Riggs v. Filson

— 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 DANIEL HARVEY RIGGS, Case No. 3:21-cv-00071-ART-CSD 6 Petitioner, MERITS ORDER v. — 7 — NETHANJAH BREITENBACH, et al.,1 — 8 — Respondents. — 9 — 10 Petitioner Daniel Riggs filed a First Amended Petition for Writ of Habeas 11 Corpus under 28 U.S.C. § 2254 (“Petition”) raising four grounds for relief from 12 his attempted-sexual-assault convictions: (1) invalid nolo contendere plea caused 13 by prosecutorial misconduct; and (2) ineffective assistance of trial counsel during 14 plea negotiations in failing to inform him that (a) one victim has a medical 15 condition affecting her brain, (b) a different victim made inconsistent statements 16 to investigators, and (c) videos of him engaging in rough but consensual sex with 17 his former girlfriend would be inadmissible at trial. (ECF No. 28). For the reasons 18 discussed below, this Court denies the Petition and a certificate of appealability. 19 I. BACKGROUND 20 A. Factual background2 21 1. Victim Megan L. (state criminal case CR13-1067) 22 Megan testified before the grand jury that she attended the University of 23 Nevada, Reno, until 2007 when she was diagnosed with a non-traumatic brain — 24 — 25 1 The Nevada Department of Corrections inmate database states that Riggs is incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the 26 current warden for that facility. At the end of this order, this Court directs the Clerk of the Court to substitute Nethanjah Breitenbach for Respondent Timothy — 27 — Filson. See Fed. R. Civ. P. 25(d). 28 2 This summary is merely a backdrop to the Court’s consideration of the issues in the Petition and should not be construed as credibility or fact findings. 2 memory. (ECF No. 55-2 at 8). Megan is “very high functioning” for her diagnosis, 3 which means that she can “carry on a conversation” and “remember things well.” 4 (Id. at 8–9). 5 Megan returned to Reno in June 2009 to attend a friend’s bachelorette 6 party and meet with Riggs who ran in her group of college friends and had 7 befriended her on social media. (Id. at 10–11). Megan told Riggs that she was 8 looking for a long-term relationship and not interested in sex for a while. (Id. at 9 12). Megan met Riggs in the lobby of her hotel on June 20th and the two went for 10 drinks at the Hideout bar. (Id. at 13–14). Riggs returned Megan to her hotel, and 11 she departed to Rum Bullions with the bachelorette party. (Id. at 15). 12 Riggs unexpectedly showed up at Rum Bullions claiming he was there with 13 friends, but Megan saw none. (Id. at 16). Megan didn’t tell Riggs she’d be there; 14 she wasn’t planning the party and didn’t know where they’d go. (Id. at 30). Riggs 15 repeatedly approached the bachelorette group with drinks for Megan, but she 16 refused and handed them to other people. (Id. at 16). The bachelorette group 17 seemed to enjoy Riggs’s company and he was very charismatic. (Id.) 18 Megan didn’t see Riggs drink much and he didn’t seem intoxicated. (Id. at 19 32). At the end of the night, Megan and Riggs agreed they wanted to keep talking. 20 (Id. at 16). Megan suggested her hotel room where she’d feel more comfortable 21 because there wasn’t any alcohol there. (Id. at 17). 22 When they arrived at the hotel room, Megan again told Riggs that she did 23 not want to have any form of sexual contact with him, which he said was fine. 24 (Id.) The two talked and played cards for an hour and then began to kiss on the 25 bed. (Id. at 18). Riggs undressed Megan to her underwear, stood and fully 26 undressed himself, mounted Megan, clamped his hand on her neck, pulled her 27 underwear to the side, and tried to insert his penis into her vagina. (Id.) 28 // 2 had trouble breathing. (Id. at 19). Megan told Riggs no, she didn’t want to do this. 3 (Id.) He responded, “What did you expect?” (Id.) And asked Megan if she wanted 4 to feel the tip or feel it inside of her. (Id.) She kept refusing: “At least five no’s and 5 several, ‘Don’t do this. I don’t want you to do this.’” (Id.) 6 Riggs had partially penetrated her vagina, it burned, and she pushed 7 against Riggs’s chest, but he just fell back in place. (Id.) She sat up on the bed, 8 but Riggs stuck his penis into her mouth, grabbed the back of her head and hair, 9 and thrust his penis back and forth in her mouth. (Id. at 19–20). He thrust so 10 hard that it hurt and caused her to vomit on him. (Id. at 20). 11 Riggs let Megan clean herself in the bathroom. (Id. at 21). When she 12 returned Riggs was masturbating and he pushed her face down to suck on his 13 testicles, ejaculated on her face, and fell asleep. (Id. at 22). Panicked, Megan 14 remained in the room until Riggs woke around 6 or 7 the next morning. (Id. at 15 23). 16 Megan told Riggs that he’d hurt her physically and emotionally. (Id.) Riggs 17 coldly responded he was so drunk he didn’t remember what he’d done and then 18 placed Megan’s hand on his erect penis. (Id. at 23–24). Megan again said she 19 didn’t want to have sex, but he pushed her down, shoved her underwear aside, 20 and shoved his penis fully into her vagina. (Id. at 24–25). He choked her harder 21 this time but didn’t cause her to pass out. (Id. at 25). Megan kept saying no and 22 don’t do this, but Riggs showed no emotion. (Id.) He pulled out of her vagina and 23 used her breasts to masturbate. (Id.) Megan kept saying no. (Id.) Riggs thrust his 24 penis into her mouth and ejaculated. (Id.) 25 Shocked and running on auto pilot, Megan agreed to drive Riggs home. (Id. 26 at 26). When Megan declined his offer to date, he said “You know that you are 27 better than me. You are smarter than me and you are funnier than me. And that’s 28 why I had to do this.” (Id. at 26–27). Megan returned home and reported the crime 2 including the underwear Megan wore during the assault. (Id.) 3 Riggs texted Megan to see her again. (Id. at 28). She said that she’d 4 contacted the police and to stop contacting her. (Id.) He repeatedly called her after 5 the text exchange. (Id.) She didn’t take his calls and eventually obtained a 6 restraining order against him. (Id.) 7 2. Victim Kayla H. (state criminal case CR13-1364) 8 Kayla testified before the grand jury that in 2013 she lived in Sparks, 9 Nevada, with her parents, her sister, her sister’s boyfriend, and her four-year-old 10 daughter. (ECF No. 55-1 at 8). Kayla and Riggs had attended the same high 11 school and were acquaintances. (Id. at 9). They became reacquainted after 12 graduation through a dating website and planned a date for February 24th to 13 watch a movie at Kayla’s house after her daughter fell asleep. (Id. at 9–10). 14 Kayla didn’t dress up for the date; she wasn’t trying to have any kind of 15 sexual interaction. (Id. at 12). They watched a scary movie that Riggs had 16 selected. (Id.) Kayla had one beer. (Id.) Riggs kept trying to get her to drink more 17 but she didn’t feel comfortable and refused. (Id.) Riggs got Kayla a vodka and 18 cranberry drink from his Subaru anyway. (Id. at 13). Kayla took a couple of baby 19 sips to stop Riggs pestering her about it. (Id.) Then he brought up the topic of 20 Brianna Denison who had been murdered by James Biela. (Id.) Riggs kept saying 21 that Biela strangled his victims before raping them and Brianna died because she 22 was so petite. (Id.) Kayla, who is also petite, got scared. (Id. at 14). 23 Riggs then rubbed Kayla’s leg, grabbed her face, and leaned in to try to kiss 24 her. (Id.) Kayla didn’t want that to happen, so she got up and checked on her 25 daughter who was sleeping in Kayla’s bedroom. (Id. at 14–15). Kayla saw Riggs 26 just standing there as she walked out of the room. (Id. at 15). He tried to remove 27 her clothing as he guided her toward the closet in the room. (Id.) Kayla didn’t 28 resist because she was afraid Riggs would hurt her daughter. (Id.) 2 his hand around her throat, and started having vaginal sex with her. (Id. at 16). 3 Kayla could barely breathe and was afraid. (Id.) Riggs kept putting his fingers into 4 Kayla’s throat, gagging her. (Id. at 16–17). She bit him but Riggs only thrust his 5 fingers further into her throat. (Id.) The sex was painful and forceful; Riggs injured 6 her spine. (Id.) But Kayla kept quiet, hoping her daughter wouldn’t wake and 7 would be kept safe. (Id.) 8 Riggs pulled out, turned Kayla onto her knees, and put his penis into her 9 anus. (Id. at 18). Kayla then repeatedly said, “No, please stop. Please.” (Id.) She 10 was crying but Riggs kept going for at least five minutes. (Id.) Then Riggs grabbed 11 Kayla’s face and shoved his fingers into her mouth, opened her teeth, and forced 12 his penis and testicles inside her mouth. (Id. at 18–19). Although Kayla had 13 vomited and was crying and turning her head away, Riggs kept thrusting into her 14 mouth. (Id. at 19). Kayla could not escape because Riggs held her with both 15 hands. (Id.) 16 Riggs eventually stopped, masturbated, and ejaculated onto Kayla’s face. 17 (Id. at 20). He got dressed, told Kayla her back looked like it hurt and she should 18 do something about it, and left. (Id.) Kayla called a friend and then reported the 19 crime to the police. (Id.) She was examined by a Sexual Assault Forensic 20 Examiner early the next morning. (Id. at 20–21). The nurse reported abrasions 21 and bruising on both of Kayla’s knees, friction abrasions on her spine, intense 22 redness and bruising on the uvula part of her mouth, hemorrhaging of the area 23 behind the uvula, lacerations on her anus, redness and bruising in her rectum, 24 and intense redness and bruising on her cervix, all indicative of forceful oral, 25 vaginal, and anal intercourse. (Id. at 33–38). 26 Days later at the detective’s request, Kayla texted Riggs to speak with her 27 on the phone. (Id. at 21, 26–28). During the call, Riggs apologized and said they 28 had both been drinking and he’d kept his penis in Kayla’s anus after she asked 2 she wanted to say it was a couple of minutes. (Id. at 22, 28–29). Police overheard 3 the discussion because Kayla’s phone was on speaker. (Id. at 22, 28–29). 4 B. Procedural background 5 The State of Nevada charged Riggs with two counts of sexual assault and 6 one count of battery with the intent to commit sexual assault pertaining to Megan 7 in C13-1067 and one count of attempted sexual assault pertaining to Kayla in 8 CR13-1364. (ECF Nos. 34-24, 34-31). In August 2013, Riggs pled no contest to 9 one count of attempted sexual assault in each case. (ECF Nos. 34-32, 36-23, 3610 24). After the trial court denied Riggs’s motion to withdraw his no-contest plea in 11 CR13-1067, it sentenced him to a minimum term of 96 months to a maximum 12 term of 240 months for attempted sexual assault and credited him with 161 days 13 for time served. (ECF Nos. 34-37, 55-10, 36-23). After the trial court denied 14 Riggs’s motion to withdraw his no-contest plea in CR13-1364, it sentenced him 15 to a minimum term of 96 months to a maximum term of 240 months, to be served 16 consecutive to the sentenced imposed in CR13-1067, and it credited him with 35 17 days for time served. (ECF Nos. 34-38, 55-10, 36-24). Riggs’s amended 18 judgments of conviction were entered on December 24, 2013. (ECF Nos. 36-23, 19 36-24). 20 Riggs appealed, (ECF Nos. 36-25, 36-28), and the Nevada Court of Appeals 21 affirmed the convictions. (ECF No. 37-35). The Nevada Supreme Court denied 22 Riggs’s petitions for review. (ECF Nos. 37-39, 37-40). And remittitur issued in 23 both cases on April 8, 2015. (ECF Nos. 37-41, 37-42). 24 Riggs filed pro se state post-conviction habeas petitions on March 8, 2016, 25 (ECF Nos. 37-50, 38-1), which he amended on April 19, 2016. (ECF No. 38-2). 26 After Riggs was appointed counsel, he filed supplemental petitions on March 16, 27 2018. (ECF Nos. 38-38, 38-39). The state court denied post-petition relief on April 28 5, 2019. (ECF Nos. 39-5, 39-6). Riggs appealed, the cases were consolidated on 2 No. 39-39). Remittitur issued on November 5, 2020. (ECF No. 39-40). 3 Riggs transmitted his original federal petition for writ of habeas corpus on 4 February 2, 2021, asserting 38 grounds for relief. (ECF No. 5). This Court granted 5 Riggs leave to file an amended petition by May 26, 2022. (ECF Nos. 20, 22, 25, 6 29). He timely filed the instant Petition on May 24, 2022. (ECF No. 28). Riggs’s 7 Petition presents four grounds for relief: 8 1. The prosecutor denied him due process by withholding information 9 about other possible crimes during plea negotiations and thus 10 precluded his plea from being knowing, intelligent, and voluntary. 11 2. Trial counsel was ineffective for failing to tell him that Megan had a 12 medical condition affecting her brain and memory. 13 3. Trial counsel was ineffective for not telling him that Kayla made 14 inconsistent statements to investigators. 15 4. Trial counsel was ineffective for not telling him that videos of him 16 engaging in rough but consensual sex with a non-party were 17 inadmissible at trial. 18 Respondents moved to dismiss the Petition but later withdrew that motion. 19 (ECF No. 47). Respondents filed their answer to all grounds in the Petition on 20 August 14, 2023. (ECF No. 56). Riggs filed his reply on June 24, 2024. (ECF 21 No. 65). 22 II. GOVERNING STANDARD OF REVIEW — 23 — 28 U.S.C. § 2254 (d) sets forth the standard of review generally applicable 24 in habeas corpus cases under the Antiterrorism and Effective Death Penalty act 25 (“AEDPA”): 26 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 27 granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim – — 28 — unreasonable application of, clearly established Federal law, 2 as determined by the Supreme Court of the United States; or 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in 4 the State court proceedings. 5 Under § 2254(d)(1)’s first clause, a state court decision is contrary to clearly 6 established Supreme Court precedent “if the state court applies a rule that 7 contradicts the governing law set forth in [the Supreme Court’s] cases” or if the 8 state court decides a case differently than the Supreme Court on “a set of facts 9 that are materially indistinguishable” from the Supreme Court’s case. Lockyer v. 10 Andrade, 538 U.S. 63, 73 (2003) (cleaned up) (quoting Williams v. Taylor, 529 11 U.S. 362 , 405–06 (2000); citing Bell v. Cone, 535 U.S. 685, 694 (2002)). Under 12 § 2254(d)(1)’s second clause, a state court decision is an unreasonable 13 application of clearly established Supreme Court precedent “if the state court 14 identifies the correct governing legal principle from [the Supreme] Court’s 15 decisions but unreasonably applies that principle to the facts of the prisoner’s 16 case.” Id. at 75 (cleaned up) (quoting Williams, 529 U.S. at 413). 17 And under § 2254(d)(2), “a state-court factual determination is not 18 unreasonable merely because the federal habeas court would have reached a 19 different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290 , 301 20 (2010). “Instead, § 2254(d)(2) requires that [federal habeas courts] accord the 21 state trial court substantial deference.” Brumfield v. Cain, 576 U.S. 305 , 314 22 (2015). Thus, “[i]f reasonable minds reviewing the record might disagree about 23 the finding in question, on habeas review that does not suffice to supersede the 24 trial court’s determination.” Id. (cleaned up) (quoting Wood, 558 U.S. at 301 ); and 25 Rice v. Collins, 546 U.S. 333 , 341–342 (2006)). “This is a daunting standard—one 26 that will be satisfied in relatively few cases.” Taylor v. Maddox, 366 F.3d 992 , 27 1000 (9th Cir. 2004), abrogated on other grounds as stated in Murray v. Schriro, — 28 — 745 F.3d 984 , 999–1000 (9th Cir. 2014)). 2 Cockrell, 537 U.S. 332 , 340 (2003)). For it is met if “the state courts plainly 3 misapprehend or misstate the record in making their findings, and the 4 misapprehension goes to a material factual issue that is central to petitioner’s 5 claim, that misapprehension can fatally undermine the fact-finding process, 6 rendering the resulting factual finding unreasonable.” Id. at 1001 (citing Wiggins 7 v. Smith, 539 U.S. 510 , 526–30 (2003); and Hall v. Director of Corr., 343 F.3d 976 , 8 983 (9th Cir. 2003)).3 9 III. DISCUSSION 10 A. Ground 1—validity of nolo contendere pleas 11 In ground 1, Riggs alleges that his nolo contendere pleas were not 12 knowingly, intelligently, or voluntarily entered because the State purposefully 13 withheld evidence about uncharged crimes that a different state’s authorities 14 were actively investigating. (ECF No. 28 at 7–10). 15 1. Background information 16 In exchange for Riggs’s nolo contendere plea to one count of attempted 17 sexual assault in each case, the State agreed to drop any remaining charges and 18 not to pursue charges in two matters that were being investigated by the Reno 19 Police Department (Case Nos. 07-20350 and 08-33484) or any other case of 20 sexual assault for which Riggs was subject to prosecution in Washoe County. 21 (ECF No. 34-32). One day after Riggs pled in the first case, a grand jury in 22 Jackson County, Oregon, returned an indictment charging him with one count 23 of first-degree sodomy, one count of second-degree sexual abuse, two counts of 24 promoting prostitution, and one count of compelling prostitution of his former — 25 — 26 3 Riggs generally argues that the Court should review his claims de novo because AEDPA violates numerous parts of the U.S. Constitution. (ECF No. 28 at 7). The — 27 — Court declines to reach this argument because Riggs provides no authorities or 28 analysis save for admitting that the Ninth Circuit in Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007), rejected “some” of his “arguments.” (Id.) 2 discovery and sanctions in the Nevada cases, arguing the prosecutor withheld a 3 May 17, 2013, report prepared by Sparks Police Department (“SPD”) detectives 4 concerning their interview of Tephany H. until September 4, 2013, after Riggs 5 had pled in both Nevada cases. (ECF Nos. 34-33, 34-34). Riggs also moved to 6 withdraw his no-contest pleas based on the timing of that disclosure. (ECF 7 Nos. 34-37, 34-38). 8 In affidavits accompanying the motions to withdraw, Riggs testified: 9 I pleaded No Contest in this case and in case no. CR13-1364 concerning KAYLA H. based upon my understanding that all 10 materials and information concerning statements I had made previously, as well as all information concerning my criminal record, 11 had been provided by the prosecutor. Had I known that all such information had not been provided by the prosecutor, and especially 12 that concerning TEPHANY H. and the investigation by SPD Det. Keating in Oregon discussed in this Motion, I would not have pleaded 13 No Contest pursuant to the plea negotiations with only the Nevada prosecutor in this case, and would have instead gone to trial on the 14 original Nevada charges. 15 I pleaded no contest in this case and in case no. CR13-1334 [sic] concerning KAYLA H. based upon my understanding that no other 16 criminal prosecutions were pending against me. Had I known about the then-unfiled-yet-pending prosecution in Oregon concerning 17 TEPHANY H., I would not have pleaded No Contest pursuant to the plea negotiations with only the Nevada prosecutor in this case, and 18 would have instead gone to trial on the original Nevada charges. 19 My intent in pleading No Contest in this case and in case no. CR131364 concerning KAYLA H. was to achieve a global resolution of any 20 and all criminal prosecutions arising out of and related to the criminal investigation begun and maintained by SPD Det. Keating 21 and his associates. Had I known that Det. Keating and his associates had obtained incriminating information from TEPHANY H. and 22 provided it to an Oregon police detective, I would not have pleaded No Contest pursuant to the plea negotiations with only the Nevada 23 prosecutor in this case, and would have instead gone to trial on the original Nevada charges. — 24 — I prefer to fight the original Nevada charges now, rather than go to 25 Oregon having been convicted on my No Contest pleas and attempt to confront the Oregon charges as a convicted felon and sex offender. 26 That would have been my preference prior to pleading No Contest. 27 (ECF No. 34-37 at 15–16). 28 // 2 executing a search warrant on Riggs’s phone. (ECF Nos. 34-35 at 3; 37-22 at 29). 3 Tephany told the detective that she had dated Riggs in Nevada, and he frightened 4 her “by pinning her in a ‘lock out’ position.” (Id.) But she gave Riggs a chance to 5 “prove himself to her” and he persuaded her to move with him to Oregon. (Id.) 6 While in Oregon, Riggs “sodomized her, [and] forced fellatio upon her that made 7 her gag and choke, like the sexual assaults he committed in Washoe County.” 8 (Id.) Riggs made her “work as a prostitute while [he] acted as her pimp, and [he] 9 placed ads on sites like Redbook, or Backpage.com.” (Id.) And Riggs arranged for 10 Tephany “to commit acts of prostitution, and take her to meet the johns, collect 11 the money, and drive [her] home from the ‘dates.’” (Id.) SPD detectives sent their 12 reports to law enforcement in Oregon, and Oregon authorities determined to seek 13 a grand jury indictment. (ECF No. 34-35). 14 The prosecutor sought to introduce prior-bad-act evidence two weeks 15 before Riggs pled in the first Nevada case (CR13-1067), but none of the proffered 16 evidence concerned the Oregon investigation or Tephany. (ECF No. 34-17). Trial 17 counsel argued that in a telephone conversation on September 4, 2013, after the 18 prosecutor disclosed the police report and information about the then-charged 19 Oregon crimes, the prosecutor justified the disclosure stating she “figured they’d 20 come in at sentencing anyway, so . . . .” (ECF No. 35-4 at 44). In response to 21 Riggs’s motions, the prosecutor argued she withheld the police report and 22 information about the Oregon investigation because disclosure “would have 23 seriously interfered with Oregon’s ability to indict” Riggs by prematurely 24 disclosing Oregon’s witness information and exposing them to potential harm. 25 (ECF No. 35-2 at 6–7). The prosecutor “was not aware that Oregon had finally 26 indicted the defendant until days later.” (ECF No. 35-6 at 6). And the Oregon 27 prosecutor did not tell the Nevada prosecutor about the return of the indictment; 28 rather, Nevada police “made that contact.” (Id. at 9). 2 evidence about Riggs’s prior bad acts against Tephany in the State’s case in chief 3 because those acts “were not ‘date-rape’ offenses, and Riggs’s conduct of pimping 4 out [Tephany], and furiously beating and raping her raised a danger of unfair 5 prejudice which might not overcome such evidence’s probative value.” (ECF 6 No. 34-35 at 7 (emphasis omitted)). The “evidence did not fit the State’s theory of 7 the case that [Riggs] is a date rapist who rapes his victims on the first date.” (Id.) 8 “This evidence is not favorable to the defense, it is not exculpatory, or even 9 materially relevant to the crimes charged, and [Nevada] would not have disclosed 10 the evidence if no indictment had been returned” in Oregon. (Id. at 8; accord ECF 11 No. 55-9 at 37 (explaining that evidence about Riggs’s acts involving Tephany 12 “was more prejudicial than probative, because it is far more brutal, repeated, 13 disgusting than anything that came out with any of the other one-time victims of 14 the defendant”)). 15 2. State court determination 16 In affirming Riggs’s judgments of conviction, the Nevada Court of Appeals 17 (“NCA”) held: 18 Prosecutorial misconduct 19 Riggs claims that prosecutorial misconduct deprived him of due process under the state and federal constitutions. Riggs argues that 20 the prosecutor intentionally withheld discovery of a Sparks Police Department report concerning uncharged misconduct committed in 21 Oregon until after he had entered his nolo contendere pleas. And Riggs asserts that the prosecutor’s discovery violation perverted the 22 plea bargaining process. 23 We analyze claims of prosecutorial misconduct in two steps: first, we determine whether the prosecutor’s conduct was improper, and 24 second, if the conduct was improper, we determine whether it warrants reversal. Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 25 465, 476 (2008). “[We] will not reverse a conviction based on prosecutorial misconduct if it was harmless error.” Id. — 26 — Riggs presented this claim as a discovery violation in the court below 27 and sought sanctions against the prosecutor. The district court found that the report in question related to an investigation being 28 considered by a sitting grand jury in Oregon and that the State’s disclosure of information concerning an ongoing investigation in illegal. We note that the report was made available to Riggs shortly 2 after he was indicted by the Oregon grand jury, and we conclude that Riggs has not demonstrated that the prosecutor’s conduct was 3 improper in this regard. 4 Motion to withdraw plea 5 Riggs claims that the district court erred by denying his motions to withdraw his nolo contendere pleas, which were based on claims of 6 factual innocence. Riggs asserts that he would not have entered his nolo contendere pleas if he had known that he would be facing 7 charges for similar criminal conduct in Oregon. And Riggs argues that he should have been allowed to withdraw his pleas because the 8 prosecutor had intentionally withheld discovery of information critical to his plea decisions, his pleas were entered under a 9 misconception of their consequences, and his motions to withdraw were made before the State suffered any prejudice. — 10 — A defendant may move to withdraw a plea before sentencing, NRS 11 176.165, and the district court may, in its discretion, grant such a motion “for any substantial, fair, and just reason.” Crawford v. State, — 12 — 117 Nev. 718, 721 , 30 P.3d 1123, 1125 (2001). “The question of a [defendant’s] guilt or innocence is generally not at issue in a motion 13 to withdraw a guilty plea.” Hargrove v. State, 100 Nev. 498, 503 , 686 P.2d 222, 224 (1984). “On appeal from a district court’s denial of a 14 motion to withdraw a guilty plea, [we] will presume that the lower court correctly assessed the validity of the plea, and we will not 15 reverse the lower court’s determination absent a clear showing of an abuse of discretion.” Riker v. State, 111 Nev. 1316, 1322 , 905 P.2d 16 706, 710 (1995) (internal quotation marks omitted). 17 The district court heard argument on Riggs’ motions and found, among other things, that Riggs was not entitled to discovery about 18 the Oregon matter and his preference for proceeding to trial on the original Nevada charges rather than face the Oregon charges after 19 having been convicted on his nolo contendere pleas was not a substantial reason for withdrawing the pleas. We conclude Riggs has 20 not demonstrated that the district court abused its discretion in this regard. — 21 — [FN1] To the extent that Riggs asks this court to modify 22 the law regarding presentence motions to withdraw guilty pleas, we note that the Nevada Supreme Court’s 23 decisions are binding on this court and we decline to do so. — 24 — 25 (ECF No. 37-35 at 5–7). 26 3. Relevant law 27 “The longstanding test for determining the validity of a guilty [or nolo 28 contendere] plea is ‘whether the plea represents a voluntary and intelligent choice — 2 — 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970); 3 citing Boykin v. Alabama, 395 U.S. 238, 242 (1969), and Machibroda v. United 4 States, 368 U.S. 487, 493 (1962)). The voluntariness of a plea “can be determined 5 only by considering all of the relevant circumstances surrounding it.” Brady v. 6 United States, 397 U.S. 742, 749 (1970) (cleaned up). “‘A plea of guilty entered by 7 one fully aware of the direct consequences . . . must stand unless induced by 8 threats . . . , misrepresentation (including unfulfilled or unfulfillable promises), 9 or perhaps by promises that are by their nature improper as having no proper 10 relationship to the prosecutor’s business (e.g. bribes).’” Id. at 755 (quoting with 11 approval Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) (Tuttle, J., 12 dissenting)). 13 The Supreme Court “has recognized that prosecutorial misconduct may ‘so 14 infect the trial with unfairness as to make the resulting conviction a denial of due 15 process.’” Greer v. Miller, 483 U.S. 756, 765 (1987) (cleaned up) (quoting Donnelly 16 v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[D]ue process considerations include 17 not only (1) the nature of the private interest at stake, but also (2) the value of 18 the additional safeguard, and (3) the adverse impact of the requirement upon the 19 Government’s interests.” United States v. Ruiz, 536 U.S. 622, 631 (2002) (citing 20 Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). 21 4. Analysis 22 As noted above, NCA determined that the prosecutor did not engage in 23 misconduct by withholding SPD’s May 17, 2013, report during plea negotiations 24 in the Nevada cases. In so holding, NCA found that the report was related to an 25 investigation by a seated grand jury in Oregon, and it expressed concern that it 26 would have been improper and perhaps illegal for the prosecutor to reveal 27 information related to an ongoing grand jury investigation. Riggs argues this 28 determination is objectively unreasonable under 2254(d)(2) because the 2 of the Oregon grand jury’s proceedings. (ECF No. 65 at 13–14). 3 The police report is not part of the record in this proceeding.4 This Court’s 4 review is limited to the record that was before the NCA. See Cullen v. Pinholster, — 5 — 563 U.S. 170, 181 (2011). However, that record reflects the Nevada detectives 6 interviewed Riggs’s former girlfriend Tephany in Oregon, and the report contains 7 her statements about repeated acts of violence, sexual abuse, and forced 8 prostitution that Riggs committed against her while they were in a relationship 9 and living together in Oregon. 10 Nevada detectives turned their report over to Oregon’s authorities who 11 determined to investigate further. The Oregon investigation was handled by a 12 different sovereign state’s agents over whom the Nevada prosecutor had no 13 authority or direct contact, and it was put before a seated grand jury in Oregon. 14 Around this time, the prosecutor sought to introduce prior-bad-act evidence in 15 Nevada’s first case-in-chief against Riggs, but none of the proffered evidence 16 concerned Tephany, i.e., the video of Riggs and Tephany engaging in rough but 17 consensual sex or Tephany’s statements about Riggs’s uncharged Oregon crimes. 18 Indeed, the Nevada prosecutor argued that the uncharged Oregon crimes 19 were inconsistent with the State’s theory that Riggs raped his victims on the first 20 date, the Oregon evidence likely was more prejudicial than probative and thus 21 inadmissible to prove any element of the Nevada crimes, and disclosing 22 information about the uncharged Oregon crimes could interfere with Oregon’s 23 active grand jury investigation and expose Oregon’s witnesses to harm. Relatedly, — 24 — 25 4 Redacted and unredacted copies of the report were admitted into evidence as Exhibits 4 (redacted) and 5 (unredacted) during the trial court’s September 27, 26 2013, hearing. (ECF No. 34-30 at 14 (erroneously referring to “May 7, 2013” SPD report).) But those reports do not appear to have been part of the record in Riggs’s — 27 — direct appeals. (See, e.g., ECF Nos. 36-43 (joint appendix in appeal 64778), 37-6 28 (errata to joint appendix in appeal 64778), 37-7 (errata to joint appendix in appeal 64780), 37-16 (notice correcting joint appendix in appeal 64780)). 2 after she told him to stop and told him that she’d reported his acts to police, and 3 that he ceased contact only after she obtained a restraining order. 4 NCA correctly considered the totality of circumstances in adjudicating 5 Riggs’s interrelated prosecutorial-misconduct and involuntary-plea claims. See 6 Brady, 397 U.S. at 749 . NCA reasonably found that premature disclosure of 7 information related to the pending Oregon investigation would have been 8 improper. The record supports the reasonable inference that the uncharged 9 Oregon crimes were separate and distinct criminal acts from the first-date-rape 10 crimes being prosecuted in the Nevada cases. The record also supports the 11 reasonable inference that disclosure could undermine Nevada’s and Oregon’s 12 separate interest in securing “those guilty pleas that are factually justified, 13 desired by defendants, and help to secure the efficient administration of justice.” 14 See Ruiz, 536 U.S. at 631–32 (reiterating that due process considerations include 15 “the adverse impact of the requirement upon the Government’s interests”). 16 Premature disclosure of that information could disrupt Oregon’s ongoing 17 investigation and subject its witnesses to harassment and serious harm, which 18 the Supreme Court has held are “valid” concerns. See id. And “[i]t could require 19 [Nevada] to devote substantially more resources to trial preparation prior to plea 20 bargaining, thereby depriving the plea-bargaining process of its main resource21 saving advantages.” See id. at 632. 22 NCA’s determinations that (1) the prosecutor’s withholding SPD’s police 23 report concerning uncharged crimes being investigated by a seated grand jury in 24 Oregon during negotiation of separate crimes in Nevada was not improper and 25 (2) Riggs was not entitled to pre-plea discovery of SPD’s police report are not 26 based on an unreasonable determination of the facts. Accordingly, the Court 27 declines to review those decisions de novo and instead applies deferential review 28 as required. 2 clearly established federal law. See Brady, 397 U.S. at 749 & 755 (holding that 3 validity of a plea is based on the totality of the circumstances); cf. Ruiz, 536 U.S. 4 at 630–31 (collecting cases and reiterating that the Constitution does not require 5 a defendant’s “complete knowledge of the relevant circumstances, but permits a 6 court to accept a guilty plea, with its accompanying waiver of constitutional 7 rights, despite various forms of misapprehension under which a defendant might 8 labor”). Riggs argues that the State’s failure to disclose its report about uncharged 9 crimes in Oregon deprived him of essential information and rendered his plea 10 invalid. Riggs acknowledges that this case does not concern the prosecution’s 11 duty to disclose exculpatory evidence. Rather, Riggs argues that courts have 12 acknowledged that withholding inculpatory evidence could result in a due 13 process violation in the context of a trial and that the same reasoning should 14 apply in the plea context. 15 Yet none of the cases cited by Riggs support a due process violation here, 16 where the withheld evidence involved separate, uncharged conduct. See Coleman 17 v. Calderon, 210 F.3d 1047, 1052 (9th Cir. 2000) (finding no due process violation 18 based on state’s pretrial concealment of inculpatory evidence related to charged 19 crimes); Lindsay v. Smith, 820 F.2d 1137, 1151 (11th Cir. 1987) (same); Wooten 20 v. Thaler, 598 F.3d 215, 220 (5th Cir. 2010) (same). Relatedly, the Ninth Circuit 21 has held that a prosecutor’s failure to disclose an investigation of independent, 22 uncharged crimes during plea negotiations did not violate due process. United 23 States v. Krasn, 614 F.2d 1229, 1234 (9th Cir. 1980) (finding the defendant’s 24 “gratuities charges and the antitrust charge involved independent criminal 25 transactions” and the antitrust investigation was at a preliminary stage during 26 plea negotiations); United States v. Clark, 218 F.3d 1092, 1097 (9th Cir. 2000) 27 (finding the defendant’s pawn-shop burglary and postal robberies “involved 28 independent criminal transactions”; the government did not file an indictment 2 prosecutor’s reasons for not disclosing the future charges do not suggest foul 3 play”). Accordingly, Riggs is not entitled to habeas relief for ground 1. 4 B. Ground 2—Trial counsel ineffectiveness 5 In ground 2, Riggs alleges that his trial counsel was ineffective for 6 withholding three pieces of information during plea negotiations: (1) Megan had 7 a brain condition affecting her memory; (2) Kayla made inconsistent statements 8 to investigators; and (3) video of Riggs engaging in rough but consensual sex with 9 Tephany was inadmissible at trial. 10 1. State court determination applicable to each subground 11 In affirming the state court’s denial of Riggs’s post-conviction petitions, 12 NCA held: 13 Riggs claims the district court erred by denying his petitions because defense counsel was ineffective. To state a claim of ineffective 14 assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must demonstrate (1) counsel’s 15 performance was deficient in that it fell below an objective standard of reasonableness and (2) a reasonable probability, but for counsel’s 16 errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. 17 State, 112 Nev. 980, 987-88 , 923 P.2d 1102, 1107 (1996). 18 The petitioner must show both components of the ineffectiveassistance inquiry—deficiency and prejudice, Strickland v. 19 Washington, 466 U.S. 668, 697 (1984), and the petitioner must demonstrate the underlying facts of his claim by a preponderance of 20 the evidence, Means v. State, 120 Nev. 1001, 1012 , 103 P.3d 25, 33 (2004). We review the district court’s resolution of ineffective21 assistance claims de novo, giving deference to the court’s factual findings if they are supported by substantial evidence and not clearly 22 wrong. Lader v. Warden, 121 Nev. 682, 686 , 120 P.3d 1164, 1166 (2005). 23 * * * 24 Riggs also claims the district court erred by finding that his testimony was not credible. “[T]he district court is in the best position 25 to adjudge the credibility of the witnesses and the evidence, and unless this court is left with the definite and firm conviction that a 26 mistake has been committed, this court will not second-guess the trier of fact.” Rincon v. State, 122 Nev. 1170, 1177 , 147 P.3d 233 , 27 238 (2006) (internal quotation marks omitted). We have reviewed the evidentiary hearing transcript, and we are not convinced that the 28 district court made a mistake. 2 2. Relevant law 3 In Strickland v. Washington, the Supreme Court propounded a two-prong 4 test for analyzing ineffective-assistance-of-counsel claims that requires the 5 petitioner to demonstrate (1) the attorney’s “representation fell below an objective 6 standard of reasonableness” “under prevailing professional norms” and (2) the 7 attorney’s deficient performance prejudiced the defendant such that “there is a 8 reasonable probability that, but for counsel’s unprofessional errors, the result of 9 the proceeding would have been different.” 466 U.S. 668 , 688 & 694 (1984). 10 “Failure to make the required showing of either deficient performance or sufficient 11 prejudice defeats the ineffectiveness claim.” Id. at 700 . “[T]he ultimate focus of 12 inquiry must be on the fundamental fairness of the proceeding whose result is 13 being challenged.” Id. at 696 . 14 A federal habeas court’s “scrutiny of counsel’s performance must be highly 15 deferential.” Id. at 689 . “A fair assessment of attorney performance requires that 16 every effort be made to eliminate the distorting effects of hindsight, to reconstruct 17 the circumstances of counsel’s challenged conduct, and to evaluate the conduct 18 from counsel’s perspective at the time.” Id. Under the prejudice prong, “[a] 19 reasonable probability is a probability sufficient to undermine confidence in the 20 outcome.” Id. at 694 . 21 “The standards created by Strickland and [AEDPA] are both highly 22 deferential, and when the two apply in tandem, review is ‘doubly’ so . . . .” 23 Harrington v. Richter, 562 U.S. 86, 105 (2011) (cleaned up). Thus, “[w]hen 24 [AEDPA] applies, the question is not whether counsel’s actions were reasonable. 25 The question is whether there is any reasonable argument that counsel satisfied 26 Strickland’s deferential standard.” Id. 27 // 28 // 2 In ground 2(a), Riggs alleges that his trial counsel was ineffective for failing 3 to tell him before he pled nolo contendere that Megan had a brain condition that 4 might have affected her memory of the events. (ECF No. 28 at 12). 5 a. State court determination 6 In affirming the state court’s denial of Riggs’s post-conviction petitions, 7 NCA held: 8 First, Riggs claimed in his petition that defense counsel was ineffective for failing to inform him that victim Megan had a brain 9 injury that may have compromised her ability to testify about the charges. The district court held an evidentiary hearing and made the 10 following findings. Defense counsel could not testify at the evidentiary hearing because he is deceased. Riggs did not testify 11 truthfully when he said that counsel failed to inform him of Megan’s possible injuries. He did not prove that counsel’s performance was 12 deficient or that he was prejudiced. And he did not demonstrate that Megan’s trial testimony would have been unreliable to the extent that 13 he would have insisted on going to trial. We conclude the district court’s findings are supported by the record and are not clearly 14 wrong, Riggs failed to meet his burden to demonstrate that counsel was ineffective, and the district court did not err by rejecting this 15 claim. 16 (ECF No. 39-39 at 3). 17 b. Analysis 18 i. 28 U.S.C. § 2254 (d)(2) 19 Riggs contends that NCA’s adjudication of his ineffective-assistance claim 20 about Megan’s brain condition is not entitled to deference because it was based 21 on an unreasonable determination of the facts. Specifically, Riggs argues that the 22 state district court implied during the evidentiary hearing that it would not 23 question trial counsel’s actions retrospectively because he died in the interim. 24 (ECF No. 65 at 21–22). Second, the state court “doubted Riggs’s credibility simply 25 because [trial counsel] was known to be a formidable defense attorney.” (Id. at 26 22). Finally, the state court unreasonably found that Riggs’s affidavit attached to 27 the motions to withdraw his pleas undermined his claim. (Id. at 22–23). The Court 28 rejects this challenge. 2 earlier litigation on the issue, it allowed Riggs to develop his theory that his pleas 3 were involuntary in part because trial counsel refused to provide him discovery 4 while he was in the jail’s general population due to the sexual nature of his 5 charges. (ECF No. 55-17 at 10–12). Riggs opined that failing to give him discovery 6 to review was not routine, although he assumed it was at the time. (Id. at 12–13). 7 The state court overruled the State’s objection explaining, “I’m going to allow 8 some of this to happen, [counsel]. I hear your objection. I’ll give you latitude on 9 cross examination to develop the speculative nature of his supposition about 10 what is or isn’t routine.” (Id. at 13). 11 Additionally, the state court’s comments about the sometimes overly 12 zealous nature of trial counsel’s advocacy show that, contrary to Riggs’s claim, it 13 was not biased in favor of trial counsel: — 14 — It is no understatement to say that these files are replete with 15 zealous, vigorous, at times unnecessarily sharp-edged advocacy. What do I mean? There were personal attacks against [the 16 prosecutor] in these cases. Those personal attacks were over the top. In my view, given the evidence as I understand it, unnecessary, but 17 nonetheless they were made. And they were made in defense of Mr. Riggs. That’s but one of the innumerable examples of the way in 18 which [trial counsel] sought to defend Mr. Riggs vigorously. 19 (Id. at 142). Relatedly, the state court did not doubt Riggs’s credibility based solely 20 on the strength of trial counsel’s reputation. Rather, the state court detailed 21 several reasons why it found that Riggs was not being truthful. 22 First, the state court stated that Riggs was negatively affecting his 23 credibility by opining “about the statute of limitations issue related to his 24 potential civil rights claim while at the same time denying his understanding of 25 the meaning of the word sexual assault.” (Id. at 46; accord id. at 143–44). This 26 was a reasonable determination. Riggs wrote letters to the state court claiming 27 that court deputies “sexually assaulted” him while the trial court was in recess 28 during sentencing. (ECF Nos. 38-34, 38-35). And in ground 28 of Riggs’s proper 2 accessory before the fact and the trial court was an accessory after the fact to his 3 “sexual assault” and “rape” by the deputies. (ECF No. 37-50 at 48). 4 But Riggs testified at the evidentiary hearing that the deputies “didn’t make 5 physical contact” and “[t]here was no sexual penetration.” (ECF No. 55-17 at 32). 6 Rather, the deputies “didn’t tell [Riggs] he was being strip searched. They just 7 instructed [him] to remove articles of clothing one at a time.” (Id.) One of the 8 deputies “had his hand on the gun at the time” and said, “any noncompliance 9 would be considered resistance.” (Id.) 10 The state court interrupted Riggs asking to confirm he’d testified that 11 nobody sexually assaulted him. (Id. at 33). Riggs quibbled, stating his testimony 12 was that nobody “penetrated” him but what happened is “assault by definition.” 13 (Id.) He later equivocated, calling it “the strip search assault.” (Id. at 35). Yet even 14 later Riggs testified he understood that sexual assault is the “[u]nlawful sexual 15 penetration” of another. (Id. at 64). And he did so after testifying that he nearly 16 obtained a degree in journalism, won awards for journalism, and acknowledged 17 “[t]o the best of [his] ability, which [he] would say is above average, yes, [he’s] 18 absolutely careful” in his writing. (Id. at 40–42). 19 Second, the state court found that Riggs falsely testified that he did not 20 have access to his criminal case file. (Id. at 142). This was a reasonable 21 determination. Riggs testified, “I don’t have the entirety of my file.” (Id. at 53). And 22 Riggs argued in motion practice during his state post-conviction proceeding that 23 he “never had, does not have, and cannot conceive how he ever will, from prison, 24 [have] access to his case file materials.” (ECF No. 38-18 at 3). Yet as the state 25 court correctly recounted, (ECF No. 55-17 at 142–43), earlier Riggs had filed 26 proper person notices about the disposition of his case file after trial counsel 27 withdrew stating, he “received—but did not open—two boxes, each weighing 28 about fifty (50) pounds on July 7, 2015.” (ECF Nos. 37-48 at 3; 37-49 at 3). 2 who arranged for them to be received and held by Puliz, a document storage 3 company. (ECF No. 37-48 at 4). Riggs stated he also arranged for a third box to 4 be collected and retain by Puliz. (Id. at 6–7). Riggs signed these notices “under 5 penalty of perjury.” (ECF Nos. 37-38 at 14; 37-39 at 14). 6 Third, the state court concluded that the record was replete with 7 circumstantial evidence demonstrating that trial counsel “at all junctures shared 8 all critical information with [Riggs].” This was a reasonable determination. As the 9 state court correctly recounted, (ECF No. 55-17 at 27–28), Riggs submitted an 10 affidavit in support of the motions to withdraw his pleas stating that he’d read 11 the motions and detailing that he would not have pled nolo contendere but would 12 have gone to trial had the State informed him about the uncharged Oregon 13 crimes. (ECF Nos. 34-37 at 15–17; 34-38 at 15–17). The state court found it was 14 “clear that [Riggs] was communicating in detail with [trial counsel] about various 15 issues in his case and reading documents and signing affidavits.” (ECF No. 5516 17). This was a reasonable determination. 17 Indeed, Riggs was “present in Court” during the in-camera hearing on his 18 motion to retain “expert witnesses at public expense” in which trial counsel 19 successfully argued that Riggs needed to retain a “forensic mental health expert” 20 to consult with about medical issues including “the medical claims by the 21 accuser, [Megan], about --- I mean, this young lady has significant issues, all of 22 which it seems were brought out at the Grand Jury to explain her conduct.” (ECF 23 No. 55-4 at 4, 12–13, 16). Trial counsel stated the defense would be “moving to 24 exclude some of these things.” (Id. at 13). Trial counsel also stated the defense 25 would be moving for an order requiring Megan “to produce her medical 26 records . . . .” (Id. at 14). 27 The record shows that trial counsel had a pattern of filing detailed and 28 thorough briefs before Riggs pled nolo contendere in either case. (See e.g., ECF 2 limitations grounds); ECF Nos. 34-9, 34-13 (response to the State’s motion for an 3 order compelling the Reno Police Department to disclose all police reports in 4 which Riggs is the accused suspect for or pertaining to his sexual acts); ECF 5 No. 34-15 (motion to exclude other-acts/character/propensity evidence, 6 specifically videos and photographs of a sexual nature that were seized from 7 Riggs’s cellphone and evidence about Kayla in the case about Megan and vice 8 versa); ECF No. 34-18 (motion to compel production of Megan’s health records, 9 permit independent medical and mental-health examinations, and exclude 10 evidence and testimony about her health from trial); and ECF No. 34-25 (reply 11 supporting Riggs’s evidentiary motion about Megan’s health)). Relatedly, in the 12 same hearing as Riggs’s plea canvas in the first case, trial counsel argued that 13 Riggs’s motion “requesting information and materials concerning [Megan’s] 14 medical and mental health condition . . . remain pending” and would require a 15 hearing. (ECF No. 55-6). Thus, trial counsel twice discussed Megan’s mental 16 health as a defense argument in open court in front of Riggs. Yet Riggs did not 17 raise this as an issue until two and a half years later when he filed his proper 18 person post-conviction petition. (See ECF No. 37-50). 19 Additionally, Riggs testified that he and trial counsel discussed the “pros 20 and cons” of the case. (ECF No. 55-17 at 72). Riggs testified that he met with trial 21 counsel twice while he was detained after the arrest for the first case, they met 22 three times in trial counsel’s office after Riggs was released, and they met six 23 more times in jail after Riggs was arrested for the second case. (Id. at 59–61). 24 Generally, their meetings lasted 45 minutes to an hour. (Id. at 61–62). 25 Finally, the state court determined that “[t]he evidence of [Riggs] guilt is 26 overwhelming and it’s most evident in his frank denials of obvious truths, 27 misremembering, misdescribing or not describing things which he in his own 28 words has described at different times. I do not believe him when he says -- I sat 2 observed his responses to my questions and I do not believe him when he says 3 [trial counsel] did not share details of information.” (Id. at 147). 4 This Court finds that the NCA’s rejection of Riggs’s ineffective-assistance 5 claim alleging that trial counsel withheld information about Megan’s brain 6 condition until after he pled nolo contendere was not based on an unreasonable 7 determination of the facts in light of the evidence before it. 8 ii. 28 U.S.C. § 2254 (d)(1) 9 Riggs next contends that the NCA’s adjudication of his ineffective10 assistance claim about Megan’s brain condition was an unreasonable application 11 of Strickland and Hill because the state court determined that Riggs needed to 12 prove what Megan’s injuries were and how they might impact her ability to testify 13 to show prejudice. (ECF No. 65 at 23–24). The Court rejects this challenge. 14 When a petitioner alleges that trial counsel’s deficient performance led him 15 to accept a guilty plea rather than go to trial, courts “consider whether the 16 defendant was prejudiced by the ‘denial of the entire judicial proceeding to which 17 he had a right.’” Lee v. United States, 582 U.S. 357, 364 (2017) (cleaned up) 18 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). This requires the 19 petitioner to “show that there is a reasonable probability that, but for counsel’s 20 errors, he would not have pleaded guilty and would have insisted on going to 21 trial.” Hill, 474 U.S. at 59 . A reasonable probability is a probability sufficient to 22 undermine confidence in the outcome.’” Harrington, 562 U.S. at 104 (quoting 23 Strickland, 466 U.S. at 694 ). “It is not enough ‘to show that the errors had some 24 conceivable effect on the outcome of the proceeding.’” Id. (quoting Strickland, 466 25 U.S. at 693). 26 “Courts should not upset a plea solely because of post hoc assertions from 27 a defendant about how he would have pleaded but for his attorney’s deficiencies. 28 Judges should instead look to contemporaneous evidence to substantiate a 2 relief on this type of claim, a petitioner must convince the court that a decision 3 to reject the plea bargain would have been rational under the circumstances.” 4 Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe, 528 U.S. at 486 ). 5 “The Strickland standard is a general one, so the range of reasonable 6 applications is substantial.” Harrington, 562 U.S. at 105 (cleaned up). Thus, “[t]he 7 pivotal question is whether the state court’s application of the Strickland standard 8 was unreasonable.” Id. at 101 . Put differently, “[u]nder § 2254(d), a habeas court 9 must determine what arguments or theories supported . . . the state court’s 10 decision; and then it must ask whether it is possible fairminded jurists could 11 disagree that those arguments or theories are inconsistent with the holding in a 12 prior decision of” the Supreme Court. Id. at 102. 13 This Court must defer to the NCA’s determination that Riggs did not testify 14 truthfully about trial counsel withholding this information before he pled nolo 15 contendere. See Davis v. Ayala, 576 U.S. 257 , 273–74 (2015) (reiterating that 16 credibility and demeanor determinations “lie peculiarly within a trial judge’s 17 province” and reviewing federal habeas courts will defer to the trial court except 18 in “exceptional circumstances”). NCA reasonably could have inferred that Riggs 19 also was not truthful when he testified that he would not have pled in either case 20 but for trial counsel’s withholding that information. Arguments that Riggs’s 21 testimony was not credible support the NCA’s determination that he had not 22 shown prejudice for this claim. 23 Riggs’s motion to exclude evidence and testimony about Megan’s medical 24 conditions was filed contemporaneously with plea negotiations. (ECF No. 34-18). 25 The contents of this motion support the conclusion that rejecting the plea bargain 26 based solely on knowledge that Megan has a brain condition—without more— 27 would not have been rational under the circumstances. As trial counsel argued, 28 “[t]he subject matter is, obviously, beyond the knowledge of a lay person.” (Id. at 2 great risk of engendering sympathy for Megan, sympathy which substantially 3 outweighs any probative value of the evidence.” (Id. at 8). This is precisely why 4 trial counsel sought and obtained a forensic mental health expert for Riggs at 5 public expense to consult with before trial about medical issues like Megan’s 6 brain condition. (ECF No. 55-4). 7 The record shows that at the time of plea negotiations, the State continued 8 to theorize that Riggs possibly could be culpable of sexually assaulting Megan 9 because of her brain condition. As the information supplementing the indictment 10 provides, Riggs either “willfully and unlawfully” subjected Megan to sexual 11 penetration of her vagina and mouth “against [her] will, or under conditions in 12 which [Riggs] knew or should have known that [Megan] was mentally or physically 13 incapable of resisting [his] conduct . . . .” (ECF No. 34-24 at 2, 3). NCA reasonably 14 could have inferred that at the time Riggs pled, rejecting the plea bargain based 15 on the limited information known about Megan’s brain condition would not have 16 been rational. 17 This Court finds that the NCA’s rejection of Riggs’s ineffective-assistance 18 claim alleging that trial counsel withheld information about Megan’s brain 19 condition until after he pled nolo contendere was not contrary to, nor an 20 unreasonable application of, clearly established federal law, nor was it based on 21 an unreasonable determination of the facts. Accordingly, Riggs is not entitled to 22 habeas relief for ground 2(a). 23 4. Ground 2(b)—Kayla’s inconsistent statements 24 In ground 2(b), Riggs alleges that his trial counsel was ineffective for failing 25 to tell him before he pled nolo contendere that Kayla made inconsistent 26 statements to investigators. (ECF No. 28 at 12–13). 27 // 28 // 2 SPD detectives reported that when they interviewed Kayla on the morning 3 of the event, she “was having a difficult time explaining what had occurred.” (ECF 4 No. 39-4 at 5). Kayla initially told the detective that “she hadn’t been raped.” (Id. 5 at 6). But when the detective asked why Kayla’s male friend would call and report 6 that she told him Riggs raped her if that wasn’t true, Kayla clarified that Riggs 7 “made her do things that she didn’t want to do.” (Id.) Specifically, Kayla told the 8 detective that Riggs had “forced her mouth open and stuck his penis in her 9 mouth” and also stuck his penis in her anus against her will. (Id.) 10 b. State court determination 11 In affirming the state court’s denial of Riggs’s post-conviction petitions, 12 NCA held: 13 Second, Riggs claimed in his petition that defense counsel was ineffective for failing to inform him that victim Kayla initially told the 14 police he did not rape her. The district court made the following findings. Riggs’ testimony that counsel did not tell him about Kayla’s 15 statement was incredible. Riggs acknowledged he met with counsel a dozen or so times, each meeting lasted an hour or longer, and they 16 discussed the strengths and the weaknesses of the State’s case at these meetings. Riggs’ father testified that counsel and Riggs talked 17 about Kayla's exculpatory statement. Riggs knew the exculpatory nature of Kayla’s initial statement would have been offset at trial by 18 her explanation of what subsequently occurred. Kayla stated there was some consensual sexual activity between her and Riggs at first, 19 but then Riggs “brutally raped her anally and forced her to orally copulate him.” It is unbelievable that Riggs did not know about this 20 statement, that counsel did not tell Riggs about this statement, and that Riggs would have proceeded to trial if he had known about this 21 statement. We conclude the district court’s findings are supported by the record and are not clearly wrong, Riggs failed to meet his 22 burden to demonstrate that counsel was ineffective, and the district court did not err by rejecting this claim. — 23 — 24 (ECF No. 39-39 at 4). 25 c. Analysis 26 Riggs argues that the NCA’s adjudication of his ineffective-assistance claim 27 about Kayla’s inconsistent statements is not entitled to deference because it was 28 based on an unreasonable determination of the facts. Specifically, Riggs argues 2 his testimony when Peter’s testimony was equivocal at best. (ECF No. 65 at 24). 3 This Court disagrees. 4 Peter testified that he suffered a stroke in August 2016 and suffers from 5 “aphasia and lability,” which make it difficult for him to answer questions. (ECF 6 No. 55-17 at 102–03). Peter did not testify that his memory was affected. (Id. at 7 102–08). And Peter recalled Riggs’s first arrest in March 2013, Riggs’s release in 8 April 2013, and attending meetings between Riggs and trial counsel after that 9 release. (Id. at 103–04). 10 When asked if he recalled trial counsel telling Riggs “that one of the victims 11 had told the police that she had not been raped” Peter testified, “Yes. I believe 12 so.” (Id. at 107). Peter brought up his intervening stroke, but the prosecutor 13 interrupted, asking if Peter recalled trial counsel telling Riggs “that one of the 14 victims had a brain injury.” (Id.) Peter responded, “Yes. He also had in the court.” 15 (Id.) This testimony was provided in the wider context of conversations that Peter 16 testified he’d overheard between Riggs and trial counsel when he attended their 17 meetings in which “pros and cons of the charges against” Riggs were discussed. 18 (Id. at 106). NCA reasonably determined that Peter’s testimony undermined 19 Riggs’s credibility and claim that trial counsel withheld information about Kayla’s 20 inconsistent statements from him. 21 Additionally, as the Court explained in its analysis of ground 2(a), there is 22 ample evidence supporting the state court’s determination that Riggs did not 23 testify truthfully that trial counsel withheld Megan’s brain condition from him 24 before he pled. This Court must defer to the state court’s credibility 25 determinations. Arguments that Riggs’s testimony was not credible support the 26 NCA’s determination that he had not shown prejudice for this claim. 27 Moreover, Riggs testified at the evidentiary hearing that trial counsel taught 28 him “there were internal contradictions” regarding Kayla’s allegations. (ECF 2 matter after Riggs pled no contest to attempted sexual assault. Relatedly, Riggs 3 testified during the evidentiary hearing that the question of when sex becomes 4 nonconsensual for legal purposes was one of his “big questions to [trial counsel]” 5 who “actually explained to [Riggs] this in detail, that there’s a common law” about 6 that issue. (Id. at 80). When Riggs couldn’t recall if Kayla told him the sex was no 7 longer consensual, the trial court quoted the following from Riggs’s statement 8 that was attached to the presentence investigation report: 9 It says on February 23–24, 2023, Kayla . . . invited me to her house for a date. We had consensual vaginal and oral sex to completion 10 during which I put my fingers in her anus with no objection from Kayla. Two hours later, during consensual vaginal sex from behind, 11 I put my fingers in her anus. She did not object. I then placed my penis in her anus, she objected and I withdrew within seconds, but 12 not as quickly as I could. I thought all of our sex was consensual. Later, Kayla claimed it was otherwise. — 13 — 14 (Id. at 79–81). 15 The NCA’s conclusion that Riggs did not testify truthfully that trial counsel 16 failed to inform him about Kayla’s inconsistent statements before he pled nolo 17 contendere is not objectively unreasonable. This Court finds that the NCA’s 18 rejection of Riggs’s ineffective-assistance claim alleging that trial counsel 19 withheld information about Kayla’s inconsistent statements until after he pled 20 nolo contendere was not contrary to, nor an unreasonable application of, clearly 21 established federal law, and it was not based on an unreasonable determination 22 of the facts. Accordingly, Riggs is not entitled to habeas relief for ground 2(b). 23 5. Ground 2(c)—inadmissibility of video 24 In ground 2(c), Riggs alleges that his trial counsel was ineffective for failing 25 to tell him before he pled nolo contendere that video of him engaging in rough 26 but consensual sex with Tephany was inadmissible at trial in the Nevada cases. 27 (ECF No. 28 at 13–14). 28 // 2 In affirming the state court’s denial of Riggs’s post-conviction petitions, 3 NCA held: 4 Third, Riggs claimed in his petition that defense counsel was ineffective for failing to inform him that a certain video could not be 5 used against him at trial. The district court made the following findings. Counsel did not tell Riggs that the video would be 6 admissible, the video allegedly depicted lawful activity, and the video would not have been relevant evidence at Riggs’ trial. These findings 7 are supported by the record and are not clearly wrong. We conclude that Riggs failed to demonstrate that counsel misadvised him about 8 the admissibility of the video, Riggs has not shown that he was prejudiced by counsel’s performance in this regard, and the district 9 court did not err by rejecting this claim. 10 (ECF No. 39-39 at 4–5). 11 b. Analysis 12 Riggs argues that the NCA’s adjudication of his ineffective-assistance claim 13 about the video evidence is not entitled to deference because it was based on an 14 unreasonable determination of the facts. Specifically, Riggs argues there was no 15 testimony contradicting his claim that trial counsel told him the video could be 16 used against him, and it’s possible that trial counsel stated this because he 17 believed the state would argue to admit the video along with evidence about the 18 uncharged Oregon crimes. (ECF No. 65 at 24–25). 19 Again, there was ample evidence supporting the state court’s determination 20 that Riggs did not testify truthfully that trial counsel withheld other critical 21 information from him before he pled. This Court must defer to the state court’s 22 credibility determinations. Arguments that Riggs’s testimony was not credible 23 support the NCA’s determination that he had not shown prejudice for this claim. 24 Additionally, about two weeks before the first plea was entered, trial 25 counsel moved to exclude the video of Riggs and Tephany that SPD obtained from 26 his cellphone, arguing the video “would be substantially more prejudicial than 27 probative” as it did not involve either Megan or Kayla and the acts were 28 consensual but embarrassing for Riggs. (ECF No. 34-15). This was filed on the 2 Notably, the State’s motion did not seek to introduce the video. (Id.) Thus, the 3 record does not support the inference that trial counsel possibly believed that the 4 video would be admissible at trial. 5 The NCA’s conclusion that Riggs did not testify truthfully that trial counsel 6 misinformed him that the video was admissible in the Nevada cases is not 7 objectively unreasonable. This Court finds that the NCA’s rejection of Riggs’s 8 ineffective-assistance claim alleging that trial counsel misinformed him about the 9 admissibility of video evidence until after he pled nolo contendere was not 10 contrary to, nor an unreasonable application of, clearly established federal law, 11 and it was not based on an unreasonable determination of the facts. Accordingly, 12 Riggs is not entitled to habeas relief for ground 2(c). 13 IV. CERTIFICATE OF APPEALABILITY 14 Rule 11 of the Rules Governing Section 2254 Cases requires this Court to 15 issue or deny a certificate of appealability (“COA”). This Court has evaluated the 16 claims within the Petition for suitability for the issuance of a COA. Under 28 17 U.S.C. § 2253 (c)(2), a COA may issue only when the petitioner has made “a 18 substantial showing of the denial of a constitutional right.” With respect to claims 19 rejected on the merits, a petitioner “must demonstrate that reasonable jurists 20 would find the district court’s assessment of the constitutional claims debatable 21 or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, 22 this Court finds that a COA is unwarranted. 23 V. CONCLUSION 24 It is therefore ordered that the First Amended Petition for Writ of Habeas 25 Corpus under 28 U.S.C. § 2254 (ECF No. 28) is denied. A certificate of 26 appealability is denied. 27 // 28 // 1 The Clerk of the Court is directed to substitute Nethanjah Breitenbach for 2 || Respondent Timothy Filson, enter judgment, and close this case. — 3 — 4 Dated this 25t day of March 2025. — 5 — 6 j idan 8 UNITED STATES DISTRICT JUDGE — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 33 —