Glover v. Bean

— 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA — 5 — 6 SHAWN GLOVER, JR., Case No. 3:22-cv-00207-MMD-CSD 7 Petitioner, ORDER 8 v. 9 WARDEN REUBART1, et al., 10 Respondents. 11 I. SUMMARY 12 Petitioner Shawn Glover, Jr., a Nevada state prisoner, filed an Amended Petition 13 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 . (ECF No. 23 (“First Amended 14 Petition”).) The First Amended Petition is before the Court for adjudication on the merits. 15 As further explained below, the Court denies the First Amended Petition and grants a 16 Certificate of Appealability (“COA”) only as to Count 3. 17 II. BACKGROUND 18 A. Facts Underlying Conviction 19 In December 2015, Patrick Fleming, his wife, Miranda Sutton, their twelve-year20 old twins, and Sutton’s 21-year-old-daughter, Akira Veasley moved into a townhouse with 21 Sutton’s goddaughter, Angela, and Angela’s three children. (ECF No. 25-45 at 65, 9922 100.) Around Christmas Eve, Glover moved into the townhouse. (Id. at 66, 99.) He shares 23 a daughter with Angela. (Id. at 47.) 24 On New Year’s Eve, Veasley used Fleming’s car, though she was not allowed to 25 have her boyfriend in the car. (Id. at 93.) On New Year’s Day, Fleming took Angela to — 26 — — 27 — 1According to the state corrections department’s inmate locator page, Glover is 28 currently incarcerated at High Desert State Prison. Jeremy Bean is the warden of that facility. The Court directs the Clerk of the Court to substitute Jeremy Bean for Respondent 2 at 47-48.) Fleming and Veasley entered into a heated argument in the garage after he 3 discovered that Veasley’s boyfriend was in Fleming’s car the night before. Sutton joined 4 the argument defending her daughter. (Id. at 47-49.) 5 While arguing, Glover brought a phone to Sutton in the garage because Angela 6 was on the phone. (Id. at 50.) Glover returned upstairs. (Id.) Sutton told Angela that 7 everything was fine. (Id. at 50-51.) As the argument in the garage was calming down, 8 Glover returned to the garage and Glover asked Sutton to speak to him upstairs. While in 9 Angela’s bedroom, Glover asked Sutton, “do you want me to handle this, do you want me 10 to take care of it?” Sutton replied that everything was okay. (Id.) 11 Shortly after Fleming and Veasley resolved their argument, they went upstairs. 12 Fleming asked Glover why he was talking to Sutton, his wife. (Id. at 53.) Glover indicated 13 that he was concerned about the heated argument in the garage, that it was his house, 14 and that Fleming was possibly fighting Sutton and Veasley, who were crying. (Id.) Fleming 15 denied fighting with Sutton and Veasley and said they were simply having a family 16 argument. (Id.) Fleming touched Glover on the shoulder and Glover indicated to Fleming 17 that he was too close to him. Fleming asked if they had a problem and if they needed to 18 talk. Fleming suggested that they go downstairs to talk. (Id.) 19 Sutton and Veasley observed Fleming walk down the stairs towards the garage 20 with Glover behind him. (Id. at 53-54, 96.) While the men were on the stairs, Sutton and 21 Veasley could no longer see them. (Id. at 54-55, 96.) Within seconds, Sutton and Veasley 22 heard three loud gunshots. They ran downstairs and saw Fleming lying on the floor on 23 his side with Glover standing over his body. Sutton testified that Glover threatened her 24 and her children if she told anyone. Glover left the townhouse and Veasley called 911. 25 (Id. at 55, 64-65.) 26 B. Procedural Background 27 Following a jury trial, the state court entered a judgment of conviction for first 28 degree murder with use of a deadly weapon, assault with a deadly weapon, and discharge 2 without the possibility of parole. (ECF No. 25-55.) The Nevada Supreme Court affirmed 3 the judgment of conviction. (ECF No. 26-21.) 4 Glover filed a state habeas petition seeking post-conviction relief and the state 5 district court denied the state habeas petition. (ECF Nos. 26-28, 26-35.) The Nevada 6 Court of Appeals affirmed the denial of relief. (ECF No. 26-54.) Glover initiated this federal 7 habeas action. (ECF No. 1-1.) Following the appointment of counsel, he filed his First 8 Amended Petition raising five grounds for relief. (ECF No. 23.) Respondents moved to 9 dismiss Ground 5 as unexhausted. (ECF No. 29 at 3-5.) The Court deferred consideration 10 of whether Glover can demonstrate cause and prejudice under Martinez v. Ryan, 566 11 U.S. 1 (2012), to overcome the procedural default of Ground 5. (ECF No. 36.) 12 III. LEGAL STANDARD 13 A. Review Under the Antiterrorism and Effective Death Penalty Act — 14 — 28 U.S.C. § 2254 (d) sets forth the standard of review generally applicable in 15 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 16 (“AEDPA”): 17 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect 18 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— — 19 — (1) resulted in a decision that was contrary to, or involved an unreasonable 20 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or — 21 — (2) resulted in a decision that was based on an unreasonable determination 22 of the facts in light of the evidence presented in the State court proceeding. — 23 — 28 U.S.C. § 2254 (d). A state court decision is contrary to established Supreme Court 24 precedent, within the meaning of § 2254(d)(1), “if the state court applies a rule that 25 contradicts the governing law set forth in [Supreme Court] cases” or “if the state court 26 confronts a set of facts that are materially indistinguishable from a decision of [the 27 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, — 28 — 529 U.S. 362, 405-06 (2000), and Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court 2 § 2254(d)(1), “if the state court identifies the correct governing legal principle from [the 3 Supreme] Court’s decisions but unreasonably applies that principle to the facts of the 4 prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413 ). “The ‘unreasonable 5 application’ clause requires the state court decision to be more than incorrect or 6 erroneous. The state court’s application of clearly established law must be objectively 7 unreasonable.” Id. (internal citation omitted) (quoting Williams, 529 U.S. at 409-10 ). 8 The Supreme Court has instructed that a “state court’s determination that a claim 9 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 10 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86 , 101 11 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Court has stated 12 that “even a strong case for relief does not mean the state court’s contrary conclusion 13 was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75 ); see also Cullen v. 14 Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted) 15 (describing the standard as “difficult to meet” and “highly deferential standard for 16 evaluating state-court rulings, which demands that state-court decisions be given the 17 benefit of the doubt”). 18 B. Standard for Ineffective Assistance of Counsel Claims 19 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 20 claims of ineffective assistance of counsel requiring Petitioner to demonstrate that: (1) the 21 attorney’s “representation fell below an objective standard of reasonableness[;]” and (2) 22 the attorney’s deficient performance prejudiced Petitioner such that “there is a reasonable 23 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 24 have been different.” 466 U.S. 668, 688, 694 (1984). Courts considering a claim of 25 ineffective assistance of counsel must apply a “strong presumption that counsel’s conduct 26 falls within the wide range of reasonable professional assistance.” Id. at 689 . It is 27 Petitioner’s burden to show “counsel made errors so serious that counsel was not 28 functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687 . 2 show that the errors had some conceivable effect on the outcome of the proceeding.” Id. 3 at 693. Rather, the errors must be “so serious as to deprive the [petitioner] of a fair trial, 4 a trial whose result is reliable.” Id. at 687 . 5 Where a state district court previously adjudicated the claim of ineffective 6 assistance of counsel under Strickland, establishing the decision was unreasonable is 7 especially difficult. See Richter, 562 U.S. at 104-05 . In Richter, the Supreme Court 8 clarified that Strickland and § 2254(d) are each highly deferential, and when the two apply 9 in tandem, review is doubly so. See id. at 105; see also Cheney v. Washington, 614 F.3d 10 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When a federal court reviews 11 a state court’s Strickland determination under AEDPA, both AEDPA and Strickland’s 12 deferential standards apply; hence, the Supreme Court’s description of the standard as 13 doubly deferential.”). The Court further clarified, “[w]hen § 2254(d) applies, the question 14 is not whether counsel’s actions were reasonable. The question is whether there is any 15 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, — 16 — 562 U.S. at 105 . 17 C. Standard for Procedurally Defaulted Claims 18 “A federal habeas court generally may consider a state prisoner’s federal claim 19 only if he has first presented that claim to the state court in accordance with state 20 procedures.” Shinn v. Ramirez, 596 U.S. 366, 371 (2022). Where a petitioner fails to do 21 so and therefore “has defaulted his federal claims in state court pursuant to an 22 independent and adequate state procedural rule,” federal habeas review “is barred unless 23 the prisoner can demonstrate cause for the default and actual prejudice as a result of the 24 alleged violation of federal law, or demonstrate that failure to consider the claims will 25 result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722 , 750 26 (1991). 27 For claims of ineffective assistance of trial counsel, petitioners may overcome 28 cause for procedural default of the claim where (1) the claim of ineffective assistance of 2 or only “ineffective” counsel during the state collateral review proceeding; (3) the state 3 collateral review proceeding was the “initial” review proceeding in respect to the 4 ineffective assistance of trial counsel claim; and (4) state law requires that an “ineffective 5 assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”2 6 Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14, 18; citing 7 Coleman, 501 U.S. 722 ). An ineffective assistance of trial counsel claim “is insubstantial” 8 if it lacks merit or is “wholly without factual support.” Martinez, 566 U.S. at 14-16. 9 “[T]he standard for evaluating the underlying trial counsel IAC claim during the 10 Martinez prejudice analysis is not as stringent as that required when considering the 11 merits of the underlying [Strickland] claim.” Leeds v. Russell, 75 F.4th 1009, 1017-18 (9th 12 Cir. 2023) (citing Michaels v. Davis, 51 F.4th 904 , 930 (9th Cir. 2022) (“[A] conclusion on 13 the merits of [a trial counsel IAC] claim under Strickland holds a petitioner to a higher 14 burden than required in the Martinez procedural default context, which only requires a 15 showing that the [trial counsel IAC] claim is ‘substantial.’ ”)). While review of trial counsel's 16 actions in a Martinez prejudice analysis is conducted under a more relaxed standard, the 17 Strickland standard is applied with full force when considering the actions of initial 18 postconviction review counsel for a Martinez cause analysis. See Leeds, 75 F.4th at 19 1022. The requirements of cause and prejudice are distinct but, “[t]he analysis of whether 20 both cause and prejudice are established under Martinez will necessarily overlap,” as 21 “each considers the strength and validity of the underlying ineffective assistance claim.’” 22 Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019). On all such issues, if reached, the 23 court's review is de novo. See, e.g., Detrich v. Ryan, 740 F.3d 1237, 1246-48 (9th Cir. 24 2013); Atwood v. Ryan, 870 F.3d 1033 , 1060 n.22 (9th Cir. 2017). — 25 — — 26 — 27 2Nevada prisoners are required to raise IAC claims involving trial counsel in an initial state-postconviction petition, which is the initial collateral review proceeding for 28 purposes of applying Martinez. See Rodney v. Filson, 916 F.3d 1254, 1259-60 (9th Cir. 2 A. Ground 1—Insufficient Evidence 3 In Ground 1, Glover alleges that he was denied his due process rights because 4 there was insufficient evidence to support the convictions. (ECF No. 23 at 5-8.) He asserts 5 that his murder conviction was based on legally insufficient evidence because there was 6 no physical evidence tying him to the crime. (Id. at 7.) He contends that the State relied 7 solely on fundamentally flawed testimony from Sutton and Veasley that was inconsistent 8 with their statements to the police. (Id. at 7-8.) 9 1. Additional Background 10 When Sutton originally called 911, she stated that she did not know who shot her 11 husband (ECF No. 25-45 at 69) and Veasley originally told the police that an individual 12 named Hatch, who had come over to buy marijuana from Fleming, was the person who 13 shot Fleming. (Id. at 104-06.) She had told the police that Hatch had been upstairs during 14 the argument, but had come downstairs at one point to speak to Sutton, and that Fleming 15 was upset that Hatch was inserting himself into family business. (Id.) The following day, 16 during their second interviews with the police, both Sutton and Veasley identified Glover 17 as the person who shot Fleming. (Id. at 107-08, 79.) 18 Sutton and Veasley both testified regarding the shooting. (ECF No. 25-45.) As 19 discussed above, Fleming and Veasley were arguing in the garage and Sutton joined the 20 argument defending her daughter. (Id. at 50.) Glover observed the interaction when he 21 brought the house phone to Sutton and he returned upstairs. 22 Sutton and Veasley subsequently observed Fleming walk down the stairs towards 23 the garage with Glover behind him. While the men were on the stairs, Sutton and Veasley 24 could no longer see them. Within seconds, Sutton and Veasley heard three loud 25 gunshots. They ran downstairs and saw Fleming lying on the floor on his side with Glover 26 standing over his body. Sutton testified that Glover threatened her, saying “if you and your 27 kids want to live, you’ll shut the fuck up.” (Id. at 55.) 28 On cross-examination, both Sutton and Veasley admitted that they did not identify 2 110.) Sutton testified that she was afraid because her husband was just killed and the 3 police could not stay at her home to protect her or her family. (Id. at 29.) Both Sutton and 4 Veasley testified that they were fearful because they believed that Glover had a violent 5 past. (Id. at 29, 37.) 6 A forensic pathologist testified at trial that Fleming died as a result of a gunshot 7 wound to the head. (Id. at 132.) The forensic pathologist testified that the bullet’s trajectory 8 entered Fleming’s head from the left to right and downward. (Id. at 127.) The bullet went 9 through Fleming’s brain and went down into his oral cavity fracturing his jaw. (Id.) The 10 second and third non-fatal shots were in his right upper arm and his groin area. (Id.) 11 The Nevada Supreme Court held: 12 The record shows that after asking Sutton if she wanted him to “handle” the victim (Patrick Fleming), Glover followed Fleming downstairs to talk. Within 13 seconds, Veasley and Sutton heard three gunshots, and Sutton observed Glover standing over Fleming’s body holding a gun. Glover pointed the gun — 14 — at Sutton and threatened her not to report what she saw. The medical 15 examiner testified that the bullets entered Fleming at a downward trajectory. Testimony also established that Glover fled the scene after the shooting. 16 Viewing this evidence in the light most favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Glover committed 17 the charged crimes. See Walker v. State, 91 Nev. 724, 726 , 542 P.2d 438, 438-39 (1975) (recognizing that “it is the function of the jury, not the — 18 — appellate court, to weigh the evidence and pass upon the credibility of the 19 witness”); see also 193.165 (deadly weapon enhancement); NRS 200.010 20 (defining murder); NRS 200.030 (delineating the differing degrees of murder); NRS 200.471 (defining assault); NRS 202.287 (defining 21 discharging a firearm within a structure). That the State did not present physical evidence connecting Glover to the shooting does not change this — 22 — conclusion. See Hernandez v. State, 118 Nev. 513, 531 , 50 P.3d 1100 , 23 1112 (2002) (concluding that circumstantial evidence alone may support a criminal conviction). — 24 — 25 ECF No. 26-21 at 4-5. — 26 — — 27 — — 28 — 2 The Due Process Clause of the United States Constitution “protects the accused 3 against conviction except upon proof beyond a reasonable doubt of every fact necessary 4 to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). 5 When a habeas petitioner challenges the sufficiency of evidence to support his conviction, 6 the court reviews the record to determine “whether, after viewing the evidence in the light 7 most favorable to the prosecution, any rational trier of fact could have found the essential 8 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 , 9 319 (1979); Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000). 10 Sufficiency claims are limited to a review of the record evidence submitted at trial. 11 Herrera v. Collins, 506 U.S. 390, 402 (1993). Such claims are judged by the elements 12 defined by state law. Jackson, 443 U.S. at 324, n.16 ). The reviewing court must respect 13 the exclusive province of the fact-finder to determine the credibility of witnesses, to 14 resolve evidentiary conflicts, and to draw reasonable inferences from proven facts. United 15 States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996). The district court must assume 16 the trier of fact resolved any evidentiary conflicts in favor of the prosecution, even if the 17 determination does not appear on the record, and must defer to that resolution. Jackson, — 18 — 443 U.S. at 326 ; see also McDaniel v. Brown, 558 U.S. 120, 133 (2010) 19 (reaffirming Jackson standard). 20 The Supreme Court has emphasized that claims of insufficiency of 21 the evidence “face a high bar in federal habeas proceedings . . . .” Coleman v. Johnson, — 22 — 566 U.S. 650, 651 (2012) (per curiam). When the deferential standards of AEDPA 23 and Jackson are applied together, the question for decision on federal habeas review is 24 whether the state court's decision unreasonably applied the Jackson standard to the 25 evidence at trial. See, e.g., Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) 26 (citations omitted). 27 The Nevada Supreme Court’s ruling was neither contrary to nor an objectively 28 unreasonable application of clearly established law as determined by the United States 2 DNA evidence demonstrating that Glover was the shooter, ample evidence supported the 3 verdict. Both Sutton and Veasley testified that Fleming was shot seconds after they 4 observed him going down the stairs with Glover behind him. The forensic pathologist’s 5 testimony regarding the downward trajectory of the fatal bullet corroborated Sutton and 6 Veasley’s testimony. Sutton and Veasley also testified that they did not identify Glover as 7 the shooter during their initial interviews with police because they were fearful. “A jury’s 8 credibility determinations are therefore entitled near-total deference under Jackson.” 9 Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 326 ). 10 Based on the evidence in the record, and viewing the evidence in the light most favorable 11 to the prosecution, the Court concludes that a rational jury could have found the essential 12 elements of the crimes beyond a reasonable doubt. Accordingly, the Court denies federal 13 habeas relief for Ground 1. 14 B. Ground 2—Prosecutorial Misconduct 15 In Ground 2, Glover alleges that the State committed prosecutorial misconduct and 16 violated his due process rights by attempting to shift the burden of proof to Glover. (ECF 17 No. 23 at 8-10.) 18 1. Additional Background 19 During closing argument, Glover argued that there was no physical evidence 20 connecting him to the crimes, that the only evidence presented by the State was 21 unreliable, and that there was a lack of evidence establishing intent or motive. (ECF No. 22 25-50 at 33-35.) During rebuttal, the State provided that they were “waiting for [defense 23 counsel] to answer the question, well where was his client?” (Id. at 38-39.) The state 24 district court sustained the defense’s objection and instructed the State to rephrase. The 25 State then provided, “[defense counsel] said . . . the Defendant was not even there. Where 26 is the evidence about that?” (Id.) 27 Glover asserts that the State clearly shifted the burden of proof to Glover by telling 28 the jurors that the defense needed to present evidence to challenge the State’s case and 2 State’s comment. Glover further argues that the Nevada Supreme Court’s rejection of this 3 claim was unreasonable and should not be considered harmless. (ECF No. 44 at 17-18.) 4 The Nevada Supreme Court held: 5 Glover contends that the State committed prosecutorial misconduct by improperly shifting the burden of proof during closing argument. “When 6 considering claims of prosecutorial misconduct, this court engages in a twostep analysis. First, we must determine whether the prosecutor’s conduct — 7 — was improper. Second, if the conduct was improper, we must determine 8 whether the improper conduct warrants reversal.” Valdez v. State, 124 Nev. 1172, 1188 , 196 P.3d 465, 476 (2008). — 9 — Glover’s closing argument attacked the State’s lack of physical evidence 10 and proffered that the State had not even proven that Glover was at the crime scene at the time of the shooting. In rebuttal, the prosecutor argued — 11 — the evidence in support of the State’s case and then said, “And I’m waiting 12 for [defense counsel] to answer the question, well, where was his client.” Glover objected and the court sustained the objection, but allowed the 13 prosecutor to rephrase. The prosecutor then pointed out again that Glover had not provided evidence that he was not present at time of the shooting. 14 We agree with Glover that the prosecutor’s argument improperly shifted the burden of proof to the defense. Whitney v. State, 112 Nev. 499, 502 , 915 15 P.2d 881, 883 (1996) (reiterating that comments on a defendant’s failure to 16 produce evidence or call witnesses impermissibly shifts the burden of proof to the defense). Nevertheless, we conclude that this prosecutorial 17 misconduct was harmless given the overwhelming evidence both that Glover was at the scene and committed the crimes. See King v. State, 116 18 Nev. 349, 356 , 998 P.2d 1172, 1176 (2000) (concluding that even aggravated prosecutorial misconduct may constitute harmless error where — 19 — there is overwhelming evidence of guilt). — 20 — 21 ECF No. 26-21 at 5-6. 22 2. Analysis 23 Prosecutorial misconduct warrants federal habeas relief if the prosecutor's actions 24 “so infected the trial with unfairness as to make the resulting conviction a denial of due 25 process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotation 26 marks omitted). A defendant's constitutional right to due process of law is violated if 27 the prosecutor's misconduct renders a trial “fundamentally unfair.” Id. at 181-83 ; see 28 also Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process 2 culpability of the prosecutor”). Claims of prosecutorial misconduct are reviewed “on the 3 merits, examining the entire proceedings to determine whether the prosecutor's [actions] 4 so infected the trial with unfairness as to make the resulting conviction a denial of due 5 process.” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation and internal 6 quotation marks omitted); see also Greer v. Miller, 483 U.S. 756, 765 (1987); Turner v. 7 Calderon, 281 F.3d 851, 868 (9th Cir. 2002). If there is constitutional error, a harmless 8 error analysis is applied; the error warrants relief if it “had a substantial and injurious effect 9 or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619 , 63710 38 (1993) (citation and internal quotation marks omitted); Wood v. Ryan, 693 F.3d 1104 , 11 1113 (9th Cir. 2012). 12 The Nevada Supreme Court’s rejection of Glover’s claim was neither contrary to 13 nor an objectively unreasonable application of clearly established law as determined by 14 the United States Supreme Court. The State presented strong evidence that Glover 15 committed the crimes. See Darden, 477 U.S. at 181-82 (analyzing a claim that the 16 prosecutor's argument violated due process by considering the strength of the evidence 17 against the defendant). Considering witness testimony that Glover had followed Fleming 18 down the stairs, that he was observed standing over Fleming’s body immediately after 19 being shot, the trajectory of the bullet, that Glover threatened Sutton not to tell police, and 20 that Glover fled the scene, the Court cannot conclude that the actions of the prosecutor 21 “so infected the trial with unfairness as to make the resulting conviction a denial of due 22 process.” Darden, 477 U.S. at 181-82 . 23 In addition, the state district court instructed the jury that statements by the 24 prosecution were not evidence and that the State carried the burden of proof. (ECF No. 25 25-48 at 28-29, 40.) The United States Supreme Court has long held that “[a] jury is 26 presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 225, 235 (2000). The 27 Court finds that the Nevada appellate court reasonably found that the statement made 28 during closing argument by the prosecution was harmless in view of the evidence that 2 C. Ground 3—Ineffective Assistance as to Testimonial Hearsay 3 In Ground 3, Glover alleges that trial counsel rendered ineffective assistance of 4 counsel for failure to object to testimonial hearsay. (ECF No. 23 at 10-13.) 5 1. Additional Background 6 A medical doctor employed by the Clark County Coroner Medical Examiner, Dr. 7 Timothy Dutra, performed an autopsy on Fleming and provided an autopsy report of his 8 findings and conclusions. At trial, however, another doctor, Dr. Corneal, testified based 9 on her review of the autopsy report and investigative files, including photographs. (Id. at 10 10.) 11 Dr. Corneal testified that Fleming was shot in the back of the head on his left side. 12 (ECF No. 25-45 at 124.) She further testified that she did not observe soot or stippling 13 that would indicate that the gun was fired at close range, possibly due to Fleming’s thick 14 hair. (Id. at 129.) She testified that the gunshot wound to the head was the cause of 15 Fleming’s death and that the manner of death was homicide. (Id.) 16 Glover argues that the autopsy report containing Dr. Dutra’s testimonial 17 conclusions, including the cause and manner of death, was admitted at trial even though 18 Dr. Dutra did not testify. (ECF No. 23 at 12.) Glover asserts that because it was 19 testimonial, he had the right to question Dr. Dutra about his work, methodology, 20 competence, and any other factors relevant to the weight and admissibility of the 21 testimony concerning the autopsy that was provided through Dr. Corneal. (Id.) He 22 contends that trial counsel was ineffective for failing to object to Dr. Corneal’s testimony. 23 (Id.) 24 The Nevada Court of Appeals held: 25 The Nevada Supreme Court has previously held that expert testimony regarding the content of a testimonial statement in a written report may 26 function as the equivalent of a testimonial statement, see Vega v. State, 126 Nev. 332, 340 , 236 P.3d 632, 638 (2010), and that another analyst's — 27 — testimony as to the testimonial statements of a nontestifying analyst violates 28 the Confrontation Clause, see Polk v. State, 126 Nev. 180, 183-84 , 233 P.3d 357, 359 (2010). However, an expert witness may testify concerning generated by others without violating the Confrontation Clause. Vega, 126 2 Nev. at 340, 236 P.3d at 638 ; see also Flowers v. State, 136 Nev. 1 , 9, 456 P.3d 1037 , 1046 (2020) (“To the extent [the expert witness] offered his — 3 — independent opinions and only conveyed to the jury that he generally relied 4 on the autopsy photographs and reports in reaching his opinions, he did not communicate hearsay to the jury.). — 5 — The medical examiner that conducted the autopsy of the victim was not 6 available to testify at trial. However, a second medical examiner testified that she reviewed the autopsy reports and photographs that were created — 7 — by the first examiner. The second medical examiner testified that she 8 utilized the reports and photographs to reach her own independent conclusions as to the cause of the victim’s death. The second medical 9 examiner ultimately testified that she concluded that the victim died due to a gunshot wound to the head and the manner of death was homicide. The 10 second medical examiner did not testify as to the conclusions reached by the first medical examiner. — 11 — 12 Because the second medical examiner testified that she reached her own independent conclusions, her testimony did not violate Glover’s right to 13 confrontation. Accordingly, Glover did not demonstrate his Counsel’s performance fell below an objective standard of reasonableness by failing 14 to object to the second medical examiner's testimony. Glover also did not demonstrate a reasonable probability of a different outcome at trial had — 15 — counsel done so. Therefore, we conclude the district court did not err by 16 denying this claim without conducting an evidentiary hearing. 17 ECF No. 26-54 at 3-4. 18 2. Analysis 19 The Sixth Amendment's Confrontation Clause provides that “[i]n all criminal 20 prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 21 against him.” U.S. Const. amend. VI. “[A] primary interest secured by [the Confrontation 22 Clause] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418 (1965); 23 see also Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The central concern of the 24 Confrontation Clause is to ensure the reliability of the evidence against a criminal 25 defendant by subjecting it to rigorous testing in the context of an adversary proceeding 26 before the trier of fact.”); Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (“[T]he 27 Confrontation Clause is generally satisfied when the defense is given a full and fair 28 opportunity to probe and expose . . . infirmities through cross-examination, thereby calling 2 testimony.”); Davis v. Alaska, 415 U.S. 308, 316 (1974) (“Cross-examination is the 3 principal means by which the believability of a witness and the truth of his testimony are 4 tested.”). 5 The United States Supreme Court has determined that the Confrontation Clause 6 bars “admission of testimonial statements of a witness who did not appear at trial unless 7 he was unavailable to testify, and the defendant had had a prior opportunity for cross8 examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The United States 9 Supreme Court has also held that “analysts’ affidavits [are] testimonial statements,” 10 so “[a]bsent a showing that the analysts were unavailable to testify at trial and that 11 petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be 12 confronted with the analysts at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 311 13 (2009) (emphasis in original) (internal quotation marks omitted). Thereafter, the Court 14 held that the Confrontation Clause does not allow the government “to introduce a forensic 15 laboratory report containing a testimonial certification . . . through the in-court testimony 16 of a scientist who did not . . . perform or observe the test reported in the certification . . . 17 unless the analyst is unavailable at trial, and the accused had an opportunity, pretrial, to 18 cross-examine the particular scientist.” Bullcoming v. New Mexico, 564 U.S. 647 , 652 19 (2011) (holding that a blood alcohol analysis report was testimonial). The Bullcoming 20 Court determined that “surrogate testimony” contravenes the Confrontation Clause. Id. at 21 661. Surrogate testimony could not convey what the original analyst knew or observed 22 about the events stated in the certificate, nor “could it expose any lapses or lies on the 23 certifying analyst’s part.” Id. The Bullcoming Court concluded: “The accused’s right is to 24 be confronted with the analyst who made the certification.” Id. at 652 . 25 Later, in Williams v. Illinois, five Justices agreed that the admission of expert 26 testimony referring to an out-of-court DNA profile did not violate the Confrontation Clause. — 27 — 567 U.S. 50 (2012). The Court came to no clear consensus as to what constituted a 28 testimonial statement, however, issuing a plurality opinion, two concurrences, and a 2 but that the test results were offered for their truth, whereas in Williams, the report was 3 offered “only for the distinctive and limited purpose of seeing whether it matched 4 something else.” Id. at 69 . As Justice Breyer acknowledged in his concurrence, the Court 5 did not settle how “Confrontation Clause ‘testimonial statement’ requirements apply to 6 crime laboratory reports.” Id. at 92 (Breyer, J., concurring). 7 In Smith v. Arizona, 602 U.S. 779 (2024), a more recent Confrontation Clause case 8 that cannot be considered here,3 the Supreme Court addressed whether testimony by an 9 expert witness would violate the Confrontation Clause if that testimony were based on an 10 absent witness’s report. 602 U.S. at 783 . Smith holds that “when an expert conveys an 11 absent analyst’s statements in support of [the expert’s] opinion, and the statements 12 provide that support only if true, then the statements come into evidence for their truth.” — 13 — Id. The Supreme Court accordingly found that the protections of the Confrontation Clause 14 apply when a substituted analyst offers independent conclusions while conveying the 15 substance of an underlying report. Id. at 803 (“Neither may the state introduce those 16 statements through a surrogate analyst who did not participate in their creation. And 17 nothing changes if the surrogate … presents the out-of-court statements as the basis of 18 his expert opinion.” (citation omitted)). The Court left the question of whether such out of 19 court statements are “testimonial” open for trial courts to decide. Id. at 801-02 . 20 Based on the unsettled nature of the law on what is testimonial, the Court cannot 21 conclude that the Nevada appellate court’s ruling was an objectively unreasonable 22 application of clearly established law as determined by the United States Supreme Court. 23 A federal court cannot grant habeas relief simply because it concludes in its independent 24 judgment that the state court’s decision is incorrect or wrong; rather, the state court’s — 25 — 3Under Supreme Court precedent, a new rule of criminal procedure ordinarily 26 “does not apply retroactively to overturn final convictions on federal collateral review.” Edwards v. Vannoy, 593 U.S. 255, 263 (2021). There are only two exceptions and the 27 opinion in Smith does not fall into either category. Glover acknowledges that Williams “was still good law at the time of the Court of Appeals decision.” (ECF No. 44 at 22.) The 28 holding in Smith is inapplicable to Glover’s collateral attack on his conviction. 2 unreasonable to warrant relief. Lockyer, 538 U.S. at 75 . “The prisoner must show that the 3 state court’s decision is so obviously wrong that its error lies ‘beyond any possibility for 4 fairminded disagreement” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (citing Richter, 562 5 U.S. at 103). As such, if any fairminded jurist could take a different view from the way the 6 state appellate court resolved the claim, habeas corpus relief is not warranted. Richter, — 7 — 562 U.S. at 102 . If all fairminded jurists would agree that the resolution of the claim was 8 “an error well understood and comprehended in existing law,” then relief under § 9 2254(d)(2) is warranted. Parker v. Matthews, 567 U.S. 37, 47 (2012) (citation omitted). 10 The Court emphasized that “even a strong case for relief does not mean the state court’s 11 contrary conclusion was unreasonable.” Richter, 562 U.S. at 102 . 12 As the Nevada Court of Appeals noted, Dr. Corneal used the autopsy report and 13 investigative files to reach her own independent conclusions as to the cause of death and 14 did not testify as to the conclusions of the first medical examiner. Glover makes a good 15 argument that Dr. Corneal “was the surrogate for the findings and opinions contained in 16 Dr. Dutra’s autopsy report.” (ECF No. 44 at 23.) The testimonial nature of an autopsy 17 report has not been specifically evaluated by the Supreme Court. See Meras v. Sisto, 676 18 F.3d 1184 (9th Cir. 2012) (explaining that Crawford did not clearly establish that forensic 19 lab reports reports are testimonial). 20 Based on the unsettled nature of the law on what is testimonial, the Court cannot 21 conclude that the Nevada Court of Appeals’ decision was objectively unreasonable to the 22 extent that the decision is so obviously wrong that its error lies beyond any possibility for 23 fairminded disagreement. Fairminded jurists could, and do, differ from the Nevada 24 appellate court in the resolution of this issue. Thus, the Court denies federal habeas relief 25 for Ground 3. Because reasonable jurists could debate the resolution of this claim, the 26 Court grants a certificate of appealability on Ground 3. 27 D. Ground 4—Conflict of Interest 28 In Ground 4, Glover alleges that trial counsel rendered ineffective assistance 2 representation of Fleming. (ECF No. 23 at 13-14.) 3 1. Additional Background 4 Trial counsel failed to disclose that the public defender’s office had represented 5 Fleming in two criminal cases. Fleming was represented by the public defender’s office 6 in a case where he was convicted of battery domestic violence. Glover argues that “there 7 is reason to believe that, because Glover was connected to Fleming’s family through 8 Angela, he would have been aware of this prior behavior.” (Id. at 14.) Glover asserts that 9 such information may have been used to support a self-defense claim, but that the public 10 defender’s office would have had an ethical obligation to refrain from using any 11 information from Fleming’s prior case. (Id.) 12 The Nevada Court of Appeals held: 13 “Conflict of interest and divided loyalty situations can take many forms, and whether an actual conflict exists must be evaluated on the specific facts of 14 each case. In general, a conflict exists when an attorney is placed in a situation conducive to divided loyalties.” Clark v. State, 108 Nev. 324, 326 , — 15 — 831 P.2d 1374, 1376 (1992) (quoting Smith v. Lockhart, 923 F.2d 1314 , 16 1320 (8th Cir. 1991)). A conflict of interest exists if “counsel ‘actively represented conflicting interests’” and the “conflict of interest adversely 17 affected [the defendant’s] lawyer’s performance.” Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). — 18 — Glover did not allege that his trial counsel was placed in a situation that was — 19 — conducive to divided loyalties. Glover also did not allege that his trial 20 counsel actively represented conflicting interests or that counsel’s performance was adversely affected by the public defender’s office’s 21 previous representation of the deceased victim. Glover’s allegations were thus insufficient to show that his counsel had an actual conflict of interest. 22 Therefore, we conclude the district court did not err in denying this claim without conducting an evidentiary hearing. — 23 — 24 (ECF No. 26-54 at 4-5.) 25 2. Analysis 26 Effective assistance of counsel “includes a right to conflict-free counsel.” United 27 States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995). In order to establish a violation of the 28 Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an — 2 — 446 U.S. 335, 348 (1980). However, until a defendant shows that his counsel actively 3 represented conflicting interests, he has not established the constitutional predicate for 4 his claim of ineffective assistance. Id. If counsel actively represents multiple defendants 5 with conflicting interests, such that an actual conflict adversely affects counsel's 6 performance, prejudice is presumed. See Cuyler, 446 U.S. at 349-50 . However, the 7 Supreme Court has instructed that Cuyler “does not clearly establish, or indeed even 8 support . . . expansive application” of that rule to cases outside the context of multiple 9 concurrent representation. Mickens v. Taylor, 535 U.S. 162, 175 (2002). The presumption 10 of prejudice only applies in the context of representation of multiple clients because of the 11 “high probability of prejudice arising from multiple concurrent representation, and the 12 difficulty of proving that prejudice.” Id. The Nevada appellate court’s rejection of Glover’s 13 claim was neither contrary to nor an objectively unreasonable application of clearly 14 established law as determined by the United States Supreme Court. Glover fails to 15 demonstrate that trial counsel actively represented conflicting interests and that this 16 adversely affected his trial counsel’s performance. Even if Glover could show that trial 17 counsel actively represented conflicting interests, his ineffective assistance claim still 18 could not be successful absent a showing that such conflict adversely affected his 19 counsel’s performance. Glover contends that he could have presented a self-defense 20 theory at trial. Glover’s theory of defense at trial, however, was that he was not the shooter 21 and that the State solely relied on Sutton and Veasley’s testimony which was unreliable. 22 Glover can show no more than a theoretical division of loyalties. See Mickens, 535 U.S. 23 at 171 (2002) (“[O]ur role is not to speculate about counsel’s motives or about the 24 plausibility of other litigation strategies.”). Accordingly, the Court denies federal habeas 25 relief for Ground 4. — 26 — — 27 — — 28 — 2 In Ground 5, Glover alleges that trial counsel rendered ineffective assistance for 3 failure to impeach a critical witness with her inconsistent prior statement in which she told 4 a different story about the shooting than her trial testimony. (ECF No. 23 at 15-22.) 5 1. Additional Background 6 At trial, on cross-examination, Sutton admitted that in a 911 call she had stated 7 that her husband had answered the door and he had been shot. (ECF No. 25-45 at 69.) 8 She acknowledged that an individual was supposed to come over, but she did not know 9 who it was. (Id.) She further admitted that she told the 911 operator that she did not know 10 who shot her husband and that she believed she told the 911 operator that she had been 11 threatened. (Id.) Glover asserts that trial counsel, however, failed to impeach Sutton with 12 her statements made to the detectives on the day of the shooting. 13 During argument outside the presence of the jury, the State argued that Sutton’s 14 statements made to detectives on the day of the shooting (“Statement 1.0”) were 15 inconsistent with her other statements made to detectives (“Statement 2.0) because of 16 Sutton’s knowledge of Glover’s prior convictions, prior murders, multiple acts of violence 17 towards others, and involvement in a gang. (ECF No. 25-44 at 91-92, 95-96.) Following 18 argument, the state district court instructed Sutton and Veasley that they could not 19 mention anything about Glover’s alleged gang membership, prior murder, or that he was 20 previously in prison. (ECF No. 25-45 at 40-41.) 21 During cross-examination, trial counsel questioned Sutton about her prior 22 statement to the detectives. (Id. at 65-83.) Sutton admitted that she made more than one 23 statement, but that she did not remember what she said during Statement 1.0. (Id.) Sutton 24 would not admit that she lied and did not admit telling detectives that Fleming was looking 25 for a “re-up” or “re-cop” of marijuana and that a deal didn’t go through. (Id. at 72.) On 26 redirect, the State asked Sutton whether when she spoke to detectives on the day of the 27 shooting if she believed that Glover committed other acts of violence and she responded 28 affirmatively. (Id. at 90.) The state district court instructed the jury that this testimony could 2 90-91.) 3 Glover argues that trial counsel failed to admit the prior inconsistent statement into 4 evidence, and that trial counsel could have simply read the transcript of the statement. 5 (ECF No. 44 at 34.) Respondents argue that trial counsel strategically questioned Sutton 6 to prevent admission of prior bad act evidence against Glover. (ECF No. 41 at 32.) 7 2. Analysis 8 The Court finds that Ground 5 is not substantial within the meaning of Martinez 9 and that Glover fails to excuse procedural default of this claim. Glover fails to demonstrate 10 that his counsel was deficient under Strickland. “[S]trategic choices made after thorough 11 investigation of law and facts relevant to plausible options are virtually unchallengeable.” 12 Strickland, 466 U.S. at 690 . As evidenced by the record, although counsel did not admit 13 Sutton’s prior inconsistent statement into evidence, trial counsel questioned Sutton 14 regarding the information in Sutton’s prior statement to detectives such that the jury would 15 be aware of her prior statement, and elicited testimony on cross-examination that Sutton 16 previously made a false statement. In addition, trial counsel strategically questioned 17 Sutton to avoid presenting evidence regarding Glover’s prior murder, incarceration, and 18 gang affiliation. Glover fails to overcome the strong presumption that his counsel’s 19 conduct “falls within the wide range of reasonable professional assistance.” Strickland, — 20 — 466 U.S. 689 . 21 Further, in light of the evidence presented against Glover, including Veasley’s 22 testimony and Sutton’s testimony that Glover had threatened her, Glover fails to 23 demonstrate that had counsel successfully admitted Sutton’s prior inconsistent statement 24 into evidence that the outcome of the trial would have been different. Although Sutton’s 25 prior statement was not admitted into evidence, trial counsel nonetheless questioned her 26 on the substance of her prior statements to detectives. Sutton admitted on cross27 examination that she had made a false statement. Accordingly, Glover fails to 28 demonstrate prejudice under Strickland. 2 Strickland, he cannot meet the second prong of the Martinez test, which requires a 3 petitioner to show a reasonable probability that the result of the post-conviction 4 proceedings would have been different absent post-conviction counsel’s deficient 5 performance. See Ramirez, 937 F.3d at 1242 . Glover fails to show cause and prejudice 6 to excuse default of this claim. The Court therefore denies habeas relief for Ground 5. 7 V. CERTIFICATE OF APPEALIBILITY 8 This is a final order adverse to Glover. Rule 11 of the Rules Governing Section 9 2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). 10 Therefore, the Court has sua sponte evaluated the claims within the petition for suitability 11 for the issuance of a COA. See 28 U.S.C. § 2253 (c); Turner v. Calderon, 281 F.3d 851 , 12 864-65 (9th Cir. 2002). Under 28 U.S.C. § 2253 (c)(2), a COA may issue only when the 13 petitioner “has made a substantial showing of the denial of a constitutional right.” With 14 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 15 jurists would find the district court’s assessment of the constitutional claims debatable or 16 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 17 880 , 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 18 could debate (1) whether the petition states a valid claim of the denial of a constitutional 19 right and (2) whether this Court’s procedural ruling was correct. Id. 20 Applying these standards, this Court finds that a certificate of appealability is 21 warranted for Ground 3. Reasonable jurists could debate whether Glover has 22 demonstrated that trial counsel rendered ineffective assistance for failure to object to Dr. 23 Corneal’s testimony based on the autopsy report containing Dr. Dutra’s conclusions as a 24 violation of the Confrontation Clause. The Court finds that a certificate of appealability is 25 not warranted for the remaining grounds. 26 VI. CONCLUSION 27 It is therefore ordered that Petitioner Shawn Glover, Jr.’s First Amended Petition 28 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 23) is denied. 1 It is further ordered that a certificate of appealability is granted for Ground 3 and 2 || denied for the remaining grounds. 3 The Clerk of Court is directed to substitute Jeremy Bean for Respondent William 4 || Reubart, enter judgment, and close this case. 5 DATED THIS 17" Day of September 2025. — 6 — — 7 — — 9 — MIRANDA M. DU 10 UNITED STATES DISTRICT JUDGE — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 23 —