented through September 9, 1994. (Exhibit 11). On September 9, 1994, jury retired to deliberate and the following day, returned with guilty verdicts on all counts. (Exhibits 11 and 79).

On September 26, 1994, through September 27, 1994, the penalty phase of the trial was held. (Exhibit 11). The jury returned four verdicts of death on September 27, 1994. (Exhibit 85). Sentencing was set for November 3, 1994. (Exhibit 11).

Sentencing was continued at the request of defense counsel, and on November 9, 2004, petitioner filed a motion for judgment of acquittal notwithstanding the jury verdict, and in the alternative, a motion for new trial. (Exhibit 87). The motion challenged the sufficiency of the evidence. ( Id.). On December 1, 1994, the trial court denied petitioner's motion, adjudged him guilty of Counts 1 through V, sentenced petitioner to death for Counts II through V, signed a warrant of execution in open court, and stayed the execution pending direct appeal. (Exhibit 11). The judgment of conviction was entered on January 6, 1995. (Exhibit 95).

On December 13, 1994, counsel was appointed to continue as petitioner's counsel during the direct appeal of his convictions and sentences to the Nevada Supreme Court. (Exhibit 92). A notice of appeal was timely filed on December 30, 1994. (Exhibit 94). On October 22, 1996, the Nevada Supreme Court issued an opinion denying petitioner's claims on direct appeal. (Exhibit 103). Remittitur was issued on July 2, 1997. (Exhibit 112).

On June 13, 1995, while his direct appeal was still pending, petitioner filed a motion for new trial based on newly discovered evidence. (Exhibit 98). Petitioner asserted newly discovered evidence regarding alleged inducements received by various witnesses for the State in exchange for their testimony at trial, and that petitioner was not informed of such inducements so as to properly cross-examine the witnesses. ( Id.). The state district court denied the motion on November 12, 1996, and the notice of entry of order was made on November 19, 1996. (Exhibits 126 and 127). The order was amended on January 7, 1997, with notice of entry of order made on January 9, 1997. (Exhibit 130).

On January 31, 1997, petitioner filed a notice of appeal challenging the amended order denying his motion for new trial. (Exhibit 131). On November 20, 1997, the Nevada Supreme Court dismissed the appeal on the motion for new trial. (Exhibit 136). The Nevada Supreme Court denied petitioner's two due process claims on the merits and declined to address the claims of ineffective assistance of counsel on direct appeal. A petition for rehearing was filed by petitioner, which was also denied. (Exhibits 137 and 138). Remittitur was issued on April 29, 1998. (Exhibit 139).

On May 28, 1998, petitioner filed a pro per petition for writ of habeas corpus in the state district court. (Exhibit 141). On June 18, 1998, petitioner was appointed counsel for the state habeas proceedings. (Exhibit 145). Counsel filed a supplemental habeas petition setting forth 49 grounds for relief. (Exhibit 151). On November 15, 1999, a hearing was held on the petition, and on February 2, 2000, the district court filed its Findings of Fact, Conclusions of Law and Order denying the petition. (Exhibit 155).

On February 9, 2000, petitioner filed a timely notice of appeal. (Exhibit 156). Petitioner filed an opening brief setting forth 35 issues. (Exhibit 157). Respondents filed an answering brief and petitioner filed a reply brief. (Exhibits 158 and 159).

On July 24, 2001, the Nevada Supreme Court entered its Opinion, affirming in part, reversing in part, and remanding petitioner's judgment of conviction. (Exhibit 160). The Court affirmed the district court's decision to forego an evidentiary hearing in the resolution of the petition, upheld petitioner's convictions, but found that petitioner's trial counsel and appellate counsel were ineffective in failing to challenge arguments made by the prosecutor during the penalty phase of the trial. As a result, petitioner's death sentences were vacated, and the matter was remanded for a new penalty hearing. (Exhibit 160, at pp. 1-2). Petitioner filed a petition for rehearing, which was denied by the Court. (Exhibit 161 and 162. Remittitur was issued on October 25, 2001. (Exhibit 163).

On December 12, 2001, new counsel were appointed for the proceedings on remand for the new penalty hearing. (Exhibits 165 and 166). On February 4, 2004, the State and petitioner entered into a sentencing agreement wherein the parties stipulated ". . . that [Evans] will be sentenced to a term of life in the Nevada Department of Corrections without the possibility of parole, plus an equal and consecutive term of life in the Nevada Department of Corrections without the possibility of parole for the deadly weapon enhancement, per count" and that all counts are to run consecutive to one another. (Exhibit 195, at p. 1). Additionally, petitioner waived the right to appeal his decision to waive the penalty hearing. (Exhibit 195, at p. 3). The judgment of conviction was entered on March 23, 2004. (Exhibit 196). Therein, petitioner was sentenced as stipulated by the parties in the February 4, 2004, sentencing agreement.

On October 6, 2004, petitioner filed a pro per petition for a writ of habeas corpus in this Court. (Docket #6). On January 12, 2005, attorney Marc Picker was appointed to represent petitioner in the instant proceedings. (Docket #10). On October 11, 2005, petitioner, through counsel, filed the amended petition for a writ of habeas corpus. (Docket #19). The amended petition raises 37 grounds for relief. On April 10, 2006, respondents filed a motion to dismiss. (Docket #26). On December 8, 2006, this Court entered an order, granting in part and denying in part, respondents' motion to dismiss. (Docket #49). This Court found Ground 28 of the amended petition to be procedurally defaulted, and found Grounds 13, 23, and 25B to be unexhausted. (Docket #49). On January 18, 2007, petitioner filed a declaration formally abandoning Grounds 13, 23, and 25B. (Docket #52). On June 22, 2007, respondents filed an answer to the remaining grounds of the amended petition. (Docket #57). Although granted leave to file a reply to the answer (Docket #51, at p. 2), petitioner never filed a reply to the answer. The Court now deems this action ripe for disposition on the merits.

II. Federal Habeas Corpus Standards

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's consideration of this habeas petition:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) and citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. at 75 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than merely incorrect or erroneous; the state court's application of clearly established federal law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).

In determining whether a state court decision is contrary to, or an unreasonable application of federal law, this Court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9^th Cir. 2000), cert. denied, 534 U.S. 944 (2001).

Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Discussion

Ground One (A) and One (B)

Petitioner claims (A) that his ". . . conviction was invalid under the federal and state constitutional guarantees of due process of law, equal protection, and the right to be informed of the nature and cause of a criminal accusation because the charging document prepared by the State did not specifically apprise petitioner of those acts he was alleged to have committed." Petitioner further claims in Part (B) ". . . ineffective assistance of counsel for failure to challenge the charging document before the trial court or on direct appeal."

The Nevada Supreme Court found that "Evans is correct that the information failed to give him adequate notice of the State's theory of aiding and abetting," but the Court concluded that "Evans has demonstrated no prejudice due to the vagueness of the information." (Exhibit 160, at p. 34). The Nevada Supreme Court determined that there was no evidence of the State varying its theory of the case that Evans let another man into the victims' apartment, and the two, acting together, shot the four victims to death. ( Id.)

As to Counts II through V of the information, petitioner was informed that he:

Vernell Ray Evans, Jr., the Defendant, having committed the crimes of BURGLARY (Felony — NRS 205.060); MURDER WITH THE USE OF A DEADLY WEAPON (Felony — NRS 200.010, 200.030, 193.165) . . . on or about the 1^st day of May, . . . did then and there, willfully, feloniously, without authority of law and with malice aforethought and premeditation and/or while in the commissions of a burglary, kill [Samantha Latrelle Scotti, Lisa Rene Boyer, Steven Lawrence Walker, and Jermaine M. Woods] by shooting into [their bodies] with a deadly weapon, to wit: a firearm, said Defendant was acting in concert with and aiding and abetting another person or other persons in the commission of said crimes.

(Exhibit 12). References to the Nevada Revised Statutes and to the "aiding and abetting" theory of the State's case are made in the information and provided notice to Evans. Any lack of specificity of the State's theory of "aiding and abetting" was cured when Evans was present at his preliminary hearing and heard the testimony of Alicia Ventura. (Exhibit 9, pp. 51-107). After the preliminary hearing there was no doubt that the State's evidence against Evans was primarily based on the testimony of a four year-old witness' observation that, "Little Ray came with the guns, with real guns, and shot Samantha . . . everybody is dead, everybody" and that "Little Ray and Boogieman Eyes" were the killers. (Exhibit 9, at pp. 58, 60). The State's case was based on the testimony of then six-year old Adriana, her excited utterances made to her mother and her neighbors, the Grices and Aaron Sledge, and various admissions made by Evans to third parties.

This Court finds that any technical insufficiency with the charging document did not prejudice petitioner at trial, thus petitioner's due process claim regarding vagueness of the charging document is without merit. The lack of prejudice forecloses petitioner's claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Moreover, the factual findings of the Nevada Supreme Court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground One.

Ground Two

Petitioner claims that his ". . . conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and a fair sentencing hearing, and effective assistance of counsel due to the admission of the testimony of Adriana Ventura's testimony, because of (A) trial counsel's failure to seek exclusion of the testimony or to request a competency hearing, and (B) because of the trial court's failure to sua sponte conduct a competency hearing of Adriana Ventura." Petitioner further claims that (C), "Appellate counsel was ineffective for failing to present this issue on direct appeal."

The Nevada Supreme Court considered Evans' claim challenging the failure of trial counsel to seek exclusion of Adriana Ventura's testimony or to request a competency hearing. (Exhibit 160, at pp. 10-13). The Nevada Supreme Court found that Adriana Ventura was competent to testify and therefore counsel's failure to challenge her competence was not deficient or prejudicial. The Nevada Supreme Court reviewed Adriana's trial testimony and found ". . . she readily admitted whenever she did not know or could not remember something and did not appear to make up information just to answer a question." (Exhibit 160, at pp. 10-11). Furthermore, the Nevada Supreme Court noted, "[t]he material facts which Adriana did remember and provide . . . were consistent with the evidence at the crime scene." ( Id. at p. 11). As found by the Nevada Supreme Court, "[a] child's testimony supports a finding of competency if it is clear, relevant, and coherent. Inconsistencies in the testimony go to the weight of the evidence." ( Id.).

The factual findings of the Nevada Supreme Court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Two.

Ground Three

Petitioner contends that his "conviction is invalid under the federal and state constitutional guarantees of due process, and equal protection, due to (A) the State's failure to disclose exculpatory and impeachment evidence." Petitioner claims (B) ". . . trial counsel were [in]effective because they failed to discover this evidence through their own efforts or the efforts of their investigator." Petitioner alleges that (1) "no information was provided to defense counsel concerning an investigation of Alicia Ventura;" (2) "no reports were provided to defense counsel concerning any continued investigation of Everett Flowers;" (3) "information was not disclosed concerning Samantha Scotti's activities as an informant;" (4) "the prosecutor failed to disclose the fact that Joseph Salley expected to be placed in the federal witness protection program due to his assistance in Evan's prosecution;" and (5) "the failure to disclose information concerning wiretap interception of Evans' telephone calls, which information was used to impeach Evans' defense witnesses."

The U.S. Supreme Court has identified three components of a Brady violation: (1) favorable evidence that was exculpatory or impeaching (2) was suppressed by the State willingly or inadvertently (3) with resulting prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice is found only when there is a reasonable probability, sufficient to undermine the confidence of the outcome, that had the evidence been disclosed to the defense, the result of the proceeding would have been different. U.S. v. Bagely, 473 U.S. 667, 681-82 (1985). Speculation about materials in government files does not support a Brady claim. Phillips v. Woodford, 267 F.3d 966, 987 (9^th Cir. 2001).

The Nevada Supreme Court considered the merits of sub-claims (1) through (3) and the claim of ineffective assistance of counsel. (Exhibit 160, at pp. 13-16). Regarding disclosure of investigations of Alicia Ventura and Everett Flowers, the Nevada Supreme Court found the claims to be speculative without Evans specifically describing any exculpatory information. The Court further cited the record and noted that the evidence at trial showed that Evans and at least one other person committed the crimes. The Nevada Supreme Court found that the State did not conceal that it also suspected Everett Flowers and Richard Powell of the murders and Evans presented evidence in his defense that Flowers had a violent relationship with one of the victims, Lisa Boyer, and had threatened to kill her not long before the murders. The Court found that no specific information existed that would have only linked other suspects to the Wardelle Street murders, and exclude Evans. Evidence of Adriana Ventura's eyewitness account of the murders and her identification of "Little Ray" or "Uncle Ray" definitively implicated Evans as one of the two gunmen in the Wardelle Street Apartment on May 1, 1992. The apparent lack of any exculpatory information beneficial to Evans supports the Nevada Supreme Court's finding that Evans was not prejudiced by any alleged failure to disclose materials regarding Everett Flowers or Alicia Ventura.

Regarding Samantha Scotti's police informant activities, the Nevada Supreme Court noted that discovery that was allowed on the issue and the district court's finding that the State did not have a list of such activities and did not have a duty to create exculpatory information for the defense where none existed. (Exhibit 160, at pp. 14-15). Petitioner has failed to show that any exculpatory or impeachment evidence would be available from such materials. Petitioner speculates that another suspect may exist in the Wardelle Street murders based on a review of Scotti's police informant activities. A Brady violation does not occur when the State does not have the information to disclose.

The Nevada Supreme Court found petitioner's claim of ineffective assistance of counsel to be without merit because he failed to show deficient performance or prejudice.

The Nevada Supreme Court considered the merits of sub-claims (4) and (5). The Court considered petitioner's due process claim that the State failed to disclose an offer of protection which had been made to Joseph Salley, one of the State's witnesses, who had expressed concern for his safety if he testified against Evans. (Exhibit 136). Citing the due process clause of the United States Constitution, the Nevada Supreme Court held newly-discovered evidence warrants a new trial only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. (citing United States v. Bagely, 473 U.S. 667, 682 (1985)). In denying petitioner's claim, the Court reasoned that Salley had told the State's prosecutor that he was reluctant to testify because his life had been threatened should he do so. By offering to protect Salley, the State was merely removing the powerful negative incentive to testify resulting from the threats. The availability of this information, for petitioner to cross-examine Salley, would have likely resulted in the disclosure of the threats made against Salley. As a result, the Nevada Supreme Court found that the result of the proceedings would not have been different.

Regarding the alleged failure to disclose the existence of recorded telephone conversations between Evans and the two alibi witnesses, the Nevada Supreme Court found that Evans was aware that the telephone conversations took place and that the information was therefore available to him. Failure to disclose what the defense knows is not a Brady violation. See Hicks v. Collins, 384 F.3d 204, 220-21 (6^th Cir. 2004) (defendant knew what he said and could have advised counsel). As a result, the State had no duty to disclose Evans' own statements to defense counsel. Additionally, there was no duty to disclose inculpatory evidence under Brady.

Ground Four

Petitioner alleges his ". . . conviction is invalid under the federal and state constitutional guarantees of due process, and equal protection, a fair trial, a fair penalty hearing, and the right to be free from cruel and unusual punishment due to (A) the State's failure to provide full and complete discovery concerning Samantha Scotti's actions as a confidential informant; and (B) the ineffective assistance of trial counsel for failure to discover this exculpatory evidence through their own efforts or the efforts of their investigator." The claims asserted in Ground Four are duplicative of claims relating to Samantha Scotti, discussed above in Ground Three.

The Nevada Supreme Court found that the State did not have a list of Samantha Scotti's police informant activities and furthermore had no duty to create exculpatory information for the defense where no such exculpatory evidence existed. (Exhibit 160, at pp. 14-15). Petitioner failed to show that any exculpatory or impeachment evidence would be derived from a list of Scotti's informant activities. Petitioner merely speculates that another suspect may exist in the Wardelle Street murders, based on a review of Scott's informant activities. No Brady violation occurs when the State does not have the information to disclose.

The Nevada Supreme Court also found petitioner's claims of ineffective assistance of counsel to be without merit for failing to show deficient performance or prejudice. Petitioner has failed to rebut the Nevada Supreme Court's findings that no Brady violations occurred and that Evans was not prejudiced by any such alleged violations. Prejudice under Brady and Strickland are the same, thus if there is no prejudice under Brady there can be no prejudice from counsel under Strickland. See Brown v. Head, 272 F.3d 1308, 1316 (11^th Cir. 2001).

Ground Five

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, a fair penalty hearing, and the right to be free from cruel and unusual punishment due to (A) the State's failure to provide defense counsel with statements or summaries of statements from the State's witnesses who changed their stories following their initial statements to police officers and (B) trial counsel were [in]effective because they failed to properly investigate the State's witnesses and did not discover that they had changed their stories following the time that they gave statements to police officers."

This claim was presented to the Nevada Supreme Court. (Exhibit 157, at pp. 21-25). Petitioner alleged that "[Shirannah] Rice gave inconsistent stories at trial in comparison to those offered in her previous statements and in her grand jury testimony about [Evans'] confession." Petitioner also complained about a letter that Rice presented to the prosecution on the day she was called to testify at the jury trial. It was also alleged that Tina Jackson testified at trial on two occasions when she was threatened by Evans, whereas it was alleged that she had only previously narrated one such occasion. Petitioner took issue with the testimony of Joseph Salley, claiming that he had never previously recounted an occasion where he observed petitioner describe the Wardelle Street murders and jump on a table and say that he was a "natural born killer."

The Nevada Supreme Court found that petitioner's claim that the State failed to inform him of the various statements was mostly belied by the record. The Court characterized petitioner's factual allegations as "general" in nature and failed to identify any significant inconsistencies. (Exhibit 160, at p. 15). The Court went on to find no deficient performance or prejudice as to petitioner's claim of ineffective assistance of counsel. ( Id. at p. 16).

Ground Six

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, his right to confront the witnesses against him, and his right to effective assistance of counsel, because (A) the district court refused to grant a continuance of the trial after defense counsel received notice of a letter presented by one of the State's witnesses during the middle of the witnesses' direct testimony and (B) because trial counsel was thereafter unprepared to properly examine the State's witnesses."

The Nevada Supreme Court found that any prejudice asserted by petitioner as to this claim was "conclusory" in that he "failed to specify how the cross-examination of any witnesses was inadequate." (Exhibit 160, at p. 30). The Nevada Supreme Court found the evidence — the letter — to have been properly admitted. (Exhibit 160, at pp. 30-31). The factual findings of the Nevada Supreme Court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Six.

Ground Seven

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, and effective assistance of counsel, due to the failure of his defense counsel to file many meritorious pretrial motions in order to protect petitioner's right to a fair trial."

The Nevada Supreme Court found this claim to be without merit due to petitioner's failure to support the claim with any cogent argument. (Exhibit 160, at p. 39). The factual findings of the Nevada Supreme Court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Seven.

Ground Eight

The Nevada Supreme Court founds this claim to be vague and "failing to include specific factual allegations that, if true, establish prejudice." (Exhibit 160, at pp. 39-40). On collateral review, the trial court found that . . . "counsel performed diligently and zealously. Their conduct of the case was beyond any minimum level of effectiveness. Defense counsel was given approximately $87,000 to defend the case and over $8,000 was given for investigators." ( Id.). The trial court's observations of defense counsel's conduct directly supports the Nevada Supreme Court's decision that the claim is without merit. Also, as stated by the Nevada Supreme Court, petitioner's claim alleges various issues that he believes his counsel should have investigated, but he fails to articulate how he was prejudiced by the alleged failure to investigate. A claim of failure to investigate must show what information would be obtained, and whether, assuming the evidence is admissible, it would have produced a different result. See Hamilton v. Vasquez, 17 F.3d 1149, 1157 (9^th Cir. 1994). As found by the state courts, petitioner has not shown how the alleged investigative efforts would have produced a different result. Moreover, the factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Eight.

Ground Nine

Petitioner alleges that he was "deprived of his federal and state constitutional right to due process, equal protection of the laws and a fair trial by an impartial jury by the refusal of the district court to permit individual voir dire of the potential jurors." The trial court, on post-conviction review, confirmed that Evans' motion for individual sequestered voir dire was permitted for "any of those individuals who present special problems with respect to exposure to pre-trial publicity." (Findings of Fact, Conclusions, of Law and Order, Exhibit 155, at p. 10). The Nevada Supreme Court affirmed the decision of the trial court on post-conviction review. (Exhibit 160). Decisions regarding the conduct of voir dire are within the sound discretion of the trial court. Connors v. United States, 158 U.S. 408, 413 (1985). A court's ruling limiting the manner of conduct of voir dire cannot be reversed absent a manifest abuse of discretion. Potts v. Georgia, 493 U.S. 876, 878-79 (1989). Abuse of discretion occurs only when the court's decision is arbitrary or capricious or when it exceeds the bounds of law or reason. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9^th Cir. 1997). Petitioner has not shown any abuse of discretion nor how he was prejudiced by the voir dire of the various prospective jurors. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Nine.

Ground Ten

Petitioner claims that his "conviction is an invalid conviction under the federal and state constitutional guarantees of due process, equal protection, a public trial, freedom from the press, a fair trial, and to meaningful appellate review because (A) the trial court refused to allow portions of the trial to be recorded and (B) trial counsel were ineffective for failing to assure that a proper record was made and that each of petitioner's aforementioned rights were preserved."

The trial court, on post-conviction review noted, "[t]he court did not refuse to have the conference in question recorded; these were ordinary bench conferences which are not usually recorded. (Exhibit 155, at p. 5). The Nevada Supreme Court affirmed the decision of the trial court finding that Evans "fail[ed] to substantiate his irresponsible claim in any way." (Exhibit 160, at p. 40). In the state courts, petitioner presented no evidence that he requested to be present at any bench conference or session in chambers. Petitioner makes no showing of how he was prejudiced when he was represented by counsel at all side bars. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Ten.

Ground Eleven

Petitioner alleges that his "conviction is invalid under the federal constitutional guarantees of due process and equal protection due to (A) the admission of material, unreliable evidence concerning petitioner's prior drug use and alleged threats against witness Joseph Salley, Shirannah Rice, Tina Jackson, and others; and (B) Petitioner's counsel were ineffective for failing to demand a hearing prior to admission of this evidence and for failing to object to this prejudicial testimony at trial."

Regarding evidence of petitioner's prior drug use, the trial court, on post-conviction review, found only one reference to prior drug use which was only made to provide context to a witnesses' testimony of petitioner's admission. (Findings of Fact, Conclusions of Law and Order, at Exhibit 155, at p. 20). The Nevada Supreme Court affirmed the trial court's decision without any specific analysis regarding the admission of evidence relative to petitioner's prior drug use. (Exhibit 160).

Regarding the admission of evidence of various witnesses' fear of Evans, the Nevada Supreme Court found that such evidence was properly admitted as to Tina Jackson, but not properly admitted as to Shirannah Rice, Rice's mother, Joseph Salley, and Gregory Robertson. (Exhibit 160, at pp. 16-18). Nevertheless, the Nevada Supreme Court concluded that petitioner was not prejudiced by the improperly admitted evidence, and denied the claim for relief. Federal habeas corpus generally is not available to review questions regarding the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62 (1991). The relevant inquiry is whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Fuller v. Roe, 182 F.3d 699, 703 (9^th Cir. 1999). The Nevada Supreme Court found that Rice's mother "expressly disclaimed any fears of Evans" and Gregory Robertson "only referred to the general risk of retaliation from other inmates." As to the expressions of fear by Rice and Salley, the Nevada Supreme Court noted that such expressions were "seriously impeached as Rice continued to live with Evans after the murders. The Nevada Supreme Court found no prejudice to petitioner. (Exhibit 160 at pp. 16-18).

The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Eleven.

Ground Twelve

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, a fair penalty hearing, effective assistance of counsel and his right to be free from cruel and unusual punishment because (A) Petitioner's counsel elicited prejudicial testimony concerning the fact that petitioner is an ex-felon in the presence of the jury and (B) Appellate counsel was ineffective for failing to present this issue on direct appeal."

The trial court, on post-conviction review, found only three passing references to petition's status as an ex-felon, and that petitioner failed to demonstrate both error and prejudice. (Exhibit 155, at p. 21). The Nevada Supreme Court found ". . . counsel delved into this information based on tactical decisions . . . [and] assuming the decisions were not reasonable . . . the information was not prejudicial. (Exhibit 160, at p. 41). The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twelve.

Ground Fourteen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, his right to confront witnesses, and his right to be free from cruel and unusual punishment because (A) the State elicited extensive evidence during the trial that the State's witnesses were in fear of petitioner and/or that they were intimidated by him. (B) There was no evidentiary hearing prior to the introduction of this highly prejudicial testimony. (C) The State did not meet its burden of proving that such testimony was admissible in this case. (D) Trial counsel was ineffective for failing to properly object to the admission of this evidence. (E) Appellate counsel was ineffective for failing to present this issue on direct appeal."

The issues raised in Ground Fourteen are essentially the same as those raised in Ground Eleven, discussed above. The Nevada Supreme Court found that evidence of fear was properly admitted as to Tina Jackson, but not properly admitted as to Shirannah Rice, Rice's mother, Joseph Salley, and Gregory Robertson. (Exhibit 160, at pp. 16-18). Nevertheless, the Nevada Supreme Court concluded that petitioner was not prejudiced by the improperly admitted evidence, and denied the claim for relief. Federal habeas corpus generally is not available to review questions regarding the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62 (1991). The relevant inquiry is whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Fuller v. Roe, 182 F.3d 699, 703 (9^th Cir. 1999). The Nevada Supreme Court found that Rice's mother "expressly disclaimed any fears of Evans" and Gregory Robertson "only referred to the general risk of retaliation from other inmates." As to the expressions of fear by Rice and Salley, the Nevada Supreme Court noted that such expressions were "seriously impeached as Rice continued to live with Evans after the murders." The Nevada Supreme Court found no prejudice to petitioner. (Exhibit 160, at pp. 16-18). Petitioner's claim that trial counsel failed to properly object and/or appellate counsel was ineffective for failing to assert the instant claim on direct appeal was rendered moot by the Nevada Supreme Court considering the issue on the merits in the appeal from the denial of petitioner's state habeas petition. Petitioner cannot show any prejudice by trial or appellate counsel and his ineffective assistance claim is without merit.

Ground Fifteen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, his right to confront witnesses, and his right to be free from cruel and unusual punishment because (A) the State elicited hearsay evidence that another person — alleged by the State to be petitioner's co-conspirator — solicited other people to commit the murder of one of the victims in this case, even though this evidence was not admissible under the co-conspirator exception to the hearsay rule. (B) Trial counsel was ineffective for failing to properly object to the admission of this evidence. (C) Appellate counsel was ineffective for failing to present this issue on direct appeal."

In reviewing this claim, the Nevada Supreme Court acknowledged that it was error to admit Richard Powell's hearsay statement, which was probative to motive, but found the error was harmless. The Court found that there was other evidence of motive in the case and specifically noted that Shirannah Rice also testified that Evans admitted that he helped kill Scotti because Scotti had informed on Powell. (Exhibit 160, at p. 9). Federal habeas corpus generally is not available to review questions regarding the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62 (1991). The relevant inquiry is whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Fuller v. Roe, 182 F.3d 699, 703 (9^th Cir. 1999). Petitioner has not shown prejudice. Petitioner's claim that trial counsel failed to properly object and/or appellate counsel was ineffective for failing to assert the instant claim on direct appeal was rendered moot by the Nevada Supreme Court considering the issue on the merits in the appeal from the denial of petitioner's state habeas petition. Petitioner cannot show any prejudice by trial or appellate counsel and his ineffective assistance claim is without merit.

Ground Sixteen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to be free from cruel and unusual punishment because (A) the State elicited evidence concerning prior consistent statements by the State's witnesses without establishing the admissibility of such testimony. (B) Trial counsel was ineffective for failing to properly object to the admission of this evidence. (C) Appellate counsel was ineffective for failing to present this issue on direct appeal."

The Nevada Supreme Court found that the State improperly elicited evidence that Shirannah Rice made telephone calls to detectives implicating petitioner in the murders, but found that the evidence was not so prejudicial that there was a reasonable probability of a different result with the testimony. (Exhibit 160, at p. 19). Petitioner also asserts that statements attributed to Adriana Ventura were improperly admitted. The Nevada Supreme Court found the statements were properly admitted as excited utterances under NRS 51.095. Federal habeas corpus generally is not available to review questions regarding the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62 (1991). The relevant inquiry is whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Fuller v. Roe, 182 F.3d 699, 703 (9^th Cir. 1999). Petitioner has failed to show prejudice. Petitioner's claim that trial counsel failed to properly object and/or appellate counsel was ineffective for failing to assert the instant claim on direct appeal was rendered moot by the Nevada Supreme Court considering the issue on the merits in the appeal from the denial of petitioner's state habeas petition. Petitioner cannot show any prejudice by trial or appellate counsel and his ineffective assistance claim is without merit.

Ground Seventeen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to be free from cruel and unusual punishment because (A) the State bolstered the credibility of its witnesses prior to any attack of their veracity by defense counsel. (B) The prosecutor also vouched for the credibility of the State's witnesses throughout closing arguments. (C) Trial counsel was ineffective for failing to properly object to the admission of this evidence. (D) Appellate counsel was ineffective for failing to present this issue on direct appeal."

The Nevada Supreme Court considered petitioner's claims of improper bolstering and vouching for the credibility of witnesses. Regarding evidence that was elicited after the defense had attacked the veracity or competency of the State's witness, as with Joseph Salley, the Nevada Supreme Court found it was permissible for the State to counter impeachment of its witness by presenting evidence supporting their credibility. (Exhibit 160, at p. 19). Regarding eliciting evidence from Shirannah Rice and Alicia Ventura that petitioner complains of in the instant petition, the Nevada Supreme Court found only "a small amount of evidence that may have bolstered Rice's credibility before the defense impeached her veracity" and found that such evidence had "no effect on the trial's outcome." (Exhibit 160, at p. 19). Regarding the alleged vouching by the prosecutor during closing argument, the Nevada Supreme Court pointed out that the alleged offensive argument was made during rebuttal closing argument, after defense counsel extensively challenged the quality of the police investigation and the credibility of the State's witnesses. (Exhibit 160, at p. 20). The Court found that the prosecutor's remarks were a reasonable response to the challenge by defense counsel. ( Id.)

Federal habeas corpus generally is not available to review questions regarding the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62 (1991). The relevant inquiry is whether the evidence was so prejudicial that its admission violated fundamental due process and the right to a fair trial. Fuller v. Roe, 182 F.3d 699, 703 (9^th Cir. 1999). Petitioner has failed to show prejudice. Petitioner's claim that trial counsel failed to properly object and/or appellate counsel was ineffective for failing to assert the instant claim on direct appeal was rendered moot by the Nevada Supreme Court considering the issue on the merits in the appeal from the denial of petitioner's state habeas petition. Petitioner cannot show any prejudice by trial or appellate counsel and his ineffective assistance claim is without merit.

Ground Eighteen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to confront the witnesses against him through meaningful cross-examination due to (A) the failure of the district court to exclude the testimony of Gregory Robertson and due to (B) the failure of petitioner's counsel to anticipate the testimony of several key witnesses and to prepare for their examination. Petitioner also was (C) denied his right to effective assistance of counsel at trial and (D) his right to effective assistance of counsel on appeal."

The trial court, on post-conviction review, found that ". . . trial counsel did everything possible to exclude Robertson's testimony and cross-examined Robertson as well." (Findings of Fact, Conclusions of Law and Order, at Exhibit 155, at p. 22). The trial court also found petitioner's claims of ineffective assistance of counsel for failing to prepare for other witnesses belied by the record. ( Id.). In affirming the trial court's decision, the Nevada Supreme Court found that petitioner did not specify how his counsel could have better cross-examined the State's witnesses and thus failed to show how he was prejudiced. (Exhibit 160, at p. 41). Petitioner has failed to show prejudice. Petitioner's claim that trial counsel failed to properly object and/or appellate counsel was ineffective for failing to assert the instant claim on direct appeal was rendered moot by the Nevada Supreme Court considering the issue on the merits in the appeal from the denial of petitioner's state habeas petition. Petitioner cannot show any prejudice by trial or appellate counsel and his ineffective assistance claim is without merit.

Ground Nineteen

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to confront the witnesses against him through meaningful cross-examination due to (A) the failure of counsel to adequately impeach the testimony of Joseph Salley. (B) Petitioner was also denied his right to effective assistance of counsel because of counsel's failure to properly investigate the background of Joseph Salley and to cross-examine him about his background, inconsistencies in his testimony, benefits he obtained because of his testimony, and other relevant factors."

The Nevada Supreme Court, in reviewing petitioner's claim, found that trial counsel were not deficient by failing to impeach Salley with his criminal history, and also found that counsel did confront Salley forcefully with inconsistencies between this testimony and a prior statement. (Exhibit 106, at p. 31-32). In concluding that a jury could have discounted Salley's testimony, regarding incriminating admissions by petitioner, had they known of Salley's criminal history, "a different result was not reasonably probable" due to the testimony of Shirannah Rice and Tina Jackson, who also testified that petitioner made incriminating admissions about the murders. ( Id. at p. 32).

Regarding petitioner's claim of trial counsel's failure to investigate the background of Joseph Salley, his claim is simply a reiteration of his claims in Ground Eighteen. Petitioner has not shown how a better investigation of Salley's background would have yielded any different information for petitioner to use on cross-examination. The Nevada Supreme Court found that petitioner did not specify how his counsel could have better cross-examined the State's witnesses, or specifically Joseph Salley, thus petitioner has failed to show how he was prejudiced. (Exhibit 160, at p. 41).

Ground Twenty

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to confront the witnesses against him through meaningful cross-examination due to (A) the failure of defense counsel to adequately impeach the testimony of Alicia Ventura. (B) Petitioner was also denied his right to effective assistance of counsel because of counsel's failure to properly investigate the background of Alicia Ventura and to cross-examine her about her background, inconsistencies in her testimony, benefits she obtained because of her testimony, and other relevant factors."

The Nevada Supreme Court found ". . . no prejudicial deficiency in the trial counsel's cross-examination of Ventura . . . [and that] the record shows that Ventura testified to most of the facts which Evans claims his counsel failed to elicit." (Exhibit 160, at p. 31). On cross-examination, it was established that Alicia Ventura was familiar with many of the people who were referenced throughout the trial. (Transcript, Exhibit 70, at pp. 856-859). Evidence was presented to the jury of Alicia Ventura's involvement in moving a safe containing drugs and money, at the direction of Anthony "Ace" Collins, from the Wardelle Street apartment to Dushawn Pitchford's house. (Transcript, Exhibit 70, at pp. 829-833). By the admission of this evidence, it was established that Anthony Collins had the ability to communicate with people outside of prison while he was incarcerated, and that Alicia Ventura was involved in handling at least 210 rocks of crack cocaine. In response to trial counsel's cross-examination, Alicia Ventura admitted to entering the Wardelle Street apartment after the murders for approximately fifteen minutes establishing the opportunity that she could have told other witnesses about the crime scene. (Transcript, Exhibit 70, at pp. 881-884). Also, during cross-examination, trial counsel drew attention to prior statements made by Alicia Ventura who admitted to lying to police officers and while under oath before a grand jury. (Exhibit 70, at pp. 851, 854-856). The record shows that petitioner's claim is without merit.

Moreover, the factual findings of the Nevada Supreme Court are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twenty.

Ground Twenty-one

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, and a fair trial due to (A) the admission of a letter allegedly written by petitioner that was not disclosed to defense counsel prior to trial in accordance with Nevada's discovery laws and the prosecutor's obligation to comply with the State's "open file" policy. (B) Petitioner was also denied his right to effective assistance of counsel because of counsel's failure to properly research the admissibility of this letter and to present to the district court the appropriate reason why it should be excluded as evidence."

The trial court, on post-conviction review, found "[t]he prosecution disclosed the letter as soon as practicable after receiving it," "there was no Brady violation," and there was "no other legal basis to exclude the letter." (Findings of Fact, Conclusions of Law and Order, at Exhibit 155, at p. 23). The Nevada Supreme Court, in affirming the decision of the trial court, found that "[Shirannah] Rice had given the letter to the prosecutor that morning, the prosecutor did not read it until lunch hour, and then he provided it to the defense." (Exhibit 160, at p. 29). The district court granted the defense a continuance of the cross-examination of Shirannah Rice until the next day. ( Id., at pp. 29-30).

The record indicates that the trial court met in chambers with counsel to discuss how to handle the Rice letter. (Exhibit 69, at pp. 588-589). The trial court then put on the record the factual circumstances relating to the prosecutor's disclosure of the Rice letter to defense counsel. ( Id.). Under such circumstances, no purpose would be served by a post-conviction evidentiary hearing into the issue, as requested by petitioner. Petitioner was given a continuance for the specific purpose of reviewing the letter.

To the extent that petitioner asserts a claim of ineffective assistance of appellate counsel for failing to assert the instant claim on direct appeal, petitioner cannot show any prejudice by his appellate counsel's alleged failure.

Moreover, the factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twenty-one.

Ground Twenty-two

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, and his right to be free from cruel and usual punishment, his right to effective assistance of counsel, and his right to call witnesses on his behalf because defense counsel failed to call expert witnesses to assist them at trial."

The trial court, on post-conviction review, found Evans ". . . ha[d] not established that if the [expert] testimony were presented, a different result [was] reasonably probable and therefore "ha[d] not met the standard to establish ineffective assistance of counsel." (Exhibit 155, at p. 23). The Nevada Supreme Court, in affirming the decision of the trial court, found "Evans fail[ed] to allege specifically what these experts could have done to make a different result reasonably probable." (Exhibit 160, at p. 41). In the instant petition, Evans has still failed to provide specificity as to how such experts would have testified and how such testimony would have changed the result of his case.

Ground Twenty-four

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, a fair trial, a fair penalty hearing, and his right to be free from cruel and unusual punishment because (A) the State illegally obtained tapes from a federal wiretap in an unrelated matter, because (B) the State used the illegally obtained tapes to obtain an advantage in this case, and because (C) defense counsel failed to learn of this information and (D) failed to challenge the prosecutor's use of this unlawful information.

The Nevada Supreme Court, noting that the issues had already been resolved on appeal from the denial of Evans' motion for a new trial, found that the alleged wiretap evidence was not admitted at trial and Evans had failed to show that the prosecution's knowledge of the evidence prejudiced him. (Exhibit 160, at p. 41). The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twenty-four.

Ground Twenty-five

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process and equal protection due to (A) the substantial and injurious effect of extensive prosecutorial misconduct and overreaching, which distorted the fact finding process and render the trial fundamentally unfair. (B) Trial counsel were ineffective for failing to object to this prosecutorial misconduct, for failing to request a curative instruction, and for failing to seek reversal of the judgment of conviction based on the prosecutor's extensive history of prosecutorial misconduct. (C) Appellate counsel was ineffective for failing to address the extensive prosecutorial misconduct on direct appeal."

The Nevada Supreme Court considered petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel and found the claims to be without merit. (Exhibit 160, at pp. 20-23). The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twenty-five.

Ground Twenty-six

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, and trial before an impartial jury because the reasonable doubt instruction given during the trial improperly minimized the State's burden of proof."

The Nevada Supreme Court considered petitioner's claim on direct appeal. (Exhibit 103, at pp. 17-18). The Court found that the reasonable doubt instruction mirrored the statutory language of reasonable doubt and found the instruction to be constitutional under federal standards. Issues relating to jury instruction are not cognizable in federal habeas corpus unless they infect the entire trial to establish a violation of due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991). The Ninth Circuit Court of Appeals has specifically upheld Nevada's reasonable doubt instruction in Ramirez v. Hatcher, 136 F.3d 1209, 1210-11 (9^th Cir. 1998), cert. denied 525 U.S. 967 (1998); see also U.S. v. Nolasco, 926 F.2d 869 (9^th Cir. 1991) (upholding reasonable doubt definitions, including NRS 175.211). No due process violation has been established with respect to the reasonable doubt jury instruction in the instant case.

Ground Twenty-seven

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, trial before an impartial jury, and a reliable sentence because of the trial court's failure to properly instruct the jury concerning the elements of the capital offense."

The Nevada Supreme Court considered petitioner's claim on direct appeal. (Exhibit 103, at pp. 18-19). The Nevada Supreme Court reaffirmed previous Nevada law in finding that the jury was properly instructed on "premeditation" and the difference between first and second degree murder. (Exhibit 103, at pp. 18-19). Issues relating to jury instruction are not cognizable in federal habeas corpus unless they infect the entire trial to establish a violation of due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Petitioner has not established that the challenged instruction infected the entire trial so as to deny him of due process. The definition of second or first degree murder in Nevada is a question of state law. Alleged errors in the interpretation or application of state laws do not warrant habeas relief. Peltier v. Wright, 15 F.3d 860 (9^th Cir. 1994).

Ground Twenty-nine

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, cruel and unusual punishment, a fair trial, and a fair appeal because the opinion of the Nevada Supreme Court affirming petitioner's judgment of conviction was erroneous on many important issues."

First, petitioner contends that his jury was not drawn from a representative cross-section of the community, citing various alleged violations of the Nevada Revised Statutes. The Nevada Supreme Court found "Evans failed to demonstrate a material departure from the jury selection statutes or the Eighth Judicial District Court rules, and also failed to show that he was prejudiced by the selection procedure." (Exhibit 103, p. 11, n. 12). This claim, which challenges the application of state law, is not cognizable in federal habeas proceedings. Engle v. Isaac, 456 U.S. 107, 119 (1982). The failure to show prejudice resulting from the selection procedure renders any federal issues of fundamental fairness meritless. The Nevada Supreme Court was not objectively unreasonable in denying petitioner's claim.

Second, petitioner challenges the composition of the Petit Jury for under-representation of certain groups. Petitioner argues that the Nevada Supreme Court's analysis is erroneous because the actual composition of the jury pool had fewer than average number of minorities as compared to the "cross-section of the community." The Nevada Supreme Court applied federal law as determined by the United States Supreme Court and found that "Evans failed to establish a prima facie violation of the fair-cross section requirement." (Exhibit 103, at pp. 11-13). The Nevada Supreme Court was not objectively unreasonable in denying petitioner's claim.

Third, petitioner asserts that the district court erred in allowing a witness to testify who sat in the courtroom for two days in violation of the trial court's exclusionary order. Under analysis of Nevada law, the Nevada Supreme Court concluded that the purpose of the exclusionary order was not undermined in the instant case and that Evans was not prejudiced by the trial court's decision to allow the witness to testify. (Exhibit 103, at pp. 13-15). The applicability of the exclusionary rule in Nevada courts is a state law issue not cognizable in federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Given the Nevada Supreme Court's review of the record and finding that "Salley's [the witness'] testimony did not relate to the testimony occurring during the first two days of trial when he was present in violation of the exclusion order" and that "Evans was not prejudiced" render meritless petitioner's argument of fundamental unfairness.

Fourth, petitioner challenged the district court's decision to allow a witness to testify in violation of NRS 174.087. The Nevada Supreme Court found that ". . . the district court did not abuse its discretion in determining that the State had shown good cause for its non-compliance with NRS 174.087." (Exhibit 103, at pp. 15-16). The applicability of NRS 174.087 in Nevada courts is a state law issue not cognizable in federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Moreover, as found by the Nevada Supreme Court, petitioner had sufficient notice of the State's intent to use Salley as he had been "endorsed" as a witness and discovery had been provided indicating that Salley had told police that petitioner had made admissions to him regarding his involvement in the Wardelle Street murders. The Nevada Supreme Court was not objectively unreasonable in denying petitioner's claim.

Fifth, petitioner challenges the "premeditation" and "reasonable doubt" instructions. These issues were discussed earlier in this Order. The instructions were determined by the Nevada Supreme Court to be a proper statement of Nevada law. Petitioner's claim is without merit.

Sixth, petitioner challenges the standard that the district court used in denying a defense motion for judgment of acquittal notwithstanding the jury verdict. The Nevada Supreme Court considered petitioner's challenge pursuant to NRS 175.381(2), and rejected petitioner's "interpretation of the standard to be used by a district court in deciding whether to grant a motion for an acquittal. (Exhibit 103, at pp. 20-21). The Nevada Supreme Court further found that the ". . . trial court used the correct standard in denying Evans' motion for an acquittal notwithstanding the verdict." ( Id.). This state law question is not cognizable in federal habeas, and this Court will not disturb the decision of the Nevada Supreme Court.

All sub-parts of Ground Twenty-nine will be denied. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Twenty-nine.

Ground Thirty

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, cruel and unusual punishment, a fair trial, and a fair appeal because the order of this court [the Nevada Supreme Court], affirming the order of the district court denying Evans' motion for a new trial."

In Nevada Supreme Court, Case No. 29936, petitioner challenged the district court's order denying his motion for a new trial. (Exhibit 134). Petitioner asserted three grounds supporting his claim for relief, two of which are presented as Ground Thirty in the instant federal habeas petition. The Nevada Supreme Court considered petitioner's claim, and citing United States Supreme Court precedent, found that "newly discovered evidence warrants a new trial only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (Exhibit 136, at pp. 1-2). Regarding the alleged failure to disclose tape recordings of petitioner's statements, the Nevada Supreme Court found "no duty to disclose" when the evidence is "available to the defendant from other sources." (Exhibit 136, at p. 2). The Nevada Supreme Court's decision was not objectively unreasonable. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty.

Ground Thirty-one

Petitioner alleges that his "right to due process and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth amendments to the United States Constitution were violated by the prosecutor's suppression of exculpatory evidence regarding promises made to a rebuttal witness, Joseph Salley, which were the direct inducement for the witness' participation in the trial."

This claim was denied by the Nevada Supreme Court. (Exhibit 136). The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty-one.

Ground Thirty-two

Petitioner alleges that his "right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments was violated by the prosecutor's suppression of exculpatory evidence regarding promises made to rebuttal witness Joseph Salley, which was the inducement for his participation in this trial process."

The Nevada Supreme Court considered this claim and found it to be without merit. (Exhibit 160, at p. 14). Petitioner has not shown how he was prejudiced by his counsel's alleged failures. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty-Two.

Ground Thirty-three

Petitioner claims that his "right to due process of law and a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated by the prosecutor's failure to disclose tape recorded conversations with Evans that were in the State's possession prior to the testimony of alibi witnesses."

As in Ground Thirty, petitioner claims a Brady violation by failing to disclose the existence of recorded telephone conversations between himself and two alibi witnesses. The Nevada Supreme Court denied this claim and found no duty to disclose when the evidence is available to defendant from other sources. (Exhibit 136, at p. 2). Due process under Brady does not require the State to disclose evidence "available to the defendant from other sources, including diligent investigation by the defense." Stockton v. Murray, 41 F.3d 920, 927 (4^th Cir. 1994). Petitioner was certainly aware of his phone conversations that took place. Since this information was available to petitioner, the State had no duty to disclose it to defense counsel. Moreover, the factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty-three.

Grounds Thirty-four and Thirty-five

In both grounds, petitioner asserts all of his previous thirty-three claims as a basis for ineffective assistance of trial counsel and/or as a basis for ineffective assistance of appellate counsel. The Court has addressed the merits of petitioner's ineffective assistance of counsel claims previously in this Order. In Grounds Thirty-four and Thirty-five, petitioner has provided a list of claims of counsel's failures, without any analysis to support a claim of ineffective assistance. Federal habeas petitions require more than "notice" pleading — the petition must state facts that point to a real possibility of constitutional error. Aubut v. State of Maine, 431 F.2d 688, 689 (1^st Cir. 1970). The instant claim does not meet this standard. The Court refers to its previous analysis in this Order concerning petitioner's claims of ineffective assistance of trial and appellate counsel. The Court will deny habeas relief with respect to Ground Thirty-four and Thirty-five.

Ground Thirty-six

Petitioner alleges that his "conviction is invalid under the federal and state constitutional guarantees of due process, equal protection, the effective assistance of counsel, a fair tribunal and an impartial jury due to (A) the cumulative errors in the admission of evidence and instructions, gross misconduct by state officials and witnesses, and the systematic deprivation of petitioner's right to the effective assistance of trial and appellate counsel. (B) In addition, petitioner has raised sufficient factual allegations to support a finding of `actual innocence' in this case."

The Nevada Supreme Court found the evidence properly before the jury was such that the incriminating evidence was strong enough that the errors do not undermine confidence in the trial's result. The Court relied on the testimony of the three witnesses — Shirannah Rice, Tina Jackson, and Salley — who testified of Evans' incriminating admissions about the murders; Adriana's eyewitness testimony of the murders and the identification of one of the killers as "Little Ray" or "Uncle Ray;" Alicia Ventura's testimony that Adriana referred to Evans as "Little Ray" or "Uncle Ray;" and Evans' letter to Shirannah Rice, asking her to change her testimony. Given this evidence, the Nevada Supreme Court was not objectively unreasonable in denying petitioner's claim of cumulative error. The factual findings of the Nevada state courts are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty-six.

Ground Thirty-seven

Petitioner claims ". . . [t]he [State] District Court deprived Evans of a full and fair post-conviction proceeding by failing to conduct an evidentiary hearing and failing to permit discovery prior to dismissal of his petition, thereby violating Evans' rights under the Sixth and Fourteenth Amendments."

Petitioner has failed to specify what issues he presented that would have benefitted from an evidentiary hearing. Most of the issues in the instant federal petition were resolved by the Nevada state courts based on review of the trial court record. Many of petitioner's claims of ineffective assistance of counsel were resolved by findings of lack of prejudice pursuant to Strickland, as opposed to trial counsel's conduct, resulting in little need for an evidentiary hearing. The state court did not err in refusing to calendar an evidentiary hearing, nor was the Nevada Supreme Court objectively unreasonable in affirming, in part, the district court's findings. Petitioner has failed to meet his burden of proving that the Nevada Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. The Court will deny habeas relief with respect to Ground Thirty-seven.

IV. Certificate of Appealability

In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9^th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9^th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.

This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability.

V. Conclusion

IT IS THEREFORE ORDERED that the petition for a writ of habeas corpus is DENIED IN ITS ENTIRETY. IT IS FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT ACCORDINGLY. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY.

Evans v. McDaniel

Opinion

ORDER

I. Procedural History

II. Federal Habeas Corpus Standards

III. Discussion

Ground Two

Ground Three

Ground Four

Ground Five

Ground Six

Ground Seven

Ground Eight

Ground Nine

Ground Ten

Ground Eleven

Ground Twelve

Ground Fourteen

Ground Fifteen

Ground Sixteen

Ground Seventeen

Ground Twenty

Ground Twenty-one

Ground Twenty-two

Ground Twenty-four

Ground Twenty-five

Ground Twenty-six

Ground Twenty-seven

Ground Twenty-nine

Ground Thirty

Ground Thirty-one

Ground Thirty-two

Ground Thirty-three

Grounds Thirty-four and Thirty-five

Ground Thirty-six

Ground Thirty-seven

IV. Certificate of Appealability

V. Conclusion

Evans v. McDaniel

Evans v. McDaniel

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