Opinion
3:16-cv-00663-MMD-CLB
05-26-2022
JORGE MIRANDA-RIVAS, Petitioner, v. HAROLD WICKHAM, [1] et al., Respondents.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
I. SUMMARY
Petitioner Jorge Miranda-Rivas filed a third amended petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 56.) A jury convicted Miranda-Rivas of (1) robbery with the use of a firearm; (2) discharging a firearm within or from a structure; (3) grand larceny of a motor vehicle; and (4) assault with a deadly weapon, for which he was sentenced to imprisonment for an aggregate term of 7 years and 2 months to 23 years. (ECF No. 11-3 at 2-3.) Miranda-Rivas unsuccessfully challenged his convictions on direct appeal and in postconviction proceedings. (ECF Nos. 11-11, 11-20.) Miranda-Rivas seeks a writ of federal habeas corpus on the grounds that, inter alia, trial counsel was ineffective, certain convictions violate double-jeopardy, and his convictions are unsupported by sufficient evidence. This matter is now before the Court for adjudication on the merits of the remaining grounds of the petition.///
The Court previously granted Respondents' motion to dismiss grounds 1, 2, and 4 as untimely and Miranda-Rivas's motion to dismiss grounds 10 and 12 after the Court determined they are unexhausted. (ECF Nos. 83, 84, 8788.)
The Court summarizes the relevant state court record for consideration of the issues in the case. The Court makes no credibility findings or other factual findings regarding the truth or falsity of evidence or statements of fact in the state court. The Court summarizes the same solely as background to the issues presented in this case. No assertion of fact made in describing statements, testimony, or other evidence in the state court constitutes a finding by this Court. Any absence of mention of a specific piece of evidence or category of evidence does not signify the Court overlooked the evidence in considering the claims.
A. The Incline Village Chevron attendant was robbed at gunpoint.
K.A. testified that on January 2, 2013, he drove Miranda-Rivas, E.G., and Jorge Torres, in his mother's Buick, to the Tomahawk area of Incline Village, to steal items from unlocked vehicles, and that Miranda-Rivas found an unlocked Subaru with keys inside it. (ECF No. 105 at 63-65, 68-70.) K.A. subsequently drove them in the Buick to the Incline Village Chevron where Torres testified K.A. and Miranda-Rivas talked about robbing the Chevron. (ECF Nos. 105 at 70, 74; 106 at 96-97.) After K.A. paid for gasoline for the Buick, Miranda-Rivas directed him to park behind the Chevron at the old Subway shop. (ECF No. 105 at 74-76.)
Per the Court's Local Rules of Practice: “[p]arties must refrain from including-or must partially redact, where inclusion is necessary-[certain] personal-data identifiers from all documents filed with the court, including exhibits, whether filed electronically or in paper, unless the court orders otherwise.” LR IA 6-1(a). This includes the names of minor children, thus, only a child's initials should be used. Id. Witnesses referred to herein as “K.A.” and “E.G., ” were minors at the time of the crimes, so the Court refers to them only by their initials. (ECF Nos. 36-26 at 61, 36-27 at 44.)
E.G. testified he told detectives Miranda-Rivas went into the Chevron wearing a red bandana over his face and carrying a gun. (ECF No. 106 at 74-75.) Torres said Miranda-Rivas took a red bandana lying on the seat between them; however, he admitted he told police he did not see a bandana. (Id. at 98-99, 115-16, 133.) K.A. saw Torres give Miranda-Rivas a red bandana but did not see Miranda-Rivas put it on his face; however, he admitted he previously testified he never saw a bandana, and never told police about a bandana. (ECF Nos. 105 at 77-78, 100-01; 106 at 6-7.) K.A. said Miranda-Rivas went into the Chevron while he, E.G., and Torres, remained in the Buick. (ECF No. 105 at 77.)
Sean Robertson testified he was the attendant at the Incline Village Chevron and was preparing to close for the night when he walked into the mart, and a man wearing a blue jacket and a red bandanna over his face, put a “silverish gun-metal revolver” with a long nose “somewhat roughly” “right against” his temple. (Id. at 18-20, 25-26, 29, 44.) The robber told Robertson, “Give me all the money, ” but Robertson brushed the robber's arm away. (Id. at 29.) The robber then pointed the gun to the side, shot a round, and said, “Give me all the f'cking money.” (Id. at 28-30.) Robertson immediately set the cash drawer on the counter, and the robber took approximately $450 in bills and ran toward the old Subway shop behind the Chevron. (Id. at 30-32.) Robertson said he never would have permitted the robber to take the money had the robber not used threat or force in demanding the money. (Id.) Robertson identified the Chevron surveillance video depicting the robber grabbing Robertson's jacket, pushing the gun against his head, firing a shot to the side, and pointing the gun at him. (Id. at 32-43.) He described the robber as “slight- definitely not heavyset” and approximately 6', 6'1” tall. (Id. at 27-28, 45-46.) He deduced the robber was Hispanic based on the robber's skin color and skin tone. (Id.)
Washoe County Sheriff Detective Greg Sawyer testified the Chevron is located in an area where the discharge of firearms is prohibited except in self-defense. (ECF No. 36-28 at 10-11.)
Doug Brown testified he was the manager of the Incline Village Chevron and delivered surveillance video of the robbery to police. (ECF No. 105 at 47-48.) After the robbery, the register was short $472.13. (Id. at 50-51.)
Robertson described the robber's jacket as a heavy, blue, puffy, hooded, ski jacket and said the jacket in a photograph marked as Exhibit 9 “looks like the same jacket that the individual with the gun” wore during the robbery. (Id. at 26-27, 40.) He recognized the “sideways stitching” and “striping on the sleeve.” (Id.) He identified photographs of the robber wearing the jacket in Exhibits 3A through 3F, and after comparing the jacket depicted in those exhibits with the jacket depicted in Exhibit 9, concluded it looked “pretty darn close” to the same jacket. (Id. at 39-40, 44-45.) /// ///
B. A Subaru was stolen from Incline Village.
Miranda-Rivas returned to the Buick with cash and distributed some of it to K.A., E.G., and Torres. (ECF Nos. 105 at 79; 106 at 58, 99-101.) K.A. said Miranda-Rivas was laughing, said he pistol-whipped the attendant and shot the gun, and said, “You think this is a f'cking game? Ain't f'cking playing around.” (ECF No. 105 at 78-79.) Gonzales said the jacket worn by the robber in Exhibits 3B and 3F is similar to the one Miranda-Rivas wore the night of the robbery. (ECF No. 106 at 56-57, 73-74.) Torres said the jacket depicted in Exhibit 9 appears to be the same jacket Miranda-Rivas wore the night of the robbery but was not certain it was the same jacket. (Id. at 97, 115.) K.A. identified Exhibits 9 and 3F as photographs depicting a “dark blue” “fluffy” hooded jacket similar to the one Miranda-Rivas wore when he went into the Chevron the day of the robbery but did not recall whether Miranda-Rivas's jacket had white lines similar to the jacket depicted in the photographs. (ECF No. 105 at 76-77.)
Torres testified Miranda-Rivas said they should get out of town because the Chevron attendant was contacting police, and K.A. drove them to the Subaru. (ECF No. 106 at 100-01.) Torres said the Subaru keys were near the hand brake and he intended to steal the vehicle, but instead made an excuse and gave the keys to Miranda-Rivas. (Id. at 102-04, 117-19.) K.A., E.G., and Torres testified Miranda-Rivas drove the Subaru away; however, E.G. and Torres admitted they previously said Torres was with Miranda-Rivas when he drove it away. (ECF Nos. 105 at 103-04; 106 at 8-9, 76-77, 133-34.)
Jacquie Chandler testified she and Joseph Colley owned the Subaru and it was parked at a neighbor's house until she discovered it missing at 7:00 a.m. on the morning of January 3, 2013. (ECF No. 106 at 144-50.) She said it was normally left unlocked, and Colley often left the key in the center console. (Id.) The Subaru was later found totaled. (Id. at 151.) Chandler identified Exhibit 9 as a photograph of a hooded, puffy, blue, down jacket found tossed on a snowbank 10 to 20 feet from the location where the Subaru was parked when it was stolen. (Id. at 154-56, 163-64.) She said the jacket remained on the snowbank until police retrieved it a week later when she and her neighbor recognized the jacket in a newspaper photograph (Exhibit 3B) depicting the Chevron robber. (Id. at 16063.) Chandler said the newspaper photograph “showed the whole jacket” including the hood, and she recognized the stripping and piping on the jacket in the newspaper photograph were identical to those on the jacket on the snowbank. (Id. at 159, 161-62, 166.) Chandler said although the robber's jacket was similar to the jacket found near the Subaru theft, she could not be certain they were the same jacket. (Id. at 164-65.)
Torres testified he drove K.A., E.G., and Miranda-Rivas to Reno in the Subaru because they were concerned the Chevron attendant reported the robbery to police. (ECF No. 106 at 121.) K.A. said they stopped to put gasoline in the Subaru at the Chevron in Galena, stopped at a liquor store, and then dropped Miranda-Rivas at the home of his girlfriend, Janet, before he, E.G., and Torres, drove to the San Francisco Bay Area. (Id. at 9-15.) E.G. said they dropped off Miranda-Rivas and went to a house party before driving to the Bay Area; however, he admitted he told police they drove directly home after the party. (Id. at 79-81.) K.A., E.G., and Torres drove the Subaru in and around Oakland and San Francisco, returned to Lake Tahoe the next day, picked up Miranda-Rivas and Janet, and then went to a Motel 6 in Lake Tahoe. (ECF Nos. 105 at 83-86; 106 at 80-81, 106-09.)
The Motel 6 general manager, Troy Stevenson, provided a video recording, which was played for the jury, depicting Janet Mariscal-Garcia, and a male companion, checking into the motel on January 4, 2013, and identified the motel parking pass issued for the vehicle associated with that room rental. (ECF No. 106 at 217-18, 220, 223-25, 227.) K.A. identified Miranda-Rivas in the motel video with Janet. (ECF No. 105 at 91.)
E.G. said they left the Motel 6 the next day, and he, K.A., and Torres, wore latex gloves so they would not leave fingerprints in the Subaru, until they had an accident and abandoned the vehicle. (ECF No. 106 at 87, 89.) Torres admitted he initially lied to the sheriff by saying he was not inside the Subaru when it crashed. (Id. at 111, 136-37.)
C. The investigation led to Miranda-Rivas.
Washoe County Sheriff Detective Greg Sawyer testified Eric Barragan, who was injured in the Subaru crash, provided the names of the vehicle occupants, and the Chevron robber's jacket was later found at the site of the Subaru theft. (ECF No. 36-28 at 16.) Sawyer said the jacket “tied the robbery to that vehicle” and “tied the people in the vehicle to the robbery.” (Id.)
Sawyer testified K.A. and Torres were promised nothing for their testimony. (Id. at 11-14.) Sawyer did not release to K.A., or the media, information about the robber pistolwhipping the Chevron attendant, so only individuals involved in the robbery knew that detail. (Id.) K.A. told detectives Miranda-Rivas bragged about pistol whipping the Chevron attendant and firing a shot during the robbery. (Id.) Sawyer said K.A. and Torres initially gave the same general story, without naming names, because they were afraid of Miranda-Rivas. (Id. at 54.) On cross-examination, Sawyer agreed that Torres initially claimed sole responsibility for the vehicle theft but later changed his story. (Id. at 54-55.)
Detective Sawyer testified Miranda-Rivas claimed to be with family during the robbery, and at home, not at the Motel 6, on January 4 and 5, 2013. (Id. at 30-31, 70-71.) Sawyer, however, identified Miranda-Rivas and his girlfriend, Mariscal, in the motel surveillance video and identified the motel's parking pass as the one recovered from the Subaru. (Id. at 71-72.) Sawyer said when a buccal DNA sample was taken from Miranda-Rivas, Miranda-Rivas commented, “When the DNA results come back to me, I'll tell you everything.” (Id. at 19-20.) Sawyer admitted, however, that DNA tests for the jacket found near the site of the Subaru theft produced too many contributors to draw a definitive conclusion. (Id. at 18-19, 56.) Although Mariscal was interviewed, and her home searched, police found no gun. (Id. at 24-25.)
Sawyer said he directed the arrest of Miranda-Rivas because the statements of K.A., E.G., and Torres, followed a similar timeline, important details were the same, their stories “matched, ” and there was corroborating evidence. (Id. at 15.) He explained there were discrepancies because “[n]o two people are ever going to see or remember the same details in a case, ” but “the general, the important parts of the case, are all very similar, ” such as Miranda-Rivas's exit from the vehicle, running to the store, returning with cash and distributing it, and their actions after the robbery. (Id. at 15-16.)
The Washoe County Sheriff collected bullet fragments from the Incline Village Chevron. (ECF No. 105 at 53-54, 56-59.) The Sparks Police Department retrieved a .38-special bullet from a white GMC Yukon owned by Miranda-Rivas's mother. (Id. at 18789.) Washoe County Sheriff's Detective Arick Dickson testified Miranda-Rivas told detectives he never drove his mother's Yukon and denied involvement in the Chevron robbery. (Id. 181-83.) However, Washoe County Deputy Sheriff Suzanne Fisher testified that on October 6, 2012, she encountered Miranda-Rivas driving the Yukon; K.A., E.G., and Torres each testified they previously saw Miranda-Rivas drive a white SUV or GMC Yukon; and Deputy Sheriff Chavez testified Miranda-Rivas's stepfather told him Miranda-Rivas drove his mother's white Yukon. (ECF Nos. 105 at 62-63, 101-02, 184-86; 106 at 46-47, 111-12, 188-89, 191-92.) Washoe County Forensic Examiner Steve Shinmei testified the bullet fragments from the Chevron were consistent with the unfired .38 special bullet found in the Yukon; he also noted, however, that a .38-special is a common bullet and a dozen firearms could have fired it. (Id. at 200-06, 208, 211.)
D. Miranda-Rivas made incriminating statements to friends and family.
Detective Sawyer monitored Miranda-Rivas's phone calls from jail and admitted that in the calls, Miranda-Rivas denied participating in the robbery, and never openly admitted committing the robbery; Sawyer noted, however, that Miranda-Rivas also made incriminating remarks. (ECF No. 36-28 at 20-23, 57.) For instance, Sawyer testified the transcript of a January 11, 2013, call between Miranda-Rivas and Mariscal, which was played for the jury, includes her asking Miranda-Rivas the whereabouts of the gun used in the robbery and his reply that he disposed of it. (Id. at 23-25.) Miranda-Rivas told his mother, “[I]f they ask, you tell them that I have never driven [the white truck].” (ECF Nos. 36-1 at 66; 36-28 at 28-29.) Sawyer explained Miranda-Rivas's use of his mother's white Yukon was significant because “the bullet was located in the rear of the vehicle.” (ECF No. 36-28 at 29.) Detective Sawyer read to the jury portions of recorded call transcripts in which Miranda-Rivas and his brother, Jonathan, discussed hiding evidence from police, including a gun and bullets, that police found “the jacket, ” and others “snitched” to police. (ECF Nos. 36-1 at 69; 36-28 at 31-50.) Sawyer read to the jury various excerpts from a January 11, 2013, call, including:
The Court uses the telephone transcriptions/translations in summarizing these excerpts as the transcripts were admitted into evidence by stipulation. (ECF No. 36-28 at 26.)
Miranda-Rivas: [D]id they [search] the house or what?
Jonathan: No, fool, they didn't. I got all that shit, though, fool . . . from your jacket. ....
Miranda-Rivas: Ah, good thing, because they're looking for it, so put it away. Jonathan: Yeah, fool . . . they don't got shit, fool . . . right now I got everything guey [sic] . . .
Miranda-Rivas: Alright that's cool . . .
Jonathan: . . . like everything packet up in your jacket . . . they don't got shit, fool.
Miranda-Rivas: Then that's what's up . . . f'cking . . . hide it well, dude . . . Jonathan: Yeah . . .
Miranda-Rivas . . . they shouldn't find it at all. Put it in your room . . .
Jonathan: Well, right now I have it hidden . . . no, dude, right now I have it hidden somewhere, but tomorrow . . . I'm just gonna f'cking put it out . . . ain't nobody gonna see this shit. ....
Jonathan: Yeah, dude . . . tell them they don't got [sic] anything, dude . . . I got everything, dude . . . tomorrow I'm going to have everything hidden, nothing and dude . . . tell all your homies that you got nothing, dude.
Miranda-Rivas: The thing is, one of them . . . snitched . . .
Jonathan: I know, fool . . .
Miranda-Rivas: Edgar . . . Edgar snitched.
Jonathan: It was f'cking Erick . . . Erick Barragan or something like that, dude.
Miranda-Rivas: Eric-and then from them, they went to Edgar . . .
....
Jonathan: I know all that shit went down and shit . . . dude, I got . . . everything, everything dude . . . they don't got proof . . . they don't got proof of that shit.
Miranda-Rivas: Like what or what . . . did I make the news? Am I in the news, or what?
Jonathan: Mhm . . .
Miranda-Rivas: Am I in the news, or what?
Jonathan: Mhm . . .
Miranda-Rivas: Am I in the news, or what?
Jonathan: No, just your . . . just the pictures I showed you.
Miranda-Rivas: Oh . . . but they, they don't got proof . . . of nothing.
Jonathan: No, dude, so . . .
Miranda-Rivas: Just that . . . snitching . . . and that they found the jacket, but they want to take DNA and all that shit, they took my DNA, but . . . [unintelligible.]
Jonathan: Yeah, fool, what I heard is that you dropped that jacket in that sube and shit . . . and the owner of the sube, or whatever . . . had that jacket, and he found it on the news.
Miranda-Rivas: How you know about it?
....
Jonathan: Yeah, but . . . if they don't find no gun or no f'cking bullets, they don't got shit, fool . . .
Miranda-Rivas: But apparently they found one in my mom's car . . . in the white truck.
Jonathan: In my mom's car? . . . in the white truck?
Miranda-Rivas: That is what they said that they found one . . .
Jonathan: A bullet?
....
Jonathan: . . . they arrested you, dude . . . and I went to your house . . . and you told me you had all your shit in the jacket I got like seven bullets there .
..
Miranda-Rivas: Yes? . . .
Jonathan: I got the gun and hide [sic] it in my mom's room and shit . . .
Miranda-Rivas: No, no, take it now . . . they're recording this shit . . . they're listening . . . ....
Jonathan: If they don't find that jacket . . . you . . . the bullets or the car . . .
It ain't go [sic] be shit . . .
Miranda-Rivas: They found the jacket, they found the jacket.
Jonathan: I know they found the jacket, cause they told me, fool.
....
Jonathan: And I told you, fool, never keep f'cking evidence . . . I told you . . . I always told you, fool . . . I never keep f'cking evidence . . . burn that shit fool . . .
Miranda-Rivas: You was [sic] right ....(ECF Nos. 36-1 at 69-71, 73-74, 76-77; 36-28 at 31-35, 38-41.) Detective Sawyer testified he believed “Edgar” referred to E.G. and “sube” referred to the Subaru. (ECF No. 36-28 at 34-35.) Detective Sawyer also read from a January 14, 2013, call transcript:
Miranda-Rivas: Ok, but . . . it's just that I heard my mom . . . that they said that they went to the house looking for a little BB gun they had [sic] her at gunpoint and shit . . .
Jonathan: Well, they didn't have me a . . . they came like . . . it's weird because they thought I had it like, I don't know for . . . Me and my uncle, you know, my uncle Eddie we went to Nevada City and Sacramento and they were like “you did something” and I said . . . we went and go do the birth certificates . . . ....
Miranda-Rivas: And what they . . . they took the BB gun or what?
Jonathan: I don't know . . . I think . . . but . . .
Miranda-Rivas: No, but I'm saying . . . mine, dude . . .
Jonathan: BB . . . yeah . . . no, the . . . I don't know.
Miranda-Rivas: Do you still have it? Everything . . . is everything okay?
Jonathan: Yes.
Miranda-Rivas: Are you sure?
Jonathan: Yeah, but me and my uncle we're f'cking scared . . .
Miranda-Rivas: Well, clean it, dude . . . get a towel and clean it and take [sic] out of the house . . . ....
Miranda-Rivas: Is your hand on it?
Jonathan: No . . .
Miranda-Rivas: Okay, well, because if they find it, I am f'cked . . .(ECF Nos. 36-1 at 82-83; 36-28 at 45-46.) Detective Sawyer testified he believed “BB gun” was a coded reference to the gun used in the robbery. (ECF No. 36-28 at 58.)
K.A. testified he received a postcard from Miranda-Rivas, which read in part: “You know you weren't with me. I don't know why they trying [sic] to say you was [sic]. They just trying to scare you” and “You ain't had nothing to do with nothing so don't let them fool you.” (ECF Nos. 36-1 at 62-63; 105 at 86-91.) The postcard further states, “You think things are going bad, but there's nothing they can prove against you.” (Id.) K.A. said the Spanish portion of the message read, “[r]emember, you were never with me, and you said more than you're supposed to. You have thrown your future away.” (Id.) K.A. said he was nervous when he received the postcard because he had already talked to detectives. (Id.)
E. K.A., Torres, and E.G. were charged with related crimes.
K.A. was 17 years old at the time of the crimes and charged with robbery with a deadly weapon and grand larceny of a motor vehicle. (ECF No. 105 at 61, 92-93.) K.A. said when he first met with two detectives, he made up a story, withheld information, and did not tell the truth. (Id. at 95-96.) He said a couple of days later another detective met with him, and he told that detective the truth, which is no different than his trial testimony. (Id.) He did not agree to talk to the detectives in exchange for a specific deal. (Id.) He hoped for a benefit from his testimony, understood it depended on whether his testimony was truthful, and affirmed he was truthful. (Id. at 93, 95.) E.G. was 17 years old at the time of the crimes and pleaded guilty to conspiracy to commit robbery and conspiracy to commit grand larceny. (ECF No. 106 at 43-44, 64-65.) He believed he would receive no benefit from his testimony. (Id. at 65-66.) He never spoke with Torres or K.A. after his arrest and spoke with no one about what he was going to tell the police. (Id. at 91-92.) Torres pleaded guilty to conspiracy to commit robbery and intimidating a witness and said he stood to benefit by his testimony. (Id. at 112-13.)
III. LEGAL STANDARD
A. Antiterrorism and Effective Death Penalty Act (“AEDPA”)
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, ” as determined by United States Supreme Court precedent, or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A state court's decision is contrary to clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d)(1) “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 [Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court's decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d)(1) “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.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application' clause requires the state court decision to be more than incorrect or erroneous . . . [rather] [t]he state court's application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10, 412) (internal citation omitted).
The Supreme Court has instructed that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as “a difficult-to-meet” and “highly deferential standard for evaluating state-court rulings, which demands statecourt decisions be given the benefit of the doubt.”) (internal quotation marks and citations omitted)). The petitioner carries the burden of proof. See Pinholster, 563 U.S. at 181.
Where there is no clearly established federal law-i.e., no holding from the Supreme Court-stating a particular standard or rule at the time of the state court's decision, then, by definition, a petitioner cannot establish under AEDPA that the state court's decision was either contrary to or an unreasonable application of clearly established federal law. See, e.g., Carey v. Musladin, 549 U.S. 70, 76-77 (2006); see also Williams, 529 U.S. at 390, 412 (Interpreting “[t]he meaning of the phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States'” contained in 28 U.S.C. § 2254(d)(1) as referring to “the holdings, as opposed to the dicta, of the [Supreme] Court's decisions as of the time of the time of the relevant state-court decision.”). A state court need not cite Supreme Court cases nor even be aware of Supreme Court cases so long as neither the reasoning nor the result of the state-court decision contradicts them. Early v. Packer, 537 U.S. 3, 8, (2003).
B. Effective Assistance of Counsel
On a petitioner's claims of ineffective assistance of counsel, he must demonstrate (1) the attorney's “representation fell below an objective standard of reasonableness[;]” and (2) the attorney's deficient performance prejudiced the petitioner such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance.” Burt v. Titlow, 571 U.S. 12, 24 (2013). In considering an ineffective assistance of counsel claim, a court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. On the performance prong, the issue is not what counsel might have done differently but whether counsel's decisions were reasonable from his or her perspective at the time. Id. at 689-90. A petitioner making an ineffective assistance claim “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. In considering such claims, a court is obligated to “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. Under Strickland, strategic choices made “after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. On the other hand, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91. It is the petitioner's burden to show “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. at 687.
To establish prejudice, it is not enough for the petitioner “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A court may first consider either the question of deficient performance or the question of prejudice; if the petitioner fails to satisfy either question, the court need not consider the other. Id. at 697.
“Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult” because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential, '” and when applied in tandem, “review is ‘doubly so.'”
See Richter, 562 U.S at 105 (internal citations omitted); see also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (“When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply; hence, the Supreme Court's description of the standard as ‘doubly deferential.'”) (citing Yarborough v. Gentry, 540 U.S. 1, 6 (2003)).
IV. DISCUSSION
In the Petition, Miranda-Rivas states seven remaining grounds for relief. Miranda-Rivas states four grounds arguing that his counsel was ineffective, two grounds arguing that the evidence was insufficient to convict him, and one ground that his conviction violated the Double Jeopardy Clause. The Court addresses each in turn.
A. Ground 3-Failure to Introduce Video Recording
In ground 3, Miranda-Rivas alleges trial counsel was ineffective in violation of the Sixth and Fourteenth Amendments by failing to present a video recording depicting the accomplices purchasing fuel for the Subaru in Galena. (ECF No. 56 at 21-22.) He contends the video would have been exculpatory because it would have shown he did not accompany the accomplices when they committed the crimes. (Id.)
The state appellate court denied this claim in postconviction proceedings:
To establish ineffective assistance of trial counsel, a petitioner must demonstrate counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). ....
Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. We give deference to the court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). ....
[M]iranda-Rivas claimed trial counsel was ineffective for failing to introduce evidence in support of his defense. Miranda-Rivas argued trial counsel should have introduced and played a video recording of his accomplices purchasing gas after the robbery because the recording would have clearly demonstrated he was not with them. The district court found trial counsel may have been deficient for not introducing surveillance video from Galena Chevron Gas Station-if it existed and if it conclusively demonstrated
Miranda-Rivas was not present at the gas station with his accomplices. However, the district court further found Miranda-Rivas could not demonstrate prejudice because, even if trial counsel had introduced the video evidence and substantially impeached the testimony of his accomplices, there was more than sufficient evidence to establish his identity as the perpetrator of the crimes. The district court's findings are supported by the record and we conclude it did not err in dismissing this claim.(ECF No. 11-20 at 2-4.)
The state appellate court's determination is neither contrary to nor an unreasonable application of Strickland's prejudice prong and is not based on an unreasonable determination of the facts. Surveillance video from the Galena Chevron might have impeached the credibility of the accomplice testimony had it conclusively established Miranda-Rivas was not in the company of the accomplices following the offenses, but it would not have been exculpatory. There is no reasonable probability such video would establish an alibi for the time of the robbery and vehicle theft, which predated the trip to Galena, or contradict Miranda-Rivas's incriminating statements. After police questioned and searched his girlfriend's home, Miranda-Rivas told his girlfriend he threw away the gun. He told his mother to tell police he never drove the car where police found a bullet that was consistent with the bullet fired during the commission of the Chevron robbery. In a call with his brother, Miranda-Rivas asked whether he was on the news, and his brother told him “just the pictures” he had shown to him. Miranda-Rivas told his brother police had no proof except a snitch and the jacket, and Detective Sawyer testified in his opinion the reference to a snitch was a reference to E.G. Miranda-Rivas's brother told him the Subaru owner found the jacket and Miranda Rivas asked how his brother knew about it. In his interview with the sheriff, Miranda-Rivas told them, “When the DNA results come back to me, I'll tell you everything.” And, in his postcard to K.A., Miranda-Rivas told him, “You know you weren't with me.”
On this record, fair-minded jurists could conclude the state appellate court reasonably applied Strickland's prejudice prong in determining that given Miranda-Rivas's incriminating statements to friends and family and the other evidence, there is no reasonable probability that impeaching the accomplices with video showing Miranda-Rivas was not present at the Galena Chevron following the crimes, would have resulted in a different outcome. Accordingly, Miranda-Rivas is not entitled to relief on ground 3.
B. Ground 5-Failure to Challenge Sufficiency of Corroborating Evidence for the Grand Larceny Accomplice Testimony
In ground 5, Miranda-Rivas alleges trial counsel was ineffective in violation of the Sixth and Fourteenth Amendments by failing to challenge the sufficiency of corroboration for the accomplice testimony on the grand larceny conviction. (ECF No. 56 at 24-26.)
1. Applicable Law
“A person who intentionally steals, takes and carries away, drives away or otherwise removes a motor vehicle owned by another person commits grand larceny of a motor vehicle.” NRS § 205.228(1), as amended by Laws 2011, c. 41, § 15.
An “accomplice” is “one who is liable to prosecution, for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” NRS § 175.291 (2). Accomplice testimony cannot be used to support a conviction unless “the accomplice is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense.” NRS § 175.291(1) It is not sufficient if the corroboration merely shows the commission of the offense or the circumstances thereof. Id.
Corroborative evidence of an accomplice “may be either direct or circumstantial, ” “can be taken from the evidence as a whole, ” and “‘need not in itself be sufficient to establish guilt'-‘it will satisfy the statute if it merely tends to connect the accused to the offense.'” Heglemeierv. State, 903 P.2d 799, 803 (Nev. 1995) (internal and other citations omitted). “Corroborating evidence, however, must independently connect the defendant with the offense; evidence does not suffice as corroborative if it merely supports the accomplice's testimony.” Id. “[W]here the connecting evidence ‘shows no more than an opportunity to commit a crime, simply proves suspicion, or is equally consonant with a reasonable explanation pointing toward innocent conduct on the part of the defendant, the evidence is to be deemed insufficient.'” Id. at 803-04 (citations omitted).
Under NRS § 175.381 (2), a state district court may “on a motion of a defendant or on its own motion, ” set aside a jury verdict and enter a judgment of acquittal “if the evidence is insufficient to sustain a conviction.”
2. Analysis
On postconviction review, the state appellate court rejected a claim that trial counsel was ineffective in failing to move for acquittal based on insufficient corroborating evidence for the accomplices' testimony on the grand larceny conviction:
[M]iranda-Rivas claimed trial counsel was ineffective for failing to move for a mistrial based on insufficient evidence to support the grand-larceny-of-a-motor-vehicle count. Miranda-Rivas argued the only evidence of this crime was the uncorroborated testimony of his accomplices and a blue jacket that was found in the vicinity of the stolen vehicle. The district court found the Nevada Supreme Court had rejected Miranda-Rivas' sufficiency challenge on direct appeal, there was sufficient evidence to corroborate the accomplices' testimonies as to the grand-larceny-of-a-motor-vehicle charge, and trial counsel was not deficient for failing to move for a mistrial on this ground. The district court's findings are supported by the record and we conclude it did not err in dismissing this claim. See Miranda-Rivas v. State, Docket No. 64687 (Order of Affirmance, October 15, 2014); Donovan, 94 Nev. at 675, 584 P.2d at 711.(ECF No. 11-20 at 6.)
The state appellate court's determination is neither contrary to nor an unreasonable application of Strickland's performance prong and is not based on an unreasonable determination of the facts. The state district court instructed the jury that “[a] conviction shall not be had on the testimony of an accomplice unless he or she is corroborated by other evidence” which “without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense.” (ECF No. 36-29 at 31.) The instructions cautioned that “[e]vidence to corroborate accomplice testimony does not suffice if it merely casts grave suspicion on the defendant.” (Id. at 32.) The instructions directed the evidence required for corroboration of an accomplice's testimony “need not, in itself, be sufficient to establish guilt[;]” rather, corroboration is satisfied if “evidence, independent of the accomplice testimony, tends to connect the accused with the commission of the offense.” (Id. at 33.)
In closing arguments, trial counsel and the State attorney each explained those instructions to the jury and further explained the corroboration requirement was necessary to prevent convictions based solely on statements of accomplices who have motives for placing the blame on another person. (ECF No. 36-28 at 105-07, 146-47.) Trial counsel argued the accomplices' testimony lacked corroboration because neither the jacket, the bullet, nor the phone calls, provided sufficient corroboration. (Id. at 106-08, 134-36.) The State argued the evidence concerning the jacket, the bullet, and Miranda-Rivas's comments in the context of his phone conversations provided the necessary corroboration for the accomplices' testimony. (Id. at 145-50.)
A reasonable attorney could conclude there was sufficient independent corroborating evidence for the jury to consider the accomplices' testimony for the grand larceny conviction. The Chevron robbery depicted the robbery wearing a jacket. Police discovered a similar jacket at the location where the Subaru was stolen. Miranda-Rivas told his brother the jacket was found and police had no evidence against him except the snitch and the jacket. Miranda-Rivas's brother told him he heard the Subaru owner found the jacket and Miranda-Rivas asked how he knew about it. An objectively reasonable attorney could conclude, on the whole, that the jacket and Miranda-Rivas's comments, tended to connect him to the Subaru theft.
The state appellate court reasonably applied Strickland in determining counsel's failure to move for acquittal for the grand larceny conviction was not deficient performance. Thus, Miranda-Rivas is not entitled to federal habeas relief on ground 5.
C. Ground 6-Failure to Move for Severance of Grand Larceny Charge
In ground 6, Miranda-Rivas claims trial counsel's failure to request severance of the grand larceny charge from the charges related to the Chevron robbery, constitutes ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. (ECF No. 56 at 26-28.) He claims the grand larceny of the Subaru vehicle was not part of the same scheme or plan as the Chevron robbery. (Id.)
1. Applicable Law
“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged” are (1) “[b]ased on the same act or transaction;” or (2) “[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” NRS § 173.115, added by Laws 1967, p. 1413; see also Farmer v. State, 405 P.3d 114, 118-19 (Nev. 2017). Other crimes, wrongs or acts, may also be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” NRS § 48.045(2), as amended by Laws 1975, p. 1131.
When determining whether a common scheme or plan exists, courts must conduct a fact-specific analysis examining “whether the offenses share such a concurrence of common features as to support the inference that they were committed pursuant to a common design.” Farmer, 405 P.3d at 121. Relevant factors include: (1) degree of similarity of offenses; (2) degree of similarity of victims; (3) temporal proximity; (4) physical proximity; (5) number of victims; and (6) other context-specific features. Id. at 699 (internal citations omitted). No one factor is dispositive, and each factor may be assessed different weight depending on the circumstances. Id.
In the context of joinder of counts and defendants, the United States Supreme Court has stated: “Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder will rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” United States v. Lane, 474 U.S. 438, 466 n.8 (1986). The Ninth Circuit has declared this comment in Lane constitutes dicta. See Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (“Lane dealt with the joinder of standards under Federal Rules of Criminal Procedure 8 and 52; no constitutional issue was before the Court.”). Assuming that the United States Supreme Court's footnote in Lane could be considered Federal law, misjoinder of counts may violate federal due process only if it “resulted in an unfair trial.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (quoting Sandoval v. Calderon, 241 F.3d 765, 771-72 (9th Cir. 2001)); see also Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998). To establish prejudice, impermissible joinder must have “had a substantial and injurious effect or influence in determining the jury's verdict.” Davis, 384 F.3d at 638 (quoting Sandoval, 241 F.3d at 772.) In making that determination, the focus is on “cross-admissibility of evidence and the danger of ‘spillover' from one charge to another, especially where on charge or set of charges is weaker than another.” Id.
2. Analysis
On direct appeal, the Nevada Supreme Court rejected a claim that the trial court erred in failing to sua sponte sever the grand larceny charge from the other charges:
[A]ppellant argues that the district court erred by failing to sua sponte sever the grand larceny of a motor vehicle charge because it was not a connected part of a common scheme or plan with the other charges. See NRS 173.115. We review this claim for plain error because appellant did not move to sever the counts. See NRS 178.602. “In conducting plain error review, we must examine whether there was ‘error,' whether the error was ‘plain' or clear, and whether the error affected the defendant's substantial rights.” Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
Appellant claims that severance was warranted because the theft of the Subaru and the accomplices' subsequent trip to San Francisco in the vehicle occurred after the robbery, the story of the robbery could easily be told without reference to the stolen vehicle, and the robbery and the theft of the Subaru were motivated by different concerns. He argues that he was prejudiced by the failure to sever because, as argued above, there was insufficient evidence of the grand larceny of a motor vehicle charge absent the accomplices' testimonies.
[FN 1] Although we could treat the State's failure to respond to this claim as a confession error, see Polk v. State, 126 Nev.,, 233 P.3d 357, 359-60 (2010); Bates v. Chronister, 100 Nev. 675, 681-82, 691 P.2d 865, 870 (1984), we decline to do so where, as here, the claim clearly lacks merit.
The record demonstrates that joinder was appropriate under NRS 173.115(2), which allows joinder if the charged offenses are based on “acts or transactions connected together or constituting parts of a common scheme or plan.” See Weber v. State, 121 Nev. 554, 572-73, 119 P.3d 107, 120 (2005) (defining “scheme or plan” and “connected together”). It was the jacket that was worn in the robbery, later located next to where the Subaru had been stolen, that connected the robbery to the theft of the Subaru and the people in the Subaru to the robbery. Further, appellant fails to demonstrate that his substantial rights were affected as we concluded
above that there was sufficient independent evidence to corroborate the accomplices' testimony and to convict him of grand larceny of a motor vehicle. Therefore, we conclude that the district court did not err by failing to sever the charge.(ECF No. 11-11 at 4-5.)
On postconviction review, the state appellate court denied the claim that trial counsel was ineffective in failing to request severance of the grand larceny charge from the other charges:
[M]iranda-Rivas claimed trial counsel was ineffective for failing to move to sever the counts. Miranda-Rivas argued the theft of the vehicle was not connected to the robbery because it happened after the robbery was committed. The district court found the Nevada Supreme Court had rejected Miranda-Rivas' severance challenge on direct appeal, severance of the charges was not warranted, the joinder was appropriate under NRS 173.115(2), and trial counsel was not deficient for failing to move to sever the counts. The district court's findings are supported by the record and we conclude it did not err in dismissing this claim. See Miranda-Rivas v. State, Docket No. 64687 (Order of Affirmance, October 15, 2014); Donovan, 94 Nev. at 675, 584 P.2d at 711.(ECF No. 11-20 at 6-7.)
The state appellate court's determination that trial counsel did not perform deficiently in failing to move to sever the grand larceny charge from the other charges is neither contrary to nor an unreasonable application of Strickland's performance prong and is not based on an unreasonable determination of the facts. The Nevada Supreme Court, as the final arbiter of state law, determined on direct appeal that joinder was proper as a matter of state law and that joinder did not adversely affect Miranda-Rivas's substantial rights. The record supports those determinations. The jury was instructed to consider each offense separately, uninfluenced by the jury's decision as to any other count. (ECF No. 36-29 at 7.) There was evidence tying the jacket worn by the Chevron robber, as depicted in the Chevron surveillance video, to the jacket found at the scene of the Subaru theft. Miranda-Rivas's brother informed him that he heard the Subaru owner found the jacket and Miranda-Rivas implicitly admitted his connection to the jacket and the Subaru theft when he said the only proof the police had was the jacket and the snitch. Moreover, Torres's testimony that Miranda-Rivas's motivation to steal the Subaru was to evade police detection would have demonstrated consciousness of guilt for the Chevron robbery. On this evidence, an objectively reasonable attorney could determine the grand larceny of the vehicle charge was part of a common scheme or plan with the offenses for the Chevron robbery, and was cross-admissible in separate trials, and a severance motion futile.
As such, the state appellate court reasonably concluded trial counsel did not perform deficiently in failing to move to sever the grand larceny charge from the other charges and Miranda-Rivas is not entitled to federal habeas relief for ground 6.
D. Ground 7-Failure to Raise Double Jeopardy Challenges
In ground 7, Miranda-Rivas alleges trial counsel's failure to request dismissal of his convictions as violative of double jeopardy under the Fifth Amendment constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. (ECF No. 56 at 28-30.) Miranda-Rivas contends his convictions for assault with a deadly weapon and discharge of a firearm within or from a structure violate double jeopardy because they are lesser-included offenses of robbery with the use of a firearm. (Id.)
1. Applicable Law
The Double Jeopardy Clause of the Fifth and Fourteenth Amendments protects defendants from a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498 (1984). One offense is different from another if each requires proof of a fact that the other does not. Wilson v. Czerniak, 355 F.3d 1151, 1154 (9th Cir. 2004) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
“Nevada uses the Blockburger test to determine whether multiple convictions arising from a single incident are permissible, or to the contrary, if the charges amount to a lesser-included offense that is barred by double jeopardy.” Wilson v. State, 114 P.3d 285, 294 (Nev. 2005). “[I]f the elements of one offense are entirely included within the elements of a second offense, the first offense is a lesser included offense, and the Double Jeopardy Clause prohibits a conviction for both offenses.” Id. (citations and quotation marks omitted).
2. Analysis
On direct appeal, the Nevada Supreme Court determined the convictions for assault with the use of a deadly weapon and discharging a firearm within and from a structure are not lesser-included offenses of robbery with the use of a firearm and therefore the convictions do not constitute a double jeopardy violation:
[A]ppellant contends that his convictions for assault with a deadly weapon or for discharging a firearm within or from a structure are lesser-included offenses of robbery with the use of a firearm and therefore violate double jeopardy. To determine whether two statutes punish the same offense, this court looks to the Blockburger test. See Blockburger v. United States, 284 U.S. 299 (1932). “The Blockburger test ‘inquires whether each offense contains an element not contained in the other; if not, they are the “same offense” and double jeopardy bars additional punishment and successive prosecution.'” Jackson v. State, 128 Nev.,, 291 P.3d 1274, 1278 (2012) (quoting United States v. Dixon, 509 U.S. 688, 696 (1993)); see also Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001) (“under Blockburger, if the elements of one offense are entirely included within the elements of a second offense, the first offense is a lesser included offense and the Double Jeopardy Clause prohibits a conviction for both offenses”), overruled on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006).
Here, appellant concedes that assault with a deadly weapon is not a lesser-included offense of simple robbery but argues that it is a lesser-included of the crime charged, robbery with the use of a firearm. He further claims that discharging a firearm within or from a structure is a lesser-included crime to robbery with the use of a firearm when the armed robbery occurred within a store. He contends that the robbery, as charged, could not be committed without first committing assault with a deadly weapon and discharging a firearm within or from a structure.
[FN 2] Again, we could exercise our discretion to treat the State's failure to respond to this claim as a confession of error, see Polk, 126 Nev. at, 233 P.3d at 359-60; Bates, 100 Nev. at 681 -82, 691 P.2d at 870, but we decline to do so.
Each of appellant's convictions requires proof of an element that the others do not, compare NRS 200.380(1) and NRS 193.165(1) with NRS 200.471 (1)(a), (2)(b) and with NRS 202.287(1)(b), therefore, his convictions do not violate the Double Jeopardy Clause, see Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975) (“If each requires proof of a fact that the others do not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes”).(ECF No. 11-11 at 5-6.)
In post-conviction review proceedings, the state appellate court rejected a challenge that trial counsel was deficient in failing to move for mistrial based on double jeopardy:
[M]iranda-Rivas claimed trial counsel was ineffective for failing to move for a mistrial based on a double-jeopardy violation. Miranda-Rivas argued the offenses of assault with a deadly weapon and discharging a firearm within or from a structure are lesser-included offenses of robbery with the use of a firearm, his assault-with-a-deadly-weapon conviction cannot stand, and his sentences for robbery with the use of a firearm and discharging a firearm within or from a structure should merge. The district court found the Nevada Supreme court had rejected Miranda-Rivas' double jeopardy challenge on direct appeal, Miranda-Rivas' convictions do not violate the Double Jeopardy Clause, trial counsel was not deficient for failing to move for a mistrial or resentencing, and Miranda-Rivas was not prejudiced. The district court's findings are supported by the record and we conclude it did not err in dismissing this claim. See Miranda-Rivas v. State, Docket No. 64687 (Order of Affirmance, October 15, 2014); Donovan, 94 Nev. at 675, 584 P.2d at 711.(ECF No. 11-20 at 7.)
The state appellate court's determination is neither contrary to, nor an unreasonable application of Strickland's performance prong and is not based on an unreasonable determination of the facts. The Nevada Supreme Court, as the final arbiter of state law, determined the convictions for assault with a deadly weapon and discharging a firearm within and from a structure are not lesser-included offenses for robbery with the use of a firearm, and therefore did do violate federal double jeopardy. Because the lesser included/double jeopardy theory has no merit, the state appellate court reasonably concluded trial counsel's failure to move for acquittal or merger of the convictions based on that theory does not constitute deficient performance as it did not fall below an objective standard of reasonableness. Miranda-Rivas is therefore not entitled to federal habeas relief for ground 7.
E. Ground 8-Sufficiency of Evidence (Corroboration)
In ground 8, Miranda-Rivas alleges there is insufficient evidence to support each of his four convictions because there was insufficient corroboration for the accomplices' testimony, in violation of the Fifth and Fourteenth Amendments. (ECF No. 56 at 30-33.)
1. Applicable Law
According to Jackson v. Virginia, a jury's verdict must stand if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt.” 443 U.S. 307, 319 (1979) (emphasis in original). A federal habeas petitioner faces a “considerable hurdle” when challenging the sufficiency of evidence to support his conviction. Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004). The Jackson standard is applied “with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324 n.16.) A reviewing court, “faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any conflicts in favor of the prosecution, and must defer to that resolution.” Id. (quoting Jackson, 443 U.S. at 326.)
When the deferential standards of AEDPA and Jackson are applied together, the question for decision on federal habeas review is whether the state court's decision unreasonably applied the Jackson standard to the evidence at trial. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (citations omitted). Thus, when a petitioner's challenge to the sufficiency of the evidence is subject to AEDPA, “there is a double dose of deference that can rarely be surmounted.” See Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011) (noting the Jackson standard is deferential because it only permits relief when “no rational trier of fact” could find the essential elements for guilt beyond a reasonable doubt, and AEDPA “adds a second level of deference” by permitting relief only where a state court's application of Jackson is “objectively unreasonable”)
In contrast with a claim of sufficiency of evidence to support a conviction, the Ninth Circuit has held challenges to the sufficiency of the evidence corroborating accomplice testimony as a requirement of state law, do not implicate federal constitutional concerns. See Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (stating that a state statutory rule requiring corroboration for accomplice testimony, to the extent the accomplice testimony is neither incredible nor insubstantial on its face “is not required by the Constitution or federal law”) (citing United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993) (“The uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face.”)). Habeas relief for uncorroborated accomplice testimony may lie only if the alleged state court violation denied the petitioner a due process right to fundamental fairness. Laboa, 224 F.3d at 979 (citing Estelle v. McGuire, 502 U.S. 62, 72-73 (1991)). “A State violates a criminal defendant's due process right to fundamental fairness if it arbitrarily deprives the defendant of a state law entitlement.” Laboa, 224 F.3d at 979 (citing Hicks v. Oklahoma, 447 U.S. 343, 346 (1980)).
2. Analysis
On direct appeal, the Nevada Supreme Court rejected Miranda-Rivas's claim that there was insufficient evidence to support each of the four convictions:
[A]ppellant claims that there was insufficient evidence for his convictions because they were based solely on the testimony of his accomplices. See NRS 175.291. As second appellate counsel conceded in his supplemental fast track statement, there is ample independent evidence to corroborate the accomplices' testimony with regards to robbery with the use of a firearm, discharging a firearm within or from a structure, and assault with a deadly weapon. Therefore, we conclude these claims lack merit. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (the proper inquiry for a claim of insufficient evidence is whether the evidence, when viewed in the light most favorable to the prosecution, is sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008); Ramirez-Garza v. State, 108 Nev. 376, 379, 832 P.2d 392, 393 (1991) (“The evidence required to corroborate accomplice testimony need not, in itself, be sufficient to establish guilt. If the evidence, independent of the accomplice testimony, tends to connect the accused with the commission of the offense, then the corroboration requirement contained in NRS 175.291 is satisfied.”).(ECF No. 11-11 at 2-3.)
a. Deferential Disposition of Ground 8(A)
Ground 8 is subdivided. Ground 8(A) concerns the claim for the convictions for robbery with a firearm and discharge of a firearm within or from a structure and Ground 8(B) concerns the claim for the conviction for assault with a deadly weapon. Ground 9 addresses the claim for the conviction for grand larceny of a motor vehicle.
“Robbery is the unlawful taking of personal property from the person of another, or in the person's presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property . . ..” NRS § 200.380, as enacted by Laws 1995, p. 1187. NRS § 193.165 provides an additional and consecutive punishment for a crime in which “any person who uses a firearm or other deadly weapon . . . in the commission of a crime.”
“A person who is in . . . a structure . . . and who maliciously or wantonly discharges or maliciously or wantonly causes to be discharged a firearm within or from the structure” is guilty of a felony “[i]f the structure or vehicle is within an area designated by city or county ordinance as a populated area for the purpose of prohibiting the discharge of weapons . . . .” NRS § 202.287(1)(b), as enacted by Laws 2003, c. 197, § 1.
The state court record confirms the Nevada Supreme Court's determination that appellate counsel conceded “the testimonies regarding the armed robbery and the discharge of the weapon inside of the Chevron Mini-mart are amply corroborated by independent evidence.” (ECF No. 11-8 at 3.) As such, the Nevada Supreme Court reasonably evaluated whether there was sufficient evidence to support the convictions for robbery with the use of a firearm and discharge of a firearm within and from a structure, without considering whether the accomplice testimony was independently corroborated.
The Nevada Supreme Court also reasonably concluded that, viewing the evidence in the light most favorable to the prosecution, sufficient evidence was presented for a rational jury to find Miranda-Rivas guilty of each essential elements of robbery, that a firearm was used during the robbery, and discharge of a firearm within or from a structure, beyond a reasonable doubt. Miranda-Rivas talked about robbing the Chevron, directed K.A. to park behind the Chevron, and exited the vehicle with, or wearing, a red bandana. The Chevron attendant, Robertson, said a robber wearing a red bandana over his face and a blue ski jacket, held a gun to his head and demanded money. When Robertson brushed him off, the robber shot the firearm inside the mart and repeated the demand for money. Robertson placed the cash register drawer on the counter because of the way the robber threatened him, and the robber took $450 from it and then left. Chevron surveillance video depicted the robber pointing the gun at Robertson's head and firing the gun inside in mart. Detective Sawyer testified the Chevron station is located in a densely populated area where the discharge of firearms is prohibited by law except in selfdefense. Miranda-Rivas returned to the car, distributed cash to K.A., E.G., and Torres, and bragged about pistol-whipping the Chevron attendant and shooting the gun. K.A. told police that Miranda-Rivas bragged about pistol-whipping the Chevron attendant. The Chevron attendant testified the jacket worn by the robber was similar to the jacket found at the scene of the Subaru theft. K.A., E.G., and Torres said the jacket depicted in a photograph of the Chevron robber and in a photograph of the jacket found at the scene of the stolen Subaru, were similar to the jacket worn by Miranda-Rivas. Police found bullet fragments at the Chevron that matched the caliber of a bullet located in a vehicle that Miranda-Rivas previously drove. And, finally, Miranda-Rivas made incriminating statements in phone calls and in a postcard from which a rational jury could infer he wore the jacket when he robbed Robertson, and therefore fired the bullet inside the mart, and he alone committed the robbery.
Based on the record, the Nevada Supreme Court reasonably determined there was sufficient evidence for the convictions of robbery with a firearm and discharging a firearm under Jackson. Accordingly, Miranda-Rivas is not entitled to federal habeas relief for ground 8(A).
b. De Novo Review of Ground 8(B)
The Court finds the record clearly and convincingly demonstrates Miranda-Rivas did not concede in his direct appeal that there was sufficient corroboration for the accomplices' testimony concerning the assault with a deadly weapon conviction. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009) (A statement of facts “drawn from the state appellate court's decision ... is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.”) (citing 28 U.S.C. § 2254(e)(1)). As such, the Nevada Supreme Court's determination that Miranda-Rivas conceded that point before it considered the sufficiency of the evidence for that offense was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). See Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (“As a result of [the state court's] error, our review of petitioner's underlying . . . claim is unencumbered by the deference AEDPA normally requires”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine, considering only the evidence before the state court, that . . . the state court's decision was based on an unreasonable determination of the facts, we evaluate the claim de novo.”).
Miranda-Rivas's initial appellate counsel challenged the sufficiency of independent corroboration for the accomplices' testimony for the assault with a deadly weapon charge. (ECF No. 11-5 at 13.) However, his second appellate counsel disagreed with initial appellate counsel and expressly conceded only that there was sufficient corroboration for the conviction for armed robbery and discharging a firearm inside the Chevron. (ECF No. 11-8 at 3.)
On de novo review, the Court finds the jury's consideration of the accomplices' testimony did not arbitrarily and unfairly deprive Miranda-Rivas of the independent corroboration requirement for the accomplice testimony afforded by Nevada law. See Estelle, 502 U.S. at 72-73.
“Assault means: (1) Unlawfully attempting to use physical force against another person; or (2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.” NRS § 200.471, as amended by Laws 2011, c. 273, § 51, eff. Jan. 1, 2012. The jury was instructed that Miranda-Rivas could not be convicted solely on the accomplices' testimony and consideration of the accomplices' testimony was predicated on the existence of evidence that independently corroborated their testimony. Trial counsel and the State attorney each explained to the jury the independent corroboration requirement and trial counsel argued the State failed to meet that requirement. Nothing about the accomplice testimony was incredible nor insubstantial, and to the extent their testimony was inconsistent or contradictory, explanations were presented for the jury to make its own determination of the weight and credibility, if any, it gave to that testimony. See Laboa, 224 F.3d at 979. Thus, the accomplice testimony may rightly be considered in assessing the sufficiency of the evidence to support the conviction for assault with a deadly weapon as proscribed by Jackson.
Viewing the evidence in the light most favorable to the prosecution, and for the reasons set forth in ground 8(A), the Court finds that, as a matter of deferential or de novo review, a rational jury could find Miranda-Rivas guilty of the essential elements of the crime of assault with a deadly weapon beyond a reasonable doubt. Accordingly, Miranda-Rivas is not entitled to federal habeas relief for ground 8(B).
F. Ground 9-Sufficiency of Evidence (Grand Larceny)
In ground 9, Miranda-Rivas alleges there is insufficient evidence to support his conviction for grand larceny of a motor vehicle because there was insufficient corroboration for the accomplices' testimony, in violation of the Fifth and Fourteenth Amendments. (ECF No. 56 at 33-35.)
NRS § 205.228(1) states: “A person who intentionally steals, takes and carries away, drives away or otherwise removes a motor vehicle owned by another person commits grand larceny of a motor vehicle.”
On direct appeal, the Nevada Supreme Court rejected a claim of insufficiency of evidence for the conviction for grand larceny of a motor vehicle:
We also disagree with appellant's claim that insufficient corroborating evidence was presented on the charge of grand larceny of a motor vehicle. The evidence, when viewed in the light most favorable to the State, is sufficient to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Jackson, 443 U.S. at 319; Mitchell, 124 Nev. at 816, 192 P.3d at 727. At trial, the State presented testimony from the accomplices that, while looking for unlocked cars to enter and steal from, appellant found a Subaru that was unlocked and had the keys inside of it. The accomplices testified that after appellant robbed the gas station, they returned to the Subaru and, when one accomplice failed to start it, appellant got into the Subaru, started it, and drove away. The gas station employee testified that the robber wore a blue, puffy ski jacket with striping on the sleeve and sideways stitching. A blue, puffy down jacket was discovered on a snow bank, fifteen to twenty feet from where the Subaru was last parked. The gas station employee identified the jacket from the snow bank as looking like the same jacket the robber wore. Furthermore, while speaking with his brother on a recorded jail call, appellant claimed that there was no proof, except that somebody snitched and “that they found the jacket.” When his brother said that he heard appellant dropped the jacket in the Subaru and that the owner of the car had the jacket, appellant asked him, “[h]ow you know about it?” We conclude that the jury could have reasonably inferred from the evidence presented that appellant committed grand larceny of a motor vehicle. See NRS 205.228(1); Ramirez-Garza, 108 Nev. at 379, 832 P.2d at 393. A jury's verdict will not be disturbed on appeal where, as here, it is supported by sufficient evidence. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).(ECF No. 11-11 at 3-4.)
The Nevada Supreme Court determined, as a matter of state law, that there was sufficient independent corroboration for the accomplice testimony as to the grand larceny of a motor vehicle charge and the Court defers to that finding. There is no basis to conclude Miranda-Rivas was denied the benefit of state law requirements for accomplice testimony and the accomplice testimony was neither insubstantial nor incredible. The Nevada Supreme Court's determination that there was sufficient evidence to support the grand larceny conviction is also neither contrary to nor an unreasonable application of Jackson and is not based on an unreasonable determination of the facts. A rational jury could find each of the essential elements of the crime were met by the evidence. Torres testified Miranda-Rivas said they should leave town after the Chevron robbery because he thought the Chevron attendant called police. K.A., E.G., and Torres each testified Miranda-Rivas stole the Subaru by starting it and driving it away. Torres testified Miranda-Rivas stole the Subaru to evade police. Police found a jacket similar to the jacket worn by the Chevron robber approximately 15 to 20 feet from the location where the Subaru was stolen. And, Miranda-Rivas told his brother police found “the jacket.” A rational jury could infer from this evidence that the State proved each essential element of grand larceny of a motor vehicle against Miranda-Rivas.
The Nevada Supreme Court's application of Jackson to the record was objectively reasonable and Miranda-Rivas is not entitled to federal habeas relief for ground 9.
G. Ground 11-Double Jeopardy
Miranda-Rivas alleges his convictions for assault with a deadly weapon and discharging a firearm within or from a structure are lesser included offenses of robbery with the use of a deadly weapon in violation of double-jeopardy under the Fifth and Fourteenth Amendments. (ECF No. 56 at 36-38.) As discussed, the Nevada Supreme Court, as the final arbiter of state law, determined the convictions for assault with a deadly weapon and discharging a firearm from or within a structure are not lesser-included offenses for robbery with the use of a firearm. Thus, the Nevada Supreme Court's determination that the convictions do not violate double jeopardy is neither contrary to nor an unreasonable application of Federal law as determined by the Supreme Court and is not based on an unreasonable determination of the facts. Accordingly, Miranda-Rivas is not entitled to federal habeas relief for ground 11.
At the relevant time, assault could be committed either by: (1) unlawfully attempting to use physical force against another person; or (2) intentionally placing another person in reasonable apprehension of immediate bodily harm. NRS § 200.471, as amended by Laws 2011, c. 273, § 51, eff. Jan. 1, 2012. The Information charged Miranda-Rivas with the second type of assault, which, unlike the first type, requires a specific intent to place another person in reasonable apprehension of immediate bodily harm. (ECF No. 11-2 at 4.) Robbery is a general intent crime. Compare NRS § 200.380 and NRS § 193.165 with NRS § 200.471; see also Burnside v. State, 131 Nev. 503, 508 (1981) (confirming robbery is a general intent crime in Nevada).
V. CERTIFICATE OF APPEALABILITY
This is a final order adverse to Miranda-Rivas. Rule 11 of the Rules Governing Section 2254 Cases requires this Court to issue or deny a certificate of appealability (“COA”). This Court therefore has sua sponte evaluated the claims within the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). Under § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” With respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Applying this standard, the Court finds a certificate of appealability is not warranted for any of the grounds in the petition. See Slack, 529 U.S. at 484.
Reasonable jurists would additionally not find the Court's dismissal of grounds 1, 2, and 4 as untimely, debatable or wrong and reasonable jurists would not find it debatable whether this Court was correct in its procedural ruling dismissing grounds 10 and 12 as unexhausted. (ECF Nos. 83, 84, 87, 88.)
VI. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.
It is therefore ordered that the third amended petition for writ of habeas corpus (ECF No. 56) is denied in its entirety.
The request for an evidentiary hearing is likewise denied. (ECF No. 56 at 39.)
It is further ordered that a certificate of appealability is denied as to all grounds.
The Clerk of Court is directed to substitute Wiliam Gittere for respondent Harold Wickham.
The Clerk of Court is further directed to enter judgment accordingly and close this case.