Kelsey v. Baker

— 1 — — 2 — UNITED STATES DISTRICT COURT — 3 — DISTRICT OF NEVADA — 4 — * * * — 5 — ZACHARY KELSEY, Case No. 3:18-cv-00174-MMD-CBC — 6 — Petitioner, ORDER 7 v. — 8 — RENEE BAKER, et al., — 9 — Respondents. — 10 — 11 I. INTRODUCTION 12 This case is a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 13 2254, by Zachary Kelsey, an individual incarcerated in Nevada. The Court will deny 14 Kelsey’s habeas petition, will deny him a certificate of appealability, and will direct the 15 Clerk of the Court to enter judgment accordingly. 16 II. BACKGROUND 17 Kelsey’s conviction is the result of events that occurred in Washoe County on 18 February 5, 2012. In its order affirming Kelsey’s conviction, the Nevada Supreme Court 19 described the crime, as revealed by the evidence at Kelsey’s trial, as follows: 20 40 to 60 young people gathered at the Stead race track for a bonfire party. Tyler DePriest brought Jared Hyde to the party in his Dodge Durango. 21 Towards midnight, a fight broke out between two girls. Taylor Pardick tried to break-up the fight but he was confronted by Jake Graves after he warned 22 one of the girls that he was not afraid to hit her. Pardick did not want to fight with Graves, but several people egged the fight on. — 23 — Robert Schnueringer and Andrue Jefferson were among those 24 encouraging the fight. They identified themselves as belonging to a group called “Twisted Minds” or “TM,” and they both shouted “TM” and urged 25 Pardick to “rep for TM” by fighting Graves. When Pardick refused to fight, Jefferson reached around Graves and struck Pardick several times to get 26 the fight started. Eric Boatman tried to intercede on Pardick’s behalf, but ultimately Graves struck both of them and knocked them to the ground. — 27 — After these fights, Hyde headed towards the Durango. He walked 28 alone and said out loud, “This is bullshit. You just knocked out my best 1 overheard Hyde and confronted him. Although Hyde's hands were held high, like he did not want to fight, Kelsey struck him twice in the head. Kelsey 2 then grabbed Hyde as he fell and kneed him in the head twice. Zach Clough and Michael Opperman seized and restrained Kelsey, but Kelsey continued 3 to yell at Hyde. Evidence was also presented that Kelsey later boasted that the last person he hit had died and that he used brass knuckles on Hyde. — 4 — When Hyde picked himself up, he had blood running from his mouth, 5 his shirt was torn, and he looked distraught. He said to DePriest, “Let's go, let’s get out of here. I just got rocked,” and he continued to move towards 6 the Durango. While Kelsey continued to yell at him, Hyde approached the passenger side of the Durango where he was confronted by Schnueringer 7 and Jefferson. They asked him if he was “still talking smack” and he replied, “No, I’m not, I’m not.” Hyde was scared, about to cry, and did not want to be 8 there. He did not have his arms up and he was not defending himself when Schnueringer punched him in the head. — 9 — Schnueringer delivered a forceful, knockout punch that caused 10 Hyde’s knees to buckle and his body to fall to the ground. Jefferson got in front of Hyde’s face, exclaimed, “You got knocked the fuck out,” and then 11 delivered a similar punch to Hyde’s head. Schnueringer and Jefferson kicked Hyde as he lay on the ground, and Jefferson celebrated by jumping 12 around and saying, “I slept him, I slept him.” When Clifton Fuller checked his friend for a pulse, he felt something at first and then it went away. — 13 — Hyde was not breathing when he arrived at the hospital and efforts 14 to resuscitate him failed. The medical examiner, Dr. Ellen Clark, conducted a forensic autopsy of the body. She determined that the manner of death 15 was homicide and the cause of death was subarachnoid hemorrhage due to blunt force trauma. She found five separate areas of bleeding beneath 16 the scalp surface and testified that these injuries were the result of blunt force trauma and they were consistent with being punched or kicked in the 17 head numerous times. She also testified that the first blow to Hyde’s head could have been the fatal blow, she could not identify one fatal impact site, 18 and, in her opinion, the multiple injuries to different parts of Hyde’s brain were cumulative. Dr. Clark had consulted with Dr. Bennet Omalu during the 19 autopsy. Dr. Omalu is an expert on brain trauma and he testified that each and every one of the blows delivered to Hyde’s head contributed to his 20 death due to the phenomenon of repetitive traumatic brain injury. 21 (Order of Affirmance, Ex. 79 (ECF No. 19-8) at 1-3.) 22 On December 12, 2012, following a jury trial in Nevada’s Second Judicial District 23 Court, in Washoe County, Kelsey was found guilty of murder in the second degree. (See 24 Verdict, Ex. 47 (ECF No. 18-11).) Kelsey was sentenced to a minimum of 10 years to a 25 maximum of 25 years in prison. (See Judgment, Ex. 53 (ECF No. 18-17).) Kelsey 26 appealed, and the Nevada Supreme Court affirmed the judgment on February 27, 2014. 27 (See Order of Affirmance, Ex. 79 (ECF No. 19-8).) The Nevada Supreme Court denied 28 Kelsey a rehearing on April 25, 2014. (See Order Denying Rehearing, Ex. 81 (ECF No. 1 19-10).) The Nevada Supreme Court denied Kelsey en banc reconsideration on July 31, 2 2014. (See Order Denying En Banc Reconsideration, Ex. 85 (ECF No. 19-14).) 3 On September 15, 2014, Kelsey filed a petition for a writ of habeas corpus in the 4 state district court. (See Petition for Writ of Habeas Corpus, Ex. 87 (ECF No. 19-16).) The 5 court appointed counsel for Kelsey, and his petition was supplemented. (See 6 Recommendation and Order for Appointment of Counsel, Ex. 91 (ECF No. 19-20); 7 Supplemental Petition for Writ of Habeas Corpus Post-Conviction, Ex. 92 (ECF No. 198 21).) The court held an evidentiary hearing. (See Transcript of Proceedings, Ex. 115 (ECF 9 No. 20-9).) The court granted one ground of Kelsey’s petition: trial counsel was ineffective 10 for waiving closing argument. (See Order, Ex. 120 (ECF No. 20-15).) The State of Nevada 11 appealed, and the Nevada Court of Appeals reversed the granting of Kelsey’s petition 12 regarding trial counsel’s waiver of closing argument, affirmed the denial of the remaining 13 grounds of Kelsey’s petition and remanded the matter back to the state district court on 14 February 27, 2017. (See Order Affirming in Part, Reversing in Part, and Remanding, Ex. 15 158 (ECF No. 21-17).) The Nevada Supreme Court denied Kelsey’s petition for review. 16 (See Order Denying Petition for Review, Ex. 167 (ECF No. 21-26).) 17 Kelsey then initiated this federal habeas corpus action, pro se, on April 24, 2018. 18 (See Petition for Writ of Habeas Corpus (ECF No. 6).) Kelsey’s petition asserts that his 19 federal constitutional rights were violated due to the following alleged violations: 20 1. Trial counsel failed to give a closing argument. 21 2. Trial counsel failed to consult with or retain an expert regarding the probable 22 cause of the victim’s death. 23 3. Trial counsel failed to interview and present the testimonies of three witnesses. 24 4. Trial counsel failed to object and move for a mistrial when counsel for a co25 defendant injected racist philosophies and vouched for the credibility of a 26 witness. 27 5. Trial counsel failed to move to sever the trial. 28 /// 1 (See Petition for Writ of Habeas Corpus (ECF No. 6).) Respondents filed an answer to 2 Kelsey’s petition on September 4, 2018. (ECF No. 16.) Kelsey did not file a reply. 3 III. DISCUSSION 4 A. Standard of Review — 5 — 28 U.S.C. § 2254 (d) sets forth the standard of review generally applicable in 6 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 7 (“AEDPA”): 8 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 9 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- — 10 — (1) resulted in a decision that was contrary to, or involved an 11 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or — 12 — (2) resulted in a decision that was based on an unreasonable 13 determination of the facts in light of the evidence presented in the State court proceeding. — 14 — 15 A state court decision is contrary to clearly established Supreme Court precedent, within 16 the meaning of 28 U.S.C. § 2254 , “if the state court applies a rule that contradicts the 17 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 18 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 19 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362 , 20 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 21 is an unreasonable application of clearly established Supreme Court precedent within 22 the meaning of 28 U.S.C. § 2254 (d) “if the state court identifies the correct governing 23 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 24 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413 ). 25 “The ‘unreasonable application’ clause requires the state court decision to be more than 26 incorrect or erroneous. The state court’s application of clearly established law must be 27 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10 ) (internal citation 28 omitted). 1 The Supreme Court has instructed that “[a] state court’s determination that a 2 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 3 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 4 U.S. 86 , 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 5 Supreme Court has stated “that even a strong case for relief does not mean the state 6 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 7 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 8 a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, 9 which demands that state-court decisions be given the benefit of the doubt” (internal 10 quotation marks and citations omitted)). 11 B. Ineffective Assistance to Counsel 12 In Grounds 1 through 5, Kelsey claims that his federal constitutional rights were 13 violated. (Petition for Writ of Habeas Corpus (ECF No. 6).) In Ground 1, Kelsey claims 14 that his trial counsel, Mr. Scott Edwards, Esq. (hereinafter Edwards), was prejudicially 15 ineffective in waiving closing arguments. (Id. at 19.) In Ground 2, Kelsey claims that 16 Edwards was prejudicially ineffective in failing to consult with or retain an expert to give 17 an exculpatory medical opinion regarding the probable cause of the victim’s death. (Id. at 18 24.) In Ground 3, Kelsey claims that Edwards was prejudicially ineffective in failing to 19 interview and present the testimonies of three witnesses in order to corroborate his 20 testimony and impeach the testimony of an adverse witness. (Id. at 29.) In Ground 4, 21 Kelsey claims that Edwards was prejudicially ineffective in failing to object and move for 22 a mistrial when one of his co-defendant’s counsel injected racist philosophies into his 23 cross-examination of Kelsey and vouched for the credibility of a witness. (Id. at 33.) And, 24 in Ground 5, Kelsey claims that Edwards was prejudicially ineffective in failing to move to 25 sever his trial from his co-defendants’ trials once his co-defendant announced his theory 26 of the case during opening statements. (Id. at 37.) 27 These grounds were raised on the appeal in Kelsey’s state habeas action. (See 28 Supplemental Petition for Writ of Habeas Corpus Post-Conviction, Ex. 92 (ECF No. 191 21).) The Nevada Court of Appeals reversed the granting of Kelsey’s petition regarding 2 Edwards’s waiver of closing argument, and it affirmed the denial of the remainder of 3 Kelsey’s petition. (See Order Affirming in Part, Reversing in Part, and Remanding, Ex. 4 158 (ECF No. 21-17).) The Court finds that the ruling of the Nevada Court of Appeals was 5 reasonable. 6 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 7 analysis of claims of ineffective assistance of counsel requiring the petitioner to 8 demonstrate (1) that the attorney’s “representation fell below an objective standard of 9 reasonableness,” and (2) that the attorney’s deficient performance prejudiced the 10 defendant such that “there is a reasonable probability that, but for counsel’s 11 unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 12 668, 688, 694 (1984). A court considering a claim of ineffective assistance of counsel 13 must apply a “strong presumption that counsel’s conduct falls within the wide range of 14 reasonable professional assistance.” Id. at 689. The petitioner’s burden is to show “that 15 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 16 guaranteed the defendant by the Sixth Amendment.” Id. at 687. And, to establish 17 prejudice under Strickland, it is not enough for the habeas petitioner “to show that the 18 errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. In 19 analyzing a claim of ineffective assistance of counsel under Strickland, a court may first 20 consider either the question of deficient performance or the question of prejudice; if the 21 petitioner fails to satisfy one element of the claim, the court need not consider the other. 22 See id. at 697. 23 1. Ground 1 24 In Ground 1, Kelsey claims that Edwards failed to give a closing argument in 25 violation of his federal constitutional rights. (Petition for Writ of Habeas Corpus (ECF No. 26 6) at 19.) Kelsey argues that Edwards could have explained to the jury that he was only 27 guilty of misdemeanor battery or involuntary manslaughter and that his involvement in the 28 fight was not the proximate cause of the victim’s death. (Id.) Respondents assert that 1 Edwards strategically waived closing arguments and made his theory of the case clear 2 during opening statements and during Kelsey’s testimony. (Answer (ECF No. 16) at 8-9.) 3 On the appeal in Kelsey’s state habeas action, the Nevada Court of Appeals 4 reasoned that Edwards “testified he decided to waive closing argument because he did 5 not believe the State’s closing argument was very vigorous and believed the State’s 6 rebuttal closing argument would be much more persuasive.” (Order Affirming in Part, 7 Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17) at 2.) Accordingly, the 8 Nevada Court of Appeals ruled that “[w]hile the choice to forgo closing argument may not 9 have been the best option, it was a tactical decision and did not place counsel’s 10 representation ‘outside the wide range of professionally competent assistance.’” (Id. at 3 11 (quoting Strickland, 466 U.S. at 690-91).) 12 Edwards waived closing argument at the trial. (Transcript of Proceedings, Ex. 49 13 (ECF No. 18-13) at 2045.) During the post-conviction evidentiary hearing, Edwards 14 testified that his theory of defense was that Kelsey “was guilty at best of the lesser 15 included offense of simple battery” and that Kelsey was not the proximate cause of the 16 victim’s death. (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 176-77.) Edwards 17 testified that by waiving his closing argument, he gave up the opportunity to address the 18 jury regarding proximate causation, misdemeanor battery, and involuntary manslaughter. 19 (Id. at 200.) However, Edwards testified that the decision was made because he and 20 counsel for the two co-defendants “didn’t want Mr. Hall, the number one prosecutor, to 21 come in with an argument that made a first degree [sic] murder conviction a possibility at 22 all.” (Id. at 193, 197.) Edwards explained that he made the decision to waive closing 23 argument “after Ms. Halstead’s opening close” because “it wasn’t the most vigorous 24 closing argument [he] had ever seen in a prosecution.” (Id. at 230.) Conversely, Edwards 25 explained that he would characterize Mr. Hall’s closing arguments as being more 26 vigorous. (Id. at 231.) Edwards, however, did testify that Kelsey’s trial was the first time 27 he had ever waived a closing argument and that “[i]t might be the last.” (Id. at 243.) 28 /// 1 The state district court granted Kelsey’s petition for a writ of habeas corpus 2 regarding this ground only. (See Order, Ex. 120 (ECF No. 20-15).) The state district court 3 based its decision, partly, on the fact that “Edwards failed to present [Kelsey’s] theory of 4 defense to the jury by waiving closing argument.” (Id. at 7). Due to the allegedly distinctive 5 roles the two co-defendants played in the victim’s death as compared to the role Kelsey 6 played, it seems sensible that Edwards would have taken the opportunity to present a 7 closing argument in order to highlight the fact that Kelsey’s actions towards the victim 8 occurred prior in time to the, arguably, more severe beating the victim received from the 9 co-defendants. Further, similar to his opening statement, Edwards could have asked the 10 jury to find Kelsey guilty of involuntary manslaughter or misdemeanor battery instead of 11 murder. (See Transcript of Proceedings, Ex. 37 (ECF No. 18-1) at 303 (explaining that 12 “[t]he evidence won’t show you that [the victim] met his demise at the hands of Zach 13 Kelsey”), 304 (explaining that “Zach Kelsey was separated from [the victim] and his death. 14 He was separated by distance, perhaps a hundred feet. He was separated in time from 15 the actions that accused the death of [the victim]”), 305 (explaining that “[t]his is not a 16 murder case, at least from Zach Kelsey’s perspective”).) 17 While Edwards’s decision to forgo closing argument may be unexpected given the 18 facts of the case, “[j]udicial review of a defense attorney’s summation is . . . highly 19 deferential-and doubly deferential when it is conducted through the lens of federal 20 habeas.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003). In fact, “counsel has wide latitude 21 in deciding how best to represent a client, and deference to counsel’s tactical decisions 22 in his closing presentation is particularly important because of the broad range of 23 legitimate defense strategy at that stage.” Id. at 5-6 (internal citations omitted). 24 Edwards testified that he waived closing argument due to his belief that Mr. Hall 25 would give a vigorous surrebutter whereby he may ask the jury to find Kelsey guilty of 26 first-degree murder. (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 193, 197, 27 231.) Similarly, defense counsel in Bell v. Cone had two options: he could give a closing 28 argument and, thus, “give the lead prosecutor, who all agreed was very persuasive, the 1 chance to depict his client as a heartless killer just before the jurors began deliberation” 2 or he “could prevent the lead prosecutor from arguing by waiving his own summation and 3 relying on the jurors’ familiarity with the case and his opening plea.” 535 U.S. 685 , 7014 02 (2002). In Bell, it was held that “[n]either option . . . so clearly outweigh[ed] the other.” — 5 — Id. at 702 . Accordingly, because Edwards’s rationale for waiving closing argument was 6 based on sound logic, his actions did not “f[a]ll below an objective standard of 7 reasonableness,” and as such, there is no need to determine whether Kelsey was 8 prejudiced. Strickland, 466 U.S. at 688, 697. Thus, the Nevada Court of Appeals’ ruling 9 that Edwards’s waiver of closing argument was a tactical decision (see Order Affirming in 10 Part, Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17) at 3), was not contrary 11 to, or an unreasonable application of, clearly established federal law, as determined by 12 the Supreme Court, and was not based on an unreasonable determination of the facts in 13 light of the evidence. See 28 U.S.C. § 2254 (d). The Court will deny Kelsey habeas corpus 14 relief with respect to Ground 1.1 15 2. Ground 2 16 In Ground 2, Kelsey claims that Edwards failed to consult and retain a medical 17 expert to give a contrary opinion regarding the cause of the victim’s death in violation of 18 his federal constitutional rights. (Petition for Writ of Habeas Corpus (ECF No. 6) at 24.) 19 Kelsey explains that Amy Llewellyn, M.D. could have testified at his trial that the victim’s 20 injuries were consistent with the second attack by his co-defendants. (Id. at 25-26.) 21 Respondents argue that Dr. Llewellyn’s testimony at the post-conviction hearing was not 22 definitive, as she testified that she could not rule out the possibility that Kelsey’s punches 23 attributed to the victim’s death. (Answer (ECF No. 16) at 11.) Respondents also argue 24 that counsel is not required “to shop for experts.” (Id. at 12.) 25 /// 26 1Kelsey also argues that the district court’s factual findings regarding claims of ineffective assistance of counsel are entitled to deference, but the Nevada Court of 27 Appeals failed to follow this standard. (Petition for Writ of Habeas Corpus (ECF No. 6) at 24.) While it is true that deference is given to the district court’s factual findings, the district 28 court’s application of the law to those facts is reviewed de novo. Lott v. Mueller, 304 F.3d 1 On the appeal in Kelsey’s state habeas action, the Nevada Court of Appeals held 2 that substantial evidence supports the district court’s decision that — 3 — Kelsey failed to demonstrate a reasonable probability of a different 4 outcome at trial had counsel presented an expert because the expert presented at the evidentiary hearing could not establish which arteries 5 caused the hemorrhaging in the victim’s brain and her testimony could not be differentiated from that of the experts presented by the State at trial. — 6 — 7 (Order Affirming in Part, Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17) at 8 4.) 9 Ellen Clark, M.D., the chief medical examiner and coroner for Washoe County, 10 testified at Kelsey’s trial. (Transcript of Proceedings, Ex. 37 (ECF No. 18-1) at 450-51.) 11 Dr. Clark testified that “[t]he cause of death was bleeding into the brain specifically 12 referred to as subarachnoid hemorrhage that is bleeding over the surfaces of the brain 13 and the spinal cord as a consequence or due to blunt force trauma.” (Id. at 455.) Dr. Clark 14 explained that a single blow to the head can cause tearing of the veins and arteries that 15 supply blood to the brain and that, potentially, additional blows to the head can exacerbate 16 those tears. (Id. at 464.) Dr. Clark further explained that “there were multiple injuries to 17 different parts of [the victim’s] brain” such that she “cannot identify one fatal impact site” 18 because “based upon the cumulative effect or the compounding injury, any and all of the 19 blows may have contributed to causing death.” (Id. at 475, 496.) 20 Bennet Omalu, M.D. testified as an expert witness for the state at Kelsey’s trial. 21 (Transcript of Proceedings, Ex. 44 (ECF No. 18-8) at 4.) Dr. Clark consulted with Dr. 22 Omalu in order to provide his opinion regarding the victim’s cause of death. (Id. at 15.) 23 Dr. Omalu testified about the “phenomenon of repetitive traumatic brain injury.” (Id. at 28.) 24 This phenomenon provides that “each and every repeated blow accentuates the totality 25 of all the blows” such that it cannot be determined “which blow was the fatal blow.” (Id.) 26 Dr. Omalu further testified that each hit to the victim cannot be isolated, so he must 27 conclude that “each and every blow contributed to his death.” (Id. at 29.) 28 /// 1 Edwards did not call an expert witness to rebut the testimony of Dr. Clark and Dr. 2 Omalu. (See Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 212 (showing that 3 Edwards only called Kelsey as a witness).) Edwards testified at the post-conviction 4 hearing that he “did not contact a forensic pathologist as an expert witness” in developing 5 his theory of defense. (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 178.) 6 Instead, Edwards explained that he spoke to counsel for one of the co-defendants, Mr. 7 John Ohlson, Esq. (“Ohlson”) about an expert that Ohlson had contacted and that 8 Ohlson’s expert could not contradict Dr. Clark’s or Dr. Omalu’s findings. (Id. at 181.) 9 Dr. Llewellyn testified at Kelsey’s post-conviction hearing. (Transcript of 10 Proceedings, Ex. 115 (ECF No. 20-9) at 23.) Dr. Llewellyn testified that it is possible that 11 Kelsey’s blows to the victim’s face were the cause of the victim’s death (id. at 30-31) and 12 that she could not determine whether the victim’s brain was bleeding following Kelsey’s 13 assault on the victim (id. at 64-65). However, Dr. Llewellyn further testified that it is “more 14 probable” that the disruption of the victim’s blood vessels was due to the actions of 15 Kelsey’s co-defendants if the facts are that, following Kelsey’s punching of the victim on 16 two or three occasions, that Kelsey’s co-defendants blindsided the victim and then 17 repeatedly kicked him in the head. (Id. at 33; see also id. at 42-43 (testifying that “it’s 18 much more probable that most, if not all, injuries were from the second assault”).) 19 Consistent with her testimony at trial, Dr. Clark testified at Kelsey’s post-conviction 20 hearing that she “cannot exclude the initial fight or the initial exchange of blows involving 21 [Kelsey] today from causing severe and potentially lethal injury to the [victim’s] brain.” (Id. 22 at 71.) Dr. Clark also consistently testified that Kelsey’s blows to the victim’s head could 23 have caused tearing that was exacerbated by the subsequent attack and that Kelsey’s 24 blows to the victim’s head, even if they were less severe than the blows delivered by the 25 co-defendants, could have caused the victim’s brain to bleed. (Id. at 72-73, 85.) 26 Dr. Llewelyn testified that it is “more probable” that the victim’s death was caused 27 by the assault committed by the co-defendants. This testimony differs from the testimony 28 given at trial by Dr. Clark and Dr. Omalu, namely, that each blow delivered by the three 1 defendants contributed to the victim’s death. Importantly, however, Dr. Llewelyn also 2 testified that it is possible that Kelsey caused the victim’s death. Therefore, even if 3 Edwards’s “representation fell below an objective standard of reasonableness” due to his 4 failure to attempt to contact an expert pathologist and his reliance on the representations 5 of a co-defendant’s counsel (who was presenting a contradictory defense—that a defense 6 expert was unobtainable), Dr. Llewelyn’s admission that Kelsey possibly caused the 7 victim’s death demonstrates that there is not a reasonable probability that but for 8 Edwards’s failure to contact an expert witness, the result of Kelsey’s trial would have been 9 different. Strickland, 466 U.S. at 688, 694; see also Williams v. Thaler, 684 F.3d 597 (5th 10 Cir. 2012) (holding that trial counsel’s failure to obtain independent ballistic or forensic 11 evidence was deficient but not prejudicial under the deferential AEDPA standard); cf. 12 Harrington v. Richter, 562 U.S. 86, 111 (2011) (“Strickland does not enact Newton’s third 13 law for the presentation of evidence, requiring for every prosecution expert an equal and 14 opposite expert from the defense.”); cf. Dees v. Caspiri, 904 F.2d 452, 454 (8th Cir. 1990) 15 (“[W]e have never suggested counsel must continue looking for experts just because the 16 one he has consulted gave an unfavorable opinion.”). Accordingly, the state court’s ruling 17 that “Kelsey failed to demonstrate a reasonable probability of a different outcome at trial 18 had counsel presented an expert” (Order Affirming in Part, Reversing in Part, and 19 Remanding, Ex. 158 (ECF No. 21-17) at 4) was not contrary to, or an unreasonable 20 application of, clearly established federal law, as determined by the Supreme Court, and 21 was not based on an unreasonable determination of the facts in light of the evidence. See — 22 — 28 U.S.C. § 2254 (d). The Court will deny Kelsey habeas corpus relief with respect to 23 Ground 2. 24 3. Ground 3 25 In Ground 3, Kelsey claims that his federal constitutional rights were violated when 26 Edwards failed to call three witnesses—Zach Zac Clough, Taylor Cornelison, and 27 Stephen Laudenslager—who would have corroborated his testimony and impeached the 28 testimony of Michael Opperman. (Petition for Writ of Habeas Corpus (ECF No. 6) at 29.) 1 Specifically, Kelsey argues that the testimony of these three witnesses would have proven 2 that he did not act with implied malice and that he was not the proximate cause of the 3 victim’s death. (Id. at 30.) Respondents argue that these three witnesses did not disclose 4 their knowledge of the fight between Kelsey and the victim to police officers and that they 5 would have only provided cumulative testimony. (Answer (ECF No. 16) at 14.) 6 On the appeal in Kelsey’s state habeas action, the Nevada Court of Appeals found 7 no deficiency or prejudice. (Order Affirming in Part, Reversing in Part, and Remanding, 8 Ex. 158 (ECF No. 21-17) at 4.) The Nevada Court of Appeals reasoned that the testimony 9 of these witnesses was duplicative and that “[a]t the evidentiary hearing, evidence was 10 adduced that these three witnesses, while they gave statements to the police, never told 11 the police they had witnessed this particular fight at the party” so “it was reasonable for 12 counsel not to have sought to interview these witnesses.” (Id. at 5.) 13 Edwards testified at the post-conviction hearing that he had forty plus witness 14 statements and that — 15 — from a fair reading of what they had to say, [he] had a picture of who was 16 going to be coming and who was going to be testifying and what they were going to say. So [he] didn’t call everybody; [he] didn’t interview everybody. 17 The police had done that. [He] had no reason to believe what they had told the investigating officers was untrue. — 18 — 19 (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 217-18.) Edwards also testified 20 that if one of the witnesses had said “something particularly necessary” during his or her 21 interview with the sheriff’s office, then he would have subpoenaed him or her as a witness 22 and that if he did not subpoena a witness, it is “safe to assume that [he] evaluated [that 23 person’s] statement and didn’t see anything in there that was particularly helpful.” (Id. at 24 224-25.) Edwards further explained that he and Kelsey “went through the witnesses and 25 talked about the people that were out there and what the trial would look like and who 26 was saying what before trial” and that “sometimes it’s not very useful at all to send an 27 investigator, especially with 43 juveniles in high school.” (Id. at 229, 240.) 28 /// 1 At the post-conviction hearing, Clough, Cornelison, and Laudenslager testified that 2 they were never interviewed by a defense investigator prior to trial. (Transcript of 3 Proceedings, Ex. 115 (ECF No. 20-9) at 87, 107, 131.) And although Clough testified 4 that he told a detective from the Washoe County Sheriff’s Office that Kelsey and the victim 5 were fighting, Cornelison testified that she never told the detectives that she saw the fight 6 between Kelsey and the victim. (Id. at 101-02, 124.) 7 Clough and Cornelison both testified about the altercation between Kelsey and the 8 victim, and both testified that Kelsey was not wearing brass knuckles. (Id. at 98, 114.) 9 Although he admitted to not knowing the victim, Clough testified that Kelsey and the victim 10 were standing and “kind of wrestling around” and had both “gotten their shirts caught up 11 over their heads where they couldn’t see anything.” (Id. at 95, 101-02.) Clough also 12 testified that he saw Kelsey strike the victim twice, that he never saw Kelsey “put his knee 13 into [the victim’s] body,” that the altercation only lasted 20 seconds, that there was no 14 winner of the fight, and that the victim walked away from the fight normally. (Id. at 97, 99.) 15 Cornelison testified that she saw Kelsey hit the victim once and knee him on his body 16 once, that the fight lasted “no longer than 30 seconds,” and that the victim walked away 17 from the fight normally. (Id. at 115-118.) Although he did not witness the fight between 18 Kelsey and the victim, Laudenslager testified that he saw the victim walking before he 19 was attacked by the co-defendants and that he was walking “perfectly fine.” (Id. at 13820 39.) 21 Interestingly, Clough’s, Cornelison’s, and Laudenslager’s testimonies are similar 22 to the testimony given by the state’s main witness against Kelsey, Michael Opperman. 23 During the state’s direct examination, Opperman testified that Kelsey hit the victim twice 24 in the head, and “then as [the victim] was going down, [Kelsey] grabbed his head and 25 kneed him twice in the head.” (Transcript of Proceedings, Ex. 38 (ECF No. 18-2) at 783.) 26 However, during his cross-examination by Edwards, Opperman testified that Kelsey 27 “started shoving [the victim] and then [Kelsey] pulled him over, didn’t hit him in the head, 28 though, he kind of just grabbed him and then he threw his right, left, right and then 1 grabbed his head and kneed him twice” somewhere from the neck up. (Transcript of 2 Proceedings, Ex. 39 (ECF No. 18-3) at 938-39.) Opperman also answered in the 3 affirmative when asked if the victim “popped right back up” after his fight with Kelsey. (Id. 4 at 942.) With regard to brass knuckles, Opperman testified that he never saw Kelsey with 5 brass knuckles the evening of the fight and that he was “not a hundred percent sure that 6 [Kelsey] had said that he had the brass knuckles on him” that evening. (Id. at 906.) 7 Although Kelsey argues that Clough’s, Cornelison’s, and Laudenslager’s 8 testimonies would have impeached the testimony of Opperman, that argument is not 9 supported by the facts in the record, as their testimonies were substantially similar. 10 Clough testified that Kelsey hit the victim twice; Cornelison testified that Kelsey hit the 11 victim once and kneed him in his body; and Opperman testified that Kelsey hit the victim 12 twice and kneed him twice somewhere from his neck up. Further, Clough, Cornelison, 13 Laudenslager, and Opperman all testified that the victim was able to walk away from his 14 fight with Kelsey, and Clough, Cornelison, and Opperman all testified that they did not 15 see Kelsey wearing brass knuckles the night of the fight. Accordingly, Clough’s, 16 Cornelison’s, and Laudenslager’s testimonies would not have been significant, and, in 17 fact, would have been cumulative. See United States v. Balzano, 916 F.2d 1273 , 1294 18 (7th Cir. 1990) (“The Constitution does not oblige counsel to present each and every 19 witness that is suggested to him. In fact, such tactics would be considered dilatory unless 20 the attorney and the court believe the witness will add competent, admissible and non21 cumulative testimony to the trial record.”); cf. Minner v. Kerby, 30 F.3d 1311, 1317 (10th 22 Cir. 1994) (“[T]he decision of what witnesses to call is a tactical one within the trial 23 counsel’s discretion.”). Importantly, Clough’s, Cornelison’s, and Laudenslager’s 24 testimonies also do not substantially corroborate Kelsey’s testimony, as Kelsey testified 25 that he had to kick the victim off him during the altercation. (See Trial Transcript, Ex. 45 26 (ECF No. 18-9) at 1798 (“[The victim] came forward with his fists balled up. I punched him 27 twice. He ended up grabbing my shirt. When he grabbed my shirt I tried to kick him off of 28 me. That didn’t work. I actually ended up losing my balance and I was falling over. I tried 1 it a second time and the same thing happened. So I ended up just leaning back and 2 putting my weight into putting him off of me and when I did that he pulled my shirt over 3 my head.”).) 4 Moreover, “trial counsel [is] not bound by an inflexible constitutional command to 5 interview every possible witness;” rather, “counsel [is] simply required to exercise 6 reasonable professional judgment in deciding” who to interview. Lewis v. Mazurkiewicz, — 7 — 915 F.2d 106, 113 (3d Cir. 1990); see also Strickland, 466 U.S. at 691 (1984) (“[C]ounsel 8 has a duty to make reasonable investigations or to make a reasonable decision that 9 makes particular investigations unnecessary. In any ineffectiveness case, a particular 10 decision not to investigate must be directly assessed for reasonableness in all the 11 circumstances, applying a heavy measure of deference to counsel’s judgments”). 12 Edwards testified that he reviewed the 40 statements obtained from the police and did 13 not seek to interview witnesses himself unless they had provided relevant information in 14 their statements. Due to the large number of partygoers and, thus, witnesses in this case, 15 it was reasonable for Edwards to have relied on the police statements and to have forgone 16 unnecessary investigations into other witnesses. Accordingly, because Edwards 17 exercised his professional judgment in deciding to only interview potentially favorable 18 witnesses and because the additional three witnesses’ testimonies were not favorable to 19 Kelsey’s defense, Edwards’s actions did not “f[a]ll below an objective standard of 20 reasonableness.” Strickland, 466 U.S. at 688. Thus, the state court’s ruling on this ground 21 was not contrary to, or an unreasonable application of, clearly established federal law, as 22 determined by the Supreme Court, and was not based on an unreasonable determination 23 of the facts in light of the evidence. See 28 U.S.C. § 2254 (d). The Court will deny Kelsey 24 habeas corpus relief with respect to Ground 3. 25 4. Ground 4 26 In Ground 4, Kelsey claims that his federal constitutional rights were violated when 27 Edwards failed to object and move for a mistrial when Ohlson injected racist philosophies 28 during his cross-examination of Kelsey and vouched for the credibility of Dr. Clark. 1 (Petition for Writ of Habeas Corpus (ECF No. 6) at 34.) Respondents assert that it was a 2 tactical decision by Edwards not to object to the two instances of alleged misconduct. 3 (Answer (ECF No. 16) at 16-17.) 4 On the appeal in Kelsey’s state habeas action, the Nevada Court of Appeals found 5 no deficiency regarding either alleged instance of misconduct. (Order Affirming in Part, 6 Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17) at 5.) Regarding the 7 comments about being a member of a racist group, the Nevada Court of Appeals held 8 that Kelsey “failed to demonstrate counsel was deficient because this was a tactical 9 decision by counsel” and “also failed to demonstrate resulting prejudice because the jury 10 was instructed the statements and questions of attorneys are not evidence.” (Id.) 11 Regarding the vouching argument, the Nevada Court of Appeals held that “Kelsey failed 12 to demonstrate counsel was deficient or resulting prejudice” because “Kelsey failed to 13 demonstrate this statement was vouching . . . or that it was a comment on the veracity of 14 the witness.” (Id. at 6.) 15 During his direct examination at trial, Kelsey explained that he belonged to a group 16 known as “straight edge.” (Trial Transcript, Ex. 45 (ECF No. 18-9) at 1775.) Kelsey 17 explained that “straight edge” is “a lifestyle” where individuals do not drink alcohol, do not 18 use drugs, and listen to hard-core punk music. (Id.) During his cross-examination of 19 Kelsey, the following exchange took place: — 20 — Q Straight edge used to be associated with the neo-Nazis, didn’t 21 they? A No. 22 Q They did, son. Did you know that? A No, I didn’t know that. 23 Q Part of the culture used to be fighting; did you know that? A No, I didn’t know that. — 24 — Q They used to shave their heads; did you know that? 25 A I don’t have a shaved head. Does that mean I’m not straight edge? — 26 — 27 (Id. at 1880, 1902.) Edwards did not object. (See id.) During the post-conviction hearing, 28 Edwards was asked if he thought to object to Ohlson’s discussion about neo-Nazis. 1 (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 192.) Edwards testified that “[i]t 2 crossed [his] mind. It shocked [him]. It wasn’t very enduring, you know, it went on. And 3 Mr. Kelsey was able to, you know, disabuse that notion about Straight Edge in his own 4 testimony.” (Id.) Edwards also testified that “[Ohlson] moved on from it from [sic] pretty 5 quickly, and Mr. Kelsey defended himself I thought adequately. I didn’t want a limiting 6 instruction or something that would bring more attention to it than already had been.” (Id. 7 at 193.) Edwards also stated that he did not think that the jury believed Kelsey was a 8 Nazi. (Id. at 233.) 9 “An attorney’s failure to object to the admission of inadmissible evidence is not 10 necessarily ineffective.” Morris v. California, 966 F.2d 448, 456 (9th Cir. 1991) (“We need 11 not determine the actual explanation for trial counsel’s failure to object, so long as his 12 failure to do so falls within the range of reasonable representation.”). Assuming Ohlson’s 13 comments about neo-Nazis was inadmissible, it was not unreasonable for Edwards not 14 to have objected. Because the record supports Edwards’s beliefs that Ohlson moved on 15 from the exchange quickly and that Kelsey defended himself adequately, Edwards’s 16 actions did not “f[a]ll below an objective standard of reasonableness,” and as such, there 17 is no need to determine whether Kelsey was prejudiced. Strickland, 466 U.S. at 688, 697. 18 Therefore, the state court’s ruling that the lack of an objection was a tactical decision by 19 counsel was not contrary to, or an unreasonable application of, clearly established federal 20 law, as determined by the Supreme Court, and was not based on an unreasonable 21 determination of the facts in light of the evidence. See 28 U.S.C. § 2254 (d). 22 Turning to Kelsey’s argument that Ohlson vouched for a witness, at the conclusion 23 of his cross-examination of Dr. Clark, Ohlson stated, “[t]hank you, Doctor. You remain as 24 brilliant as usual.” (Transcript of Proceedings, Ex. 37 (ECF No. 18-1) at 488.) Edwards 25 testified at the post-conviction hearing that he did not distinctly remember this comment. 26 (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 203.) However, Edwards explained 27 that he did not object because “[t]hat’s Mr. Ohlson’s style” and he did not “consider that 28 [Ohlson’s] comment might be a form of vouching for the witness.” (Id. at 203-04.) Edwards 1 also explained that he did not feel that Ohlson’s comment prejudiced Kelsey and that it 2 was simply “a polite ending to [Ohlson’s] examination.” (Id. at 232.) 3 “Vouching consists of placing the prestige of the government behind a witness 4 through personal assurances of the witness’s veracity, or suggesting that information not 5 presented to the jury supports the witness’s testimony.” United States v. Necoechea, 986 6 F.2d 1273 , 1276 (9th Cir. 1993). Several factors are assessed in determining whether 7 there was improper vouching: — 8 — the form of vouching; how much the vouching implies that the prosecutor 9 has extra-record knowledge of or the capacity to monitor the witness’s truthfulness; any inference that the court is monitoring the witness’s 10 veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the 11 specificity and timing of a curative instruction; the importance of the witness’s testimony and the vouching to the case overall. — 12 — — 13 — Id. at 1278 . Importantly, Kelsey is not alleging improper vouching on the part of the 14 prosecutor; rather, his contention concerns a comment made by counsel for a co15 defendant. “Although . . . no lawyer, either public or private, should lay his or her own 16 credibility on the line by expressing his or her own opinion about a witness’ believability, 17 the difference is that a private lawyer’s impropriety in that respect carries no implication 18 of official governmental support.” U.S. v. Weatherspoon, 410 F.3d 1142, 1148 (9th Cir. 19 2005). Therefore, “the ethical bar is set higher for the prosecutor than for the criminal 20 defense lawyer.” Id. 21 Ohlson’s comment describing Dr. Clark as “brilliant” amounts to an assertion of his 22 personal opinion. However, this was a single statement made at the end of his cross23 examination of the witness. See United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 24 2005) (holding that a single improper statement did not materially affect the verdict). 25 Because the degree and extent of the comment were minimal, it cannot be determined 26 that it rises to the level of improper vouching. As Edwards testified, Ohlson’s comment 27 appears to be a polite ending to his examination. Accordingly, as there was no improper 28 vouching, Edwards’s lack of an objection did not “f[a]ll below an objective standard of 1 reasonableness,” and there was no prejudice to Kelsey. Strickland, 466 U.S. at 688, 694. 2 Thus, the state court’s ruling was not contrary to, or an unreasonable application of, 3 clearly established federal law, as determined by the Supreme Court, and was not based 4 on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 5 2254(d). The Court will deny Kelsey habeas corpus relief with respect to Ground 4. 6 5. Ground 5 7 In Ground 5, Kelsey claims that Edwards failed to move to sever the trial in violation 8 of his federal constitutional rights. (Petition for Writ of Habeas Corpus (ECF No. 6) at 37.) 9 Kelsey argues that his defense was mutually antagonistic from that of his co-defendants: 10 Kelsey merely committed a misdemeanor battery against the victim while the co11 defendants killed him compared to Kelsey killing the victim and the co-defendants merely 12 battering a dead person. (Id. at 39.) Respondents assert that judicial policies do not favor 13 severing trials of defendants who have been charged with committing the same crime, 14 that the jury was not forced to choose between convicting the co-defendants or Kelsey, 15 and that there was nothing preventing the state from presenting the same argument 16 presented by Ohlson. (Answer (ECF No. 16) at 18-19.) 17 On the appeal in Kelsey’s state habeas action, the Nevada Court of Appeals 18 determined that “[w]hile we agree the defenses in this case were antagonistic, Kelsey 19 failed to demonstrate the joint trial compromised a specific trial right or prevented the jury 20 from making a reliable judgment regarding guilt or innocence.” (Order Affirming in Part, 21 Reversing in Part, and Remanding, Ex. 158 (ECF No. 21-17) at 6-7.) 22 Unlike the other attorneys involved in the trial who gave their opening statements 23 at the commencement of the trial, Ohlson, who represented co-defendant Robert 24 Schnueringer, gave his opening statement prior to presenting his case-in-chief. 25 (Transcript of Proceedings, Ex. 41 (ECF No. 18-5) at 1675.) During his opening 26 statement, it appears that Schnueringer’s defense centered around attributing the victim’s 27 death to Kelsey. Ohlson discussed the fact that he asked Dr. Clark whether two of the 28 marks on the victim “were consistent with someone hitting [him] wearing brass knuckles” 1 and that Opperman testified “that he encountered Zach Kelsey at the party and that he 2 had a conversation with Zach Kelsey and that Zach Kelsey told him, ‘I got a new pair of 3 brass knuckles.’” (Id. at 1676-77.) He also explained that Dr. Omalu testified that the 4 victim’s injuries were not injuries that would have caused him to die immediately. (Id. at 5 1677.) Following his opening statement, Ohlson called three witnesses, Aaron Simpson, 6 Zachary Fallen, and Zachary Smith. Simpson, Fallen, and Smith all testified that they 7 attended a gathering where Kelsey was present. (Id. at 1680, 1710-11, 1725.) At the 8 gathering, Kelsey stated that the last person he hit died and that he had used brass 9 knuckles in that fight. (Id. at 1682, 1711, 1727.) 10 Edwards testified at the post-conviction hearing that he did not “think from [his] 11 pretrial meetings that Mr. Ohlson was going to present a defense that would . . . put the 12 blame solely on Mr. Kelsey.” (Transcript of Proceedings, Ex. 115 (ECF No. 20-9) at 188.) 13 However, it “somewhat” occurred to Edwards that Ohlson “was running a defense pointing 14 the finger at Mr. Kelsey” when Ohlson presented his opening statement. (Id. at 189.) 15 Edwards testified that he did not “consider moving to sever the trials . . . when Mr. Ohlson 16 gave his opening statement” because it did not occur to him that the co-defendants were 17 using inconsistent defenses and that a severance was necessary. (Id. at 191, 221; see 18 also id. at 236 (testifying that he “didn’t figure that [Ohlson’s statement] was so 19 antagonistic that it would warrant separate trials”).) 20 Kelsey’s argument that his trial should have been severed from his co-defendants 21 lacks merit for several reasons. First, “there is no clearly established federal law requiring 22 severance of criminal trials in state court even when the defendants assert mutually 23 antagonistic defenses.” Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012); see 24 also Collins v. Runnels, 603 F.3d 1127, 1132-33 (9th Cir. 2010) (“hold[ing] that neither 25 Zafiro v. United States nor United States v. Lane establish a constitutional standard 26 binding on the states requiring severance in cases where defendants present mutually 27 antagonistic defenses”). Second, a jury instruction was given to help combat any 28 confusion the jury may have had about the joint trial: 1 The case of each defendant should be considered separately and 2 individually. The fact that you may find one of the defendants guilty or not guilty of any of the crimes charged should not control your verdict as to any 3 other defendant. You may give separate consideration to the evidence as to each defendant. — 4 — 5 (Jury Instruction 39, Ex. 48 (ECF 18-12) at 42; see also Runningeagle, 686 F.3d at 777 6 (“[A]ny juror confusion was cured by the trial court’s instruction.”).) 7 And finally, in order to show that he was prejudiced, Kelsey must show that “there 8 [was] a reasonable probability that, but for” Edwards’s failure to successfully move to 9 sever his trial, “the result of the proceeding would have been different.” See Strickland, 10 466 U.S. at 694. The testimony of Simpson, Fallen, and Smith may not have been 11 presented had the trials been severed, but absent their testimony that Kelsey boasted 12 that he killed someone while wearing brass knuckles, Kelsey could still have been found 13 guilty of second-degree murder. Dr. Clark testified that “any and all of the blows may have 14 contributed to causing death” (Transcript of Proceedings, Ex. 37 (ECF 18-1) at 496), and 15 Dr. Omalu testified that “each and every blow contributed to his death” (Transcript of 16 Proceedings, Ex. 44 (ECF 18-8) at 29). Accordingly, whether he was wearing brass 17 knuckles or not when he hit the victim, the medical evidence was sufficient to show that 18 Kelsey contributed to the victim’s death, so there is no “reasonable probability” that Kelsey 19 would not have been convicted if he had been tried separately. Strickland, 466 U.S. at 20 694.Therefore, because there was no prejudice, the state court’s ruling on this claim was 21 not contrary to, or an unreasonable application of, clearly established federal law, as 22 determined by the Supreme Court, and was not based on an unreasonable determination 23 of the facts in light of the evidence. See 28 U.S.C. § 2254 (d). The Court will deny Kelsey 24 habeas corpus relief with respect to Ground 5. 25 IV. CERTIFICATE OF APPEALABILITY 26 The standard for the issuance of a certificate of appealability requires a “substantial 27 showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c). The Supreme Court 28 has interpreted 28 U.S.C. § 2253 (c) as follows: 1 Where a district court has rejected the constitutional claims on the merits, 2 the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s 3 assessment of the constitutional claims debatable or wrong. 4 || Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074 , 5 || 1077-79 (9th Cir. 2000). 6 Applying this standard, the Court finds that a certificate of appealability is 7 || unwarranted in this case. The Court will deny Kelsey a certificate of appealability. 8 || V. CONCLUSION 9 It is therefore ordered that the Petition for Writ of Habeas Corpus (ECF No. 6) is 10 || denied. 11 It is further ordered that Petitioner is denied a certificate of appealability. 12 It is further ordered that the Clerk of the Court is directed to enter judgment 13 || accordingly. 14 DATED THIS 22"4 day of August 2019. 15 — 16 SALW IRANDA M. DU, 17 UNITED STATES DISTRICT JUDGE — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —