Burch v. Garrett

[3] UNITED STATES DISTRICT COURT [4] DISTRICT OF NEVADA [5] * * * 6 MONTE LEE BURCH, Case No. 2:17-cv-00656-MMD-VCF 7 Petitioner, ORDER v. [8] 9 TIM GARRETT,1 et al., 10 Respondents. [11] 12 I. SUMMARY 13 Petitioner Monte Lee Burch, who is serving 110 years to life in prison after a jury 14 found him guilty of six counts of sexual assault with a minor under the age of 14, lewdness 15 with a minor under the age of 14, and attempted sexual assault with a minor under the 16 age of 14, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 . (ECF Nos. 17 19, 35-39.) This matter is before the Court for adjudication of the merits of the remaining2 18 grounds in Burch’s amended petition (“Petition”), which allege that the state district court 19 improperly admitted the victim’s statement and DNA analysis evidence, and his counsel 20 failed to object to the DNA analysis evidence on Confrontation Clause grounds, object to 21 the prosecution’s lack of notice regarding the introduction of the victim’s statement, and 22 adequately cross-examine the victim’s mother. (ECF No. 19.) For the reasons discussed 23 below, this Court denies the Petition and a Certificate of Appealability. [24] 25 1The Nevada corrections department’s inmate locator page states that Burch is incarcerated at Lovelock Correctional Center. Tim Garrett is the current warden for that 26 facility. At the end of this order, the Court directs the Clerk to substitute Tim Garrett as a Respondent for the prior Respondent Renee Baker. See Fed. R. Civ. P. 25(d). [27] 2This Court previously dismissed grounds 3, 4, 5, 6(c), 8, 9, and 10. (ECF Nos. 52, 28 55.) There is no ground 7 presented in Burch’s amended petition. (ECF Nos. 19, 72 at 61 n.7.) 2 Shawna Rodriguez, the mother of nine-year-old R.R., eight-year-old P.R., and two3 year-old T.B.,4 testified that she and her ex-boyfriend, Burch, started dating around 2005. 4 (ECF No. 35-33 at 5-6.) Rodriguez testified that she, R.R., P.R., and Burch lived in an 5 apartment “off of Flamingo and Mountain Vista” in Clark County, Nevada from the summer 6 of 2006 until January 2007. (Id. at 6.) And in January 2007, while Rodriguez was pregnant 7 with Burch’s son, T.B., Rodriguez, R.R., P.R., and Burch moved to a different apartment 8 “off of Flamingo and Cabana.” (Id.) 9 On July 16, 2008, while R.R. and T.B. were in daycare, Rodriguez testified Burch 10 and P.R., who wanted to run errands with Burch instead of going to daycare, dropped her 11 off at school in the early afternoon. (Id. at 8.) Burch took P.R. swimming before picking 12 Rodriguez up from school that evening. (Id.) Burch had been drinking and driving with 13 P.R. in the vehicle, causing a fight between Burch and Rodriguez. (Id.) Later that evening 14 after Rodriguez asked Burch to leave the residence, Rodriguez found a lotion bottle on 15 her bed, which was unusual “because [she] used it that morning in the bathroom.” (Id. at 16 7.) Rodriguez asked R.R. and P.R. “who had the lotion in [the] bed,” and P.R. said “[s]he 17 and [Burch] had used it . . . to get the ash off [her] skin.” (Id.) 18 P.R. was acting strange during this conversation, and after some prodding by 19 Rodriguez, P.R. told Rodriguez what had occurred between herself and Burch, including 20 “demonstrat[ing] some things for [Rodriguez]” and showing Rodriguez the location of a 21 pornographic video that she viewed with Burch. (Id. at 7, 10, 16.) Rodriguez called the 22 police the following morning and, after speaking with detectives, took P.R. to the hospital 23 for a sexual assault examination. (Id. at 8, 11.) Dr. Theresa Vergara conducted that [24] 25 3This Court makes no credibility findings or other factual findings regarding the truth or falsity of this evidence from the state court. This Court’s summary is merely a 26 backdrop to its consideration of the issues presented in the case. Any absence of mention of a specific piece of evidence does not signify this Court overlooked it in considering 27 Burch’s claims. 28 4This Court only refers to children by their initials. See LR IC 6-1(a)(2). 2 opening, which was indicative of possible trauma and abuse. (ECF No. 35-34 at 22, 24– 3 25, 29.) Dr. Vergara obtained swabs from P.R.’s vaginal area, rectum, and mouth. (Id. at 4 26.) 5 P.R. testified that while she was naked, Burch touched her between her legs with 6 “a part of his body that’s between his legs.” (ECF No. 35-33 at 18, 21.) P.R. also testified 7 that on another occasion, while living in their previous apartment, Burch touched her in 8 “the part [she] go[es] to the bathroom with.” (Id. at 22-23.) Following her testimony, outside 9 the presence of the jury, the state district court noted that P.R. had difficultly answering 10 the questions—“[s]he clearly withdrew, wadded herself up into a ball or curled around her 11 stuff animal and did not really wish to answer.” (Id. at 32-33.) 12 Detective Patricia Heldt of the Las Vegas Metropolitan Police Department testified 13 that she interviewed P.R. on July 17, 2008. (ECF No. 35-33 at 37-38.) During the first 14 portion of that interview, P.R. did not want to discuss any kind of sexual abuse, stating 15 she was embarrassed. (ECF No. 35-34 at 11.) However, about halfway into the interview, 16 P.R. stated that she saw Burch’s “wiener” and that Burch put lotion on his penis and “tried 17 to stick his wiener in her pee-pee but it wouldn’t work.” (Id. at 14-15, 17, 19.) P.R. told 18 Detective Heldt that Burch “shooted (sic) sperm out of” his penis and “when asked where 19 the sperm went[,] she . . . sa[id] inside [her] pee-pee.” (Id. at 17, 19.) At the end of the 20 encounter, Burch gave P.R. a purple “wash rag” to clean up. (Id. at 17.) Burch also 21 showed P.R. two scenes from a pornographic video and told P.R. that “if she ever told 22 anybody about this[,] he would spank her.” (Id. at 18.) P.R. also told Detective Heldt about 23 another occasion, which took place in her previous apartment, in which Burch instructed 24 her to lay on a bed naked, touched her “pee-pee and [her] butt” with his fingers, and 25 kissed her buttocks. (Id. at 19.)5 [26] 5In addition to Detective Heldt testifying about the statements P.R. made to her 27 during her interview, an audio recording of the interview was played for the jury. (ECF No. 35-34 at 4.) In that audio recording, P.R. made, inter alia, the following statements about 28 the incidents that took place on July 16, 2008: (1) Burch tried to put his “wiener” in her 2 underwear from the residence. (ECF No. 35-33 at 40.) Following Burch’s arrest, Detective 3 Heldt “served a search warrant to collect [Burch’s] inner cheek scrapings for a buccal 4 swab.” (Id. at 41.) Kimberly Murga, the DNA lab manager with the Las Vegas Metropolitan 5 Police Department, testified that Craig King, a former DNA examiner, obtained DNA 6 results from P.R.’s vaginal swabs, rectal swab, blue underwear worn to the hospital for 7 her examination, and purple underwear collected from her residence. (ECF No. 35-34 at 8 31-32.) Burch’s sperm was found in P.R.’s first vaginal swab, the crotch of the blue 9 underwear, and “all over” the purple underwear; further, Burch’s DNA could not be 10 excluded as the sperm contributor in P.R.’s rectal swab and second vaginal swab. (Id. at 11 35-38.) 12 A jury found Burch guilty of six counts of sexual assault with a minor under the age 13 of 14, lewdness with a minor under the age of 14, and attempted sexual assault with a 14 minor under the age of 14. (ECF No. 35-35.) The Nevada Supreme Court affirmed Burch’s 15 judgment of conviction, and the Nevada Court of Appeals affirmed the denial of Burch’s 16 state postconviction petition. (ECF Nos. 35-40, 37-26.) 17 III. LEGAL STANDARD 18 Title 28 of United States Code section 2254(d) sets forth the standard of review 19 generally applicable in habeas corpus cases under the Antiterrorism and Effective Death 20 Penalty Act (“AEDPA”): 21 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 [23] “pee pee” but “it was too big,” (2) Burch “put lotion on [his wiener] and tried to make it 24 slippery” and “tried to stick [it] in [her] pee pee again but it wouldn’t work still,” (3) Burch touched her “pee pee” with his tongue, (4) Burch put his fingers in her “pee pee” three 25 times, (5) Burch “shooted [sic] sperm out of [his wiener]” onto her “pee pee” after “movin’ [sic] [his hand] back and forth” on his “wiener,” (6) Burch “tried to make [her] eat [the 26 sperm],” and (7) Burch “tried to make [her] suck on” his “wiener.” (ECF No. 20-1 at 47-49, 51-52, 55-56, 58.) Moreover, in that audio recording, P.R. made, inter alia, the following 27 statements about incidents that took place on an earlier occasion: (1) Burch touched her “pee pee” with “[h]is wiener, his tongue and his fingers,” and (2) Burch kissed her butt 28 cheeks. (Id. at 67-68.) unless the adjudication of the claim — [2] (1) resulted in a decision that was contrary to, or involved an [3] unreasonable application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 6 State court proceeding. [7] 8 A state court decision is contrary to clearly established Supreme Court precedent, within 9 the meaning of 28 U.S.C. § 2254 , “if the state court applies a rule that contradicts the 10 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 11 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 12 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362 , 13 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 14 is an unreasonable application of clearly established Supreme Court precedent within 15 the meaning of 28 U.S.C. § 2254 (d) “if the state court identifies the correct governing 16 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 17 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413 ). 18 “The ‘unreasonable application’ clause requires the state court decision to be more than 19 incorrect or erroneous. The state court’s application of clearly established law must be 20 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10 ) (internal citation 21 omitted). 22 The Supreme Court has instructed that “[a] state court’s determination that a 23 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could 24 disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 25 U.S. 86 , 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The 26 Supreme Court has stated “that even a strong case for relief does not mean the state 27 court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 28 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as 2 which demands that state-court decisions be given the benefit of the doubt” (internal 3 quotation marks and citations omitted)). 4 IV. DISCUSSION 5 A. Ground 1—admission of P.R.’s statement 6 In ground 1, Burch alleges that the state district court admitted P.R.’s statement 7 into evidence in violation of his rights under the Fifth, Sixth, and Fourteenth 8 Amendments. (ECF No. 19 at 10.) Specifically, Burch argues that because the 9 prosecution did not seek to introduce P.R.’s statement until after she had already 10 testified and declined to ask P.R. during direct examination about the specific 11 accusations she made in that statement, he did not have a full and fair opportunity to 12 cross-examine her about her statement. (ECF No. 72 at 15-16, 24.) 13 1. Background information 14 During a break in jury selection, the prosecution notified the state district court of 15 the following: [16] The child in this case, [P.R.] is eight years old, and as with any child 17 I have no idea when she comes in here if she’s going to talk or not. It is possible that she’ll just ramble on about the conduct alleged in the 18 information. It’s possible she’ll curl up in a ball and say nothing. If she curls up in a ball and says nothing, it would be my intent [19] pursuant to 51.385 to bring in her statement through the detective. And the 20 more I thought about it, my hope would be if I have to go that way to play her taped statement. 21 I did talk to [defense counsel] about that before the Court - - before you got on the bench . . . . 22 I do expect that [defense counsel] will object, but pursuant to 51.385 she is under 10. And I think that if the detective testified for five minutes [23] outside the presence of the jury, the Court could pursuant to that statute 24 make the findings of trustworthiness and whatnot. 25 (ECF No. 35-32 at 4.) Defense counsel clarified that his objection “would be a Crawford 26 violation, a violation of [Burch’s] right to confront his accuser.” (Id.) 27 As noted previously, after P.R.’s testimony, the state district court stated for the 28 record, outside the presence of the jury, that P.R. had difficulty answering questions and 2 prosecution indicated that it wanted to offer P.R.’s statements to Detective Heldt 3 pursuant to NRS § 51.3856 by playing an audio recording of the interview for the jury. 4 (Id. at 34.) Later that day, after the jury had been excused, the prosecution made a 5 proffer of the proposed testimony. (Id. at 44.) Detective Heldt testified at that hearing 6 about the circumstances and content of her interview with P.R. (Id. at 44-48.) After 7 considering the trustworthiness of P.R.’s statements pursuant to the factors outlined in 8 NRS § 51.385(2), the state district court allowed the admission of the audio recording of 9 the interview. (Id. at 51.) The next morning, during the continuance of Detective Heldt’s 10 trial testimony, the hour-long audio recording of P.R.’s interview was played for the jury. 11 (ECF No. 35-34 at 4.) 12 2. Confrontation Clause standards 13 The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal 14 prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 15 against him.” U.S. Const. amend. VI. “[A] primary interest secured by [the Confrontation 16 Clause] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415 , 418 17 (1965); see also Maryland v. Craig, 497 U.S. 836, 845 (1990) (“The central concern of 18 the Confrontation Clause is to ensure the reliability of the evidence against a criminal 19 defendant by subjecting it to rigorous testing in the context of an adversary proceeding 20 before the trier of fact.”); Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (“[T]he 21 Confrontation Clause is generally satisfied when the defense is given a full and fair 22 opportunity to probe and expose . . . infirmities through cross-examination, thereby 23 calling to the attention of the factfinder the reasons for giving scant weight to the witness’ 24 testimony.”); Davis v. Alaska, 415 U.S. 308, 316 (1974) (“Cross-examination is the [25] 26 6NRS § 51.385(1) provides, in relevant part, that “a statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the 27 child . . . is admissible in a criminal proceeding” if the state district “court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement 28 provide sufficient circumstantial guarantees of trustworthiness.” 2 tested.”). 3 While “the Confrontation Clause guarantees an opportunity for effective cross4 examination,” it does not guarantee “cross-examination that is effective in whatever way, 5 and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673 , 6 679 (1986) (internal quotation marks omitted); see also Kentucky v. Stincer, 482 U.S. 7 730, 739 (1987) (“[T]he Confrontation Clause’s functional purpose i[s] ensuring a 8 defendant an opportunity for cross-examination.”). Regarding out-of-court statements 9 admitted at trial, as is relevant here, the Confrontation Clause bars “admission of 10 testimonial statements of a witness who did not appear at trial unless he was unavailable 11 to testify, and the defendant had had a prior opportunity for cross-examination.” 12 Crawford v. Washington, 541 U.S. 36, 53-54 (2004). 13 3. State court determination 14 In affirming Burch’s judgment of conviction, the Nevada Supreme Court held: [15] First, appellant Monty Lee Burch argues that the State’s use of the 16 victim’s unsworn police statement violated his confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004), and NRS 51.385 and allowed 17 his conviction to be sustained by an unsworn statement. 18 [FN1] Burch also contends that the admission of the victim’s unsworn police statement violated article 1, § 10 of the United [19] States Constitution. However, he did not object to the 20 evidence on that basis below and therefore his claim is not preserved for appellate review. See Pantano v. State, 122 21 Nev. 782 , 795, 138 P.3d 477, 485 (2006). [22] As to Burch’s Crawford claim, that case does not apply as the victim testified at trial and was subject to cross-examination. Crawford, 541 U.S. 23 at 68-69 (precluding admission of testimonial hearsay statements of 24 unavailable declarant unless defendant had prior opportunity to crossexamine); see Walters v. McCormick, 122 F.3d 1172, 1175 (9th Cir. 1997) 25 (“When a witness gives ‘testimony that is marred by forgetfulness, confusion, or evasion . . . the Confrontation Clause is generally satisfied [26] when the defense is given a full and fair opportunity to probe and expose 27 those infirmities through cross-examination’” (quoting Delaware v. Fenterer, 474 U.S. 15, 22 (1985))); see Pantano v. State, 122 Nev. 782, 787-91 , 138 [28] circumstances). [2] 3 (ECF No. 36-14 at 2-3.) 4 4. Analysis 5 Burch’s argument that his cross-examination of P.R. on her statement, which was 6 not admitted until later in the trial, was ineffective because the prosecution’s direct 7 examination of P.R. regarding her statement was limited, is belied by the record. 8 Although the prosecution was unable to ask P.R. leading questions about specific 9 accusations P.R. made to Detective Heldt during her interview, the prosecution asked 10 P.R., inter alia, if she spoke to a detective one day, if she told the detective “why we’re 11 here today,” if she told the detective “stuff” about Burch, if she remembered telling the 12 detective what Burch did, what she told the detective, and if she told the detective about 13 the incident that occurred at her previous apartment. (ECF No. 35-33 at 20-21, 23.) 14 As such, on this record, Burch fails to support his argument that he was denied 15 an opportunity for a full, fair, and effective cross-examination of P.R. relating to her 16 statement before it was admitted. Therefore, the Nevada Supreme Court’s 17 determination that the Confrontation Clause was not implicated because P.R. testified 18 at Burch’s trial and Burch had an opportunity to effectively cross-examine her, 19 constitutes an objectively reasonable application of clearly established federal law and 20 was not based on an unreasonable determination of the facts. See Crawford, 541 U.S. 21 at 60 n.9 (“[W]hen the declarant appears for cross-examination at trial, the Confrontation 22 Clause places no constraints at all on the use of his prior testimonial statements . . . . 23 The Clause does not bar admission of a statement so long as the declarant is present 24 at trial to defend or explain it.”). Burch is therefore not entitled to federal habeas relief 25 for ground 1. 26 /// 27 /// 28 /// 2 In ground 6, Burch alleges three-remaining sub-grounds—6(a), 6(b), and 6(d)— 3 that his trial counsel provided ineffective assistance in violation of his rights under the 4 Sixth and Fourteenth Amendments. (ECF No. 19 at 22.) 5 1. Standard for effective assistance of counsel 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. Additionally, 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. 19 Rather, the errors must be “so serious as to deprive the defendant of a fair trial, a trial 20 whose result is reliable.” Id. at 687. 21 2. Procedural default 22 Burch previously acknowledged that grounds 6(a), 6(b), and 6(d) are 23 unexhausted, but he contends that they should be considered technically exhausted and 24 that he can demonstrate cause to excuse the procedural default pursuant to Martinez v. 25 Ryan, 566 U.S. 1 (2012). (ECF No. 52 at 10.) This Court deferred consideration of this 26 contention until this time. (Id. at 12.) [28] 2 underlying ineffective-assistance-of-counsel claims are substantial; (2) if so, whether 3 Burch’s state post-conviction counsel was ineffective in raising these claims in the state 4 district court; and (3) if so, whether, on the merits, Burch was denied effective assistance 5 of counsel. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059-60 (9th Cir. 2017); Detrich 6 v. Ryan, 740 F.3d 1237, 1243-46 (9th Cir. 2013). On all such issues, this Court’s review 7 is de novo. See Ramirez v. Ryan, 937 F.3d 1230, 1243 (9th Cir. 2019); Atwood, 870 8 F.3d at 1060 n.22. 9 3. Ground 6(a)—objection to Murga’s testimony 10 In ground 6(a), Burch alleges that counsel failed to object to Murga’s testimony 11 on Confrontational Clause grounds. (ECF No. 19 at 23.) Burch’s allegation is based on 12 the prosecution calling Murga, rather than the forensic scientist who performed the DNA 13 testing, to testify about the forensic scientist’s report. (Id. at 13.) 14 a. Background information 15 Murga testified that, as “the DNA lab manager,” she was responsible for 16 “oversee[ing] all of the operations in the DNA lab,” including supervising personnel and 17 conducting “scientific oversights.” (ECF No. 35-34 at 31.) Murga explained that Craig 18 King, who performed the DNA analysis in this case, was no longer employed by the Las 19 Vegas Metropolitan Police Department, indicating that “[h]e actually took a position as a 20 civilian contracting agent . . . in Iraq . . . working in the field as a DNA examiner.” (Id.) 21 Murga testified that she reviewed King’s analysis in this case8 because “we actually 22 have to have two layers of review on every single DNA case that leaves the lab. And so 23 not only does the person examining the case put the case together, but . . . independent 24 reviews also occur for every case that leaves Metro’s lab for DNA.” (Id. at 32-33.) Murga [26] 7This Court does not dwell over the additional, undisputed contextual background 27 requirements. See Rodney v. Filson, 916 F.3d 1254, 1259-60 (9th Cir. 2019). 28 8Murga signed the examination report written by King as a “[r]eviewer.” (ECF No. 2 at Burch’s trial. (Id. at 34.) 3 b. Analysis 4 In June 2009, six months before Burch’s trial, the Supreme Court held that 5 “analysts’ affidavits [are] testimonial statements,” so “[a]bsent a showing that the 6 analysts were unavailable to testify at trial and that petitioner had a prior opportunity to 7 cross-examine them, petitioner was entitled to be confronted with the analysts at trial.” 8 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) (emphasis in original) 9 (internal quotation marks omitted). Importantly, the facts of Burch’s case differ from 10 Melendez-Diaz, where a lab report was submitted without live testimony. Here Murga, 11 who supervised King, was familiar with the DNA laboratory’s procedures, and 12 participated personally in the work that was done by completing an independent review, 13 testified about the DNA analysis, and was subject to cross-examination. Accordingly, 14 there was no reasonable probability that a Confrontation Clause objection would have 15 been sustained by the state district court given the State of Nevada and United States 16 Supreme Court Confrontation Clause jurisprudence at the time of Burch’s trial.9 See, 17 e.g., Hacheney v. Obenland, 732 F. App’x 541 , 543 (9th Cir. 2018) (“Neither Crawford . 18 . . nor Melendez-Diaz . . . , the key Supreme Court cases that had been decided when 19 [petitioner’s] convictions became final in 2010, addressed” whether “a supervisor could 20 [or could] not testify about reports performed by examiners that he oversaw.”). 21 Moreover, even today, there does not appear to be clearly established federal 22 law that would make the lack of objection to, or admission of, Murga’s testimony 23 objectively unreasonable. In June 2011, three months after Burch’s direct appeal was 24 decided, the United States Supreme Court held that [26] 9During closing arguments, defense counsel stated Murga “reviewed the person 27 who did [the DNA analysis] and then she reviewed his reports. And legally, that’s efficient [sic] for her to come in and testify.” (ECF No. 35-36 at 11.) Accordingly, Burch’s contention 28 that counsel “simply missed this obvious issue” (ECF No. 72 at 45) is belied by the record. a forensic laboratory report containing a testimonial certification—made for 2 the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test [3] reported in the certification . . . unless the analyst is unavailable at trial, and 4 the accused had an opportunity, pretrial, to cross-examine the particular scientist. [5] 6 Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011). Importantly, Justice Sotomayor, 7 who provided the fifth vote for the majority in Bullcoming, identified, in her separate 8 opinion, a Confrontation Clause question that remained unanswered—the degree of 9 proximity the testifying witness must have to the scientific test, explaining “this is not a 10 case in which the person testifying is a supervisor, reviewer, or someone else with a 11 personal, albeit limited, connection to the scientific test at issue.” Id. at 672 (Sotomayor, 12 J., concurring in part). This open question is relevant to Murga’s testimony. Moreover, 13 in Williams v. Illinois, five Justices agreed that the admission of expert testimony 14 referring to an out-of-court DNA profile did not violate the Confrontation Clause. 567 15 U.S. 50 , 86 (2012). And as Justice Breyer acknowledged in his concurrence, the Court 16 did not settle how “Confrontation Clause ‘testimonial statement’ requirements apply to 17 crime laboratory reports.” Id. at 92 (Breyer, J., concurring). 18 In sum, Burch fails to demonstrate that there is a reasonable probability that the 19 state district court would have excluded Murga’s testimony had counsel objected to it on 20 Confrontation Clause grounds. See Strickland, 466 U.S. at 694. Thus, ground 6(a) is not 21 substantial for purposes of Martinez, is procedurally defaulted, and is dismissed. 22 c. Procedural default of ground 2 23 Relatedly, in ground 2, Burch alleges that the state district court admitted hearsay 24 evidence regarding DNA analysis in violation of his rights under the Fifth, Sixth, and 25 Fourteenth Amendments. (ECF No. 19 at 13.) Burch previously acknowledged that 26 ground 2 was unexhausted and procedurally defaulted. (ECF No. 52 at 10.) However, 27 Burch argued that he could show cause to excuse the procedural default. (Id.) This Court 28 previously held that “[i]f Burch can demonstrate cause to excuse the procedural default 2 ground two.” (Id. at 12.) 3 Because Burch has not demonstrated cause and prejudice to excuse the 4 procedural default of ground 6(a), as discussed previously, ground 6(a) is not cause to 5 excuse the procedural default of ground 2. See Edwards v. Carpenter, 529 U.S. 446 , 6 453 (2000). Ground 2 is procedurally defaulted and dismissed. 7 4. Ground 6(b)—objection to lack of statement notice 8 In ground 6(b), Burch alleges that counsel failed to object to the prosecution’s 9 lack of 10-days-written notice regarding its intent to introduce P.R.’s interview statement. 10 (ECF No. 19 at 23.) It is true that “[a] trial counsel’s failure to object to evidence which 11 is inadmissible under state law can constitute deficient performance under Strickland.” 12 Delgadillo v. Woodford, 527 F.3d 919, 928 (9th Cir. 2008). However, Burch fails to 13 demonstrate that P.R.’s interview statement was inadmissible under Nevada law due to 14 a lack of notice. NRS § 51.385(3) provides “[i]f the child is unavailable or unable to 15 testify, written notice must be given to the defendant at least 10 days before the trial of 16 the prosecution’s intention to offer the statement in evidence.” (Emphasis added.) 17 Importantly, P.R. was not unavailable or unable to testify; rather, she testified at 18 Burch’s trial. (ECF No. 35-33 at 18.) Accordingly, based on a plain reading of NRS § 19 51.385(3), the prosecution was not required to give prior written notice of its intent to 20 offer P.R.’s interview statement. See, e.g., Branagan v. State, Case No. 65782, 2015 21 WL 3669934 , at *1 (Nev. June 10, 2015) (concluding that the state district court did not 22 err in finding that “notice under NRS 51.385(3) was not required because the victim 23 testified and was subject to cross-examination”). As such, Burch fails to demonstrate 24 that counsel’s “representation fell below an objective standard of reasonableness” in not 25 challenging the prosecution’s lack of notice. See Strickland, 466 U.S. at 688. Ground 26 6(b) is not substantial for purposes of Martinez, is procedurally defaulted, and is 27 dismissed. 28 /// 2 In ground 6(d), Burch alleges that counsel failed to adequately cross-examine 3 Rodriguez. (ECF No. 19 at 24.) Specifically, Burch explains that his defense at trial was 4 that after he and Rodriguez would have sex, he would grab any available clothing near 5 the bed and use it to wipe himself off, explaining that is how his sperm got on P.R.’s 6 underwear, which in turn is how his sperm ended up on P.R.’s vaginal and rectal swabs. 7 (Id.) However, Burch contends that counsel failed to ask Rodriguez about this subject. 8 (Id. at 25.) 9 In Burch’s interview with police, he “claimed that when he and [Rodriguez] have 10 sex they will pick up whatever piece of clothing or rag they can find to wipe the semen 11 onto therefore, finding his semen on the victim’s panties proves nothing.” (ECF No. 2012 2 at 2.) Police interviewed Rodriguez “to determine whether the details [Burch] provided 13 during his interview were accurate.” (Id.) Rodriguez “confirmed that [Burch] will often 14 use his own t-shirt or boxers to wipe semen off of himself and [Rodriguez] following 15 sexual intercourse.” (Id.) When Rodriguez was “asked about [P.R.’s] purple panties[,] . 16 . . she said that her children’s clothing is rarely left inside her room.” (Id.) And when 17 asked “if she could recall if [Burch] ever used or had her use the purple panties to wipe 18 themselves[,] . . . she replied that she could not recall that either one of them had used 19 the panties and that they were too small to use to clean up with.” (Id.) 20 Questioning Rodriguez about Burch’s practice of using pieces of available 21 clothing to wipe himself off after sex would have been beneficial evidence for Burch’s 22 defense if Rodriguez testified consistently with her police interview. However, 23 importantly, questioning Rodriguez in this regard would have prompted the prosecution 24 to seek the following harmful testimony from Rodriguez on redirect—P.R.’s panties were 25 rarely in the room for Burch’s use, she could not recall Burch using P.R.’s panties to 26 wipe himself, and P.R.’s panties would have been too small of a piece of clothing for 27 Burch to use for wiping purposes. [28] 2 introducing this line of questioning with Rodriguez due to its potential to damage his 3 defense. See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (“[C]ounsel’s tactical 4 decisions at trial, such as refraining from cross-examining a particular witness or from 5 asking a particular line of questions, are given great deference and must similarly meet 6 only objectively reasonable standards.”). Instead, counsel introduced the defense’s 7 theory during his cross-examination of Murga, asking her a hypothetical question 8 regarding DNA and Burch’s use of the “pair of purple underwear to wipe himself off after 9 sexual activity.” (ECF No. 35-34 at 39.) Consequently, Burch fails to demonstrate that 10 counsel’s “representation fell below an objective standard of reasonableness” regarding 11 his cross-examination of Rodriguez. See Strickland, 466 U.S. at 688. Ground 6(d) is not 12 substantial for purposes of Martinez, is procedurally defaulted, and is dismissed. 13 V. CERTIFICATE OF APPEALABILITY 14 This is a final order adverse to Burch. Rule 11 of the Rules Governing Section 15 2254 Cases requires this Court to issue or deny a certificate of appealability (COA). This 16 Court has sua sponte evaluated the claims within the Petition for suitability for the 17 issuance of a COA. See 28 U.S.C. § 2253 (c); Turner v. Calderon, 281 F.3d 851 , 864-65 18 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253 (c)(2), a COA may issue only when the 19 petitioner “has made a substantial showing of the denial of a constitutional right.” With 20 respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable 21 jurists would find the district court’s assessment of the constitutional claims debatable or 22 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 23 880 , 893 n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists 24 could debate (1) whether the petition states a valid claim of the denial of a constitutional 25 right and (2) whether this Court’s procedural ruling was correct. See id. 26 Applying these standards, this Court finds that a COA is unwarranted.10 [27] 10Burch requests that this Court conduct an evidentiary hearing. (ECF No. 19 at 28 28.) Burch’s request is denied because neither further factual development nor any 1 VI. CONCLUSION 2 It is therefore ordered that the amended petition for a writ of habeas corpus 3 || pursuant to 28 U.S.C. § 2254 (ECF No. 19) is denied. 4 It is further ordered that a certificate of appealability is denied. 5 The Clerk of Court is directed to substitute Tim Garrett for Respondent Renee 6 || Baker, to enter judgment accordingly, and to close this case. 7 DATED THIS 22"¢ Day of March 2022. [3] A LShQ [9] MIRANDA M. DU 10 CHIEF UNITED STATES DISTRICT JUDGE [27] 28 || evidence that may be proffered at an evidentiary hearing would entitle Burch to relief. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).